RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3139-21 A-3230-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.R.,
Defendant-Appellant. ___________________________
M.V.,
Submitted October 17, 2023 – Decided November 27, 2023
Before Judges Whipple and Enright. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 19-08- 0492 and 21-08-0615.
Chamlin Uliano & Walsh, attorneys for appellant A.R. (Charles J. Uliano, of counsel and on the briefs; Andrew T. Walsh, on the briefs).
Joseph E. Krakora, Public Defender attorney for appellant M.V. (Daniel Rockoff, Assistant Deputy Public Defender, of counsel and on the brief).
John P. McDonald, Somerset County Prosecutor, attorney for respondent (Gerard J. Tyrrell, Assistant Prosecutor, and Caitlin A. Davis, Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
In these back-to-back appeals, defendants A.R. 1 and M.V. appeal from
their judgments of conviction after entering pleas and retaining the right to
challenge the denial of suppression motions concerning the seizure of cell
phones pursuant to a warrant. We affirm the judgment of conviction as to A.R.,
and we remand for further findings consistent with this opinion as to the factual
underpinnings of the search of M.V.
On January 26, 2019, the New Jersey Division of Child Protection and
Permanency (Division) received an anonymous referral that a seven-year-old
1 We utilize the parties' initials pursuant to Rule 1:38-3(c)(9). A-3139-21 2 child, S.V., was being endangered at a residence in Franklin Township. The
following day, Division caseworkers visited the residence and interviewed S.V.
Later that same week, Detective Iris Reyes of the Somerset County Prosecutor's
Office (SCPO) interviewed S.V. at school. During this latter interview, S.V.
disclosed she had been sexually abused by two of the residents, including M.V.,
and that S.V. had been compelled by another resident to transmit sexually
explicit photographs using cell phones. On January 28, 2019, the SCPO applied
for a search warrant; Det. Reyes appeared as the affiant.
The court found a "well-grounded reasonable suspicion that criminal
activity has occurred at this residence," and issued the search warrant for the
residence. The warrant permitted the search of the premises for, and seizure of,
All electronic devices to include computers, cellular phones, tablets, cameras, video recording equipment and any devices associated with their use to include storage devices.
All evidence related to pornographic sexual activity to include restraints, clothing, collars, hand-cuffs, whips, and the like.
Any documentary evidence of paid pornographic sites.
To the trial judge's inquiry, Det. Reyes replied that the warrant was not being
sought "to search any individual at [that] time."
A-3139-21 3 That same day, detectives from the SCPO arrived at the residence to
execute the search warrant. Once Det. Reyes advised them by phone that the
warrant was issued, the detectives approached the house; a co-defendant exited
the residence and greeted the detectives outside the front door. That co -
defendant was detained outside the residence, while the detectives entered the
residence and escorted A.R. and another co-defendant outside. Shortly
thereafter—but before Det. Reyes arrived at the residence with the search
warrant—M.V. returned to the residence; upon her arrival outside, her cell
phone was seized. At the conclusion of the search warrant, all items of
evidential value were brought back to the SCPO where they were secured and
later entered into evidence.
On February 26, 2019, the SCPO applied for, and received,
Communications Data Warrants for the electronic devices seized during the
January 28, 2019 search, as well as Twitter and other online accounts associated
with appellants and their co-defendants. On May 29, 2019, appellants and their
co-defendants were arrested. On August 21, 2019, the Grand Jury returned an
indictment that was later superseded, leveling numerous charges against both
appellants and their co-defendants. A.R., M.V. and their co-defendants filed
motions to suppress which were denied on July 22, 2021.
A-3139-21 4 M.V. was charged with human trafficking, N.J.S.A. 2C:13-8(a)(3);
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); numerous counts of
endangering, N.J.S.A. 2C:24-4(b)(3), 2C:24-4(a)(1) and (2) and 2C:24-
4(b)(5)(b)(iii); various related conspiracy counts, N.J.S.A. 2C:5-2(a)(1); as well
as weapons offenses, N.J.S.A. 2C:39-3(j); and false swearing N.J.S.A. 2C:28-
2(a).
A.R. was similarly charged with human trafficking, aggravated sexual
assault, and various conspiracy counts, as well as counts of endangering,
N.J.S.A. 2C:24-4(b)(3) and 2C:24-4(b)(5)(b)(iii).
On November 6, 2021, both defendants pled guilty to amended conspiracy
charges and reserved their right to appeal the denial of the motion to suppress.
Both were sentenced to twenty-five years in New Jersey State Prison, with
twenty-five years of parole ineligibility, parole supervision for life, and
mandatory minimum fines and penalties.
This appeal followed as to the denial of defendants' motions to suppress.
M.V. raises the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS A CELL PHONE SEIZED BY POLICE FROM HER PERSON WITHOUT A WARRANT OR ANY EXCEPTION TO THE WARRANT REQUIREMENT.
A-3139-21 5 A. The trial court erred by finding that the search warrant for the residence authorized the seizure of the defendant's phone outside of the residence.
B. The trial court erred by finding that the search warrant for the residence authorized the detention of the defendant.
C. The State failed to meet its burden of proving that the plain view exception to the warrant requirement applied.
A.R. raises the following arguments:
POINT I: THE SEARCH AND SEIZURE WERE ILLEGAL.
A. [A.R.] was not a target of the search.
B. The search and seizure of appellant's property exceeded the scope of the warrant.
C. [A.R.] is entitled to an expectation of privacy in her home.
We review the issuance of search warrants with "substantial deference to
the issuing court's finding of probable cause." State v. Chippero, 201 N.J. 14,
33 (2009) (quoting State v. Perry, 59 N.J. 383, 393 (1971)). "When the adequacy
of the facts offered to show probable cause is challenged after a search made
pursuant to a warrant, and their adequacy appears to be marginal, the doubt
A-3139-21 6 should ordinarily be resolved by sustaining the search." Simmons v. Loose, 418
N.J. Super. 206, 224 (App. Div. 2011).
When reviewing a denial of a motion to suppress, we "must uphold the
factual findings underlying the trial court's decision so long as those findin gs
are supported by sufficient credible evidence in the record." State v. Lamb, 218
N.J. 300, 313 (2014). Factual findings "should be overturned only if they are so
clearly mistaken that the interests of justice demand intervention and
correction." State v. Boone, 232 N.J. 417, 426 (2017) (citations omitted). Legal
interpretations are owed no deference and are, instead, reviewed de novo. State
v. Robinson, 228 N.J. 529, 534 (2017).
Both defendants challenge the seizure of their devices during the
execution of a search warrant at the residence on January 28, 2019, and seek to
suppress evidence garnered from their devices. Only A.R. argues the search
warrant executed at the residence was not valid on its face, while both
defendants assert the scope of the warrant did not extend to the particular
circumstances surrounding the seizure of their respective devices.
The United States and New Jersey Constitutions require searches and
seizures of private property be conducted with sufficient legal safeguards to
protect individuals from "unreasonable searches and seizures" carried out by
A-3139-21 7 government officials. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. In deciding
whether to issue a warrant, a court must determine whether probable cause exists
"based on the information contained within the four corners of the supporting
affidavit, as supplemented by sworn testimony before the issuing judge that is
recorded contemporaneously." State v. Bivins (II), 226 N.J. 1, 11 (2016)
(citations omitted).
To protect individuals' rights search warrants must "describe with
particularity the places subject to search and people or things subject to seizure."
State v. Andrews, 243 N.J. 447, 464 (2020). "[A] search executed pursuant to a
warrant is presumed to be valid and . . . a defendant challenging its validity has
the burden to prove 'that there was no probable cause supporting the issuance of
the warrant or that the search was otherwise unreasonable.'" State v. Keyes, 184
N.J. 541, 554 (2005) (quoting State v. Jones, 179 N.J. 377, 388 (2004)). On the
other hand, if the search or seizure exceeds the scope of the warrant, it is
considered warrantless, and the State then "bears the burden of proving by a
preponderance of the evidence the validity of a warrantless search" by showing
that it satisfies the elements of "one of the few specifically established and well-
delineated [warrant] exceptions." State v. Edmonds, 211 N.J. 117, 128-30
(2012).
A-3139-21 8 To determine whether a search or seizure falls within the scope of a given
warrant, a court must examine "the terms of the search warrant," and those terms
"must be strictly respected." State v. Bivins (I), 435 N.J. Super. 519, 524 (App.
Div. 2014), aff'd, 226 N.J. 1 (2016). In three separate locations on the warrant,
it authorized a premises search, as opposed to a search of either a person or a
vehicle. It then provided a "description of the premises to be searched" —"[the
residence]. The residence is described as an[] end-unit of attached housing
(townhouse style) with front door at ground level with house number positioned
near the drain pipe adjacent to the steps leading to the door."
The terms on the face of this warrant describe with particularity the items
sought and subject to seizure, as well as the premises wherein those items may
be sought. The trial court declined to authorize a search of either persons or
vehicles, electing not to mark any of the three locations on the warrant that could
have indicated such an expanded scope. The scope of the warrant is facially
clear: the residence may be searched for the items described but persons and
vehicles may not.
M.V. arrived at the residence after her co-defendants had vacated the
residence and before Det. Reyes arrived on site with the search warrant. While
M.V. was outside, her phone was taken by an SCPO detective and was later
A-3139-21 9 marked as evidence. The only accounts of this interaction in the record come
from the "Supplemental Reports" filed by two detectives who were present at
the time. One detective's report indicates:
[w]hile waiting for Det. Reyes to arrive at the residence with the search warrant, [M.V.] arrived at the residence. I then seized a white Apple [iPhone], model A1522 from [M.V.]. The item was later labeled as [evidence]. Upon the arrival of Det. Reyes[,] it was determined that she would transport all of the [co-defendants] with the assistance of [another detective] to the Franklin Police Department to be interviewed.
The other detective's report records that "[w]hile waiting outside, [M.V.] arrived
and shortly thereafter, Det. Reyes arrived with the search warrant. All the
aforementioned residents of [the residence] went to the Franklin Township
Police Department to be interviewed." There is no independent account from
M.V. in the record.
M.V. argues law enforcement officers were not justified in detaining her
outside the residence while the search was conducted inside and that her
presence did not satisfy any of the three factors described in Michigan v.
Summers as justifying her detention during the search. 452 U.S. 692, 705
(1981). She avers the authority conferred by Summers was circumscribed by
Bailey v. United States to further limit when such detention by officials is
permissible. 568 U.S. 186, 199–201 (2013). The trial court found Summers
A-3139-21 10 applied because M.V. was present when the search was taking place, but never
addressed the limitations Bailey subsequently placed on the brief detention
authority described in Summers or whether those limitations applied to M.V.'s
arriving at the premises before the search warrant was executed.
In Summers, the United States Supreme Court considered whether the
"limited intrusion" of a detention during a search authorized by a warrant for
contraband was justified and determined that "both the law enforcement interest
and the nature of the 'articulable facts' supporting the detention are relevant" to
the analysis. 452 U.S. at 702. The Court then outlined three law enforcement
interests advanced by such a temporary detention: (1) "minimizing the risk of
harm to the officers" conducting the search; (2) facilitating the "orderly
completion of the search"; and (3) "preventing flight in the event that
incriminating evidence is found." Id. at 702–03. The Court emphasized that
"[o]f prime importance in assessing the intrusion is the fact that the police had
obtained a warrant to search [the premises] for contraband." Id. at 701. Thus,
because "[a] neutral and detached magistrate had found probable cause to
believe that the law was being violated in that house and had authorized a
substantial invasion of the privacy of the persons who resided there," the "less
intrusive" temporary detention was permissible. Ibid. Notably, the Court
A-3139-21 11 declined to determine "whether the same result would be justified if the search
warrant merely authorized a search for evidence," as in this case, instead of a
search for contraband. Id. at 705, n.20.
In Bailey, the Supreme Court held the authority to detain an occupant of
the premises being searched pursuant to a warrant for contraband had a spatial
constraint, such that it was "necessary to confine the Summers rule [permitting
temporary detention] to those who are present when and where the search is
being conducted." 568 U.S. at 197. The Court held the "categorical authority
to detain incident to the execution of a search warrant must be limited to the
immediate vicinity of the premises to be searched." Id. at 199. Further,
"[l]imiting the rule in Summers to the area in which an occupant poses a real
threat to the safe and efficient execution of a search warrant ensures that the
scope of the detention incident to a search is confined to its underlying
justification." Id. at 201. Although the Bailey Court did not need to precisely
define "immediate vicinity," it encouraged courts "[i]n closer cases," to carefully
look at the facts to determine whether an occupant's specific location justified
temporary detention during a premises search. Ibid. Courts should "consider a
number of factors . . . including the lawful limits of the premises, whether the
A-3139-21 12 occupant was within the line of sight of his dwelling, the ease of reentry from
the occupant's location, and other relevant factors." Ibid.
Thus, we must necessarily understand the scope and location of a
purported detention to determine whether that detention was legal. Bailey, 568
U.S. at 193 ("[D]etention incident to the execution of a search warrant" is
permitted when "the character of the additional intrusion caused by detention is
slight and [when] the justifications for detention are substantial."). Further, the
Bailey Court emphasized limiting the authority to detain occupants is necessary
when "the search-related law enforcement interests are diminished and the
intrusiveness of the detention is more severe." Id. at 201.
In addition to those general guidelines, the Bailey Court posed a specific
scenario that, though dicta, proves instructive here. The Court considered the
possibility of an occupant's "return[ing] to the premises at some point . . . [maybe
even] when the officers are still conducting the search." Id. at 195. In that
situation, "[o]fficers can and do mitigate that risk [of a returning occupant
disrupting the search] by taking routine precautions, for instance by erecting
barricades or posting someone on the perimeter or at the door." Ibid. The Bailey
Court thus intended to distinguish between detention of an occupant and merely
A-3139-21 13 preventing that occupant—or any other unauthorized person—from accessing
the premises during a search.
Here, nothing about M.V.'s purported "detention" is clear. Under
Summers, Bailey, and Bivins, the term "detention" suggests that the detained
occupant is prevented from either leaving or entering the premises. See
Summers, 452 U.S. at 696; Bailey, 568 U.S. at 191; Bivins (II), 226 N.J. at 5.
Based on our review of this record, however, we cannot discern precisely where
this "detention" took place or whether officials compelled M.V. to remain or
move anywhere. The record only implies she was prevented from entering the
residence, similarly to the co-defendants who were removed from inside. The
record is, therefore, unclear as to whether M.V. was detained at all. 2
Before considering the seizure of M.V.'s cell phone, we need to know
whether M.V. was searched prior to the seizure of her phone. The record lacks
enough information to fully resolve this issue. If M.V. was not searched, then
2 If M.V. was not detained prior to the seizure of her cell phone, then her argument the detention was illegal is moot. If, on the other hand, M.V. was detained prior to the seizure of her cell phone, there is insufficient information in the record to determine the extent of the detention and whether it was justified when balanced against a fact-specific analysis of the Summers factors. Ultimately, this issue may not even need to be resolved, because the final question of the legality of the seizure of M.V.'s cell phone may be determinative.
A-3139-21 14 her phone must have been visible when it was seized—but it may or may not
have been legally seized pursuant to the plain view doctrine. On the other hand,
if M.V. was searched within the scope of the warrant, then the analysis may
proceed to the seizure. If M.V.'s search exceeded the scope of the warrant, then
the phone was necessarily illegally seized and could be excluded as "fruit of the
poisonous tree." See State v. Roman-Rosado, 462 N.J. Super. 183, 197 (App.
Div. 2020).
The interaction between M.V. and law enforcement officials outside the
residence is only described in two brief excerpts from police reports. Neither
affirmatively indicates whether M.V. was searched, or whether—as the State
argues in the alternative—the phone was in plain view before it was seized. 3
M.V. argues the seizure of her cell phone from her person when she
arrived outside of the residence was beyond the scope of the search warrant
because the warrant only permitted a search of, and seizure of property from,
the premises. In support of her position, not only does M.V. rely on her presence
outside the premises described with particularity in the warrant as "the premises
3 If M.V. was searched, the scope of the premises warrant does not authorize the search of a person, and the search was illegal. If M.V. was not searched, and the phone was seized when it was in plain view, then the legality of the seizure hinges on the analysis under the plain view doctrine. A-3139-21 15 to be searched," but she also asserts the warrant only authorized a search of the
premises and not of any person. Even if the warrant authorized the search of
any person—which, she contends, it does not—the warrant does not describe
her with the particularity that is required to avoid the slippery slope of "ge neral
warrants."
The motion court applied the United States Supreme Court's decision in
Summers to deny both appellants' motions to suppress. The motion court
acknowledged, but did not address, the fact that the warrant in this case did not
specify that persons were to be searched. Instead, the motion court found that—
unlike in Bivins, where the defendant did not know that a search was being
conducted and was five or six houses away from the premises being searched —
M.V. was present when the search was taking place.
The motion court credited the State's assertion the detectives' purported
authority to detain M.V. outside—thereby preventing her from entering the
residence—extended the authority granted by the search warrant to reach
property that would have been in the residence, if only they had chosen to
execute the search warrant at a time when M.V. was already inside. 4
4 Notably, even if M.V. was inside the residence and her phone was on her person, the search warrant would still not authorize the detectives to search, or seize property from, her person. A-3139-21 16 We disagree with this rationale because of the record before us. As stated
above, the scope of the warrant is facially clear: officials may search the
residence for the items described but may not search persons or vehicles. Under
the authority of the warrant, the detectives may not search M.V.'s person and are
not authorized to seize property from her person, regardless of where that person
is. Any seizure from her person is warrantless and requires the State to
demonstrate by a preponderance of the evidence that it satisfies the requirements
of one of the warrant exceptions. Edmonds, 211 N.J. at 128.
Any argument M.V. was subject to search because she was in the
"immediate vicinity" of the premises is inapposite, because that is the parameter
associated with the right to detain an occupant incident to a search warrant; it
does not permit the search of the detained occupant as well. See Bailey, 568
U.S. at 202. Only a warrant that permits the search of particular persons can
authorize the bodily search of an individual.
The warrant does not authorize the search of a person, whether that person
is inside or outside the premises described in the warrant. The only set of facts
wherein the warrant would permit the legal seizure of M.V.'s cell phone is if the
phone is readily visible (that is, in plain view and not necessitating a search of
her person) and in or on the premises described in the warrant. It seems clear,
A-3139-21 17 however, M.V. (and her phone) were not "in or on the premises described in the
warrant." The fact that the two detectives' reports state M.V.'s co-defendants
were "escorted from the residence," or "escorted . . . outside," suggests the
area where M.V. and her co-defendants were allowed to remain was sufficiently
removed from the premises that they would not interfere with the search. M.V.
was, therefore, in a location sufficiently outside the "premises to be searche d"
that the authority of the warrant would not reach her. The record thus suggests
M.V.'s phone was outside the scope of the warrant when it was seized.
For the same reasons, we disagree with the State's argument that M.V.'s
cell phone was legally seized pursuant to the plain view doctrine, regardless of
whether the associated search and seizure were within the scope of the warrant.
The motion court did not address this argument, finding instead that M.V.'s cell
phone was lawfully seized pursuant to the search warrant and under the
Summers rule.
Again, it is unclear from the record when, where, or whether any detective
at the residence searched M.V. or whether her cell phone was in plain sight
before it was seized.
Thus, we remand for further findings consistent with this opinion as to the
factual underpinnings of the search of M.V.
A-3139-21 18 A.R.
The cell phone and computer belonging to A.R. were seized pursuant to
the search warrant issued for the residence. Prior to the execution of the search
warrant, detectives escorted A.R. and another co-defendant outside the
residence, where they remained until they were escorted to the Franklin
Township Police Department. A.R. argues because she was not "a target of the
search" and "[t]here was no testimony whatsoever that suggested [A.R.] was
involved in criminal acts with [S.V.]," the seizure of her electronic devices "was
an impermissible intrusion upon [A.R.]'s expectation of privacy." We disagree.
The first consideration of any search and seizure inquiry is whether the
subject was entitled to an expectation of privacy; without a reasonable
expectation of privacy, "an individual is not entitled to protection under either
the Fourth Amendment or Article I, Paragraph 7 of the New Jersey
Constitution." State v. Taylor, 440 N.J. Super. 515, 522 (App. Div. 2015).
Unlike the federal Constitution, the New Jersey Constitution requires only that
an expectation of privacy be reasonable, not that the individual prove a
subjective expectation of privacy. "Expectations of privacy are established by
general social norms, and must align with the 'aims of a free and open society."
Taylor, 440 N.J. Super. at 523 (internal quotation marks omitted). As such,
A-3139-21 19 "constitutional protection against unlawful searches and seizures applies with
maximum force to governmental intrusions into the home." State v. Ingram, 474
N.J. Super. 522, 535 (App. Div. 2023) (citing Florida v. Jardines, 569 U.S. 1, 6
(2013)).
The record demonstrates, at least at the time the search warrant was
issued, officials had reason to believe A.R. lived at the residence and, thus, had
a reasonable expectation of privacy on the premises. During the Division's first
visit to the residence, A.R. had told an official that she lived there "with her
father . . ., her fianceé . . ., and her sister." Establishing A.R.'s residence at the
subject premises is only the first step in the search and seizure inquiry, though,
and simply confirms that A.R. had a right to privacy at the residence.
A.R. argues, at the time that the search warrant was issued, S.V. had not
implicated her in any way, S.V. had not said anything about being filmed or
photographed by or for A.R., and there was no testimony, evidence, or statement
to implicate A.R. with any criminal activity. A.R. asserts the expansive scope
of the warrant was not justified by sufficient evidence to support probable cause.
Further, she asserts the warrant had no concern or specificity as to the ownership
or location of the devices, which permitted the State to search and seize A.R.'s
property even though neither she nor her possessions were the subject of the
A-3139-21 20 investigation or the objects of the search. She argues the expansive sweep far
exceeded the State's justification for the search as only two of the five adult
residents were implicated in the investigation and such a warrant is unsupported
by probable cause and is unduly broad in its reach.
A.R. bears the burden of "demonstrating that the warrant was issued
without probable cause or that the search was otherwise unreasonable." See
State v. Evers, 175 N.J. 355, 381 (2003). She argues that testimony put forth in
support of the warrant did not allege wrongdoing by her. This argument does
little to advance A.R.'s cause, because there is no constitutional requirement for
premises warrants to particularly set forth the individuals targeted by an
investigation. Search warrants are not directed at persons; "they authorize the
search of 'places' and the seizure of 'things,' and as a constitutional matter they
need not even name the person from whom the things will be seized." Zurcher
v. Stanford Daily, 436 U.S. 547, 553 (1978). Indeed, "[t]he critical element in
a reasonable search is not that the owner of the property is suspected of crime
but that there is reasonable cause to believe that the specific 'things' to be
searched for and seized are located on the property to which entry is sought."
Id. at 556.
A-3139-21 21 The testimony before the issuing court was clearly sufficient to support
that court's finding a "well-grounded reasonable suspicion that criminal activity
has occurred at this residence." We conclude the warrant was valid on its face
and legally authorized a search of, and a seizure of property from, the premises
described within. Under the record considered, A.R.'s cell phone and computer
were legally seized pursuant to the search warrant executed at the residence on
January 28, 2019.
Affirmed as to A.R.
Based on all the above, remanded as to M.V. for further fact-finding
consistent with this opinion. We do not retain jurisdiction.
A-3139-21 22