In the Matter of the Seizure of Property Belonging to M.G.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 7, 2023
• Docket: A-0793-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0793-22

IN THE MATTER OF THE SEIZURE OF PROPERTY BELONGING TO M.G. _______________________

Argued November 15, 2023 – Decided December 7, 2023

Before Judges Currier and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. G-0011-22.

Blair R. Zwillman argued the cause for appellant M.G.

Michelle Resha Jeneby, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey (Christine A. Hoffman, Acting Gloucester County Prosecutor, attorney; Michelle Resha Jeneby, on the brief).

PER CURIAM

M.G.1 appeals from an October 25, 2022 order denying his motion for

return of his property—an Apple laptop computer seized from his residence. He

1 We follow the practice of the trial court by using initials to refer to appellant and others identified in the opinion. also appeals from a November 4, 2022 order compelling disclosure of the

laptop's passcode.2 We affirm both orders.

I.

The following facts are derived from the motion record. Based upon an

anonymous tip, the Glassboro Police Department, in conjunction with other

municipal, state, and federal agencies, launched an investigation regarding an

organized narcotics distribution ring and marijuana distribution facility located

in East Greenwich Township known as Green Collective NJ, LLC (Green

Collective). M.G.'s son B.G. is the president and 49% owner of the business.

M.G. owns 51% of the business. Law enforcement suspected B.G. was involved

in a narcotics distribution scheme. Green Collective listed its address as M.G.'s

single-family home Therefore, the State reasoned M.G. had a connection to

B.G.'s narcotics distribution plan.

C.A. was the purported leader of the narcotics ring. He shipped narcotics

to his customers worldwide via the United States Postal Service. The

investigation revealed C.A. and B.G. used social media accounts and financial

platforms to promote their marijuana distribution business. This information

2 The record uses the terms "passcode" and "password" interchangeably. We use "passcode" in our opinion. A-0793-22 2 was independently corroborated after a motor vehicle stop involving M.M, who

told the investigating officers that C.A. and B.G. were operating a narcotics

distribution ring.

Detective Sean Aitken of the Glassboro Police Department submitted a

certification for the issuance of search warrants for four residences, including

M.G.'s home, and two vehicles. In his certification, Detective Aitken stated he

had probable cause to believe that evidence of certain crimes would be found at

the residences and in the vehicles pertaining to an "organized narcotics

distribution ring."

Detective Aitken certified that the execution of search warrants at multiple

residences in Glassboro resulted in the "seizure of approximately $60,000,

weapons, and various forms of distribution amounts of narcotics" resulting in

charges against fourteen individuals. Detective Aitken indicated that

communication data warrants (CDWs) were issued by the court for bank

accounts, a PayPal account, a Venmo account, Instagram accounts, and cellular

phone records for C.A., B.G. and his girlfriend, and other individuals.

Detective Aitken certified that the CDWs issued for Instagram resulted in

the "reception of numerous conversations" involving B.G. and C.A. discussing

the purchase and sale of narcotics, acquisition of proceeds through "illicit

A-0793-22 3 means," and their conspiring to "deliberately underreport" and "omit" financial

transactions to avoid paying income taxes. Specifically, Detective Aitken stated

between July 1, 2020, and February 23, 2021, B.G. "received $223,408.04, sent

$172,583.23, and withdrew only $39,599.54 through his Venmo account." From

January 1, 2017, to the date of his certification, Detective Aitken stated B.G.

received $102,510.65 and sent $81,471.43 through his PayPal account.

According to Detective Aitken, B.G. claimed $45,417 of income on his 2020 tax

returns and stated his address was M.G.'s home. Detective Aitken certified that

Green Collective claimed a $932 loss on its 2020 income tax returns.

In an Instagram conversation between B.G. and C.A., Detective Aitken

certified that B.G. stated "these . . . unpaid taxes [are] coming back to haunt us,"

and mentioned having to go "big" on taxes in a given year to "look good for a

legal marijuana grow" he was trying to establish. According to Detective

Aitken, B.G. "told numerous subjects" to "make sure their financial transactions

are not over $10,000 . . . ." Detective Aitken stated B.G. claimed he was leasing

a property that he intended to buy with cash having a listing price of $565,000,

and B.G. is selling narcotics paraphernalia to raise money for the purchase.

Based upon his training and experience, Detective Aitken opined that

B.G., his girlfriend, and C.A. conspired to commit financial crimes, not pay

A-0793-22 4 taxes, filed fraudulent tax returns, and committed narcotic-related crimes,

specifically the distribution of "illegal" amounts of marijuana in violation of

N.J.S.A. 2C:1-1 to -104-9. Consequently, a search warrant was requested to

search M.G.'s residence for financial records, various social media accounts,

Venmo and PayPal records, checks, real estate transaction records, and other

items. The court granted the application for the search warrant.

During the search of M.G.'s residence, law enforcement seized his Apple

laptop, which is the subject of the matter under review. 3 M.G. filed a motion

for return of his laptop on the grounds it had no nexus to criminal activity and:

(1) he is not named as a participant in any illegal activity; (2) there is no

assertion that contraband was sent to or from his residence; (3) there is no

evidence his residence was used as a marijuana grow facility; (4) the potential

licensed facility was not intended to be his residence; (5) none of his financial

accounts are alleged to be involved in criminal activity; (6) there is no indication

M.G. knew what his son B.G. was doing; and (7) none of the previous subpoenas

involved him.

3 The State returned nine other items to M.G., which are not at issue in this appeal. A-0793-22 5 The State countered it had probable cause to search and seize M.G.'s

laptop based on the Purchase and Sale Agreement (Agreement) confirming the

address of Green Collective as M.G.'s residence; the purchase price of the

business—$400,000; and M.G. being the majority 51% owner of the business

and B.G. the 49% owner. The State maintained it was continuing its

investigation and evidence of possible criminal activity was stored in M.G.'s

laptop pertaining to the manufacturing and distribution of marijuana without a

license in New Jersey; the illegal purchase of a property for use as a marijuana

production facility acquired through the sale of contraband; and possible tax

evasion by M.G. and B.G. The State argued M.G. "has absolute knowledge of

what [B.G.] is doing with the business" and that M.G.'s laptop contained

information regarding his son's actions.

On October 13, 2022, the court conducted oral argument on M.G.'s

motion. Following arguments that day, the court rendered an oral decision

finding the State established probable cause to seize M.G.'s laptop. The court

noted the State was continuing its criminal investigation against B.G. regarding

possible tax evasion, proceeds from marijuana sales, and production of

marijuana for sales without a license. The court also ordered M.G. to provide

his laptop passcode. The court also implemented procedures to guard

A-0793-22 6 confidential protected material that might be on the laptop. The court stayed the

orders pending our decision. This appeal followed.

M.G. presents the following arguments for our consideration:

POINT [ONE]

THE LOWER COURT ERRED IN DENYING M.G.'s MOTION FOR RETURN OF PROPERTY, AS NO PROBABLE CAUSE EXISTED TO VALIDATE THE SEARCH AND SEIZURE OF THE COMPUTER. (Raised below).

POINT [TWO]

SINCE THE SEIZURE OF THE COMPUTER VIOLATED THE FEDERAL AND STATE CONSTITUTIONS, THE ORDER DIRECTING DISCLOSURE OF ITS PASSCODE MUST BE REVERSED. (Raised below).

II.

The standard of review on a motion to suppress is deferential. State

v. Nyema, 249 N.J. 509, 526 (2022). "An appellate court reviewing a

motion to suppress must uphold the factual findings underlying the trial

court’s decision so long as those findings are supported by sufficient

credible evidence in the record." State v. Ahmed, 246 N.J. 592, 609

(2021) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "defer to

those findings in recognition of the trial court’s 'opportunity to hear and

A-0793-22 7 see the witness and to have the "feel" of the case, which a reviewing court

cannot enjoy.'" Nyema, 249 N.J. at 526 (quoting Elders, 192 N.J. at 244).

"An appellate court should not disturb the trial court’s findings

merely because 'it might have reached a different conclusion were it the

trial tribunal' or because 'the trial court decided all evidence or inference

conflicts in favor of one side' in a closer case." State v. Nelson, 237 N.J.

540, 551 (2019) (quoting Elders, 192 N.J. at 244). "The governing

principle, then, is that '[a] trial court's findings should be disturbed only if

they are so clearly mistaken that the interests of justice demand

intervention and correction.'" Nelson, 237 N.J. at 551-52 (quoting State

v. Robinson, 200 N.J. 1, 15 (2009)). However, "[a] trial court's legal

conclusions and its view of 'the consequences that flow from the

established facts,' are reviewed de novo." Nyema, 249 N.J. at 526-27

(quoting State v. Hubbard, 222 N.J. 249, 263 (2015)).

A. Seizure of the Laptop

M.G. contends the State failed to establish that either his residence or his

laptop was related to criminal activity, and the "effort to seize and examine" his

laptop "smacks of a classic fishing expedition." In particular, M.G. asserts that

Detective Aitken's certification in support of the search warrant application does

A-0793-22 8 not name M.G. as a participant in any illegal activity; there is no assertion that

contraband was sent to or from his residence; there is no representation that he,

B.G., or others were utilizing M.G.'s residence as a grow facility known as Green

Collective; none of M.G.'s financial accounts are alleged to be involved in the

transactions mentioned in the certification; there is no indication M.G. knew

what his son was doing; the certification contains no information linking B.G.

to M.G.'s residence; and none of the forty subpoenas, CDWs, or search warrants

issued prior to Aitken's certification involved M.G.

The State counters probable cause existed to seize M.G.'s laptop because

B.G. was providing illegally obtained monies to M.G. in furtherance of Green

Collective's $400,000 land purchase. In addition, the State argues probable

cause was shown because M.G. "knew, participated with, or had knowledge" of

B.G.'s illegal activity because M.G. is a majority owner of Green Collective.

The State asserts it needs to search the contents of the laptop to determine M.G.'s

involvement with the purchase of the land and to ascertain whether B.G. intends

to use "illegal gains" to purchase the land through the commingling of funds.

Our review of the record and applicable legal principles convinces us that

the court properly denied M.G.'s motion for return of his laptop because

probable cause existed to seize it and search the contents. Persuaded by the

A-0793-22 9 factual findings the court made, we conclude the State had a legitimate basis to

seize and request to search M.G.'s laptop.

The Fourth Amendment of the United States Constitution and Article 1 ,

Paragraph 7 of the New Jersey Constitution protect against unreasonable search

and seizures by requiring a showing of probable cause to issue a warrant. U.S.

Const. amend. IV; N.J. Const. art. 1, ¶ 7. Probable cause for the issuance of a

search warrant requires "a fair probability that contraband or evidence of a crime

will be found in a particular place." State v. Chippero, 201 N.J. 14, 28 (2009)

(quoting United States v. Jones, 994 F.2d 1051, 1056 (3rd Cir. 1993)). Before

issuing a warrant, two conclusions by an issuing judge must be made supported

by substantial evidence: (1) "that the items sought are in fact, seizable, by virtue

of being connected with criminal activity;" and (2) "that the items will be found

in the place to be searched." 2 Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment §3.1 (b) (6th ed. 2022).

"Probable cause eludes precise definition." State v. Sullivan, 169 N.J.

204, 210 (2001). Probable cause has been described as a "commonsense,

practical standard 'dealing with probabilities' and the 'practical considerations

of everyday life,'" and is generally understood to mean "less than legal evidence

A-0793-22 10 necessary to convict though more than mere naked suspicion." State v. Evers,

175 N.J. 355, 381 (2003) (quoting Sullivan, 169 N.J. at 211).

In evaluating the facts constituting probable cause for the issuance of a

search warrant, "the facts should not be reviewed from the vantage point of

twenty-twenty hindsight by interpreting the supporting affidavit in a

hypertechnical, rather than a commonsense manner." State v. Sheehan, 217 N.J.

Super. 20, 27 (App. Div. 1987). Instead, probable cause for the issuance of a

search warrant requires "a fair probability that contraband or evidence of a crime

will be found in a particular place." Chippero, 201 N.J. at 28 (quoting United

States v. Jones, 994 F.2d 1051, 1056 (3rd Cir. 1993)).

To determine whether there is probable cause in a search warrant

application, the "analysis begins with review of the four corners of [the]

affidavit," Evers, 175 N.J. at 380, and the "totality of the circumstances

presented in the affidavit to determine the sufficiency of information offered in

support of the warrant." Sullivan, 169 N.J. at 210-212. Indeed, appellate courts

"must consider the totality of the circumstances when assessing the reasonable

probabilities that flow from evidence submitted in support of a warrant

application." Chippero, 201 N.J. at 27.

A-0793-22 11 Here, as the court correctly recognized, the State asserted there are

"connections" between M.G., his residence, and Green Collective. The record

supports that finding because an architectural design for Green Collective was

produced for changes to M.G.'s residence, the Agreement indicates M.G. is a

51% owner and B.G. is a 49% owner of the business, and M.G.'s residence is

listed as Green Collective's address. Moreover, Detective Aitken's certification

establishes, and the proofs show, that the State was continuing its investigation

regarding possible tax evasion from the proceeds of the sale of marijuana and

the production of marijuana without a license.

There is an ongoing criminal matter involving B.G. In his certification,

Detective Aitken provided considerable information, none of which M.G. claims

is false, supporting a "practical, commonsense determination [that] . . . there

[was] a fair probability that contraband or evidence of a crime [would] be found

in [the] particular place" for which the search warrant issued. State v. Marshall,

148 N.J. 89, 602, 610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).

Thus, the certification established probable cause to search M.G.'s residence,

which ultimately led to the seizure of his laptop. The search warrant was

specific, and the seizure of M.G.'s laptop was justified based on the same

probable cause that supported a search of his residence. Thus, there is a

A-0793-22 12 sufficient nexus between the laptop and B.G.'s criminal activity involving

financial and marijuana-related crimes to establish probable cause to seize

M.G.'s laptop.

It is also undisputed B.G. received substantial payments through Venmo

and PayPal but failed to file income tax returns in 2018 and 2019. B.G. only

reported $45,417 of income on his 2020 tax return. The record shows B.G.

stated he already spent $100,000 on a legal grow venture, and he "is leasing a

property that he is going to eventually buy in cash." These facts considered in

tandem with Green Collective claiming a $932 loss on its 2020 income tax return

established probable cause to seize M.G.'s laptop. The court therefore did not

abuse its discretion by denying M.G.'s motion to return his laptop.

B. Disclosure of the Passcode

M.G. next contends there was no legal basis to order disclosure of his

laptop passcode because no probable cause existed to seize the laptop. Because

we have determined probable cause existed, we reject M.G.'s argument. We add

the following brief comments.

In State v. Andrews, 243 N.J. 447, 483 (2020), our Supreme Court

recognized "where ownership and control of an electronic device is not in

dispute, its passcode is generally not substantive information, is not a clue to an

A-0793-22 13 element of or the commission of a crime, and does not reveal an inference that

a crime has been committed." The Court held that under the foregone conclusion

exception to the Fifth Amendment, a trial court may require a defendant to

disclose the passcode to his or her cellular phone if the State can demonstrate

that: the passcode exists; the cellular phone was in the defendant's possession

when seized; the defendant owned and operated the cellular phone thereby

establishing his or her knowledge of the passcode; and the passcode enables

access to the cellular phone's contents. Id. at 478-79.

Similar to the defendant in Andrews, M.G.'s laptop in this case is passcode

protected; was in his possession when seized; and there is no question of his

ownership. We therefore conclude disclosure of M.G.'s laptop passcode was a

foregone conclusion and, as such, the Fifth Amendment was not violated.

Affirmed. We remand to the trial court to vacate the stay of its orders.

We do not retain jurisdiction.

A-0793-22 14