NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0020-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHUCKY S. SCOTT a/k/a CHUCKY SCOTT, LEWIS AARON,
Defendant-Appellant. _______________________
Argued May 12, 2026 – Decided July 1, 2026
Before Judges Gilson and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 18-02-0018.
Gregory Margolis, Designated Counsel, admitted pursuant to Rule 1:21-3(c), argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Laura B. Lasota, Deputy Public Defender II and Gregory Margolis, on the briefs).
Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Jennifer Davenport, Attorney General, attorney; Daniel I. Bornstein, of counsel and on the brief).
Appellant filed a supplemental brief on appellant's behalf.
PER CURIAM
Following an investigation into the illegal trafficking of guns, defendant
Chucky Scott was indicted for thirty-five crimes related to the possession and
illegal sale of firearms. In two motions, defendant sought to suppress cell phone
location data and information obtained from searches of two of his cell phones.
After both motions were denied, he pled guilty to first-degree racketeering,
N.J.S.A. 2C:41-2(c) and N.J.S.A. 2C:41-2(d); and first-degree leader of a
firearms trafficking network, N.J.S.A. 2C:39-16. Thereafter, he was sentenced
to twenty-four years in prison with periods of parole ineligibility and parole
supervision as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2.
Defendant now appeals from the orders denying his motions to suppress.
Having reviewed defendant's arguments, the record, and law, we affirm both
motion orders and defendant's convictions.
I.
A-0020-23 2 We summarize the relevant facts from the record, primarily relying on the
evidence presented at the hearings on the motions to suppress. That evidence
established that in 2017, defendant was being investigated by two law
enforcement agencies: the federal Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) and the New Jersey State Police (NJSP).
A. The ATF Investigation.
In April 2017, Special Agent Teresa Petit of the ATF began investigating
Anthony Hammond for possible weapons trafficking. Using law enforcement
databases, Petit learned that a firearm purchased by Hammond in Ohio had been
recovered by law enforcement personnel in Camden, New Jersey several months
after Hammond had made his purchase. Petit became suspicious of the short
time frame between the purchase and the recovery of the gun and researched
Hammond's gun purchasing activities. During that investigation, Petit learned
that Hammond's name appeared in several multi-sales reports in Ohio, indicating
that he had purchased two or more firearms within five days. Those reports also
showed Hammond had repeatedly purchased the same type of firearms.
As part of her investigation, Petit performed a "deconfliction query" to
see if Hammond was being investigated by other law enforcement agencies. Her
query revealed that there were no other active investigations of Hammond, but
A-0020-23 3 there was an intelligence report submitted by ATF Special Agent William
Campbell from the Camden, New Jersey field office. That report noted that a
gun recently purchased by Hammond had been recovered in Camden.
In May and June 2017, Petit continued to monitor Hammond's purchases
of firearms. During that time, she learned that Hammond had engaged in
numerous transactions, often purchasing more than one gun at a time, and had
purchased a total of thirty-five firearms. Petit also obtained surveillance video
footage from a gun store where Hammond had made numerous purchases of
firearms. In reviewing the footage, Petit noted that Hammond was always
accompanied by a second individual and she became suspicious that that other
individual was directing Hammond on which firearms to purchase.
On June 21, 2017, Petit was able to identify the second individual as
defendant. She made that identification by working with Detective Jerry Orick,
an ATF Task Force officer from the Columbus, Ohio Division of Police. Orick
accessed the Columbus Division of Police's report system and learned that in
December 2016, defendant's home in Columbus had been burglarized and
firearms owned by Hammond had been reported as stolen. Petit and Orick then
obtained a photograph of defendant from the Ohio Bureau of Motor Vehicles.
A-0020-23 4 A comparison of that photograph to the images from the surveillance footage
indicated that defendant was the person with Hammond at the gun store.
In mid-June 2017, Petit spoke with Special Agent Ryan Bell from the
ATF's Camden field office. Bell advised Petit that a task force in New Jersey
was conducting a narcotics investigation and that some of the firearms
purchased by Hammond had been recovered during that investigation. At that
time, Petit did not make any contact with New Jersey state or local law
enforcement, including the NJSP.
After identifying defendant, Petit learned that he was from New Jersey
and that he had an active federal warrant for his arrest. Given that information
and given that Hammond was continuing to purchase firearms in Ohio, Petit
decided to try to track Hammond and defendant by pinging their cell phones to
reveal their locations.
On June 22, 2017, Orick applied to defendant's and Hammond's cell phone
carriers for exigent pings using the cell phone numbers referenced in the police
report from the December 2016 burglary. That same day, those providers
authorized the pings.
The following day, on June 23, 2017, Orick submitted applications to an
Ohio state court for installation and use of pen register number recording devices
A-0020-23 5 for defendant's and Hammond's cell phones. The Ohio court granted the
application and signed an order authorizing the pen registers that same day.
Orick then served that order on the cell phone providers and ATF started
receiving GPS data concerning the location of defendant's and Hammond's cell
phones.
The ping data revealed that defendant and Hammond were traveling from
Ohio toward New Jersey on June 22, 2017. Petit therefore put out a "be on the
lookout" notice to local law enforcement in Pennsylvania and New Jersey. That
notice provided local law enforcement with Hammond's vehicle information ,
warned that defendant was a federal fugitive, and advised that the vehicle would
likely contain firearms.
Neither defendant nor Hammond were apprehended at that time by any
law enforcement agency. Instead, the cell phone location data indicated that
Hammond and defendant traveled to Camden, New Jersey on the night of June
22 and returned to Columbus, Ohio on June 24, 2017. Thereafter, the ATF
continued to surveil defendant and Hammond, monitoring their firearm
purchases, and acquired a search warrant to place a GPS tracker on Hammond's
vehicle.
B. The NJSP Investigation.
A-0020-23 6 Beginning in May 2017, Detective Sergeant Erik Hoffman of the NJSP
started investigating the activities of Eduardo Caban. Initially, the investigation
focused on narcotic activity but by early June 2017, the NJSP shifted its focus
to firearm trafficking. In that regard, an individual arrested by the NJSP had
informed them that he could purchase firearms from Caban. Accordingly,
starting on June 3, 2017, the NJSP conducted several controlled firearms
purchases from Caban using an informant. Based on information obtained from
those controlled purchases, the NJSP traced the firearms and discovered that
many of the guns had been purchased by Hammond in Ohio.
Sometime in June 2017, Hoffman spoke with Bell from the Camden ATF
office and was told that there was an ongoing investigation in Ohio concerning
Hammond. Hoffman did not contact the ATF or any law enforcement personnel
in Ohio in June 2017, nor was he aware of defendant's involvement in
Hammond's purchases at that time.
On July 6, 2017, representatives from the ATF and NJSP, including Petit
and Hoffman, had a conference call to discuss their respective investigations.
During that call, Hoffman learned of the ATF's investigation into defendant.
Petit briefed Hoffman on the ATF's investigation and Hoffman shared with Petit
information the NJSP had learned. Thus, Petit learned that the NJSP had
A-0020-23 7 conducted controlled purchases and had traced the firearms purchased from
Caban to firearms that had originally been purchased by Hammond. Following
the July 6 conference, Petit shared with the NJSP defendant's and Hammond's
cell phone location data.
On July 7, 2017, the NJSP had an informant make two more controlled
firearm purchases from Caban. Using ATF-provided ping data, Hoffman knew
defendant was traveling towards Caban's home on July 7, 2017. Accordingly,
the NJSP planned to conduct the controlled purchases after defendant arrived
and then stop defendant's vehicle once he left Caban's home. Defendant arrived
at Caban's home, and the controlled purchases took place as planned. When
defendant left Caban's home, however, the NJSP lost sight of his vehicle in
traffic and were not able to stop the vehicle.
Two days later, on July 9, 2017, a vehicle driven by defendant was pulled
over in West Virginia for speeding. Corporal Erick McFarland of the West
Virginia State Police conducted the vehicle stop. When McFarland approached
defendant's vehicle, he detected a "light odor" of marijuana coming from the
vehicle. McFarland also noticed that defendant was accompanied by a female
who was sitting in the front passenger seat. McFarland directed defendant to
exit the vehicle and to sit in the front passenger seat of his police car. McFarland
A-0020-23 8 then ran a check on defendant's license and discovered it was suspended.
McFarland also learned that defendant had a federal warrant for his arrest and
was informed that he was considered armed and dangerous.
Thereafter, McFarland placed defendant in handcuffs and ordered the
female passenger to exit defendant's vehicle. McFarland then searched
defendant's vehicle. In the passenger section of the car, McFarland found and
seized two cell phones that belonged to defendant. McFarland also searched
the trunk and found a black duffle bag with approximately $6,000 in cash.
McFarland then called for a canine unit to check for further evidence of
possible narcotics trafficking. In response, Corporal Eric Burke of the
Wheeling, West Virgina Police Department and his canine came to the scene.
The canine alerted to the presence of narcotics and the female passenger told
Burke that other people who smelled of marijuana had previously been in the
car.
During the vehicle stop, McFarland asked defendant for consent to search
his cell phones, but defendant declined. Thereafter, defendant was taken to
police headquarters. While at the headquarters, defendant asked for contact
information stored in his cell phones. McFarland informed him that he could
not have his cell phones but offered to get the information for defendant.
A-0020-23 9 Defendant then provided his passcodes to McFarland and McFarland obtained
the contact information defendant wanted and gave it to him. McFarland also
wrote down the passcodes on pieces of paper and taped those codes to the
McFarland was informed that the ATF planned to retrieve the phones and
apply for warrants to search the phones. The ATF, however, never picked up
the phones. Instead, on September 8, 2017, officers from the NJSP came and
took the phones. On September 29, 2017, the NJSP applied for and obtained
communication data warrants to access both of defendant's cell phones.
C. The Indictment.
On February 6, 2018, a New Jersey state grand jury returned an indictment
charging defendant with thirty-five crimes, including first-degree racketeering
(count one); second-degree conspiracy, N.J.S.A. 2C:5-2 (count two); first-
degree leader of a firearms trafficking network (count three); first-degree
promoting organized street crime, N.J.S.A. 2C:33-30 (count four); and
numerous weapons-related offenses, as well as two counts of third-degree
financial facilitation of criminal activity, N.J.S.A. 2C:21-25 and N.J.S.A. 2C:2-
6.
A-0020-23 10 D. The Motion to Suppress Information from the Cell Phones.
In March 2018, defendant moved to suppress evidence obtained from his
cell phones. Defendant contended that the cell phones had been seized
unlawfully. He also moved to suppress statements he had made to McFarland.
At an August 21, 2018 evidentiary hearing on that motion, the court heard
testimony from McFarland and Burke. Defendant argued that McFarland lacked
probable cause to search his car because the officers' testimony was inconsistent
concerning the smell of marijuana. Thus, defendant contended that the items
found in the vehicle were fruits of a poisonous tree.
The trial court found both McFarland and Burke to be credible witnesses.
The court determined that West Virginia law governed the question of the
legality of the stop and search. The court then found that McFarland had
lawfully stopped defendant's vehicle for speeding and had probable cause to
search the car based on the odor of marijuana. Additionally, the court found no
search warrant was required because the search had been conducted incident to
defendant's arrest.
Finding that no Miranda1 warning had been given, the trial court
suppressed defendant's statements made to McFarland. The court also reasoned,
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0020-23 11 however, that law enforcement personnel would have obtained a communication
data warrant for the cell phones and would have inevitably discovered all
information obtained from the phones through a lawful warrant. Accordingly,
on August 23, 2018, the trial court entered an order denying defendant's motion
to suppress the information from the cell phones but granting his motion to
suppress the statements he had given to McFarland.
E. The Motion to Suppress the Cell Phone Location Data.
Over a year later, on January 15, 2020, defendant filed a second motion
to suppress, this time challenging the cell phone location information obtained
by the ATF and shared with the NJSP. On August 17, 2021, an evidentiary
hearing on that motion was conducted. At the hearing, the court heard testimony
from Petit, Orick, and Hoffman. The central issue at that hearing was whether
the ATF and NJSP had conducted a joint investigation when acquiring
defendant's location data and when the data was shared with the NJSP.
Petit testified that before July 6, 2017, she had no contact with any officers
of the NJSP, including Hoffman. She explained that she first spoke to Hoffman
during the conference call on July 6, 2017, and thereafter they spoke several
other times. She also explained that when she made her deconfliction query in
April 2017, she did not have any contact with the NJSP, even after she reviewed
A-0020-23 12 the intelligence report prepared by an ATF agent in the Camden, New Jersey
field office.
Orick testified that no NJSP officer was involved in any way when the
ATF decided to apply for exigent pings and the pen registers for the cell phones
of defendant and Hammond. Thus, Orick explained that neither the NJSP nor
any other state or local New Jersey law enforcement personnel were involved in
the request for the cell phone location data.
In his testimony, Hoffman explained that his first communications with
anyone involved with the ATF investigation in Ohio occurred during the
conference in July 2017. He also explained that following that conference he
received location data regarding defendant from the ATF.
On September 16, 2021, the trial court placed an oral decision on the
record concerning the motion. The court first noted that all three witnesses had
provided credible testimony. The trial court then analyzed what law governed
the searches. In that regard, the court reasoned that both the exigent ping request
and the pen registers requests were not lawful under New Jersey law because
they were obtained without warrants. The court also recognized, however, that
if federal and Ohio law was applied, the searches were probably lawful.
Accordingly, the trial court focused on the "critical" determination of whether
A-0020-23 13 New Jersey or federal and Ohio law applied and reasoned that question was
controlled by whether an agency relationship existed between the NJSP and the
ATF.
The court found that the ATF and NJSP had conducted separate
investigations. Thus, the court determined that when the cell phone location
data was obtained by the ATF, NJSP was not involved. Indeed, the trial court
found that there was no communication or coordination between the ATF and
NJSP until the July 6, 2017 conference.
Analyzing the ATF's search under federal and Ohio law, the court found
there was no requirement in 2017 for a search warrant for either the ping or pen
registers. Citing Carpenter v. United States, 585 U.S. 296 (2018), the motion
court noted that in 2018 the United States Supreme Court held that a warrant is
required for those types of searches. The court went on to reason, however, that
because Petit and Orick acted in good faith in 2017, when they obtained the cell
location data, the data had been obtained lawfully. Accordingly, on September
20, 2021, the court entered an order denying defendant's motion to suppress the
A-0020-23 14 F. Defendant's Plea.
The following year, on September 20, 2022, defendant pled guilty to first-
degree racketeering (count one) and first-degree leader of a firearms trafficking
network (count three). In exchange for defendant's guilty plea, the State agreed
to recommend a sentence on count one of twelve years in prison, subject to
NERA. The State also agreed to recommend a consecutive twelve-year sentence
on count three. Additionally, the State agreed to recommend the dismissal of
the thirty-three remaining counts.
In pleading guilty, defendant admitted that he and at least six other
individuals had engaged in a weapons trafficking enterprise, which involved
transporting firearms from Ohio to New Jersey. Defendant also admitted that
he was the leader of the operation and "organized everything."
In January 2023, the trial court sentenced defendant in accordance with
the plea agreement. Thus, in aggregate defendant was sentenced to twenty-four
years in prison, with twelve of those years subject to NERA.
II.
On appeal, defendant challenges the orders denying his motions to
suppress evidence. His counsel presents two main arguments:
A-0020-23 15 POINT I – THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE CELL PHONE LOCATION DATA.
POINT II – THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE OBTAINED FROM A SEARCH OF [DEFENDANT'S] CELL PHONES.
In a supplemental brief, prepared by defendant, he adds the following
arguments:
Point 1 – The judge made an error of law when she applied Ohio's good-faith exclusionary rule in this court case.
Point 2 – The judge erred when he failed to suppress cell phone search warrant that utilized "illegally obtained statements" from interrogation that the judge himself previously ruled was unconstitutionally obtained.
Point 3 – The judge should have suppressed the cell phone passcodes and derivative evidence gain threw exploitation of the passcodes to conduct the search of the cell phone.
III.
In evaluating a trial court's ruling on suppression motions following a
hearing, our review is "exceedingly narrow." State v. Barrow, 408 N.J. Super.
509, 516 (App. Div. 2009) (quoting State v. Locurto, 157 N.J. 463, 470 (1999)).
"[A]n appellate court reviewing a motion to suppress must uphold the factual
A-0020-23 16 findings underlying the trial court's decision so long as those findings are
supported by sufficient credible evidence in the record." State v. Ahmad, 246
N.J. 592, 609 (2021) (alteration in original) (quoting State v. Elders, 192 N.J.
224, 243 (2007)). Deference is afforded "because the 'findings of the trial
judge . . . are substantially influenced by his [or her] opportunity to hear and see
the witnesses and to have the "feel" of the case, which a reviewing court cannot
enjoy.'" State v. Reece, 222 N.J. 154, 166 (2015) (omission in original) (quoting
Locurto, 157 N.J. at 471). Accordingly, we give deference to a "trial judge's
credibility determinations." Barrow, 408 N.J. Super. at 516. By contrast, the
trial court's interpretation of the law and the legal "consequences that flow from
established facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425
(2014).
IV.
"In nearly identical language, the Fourth Amendment of the United States
Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee
people the right 'to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]'" State v. Bryant, 483 N.J. Super. 13, 29
(App. Div. 2025) (quoting U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7). The
"basic purpose" of that constitutional right "is to safeguard the privacy and
A-0020-23 17 security of individuals against arbitrary invasions by governmental officials."
Carpenter, 585 U.S. at 303 (quoting Camara v. Mun. Ct. of S.F., 387 U.S. 523,
528 (1967)).
When a search is conducted outside of New Jersey, a threshold issue is
what law governs the legality of the search and seizure. See State v. Mollica,
114 N.J. 329, 345 (1989). The New Jersey Supreme Court has recognized:
With regard to law-enforcement activities, a state constitution ordinarily governs only the conduct of the state's own agents or others acting under color of state law. It is this fundamental understanding of the jurisdictional reach of state constitutions that has guided courts in determining whether, if at all, a state constitution can be applied to the officers of another state exercising only the lawful authority of that state.
[Ibid.]
Accordingly, if federal law enforcement officers acting outside of New Jersey
obtain evidence, the issue is whether those officers acted in conformity with
federal law and the law of the state where they were acting. Id. at 352-53; see
also State v. Evers, 175 N.J. 355, 376-77 (2003).
If the federal officers thereafter share information with New Jersey law
enforcement officers, and New Jersey uses that information against a defendant,
the question is whether there was an agency relationship between the federal
officers and the New Jersey officers at the time of the search and seizure. See
A-0020-23 18 Mollica, 114 N.J. at 349 (explaining "the presence or absence of agency between
the officers of [] two sovereigns . . . determines the applicability of the
constitutional standards of the forum jurisdiction"); Evers, 175 N.J. at 377
(recognizing that "the absence of any agency or control over another
jurisdiction's law enforcement authorities limit[s] the application of the
constitutional standards of [New Jersey]"). For example, in Mollica, federal
officers, without a warrant, secured telephone billing records of an occupant of
a hotel and turned the records over to New Jersey law enforcement authorities,
who used the information to obtain a warrant to search Mollica's hotel room.
114 N.J. at 334. The seizure of the telephone billing records would have been
illegal under the New Jersey Constitution. Id. at 345. Nevertheless, the New
Jersey Supreme Court held that New Jersey law enforcement officers could use
the information the federal authorities conveyed to them if the federal officers
had acted independently and in conformity with federal law in seizing the
telephone billing records. Id. at 334-35, 357. Accordingly, the Court remanded
to allow the trial court to develop the record on that issue. Id. at 357.
The New Jersey Supreme Court has recognized that the sharing of
information requires an analysis of whether there is an intergovernmental
agency relationship. In that regard, the Court has explained:
A-0020-23 19 This case [] requires us to consider the implications of the silver platter doctrine and its key element: intergovernmental agency. An important aspect of this determination is whether for constitutional purposes the federal agents can be said to be acting under the "color of state law."
The assessment of the agency issue necessarily requires an examination of the entire relationship between the two sets of government actors no matter how obvious or obscure, plain or subtle, brief or prolonged their interactions may be. The reasons and the motives for making any search must be examined as well as the actions taken by the respective officers and the process used to find, select, and seize the evidence.
[Id. at 355-56.]
The Court has also explained that if the investigation is intended for a
New Jersey prosecution, the federal agents can, in effect, be deemed agents of
New Jersey and thus subject to New Jersey law. State v. Minter, 116 N.J. 269,
283 (1989). If on the other hand, the federal officers act independently of New
Jersey officers, then the seized evidence can be used in a New Jersey
prosecution. See Mollica, 114 N.J. at 357 (explaining that New Jersey
constitutional protections "do not govern the legality of the actions of federal
officers" when they act "independently and without the cooperation or assistance
of [New Jersey] state officers with respect to the seizure of [] evidence").
A-0020-23 20 A. The Cell Phone Location Data.
In one of his motions, defendant sought to suppress all information
derived from the ping and cell phone location data obtained by the ATF and
shared with the NJSP. The trial court correctly recognized that the suppression
of that information depended on whether federal and Ohio law applied or
whether New Jersey law applied. The court also correctly recognized that
determination turned on whether there was an agency relationship between the
ATF and the NJSP when the data was obtained and when it was shared.
In the brief submitted by defense counsel, there is no argument that the
ATF did not act in conformity with federal and Ohio law in 2017, when they
obtained cell phone location data. Defense counsel also does not dispute that
the ATF agents acted in good faith in 2017, and that under federal and Ohio law
the subsequent change in the warrant requirement would not result in the
suppression of the data. In a supplemental brief filed by defendant he disputes
both those points. Defendant's arguments, however, lack merit and do not
warrant discussion in this opinion. See R. 2:11-3(e)(2).
Consequently, the controlling issue is whether the ATF officers were
acting as agents of New Jersey when they obtained defendant's cell phone
location data. The trial court resolved that factual question after hearing
A-0020-23 21 testimony from the three officers most involved in the investigations. Those
officers consistently testified that the ATF investigation was independent of the
NJSP investigation and at no point in time were the federal officers acting as
agents of New Jersey. Relying on that testimony the trial court found that the
two investigations were separate and distinct, and the ATF never acted as an
agent for the NJSP. Those findings are amply supported by the evidence
presented at the hearing.
The evidence at the hearing also amply supports the trial court's
determination that there was no communication between the ATF and NJSP
when the ATF first applied for the exigent ping and the subsequent pen registers.
Moreover, the evidence also supports the trial court's determination that even
when the cell phone location data was shared with NJSP in July 2017, there was
no agency relationship. Instead, there was sharing of information between two
governmental agencies, but the mere sharing of information did not create an
agency relationship. See Mollica, 114 N.J. at 355 (explaining that "mere
contact, awareness of ongoing investigations, or the exchange of information
may not transmute the relationship into one of agency"); State v. Knight, 145
N.J. 233, 259 (1996) (same).
A-0020-23 22 B. The Search of the Cell Phones.
In challenging the denial of the motion to suppress the information
obtained from his cell phones, defendant presents three arguments. First,
defense counsel contends that there was an undue delay between when
defendant's cell phones were seized and when they were searched and that delay
violated defendant's constitutional rights. Second, defendant, in his
supplemental brief, contends that the motion judge erred because the search of
his cell phones used information derived from his statements to McFarland and
those statements had been suppressed. Finally, in his supplemental brief,
defendant asserts that the motion judge should have suppressed his cell phone
passcodes and that the use of those passcodes made the search of the cell phones
illegal. We are not persuaded by any of these arguments.
The delay argument was not presented to the trial court on the motion to
suppress information obtained from the cell phones. Instead, before the trial
court, defendant argued that the motor vehicle stop in West Virginia and the
ensuing search of the car, during which the cell phones were seized, were illegal.
We, therefore, decline to consider defendant's new delay argument on this
appeal. Rule 3:5-7(d) allows "a defendant to appeal the denial of a Fourth
Amendment-based motion to suppress evidence after a conviction whether based
A-0020-23 23 on a guilty plea or a conviction." State v. Knight, 183 N.J. 449, 471 (2005).
Nevertheless, "[a]ppellate review is not limitless. The jurisdiction of appellate
courts rightly is bounded by the proofs and objections critically explored on the
record before the trial court by the parties themselves." State v. Robinson, 200
N.J. 1, 19 (2009). In other words, a defendant's right to appeal under Rule 3:5-
7(d) does not extend to all possible arguments that could have been raised.
Instead, defendant is limited to the arguments he raised on a motion to suppress.
See State v. Witt, 223 N.J. 409, 418 (2015).
The New Jersey Supreme Court has expressly addressed this limitation on
what a defendant can raise on an appeal of a motion to suppress. See Witt, 223
N.J. at 418. In Witt, the Court considered whether a defendant's "mere filing of
a motion to suppress under Rule 3:5-7(a) required the State 'to justify every
aspect of [a] warrantless search,'" including aspects of the search the defendant
"did not challenge at the suppression hearing." Ibid. The Court held that a
defendant could not raise a new argument. In that regard, the Court explained:
We reject defendant's contention that the State must disprove issues not raised by the defense at a suppression hearing. Defendant's approach would compel the State to cover areas not in dispute from fear that an abbreviated record will leave it vulnerable if the defense raises issues for the first time on appeal. Requiring the State to disprove shadow issues will
A-0020-23 24 needlessly lengthen suppression hearings and result in an enormous waste of judicial resources.
The Court further observed that when a defendant fails to raise an issue at
a suppression hearing it results in a record that is "barren of facts that would
shed light on th[e] issue." Ibid. Indeed, "the points of divergence developed in
proceedings before a trial court define the metes and bounds of appellate
review." Id. at 419 (quoting Robinson, 200 N.J. at 19). When a party fails to
make its position known so that it can be explored at the trial court, it "den ie[s]
the trial court the opportunity to evaluate the claim in an informed and deliberate
manner; and [] denie[s] any reviewing court the benefit of a robust record within
which the claim could be considered." Robinson, 200 N.J. at 21. In those
circumstances, a reviewing court "should [] decline[] to entertain the belatedly
raised issue." Witt, 223 N.J. at 419; see also State v. Ellison, 482 N.J. Super.
357, 385 (App. Div. 2025) (declining "to address issues not properly presented
to the trial court for consideration").
All the concerns identified in Witt support our decision to not consider the
delay argument for the first time on appeal. Because the issue was not raised
before the trial court, there was no testimony as to why the West Virginia
authorities retained the cell phones after defendant was released. There was also
A-0020-23 25 no testimony or evidence as to whether defendant requested the return of his cell
phones. Finally, there was no testimony or evidence concerning why agents
from the NJSP came to pick up the cell phones on September 8, 2017.
We also note that defendant's delay argument relies on applying New
Jersey law, and particularly New Jersey constitutional law. We reject that
contention for two reasons. First, we are not convinced that any law would
mandate the suppression of the information from the cell phones because of the
alleged delay in seeking communication data warrants to access the information
in the cell phones. Second, the record does not clearly show whether West
Virginia law or New Jersey law should be applied to the new argument being
raised for the first time on this appeal.
Finally, we also reject the two arguments raised by defendant in his
supplemental brief. The motion judge determined that lawful warrants for the
search of the cell phones would have inevitably been obtained. That analysis is
not undercut by defendant's arguments that he had voluntarily given his
passcodes to McFarland. Nor is the inevitability doctrine application undercut
because the volunteered passcodes were taped to the cell phones when they were
turned over to NJSP.
Affirmed.
A-0020-23 26