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State v. Manning

Supreme Court of New Jersey

January 13, 2020

State of New Jersey, Plaintiff-Appellant,
v.
Randy K. Manning, Defendant-Respondent.

          Argued September 23, 2019

          On certification to the Superior Court, Appellate Division.

          William P. Miller, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Mark Musella, Bergen County Prosecutor, attorney; William P. Miller, of counsel and on the briefs, and Catherine A. Foddai, Legal Assistant, on the briefs).

          Alison Perrone, First Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alison Perrone, of counsel and on the brief, and Michael Confusione, Designated Counsel, on the letter brief).

          Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah Lichter, Deputy Attorney General, of counsel and on the brief).

          Rubin M. Sinins argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins and American Civil Liberties Union of New Jersey Foundation, attorneys; Rubin M. Sinins, Herbert I. Waldman, Annabelle Steinhacker, Alexander Shalom, and Jeanne LoCicero, on the brief).

          ALBIN, J., writing for the Court.

         The primary issue in this appeal is whether, during the interim period between passage of the amendment to the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act) in 2010 and the effective date of the Court's decision in State v. Earls, 214 N.J. 564 (2013), the constitutional warrant requirement and corresponding suppression remedy applied to securing cell-phone location information. This appeal also presents the issues of whether exceptions to the warrant requirement applied to securing that information and whether those same exceptions also applied to securing call-detail records under State v. Hunt, 91 N.J. 338 (1982).

         Here, in 2011, after the Wiretap Act amendment went into effect but before the Court's decision in Earls, law-enforcement officers -- without a warrant or court order -- obtained defendant Randy K. Manning's cell-phone records by submitting an exigent-circumstances request to a cell-phone service provider. Thus, the constitutional propriety of the police conduct depends on the application of the exigent-circumstances doctrine.

         On August 16, 2011, shortly after 8:00 a.m., the Bergen County Prosecutor's Office investigated the grisly murder of a victim who had died from multiple gunshot wounds and whose charred body was found in the rear of his Chevy. Detectives secured a judicially authorized warrant to search the vehicle. By the late afternoon or early evening of August 16, Detective John Frazer had two pieces of information that made defendant "a person of interest": defendant's fake California license was found in the Chevy owned by his friend, the victim, and defendant's timeline of his claimed whereabouts seemingly conflicted with the victim's cell-phone records.

         Despite the securing of a search warrant earlier for the Chevy, Detective Frazer bypassed the warrant/court-order process and, that evening, submitted an exigent-circumstances request form to AT&T for defendant's cell-phone records. Detective Frazer admittedly used the exigent-circumstances request "as an investigatory tool." Although the detective stated that applying for a search warrant "was not practical at that time," he conceded that he could have applied for a telephonic warrant. He gave no estimate of the time that it would have taken to apply for a telephonic warrant or to prepare an affidavit for a search warrant. Nor did he estimate the time it would have taken to secure a warrant, given that a Superior Court judge was on call.

         Based on the cell-phone records, defendant became the target of the investigation. The next day, Detective Frazer submitted three separate and detailed affidavits in support of three warrants, including one for a wiretap of, and another for further communications data from, defendant's cell phone. According to Detective Gary Boesch, on August 17, defendant called the Bergen County Police Department and inquired whether the police wanted to speak with him. The next day Detective Boesch returned defendant's call. On August 19, defendant took public transportation to the Hackensack bus terminal, where Detective Boesch picked him up for questioning.

         The trial court denied defendant's motion to suppress the warrantless search of his cell-phone records based on the exigent-circumstances exception. Defendant was convicted of murder, desecration of human remains, and related crimes. In an unpublished opinion, the Appellate Division reversed defendant's convictions on two grounds and remanded for a new trial. First, the Appellate Division held that the trial court erred in not granting defendant's request for jury instructions on aggravated manslaughter and reckless manslaughter -- lesser-included offenses to the charge of murder. Second, the Appellate Division held that the failure of the police to secure a warrant or court order for defendant's cell-phone records should have resulted in the suppression of those records.

         The Court granted the State's petition for certification "limited to the issue of the admissibility of the defendant's cell phone records." 235 N.J. 311 (2018).

         HELD: During the three-year interim period between passage of the amendment to the Wiretap Act in 2010 and the effective date of the Court's Earls decision in 2013, individuals possessed a reasonable expectation of privacy in cell-phone location information cognizable under our State Constitution. As in other contexts, exceptions to the constitutional warrant requirement -- such as consent or exigent circumstances -- apply to securing cell-phone records. Therefore, in 2011, our Constitution required law-enforcement officers to obtain either a warrant or court order for cell-phone location information in accordance with the standards of N.J.S.A. 2A:156A-29 or to satisfy one of the exceptions to the warrant requirement. It also follows that, under Article I, Paragraph 7, the exclusionary rule applies to unconstitutional searches and seizures of cell-phone records. Here, the State did not obtain a warrant or court order and failed to satisfy its burden of proving that exigent circumstances justified the warrantless search, requiring suppression of defendant's cell-phone records.

         1. In 2013, in Earls, the Court held that Article I, Paragraph 7 of our State Constitution afforded individuals a reasonable expectation of privacy in their cell-phone location information. 214 N.J. at 588. In light of the constitutional right to privacy safeguarded by Article I, Paragraph 7, the Court declared that law enforcement "must obtain a warrant based on a showing of probable cause, or qualify for an exception to the warrant requirement," to secure cell-phone location information. Ibid. The Court determined that the Earls decision represented a new rule of law and therefore applied the warrant requirement for cell-phone location information prospectively. Id. at 591. The Court recognized, however, that since the 2010 amendment to the Wiretap Act, state law had required law enforcement to secure a court order or a warrant to obtain cell-phone location information from a service provider. Id. at 589 (citing N.J.S.A. 2A:156A-29). (pp. 18-23)

         2. The Court now holds that the constitutional warrant requirement applied to cell-phone location information during the three-year interim period between passage of the amendment to the Wiretap Act in 2010 and the effective date of the Court's Earls decision in 2013. However, in light of Earls and the legitimate expectations of law enforcement under the Wiretap Act, the Court also determines that the standard for securing a court order for those records during the three-year interim period was the one set forth in the Act. That is, in the absence of an exception to the warrant requirement, to secure cell-phone location information from a service provider, law enforcement was required, at the very least, to obtain a court order based on "specific and articulable facts showing that there [were] reasonable grounds to believe that the record or other information . . . [was] relevant and material to an ongoing criminal investigation." See N.J.S.A. 2A:156A-29(e). The Court also expressly holds that following the 2010 amendment to the Wiretap Act, law-enforcement officers were justified in relying on well-established exceptions to the State Constitution's warrant requirement for securing cell-phone records, including the exigent-circumstances exception. Cell-phone records seized in violation of our State Constitution are subject to the exclusionary rule. (pp. 24-25)

         3. When the State invokes the exigent-circumstances exception to justify a warrantless search it must prove that law-enforcement officers had an objectively reasonable basis to believe that securing a warrant was not practicable because immediate action was necessary to stop the flight of a suspect, to safeguard members of the public from a threat of harm, or to prevent the destruction of evidence. The Court has never held that a generalized concern about public or police safety or the preservation of evidence would justify a warrantless search or seizure. (pp. 25-31)

         4. Detective Frazer was unable to articulate anything more than a generalized concern for public safety and the preservation of evidence as reasons for not complying with the warrant requirement. He did not identify an objectively reasonable basis to believe that there was a threat to the public or police, or that evidence might be destroyed, in the time it would have taken to obtain a warrant. After reviewing defendant's cell-phone records and determining that defendant was clearly a suspect, the next day Detective Frazer prepared three separate and detailed affidavits for search warrants. The Prosecutor's Office did not make any concerted effort to immediately interrogate or detain defendant. A review of the totality of the evidence reveals that the Prosecutor's Office was able to comply with the dictates of the warrant requirement of our State Constitution during the murder investigation. The State failed to satisfy its burden of proving that the warrantless search of defendant's cell-phone records was objectively reasonable to meet the type of exigency recognized in our jurisprudence. For the reasons expressed, the Court affirms the judgment of the Appellate Division vacating defendant's convictions and remands the matter to the trial court. (pp. 31-36)

         AFFIRMED. The matter is REMANDED for further proceedings.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE ALBIN's opinion.

          ALBIN, JUSTICE.

         Cell-phone records can reveal intimate details about peoples' lives and relationships -- the persons and groups with whom they associate, the doctors they choose, the religious services they attend, the stores they patronize, the recreational places they visit, and much more.[1] See State v. Earls, 214 N.J. 564, 586 (2013); State v. Lunsford, 226 N.J. 129, 131 (2016); State v. Hunt, 91 N.J. 338, 345 (1982). In Earls, we recognized that individuals have an expectation of privacy in cell-phone location information cognizable under the New Jersey Constitution. 214 N.J. at 588. Accordingly, we held that law-enforcement officers may secure such information from a cell-phone service provider only when armed with a judicial warrant supported by probable cause or when justified by an exception to the warrant requirement. Id. at 588-89. We applied Earls, decided in 2013, prospectively. Id. at 591.

         We acknowledged, however, that since a January 12, 2010 amendment to the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act), the securing of cell-phone location information required law-enforcement officials to obtain a court order based on a reasonable-grounds standard supported by specific and articulable facts, or a warrant. See id. at 591-92; N.J.S.A. 2A:156A-29(c) and (e). That statutory scheme does not provide for an exigent-circumstances exception (other than in one limited circumstance) or a suppression remedy for unlawfully acquired cell-phone location information. See N.J.S.A. 2A:156A-27, -29(c) and (e), -32, and -34.

         In the case before us, in 2011, after the Wiretap Act amendment went into effect but before our decision in Earls, law-enforcement officers -- without a warrant or court order -- obtained defendant Randy K. Manning's cell-phone records by submitting an exigent-circumstances request to a cellphone service provider. Defendant was convicted of murder, desecration of human remains, and related crimes. The Appellate Division reversed, in part, on the ground that the trial court erred in not suppressing defendant's cell-phone records.

         Defendant argues that no legitimate exigency justified the violation of the Wiretap Act's warrant/court-order requirement and therefore his cell-phone records introduced at his murder trial should have been suppressed. The State contends that the law-enforcement officers faced exigent circumstances that justified securing the cell-phone records without a warrant or court order based on the heinous nature of the crime under investigation, the murderer's fugitive status and effort to conceal his identity, and the fear that evidence might be destroyed by the delay in seeking a judicial order.

         The 2010 amendment to the Wiretap Act provided individuals with an expectation of privacy in their cell-phone location information. Earls, 214 N.J. at 589. We now hold that the protection against unreasonable searches and seizures in Article I, Paragraph 7 of our State Constitution also conferred an expectation of privacy in that information since 2010. Therefore, in 2011, our Constitution required law-enforcement officers to obtain either a warrant or court order for cell-phone location information in accordance with the standards of N.J.S.A. 2A:156A-29 or to satisfy one of the exceptions to the warrant requirement. Here, the constitutional propriety of the police conduct depends on the application of the exigent-circumstances doctrine.

         In view of the totality of the evidence, we conclude that the State did not establish that the exigent-circumstances exception justified securing defendant's cell-phone records without a warrant or court order. Indeed, during the period the perpetrator remained at large and the nature of the threat assessment remained unchanged, law-enforcement officers secured warrants before and after they obtained defendant's cell-phone records by an exigent-circumstances request. The State failed to demonstrate that there was an objectively reasonable basis to believe that lives might be endangered or evidence destroyed in the time necessary to secure a warrant. See State v. Johnson, 193 N.J. 528, 552-53 (2008); State v. DeLuca, 168 N.J. 626, 632-33 (2001).

         Accordingly, the improperly obtained cell-phone records should have been suppressed. The wrongful admission of that information at defendant's trial requires the reversal of his convictions. We are therefore compelled to remand for a new trial.

         I.

         We turn first to the procedural history and facts.

         In December 2011, a Bergen County grand jury returned an indictment charging defendant Manning with twelve offenses, including murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree aggravated arson, N.J.S.A. 2C:l7-l(a); second-degree desecration of human remains, N.J.S.A. 2C:22-l(a)(1); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4); and second-degree burglary, N.J.S.A. 2C:18-2.

         Before trial, defendant moved to suppress the admission of his cellphone records that were secured, without a warrant or court order, based on an exigent-circumstances request to his cell-phone provider. The trial court conducted a suppression hearing at which one witness testified -- Detective John Frazer of the Bergen County Prosecutor's Office. The record is mostly drawn from Detective Frazer's testimony at the hearing and one of the affidavits he prepared for warrant applications for phone records and wiretaps.

         Sometime between 4:00 and 4:30 a.m. on August 16, 2011, a resident of Village Circle West in Paramus was awakened by the sounds of a barking dog and a car alarm. Looking out his window, he saw a light-skinned man walk away from a 2001 black Chevy Tahoe with New York license plates. Later that morning, at approximately 7:56 a.m., the resident called 9-1-1 to report a suspicious vehicle.

         When Paramus Police officers arrived, they peered through the Chevy's rear windows and observed a sheet covering what appeared to be burnt human remains. At least eleven detectives from the Bergen County Prosecutor's Office responded to the scene and began their investigation. Detective Frazer joined his colleagues at approximately 8:30 a.m., remained at that location for about two hours, and then went to his office. There, in accordance with his assigned duties, he began to compile information and prepare affidavits for warrant applications while detectives investigated in the field.

         The Chevy's license plate number matched a vehicle registered to Rhian Stoute of Brooklyn, New York. A copy of Stoute's fingerprints matched the body in the vehicle.[2] By 10:10 a.m., an autopsy indicated that Stoute had died from multiple gunshot wounds to the head and torso and that his body had been set on fire after his death.

         Bergen County detectives spoke with Stoute's mother, who provided them with her son's cell-phone number. At approximately 3:11 p.m., Detective Frazer submitted to Sprint Nextel an exigent-circumstances request for Stoute's cell-phone records.[3] Approximately twenty minutes later, Sprint Nextel produced Stoute's cell-phone records. Although the records could not identify the present location of Stoute's phone, which was either turned off or not functioning, they did pinpoint the various cell-site locations with which Stoute's cell phone connected the previous day. Assuming that Stoute was in possession of his cell phone, he traveled in the afternoon from New York City to various points in Bergen County, visiting in the early evening the vicinity of Englewood Hospital, where he made his last outgoing call around 7:15 p.m. That cell phone, however, was in Brooklyn when it received an incoming call that went unanswered at around 8:20 p.m.

         At approximately 4:30 p.m. on August 16, detectives interviewed Stoute's friend Brendan Dunbar, who provided the following information. Earlier that day, he became concerned about Stoute's failure to show up for a meeting and called one of Stoute's friends -- defendant. Defendant told Dunbar that he "had been with [Stoute] on August 15, 2011, sometime between 7:00-8:00 p.m. in Brooklyn," when Stoute dropped him off at a train station. Detective Frazer believed that defendant's purported account to Dunbar conflicted with Stoute's cell-site records.

         During this period, detectives obtained a judicial warrant to search the Chevy and discovered a fraudulent California driver's license between the seat and center console. Detective Frazer matched the photograph on the license with a photograph of defendant.

         At approximately 7:39 p.m. on August 16, Detective Frazer submitted an exigent-circumstances request form to AT&T, seeking information related to defendant's cell phone, such as incoming and outgoing calls and cell-phone location information for August 15 and 16. The exigent-circumstances form submitted to AT&T stated: "Suspect is ...


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