NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1602-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAMANTHA E. BONORA,
Defendant-Appellant. _______________________
Argued August 6, 2025 – Decided August 19, 2025
Before Judges Sumners and Walcott-Henderson.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 24-04-0392.
Steven E. Nelson argued the cause for appellant (Nelson, Fromer, Crocco & Jordan, attorneys; Steven E. Nelson, of counsel and on the briefs).
Monica do Outeiro, Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Monica do Outeiro, of counsel and on the brief). Raymond M. Brown argued the cause for amicus curiae Association of Criminal Defense Lawyers – New Jersey (Pashman Stein Walder Hayden, PC, attorneys; Dillon J. McGuire, of counsel and on the brief).
PER CURIAM
Defendant Samantha E. Bonora caused a tragic motor vehicle accident
when she drove head-on into another vehicle traveling in the opposite lane of
traffic after she entered that lane to pass a vehicle. The accident caused the
death of the other vehicle's three-year-old child passenger and injured that
vehicle's driver and two additional passengers. Post-accident toxicology reports
of defendant's blood revealed the presence of several illegal substances. A
search warrant was issued authorizing the State to obtain information in
defendant's cell phone from the day of the accident and four years prior because
there was probable cause to believe it contained evidence related to her violation
of state criminal laws.
Defendant was subsequently indicted for first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a)(1), two counts of second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1), and two counts of fourth-degree assault by auto,
N.J.S.A. 2C:12-1(c)(2). She was also issued motor vehicle summonses for
driving while intoxicated (DWI), N.J.S.A. 39:4-50, speeding, N.J.S.A. 39:4-98,
A-1602-24 2 improper passing, N.J.S.A. 39:4-86, failure to maintain lane, N.J.S.A. 39:4-88,
and driving with an expired license, N.J.S.A. 39:3-10(a).
After the search warrant was executed, defendant—asserting violations of
her federal and state constitutional protections against unreasonable searches
and seizures—moved to suppress the evidence seized from her cell phone,
claiming the warrant lacked probable cause and was overbroad. The motion was
denied.
After this court denied defendant leave to appeal the motion court's order,
our Supreme Court granted her leave to appeal and directed us to consider the
merits of her contentions. Having considered the record, the law, and the
arguments by the parties and amicus curiae, the Association of Criminal Defense
Lawyers – New Jersey, we reverse the order. We conclude defendant proved
that the State failed to establish probable cause to search defendant's cell phone
for information connected with the alleged offense of aggravated manslaughter
and the warrant was overbroad in seeking information from four years prior to
the offense and pertaining to violations of any state criminal law.
A-1602-24 3 I.
A.
Because defendant challenges the search warrant's validity, we limit our
summary of facts set forth within the four corners of the State's affidavits by
Howell Township Patrolman Daniel Scherbinski and Monmouth County
Prosecutor's Office (MCPO) Detective Brian Jados. The warrants were
submitted to allow a forensic examination of all data, information, applications,
and the like of defendant's cell phone from January 1, 2020 through January 13,
2024, regarding violations of the state criminal laws.1 See State v. Marshall,
199 N.J. 602, 613 (2009) (quoting Maryland v. Garrison, 480 U.S. 79, 85 (1987))
(explaining the validity of a search warrant "must be assessed on the basis of the
information that the officers disclosed, or had a duty to discover and to disclose,
to the issuing Magistrate").
Officer Scherbinski's Affidavit
Officer Scherbinski has nine years of police experience, having served in
the patrol division and the traffic safety unit, and received specialized training
1 The search warrant also sought information from the driving navigation units that were in defendant's vehicle. This is not the subject of defendant's appeal and will not be discussed. A-1602-24 4 in traffic investigation and crash reconstruction. His experience includes
investigating hundreds of serious and fatal motor vehicle accidents.
On January 13, 2024, defendant, driving her 2014 Dodge Ram, attempted
to unsafely pass another vehicle in her traffic lane at a high rate of speed when
she collided head-on with a 2021 Jeep Cherokee that was traveling in the
opposite lane, driven by Joelle M. Williams. The accident caused the death of
Williams' three-year-old daughter, significant injuries to Williams, and injuries
to her passengers, her one-year-old son and sister. Witnesses at the accident
scene described defendant as impaired based on her drooping eyes and slurred
speech. A police officer's body camera footage depicted defendant's statements
denying current substance use and claiming she was on her way to find an
Alcoholics Anonymous meeting.
Ten days after the accident, police executed a search warrant on
defendant's car, revealing a labeled bottle of methadone prescribed to defendant,
a cell phone in an orange and pink case located near the driver-side floorboard
(suspected to be defendant's), and two GPS navigation units. A search of
defendant's driving record revealed she was convicted of DWI in 2010, and DWI
and refusal to take a breathalyzer, N.J.S.A. 39:4-50.4a, in 2015. Police also
A-1602-24 5 learned that defendant was arrested for possession of controlled dangerous
substances (CDS) in 2020 and 2022, respectively.
Laboratory toxicology reports stated "that approximately [three] hours
after the fatal collision, [defendant's] blood contained specific levels of
[m]ethadone, EDDP, [m]orphine, [f]ree [m]orphine, [f]entanyl, [n]orfentanyl,
[l]amotrigine, and an animal tranquilizer identified as [x]ylazine." Defendant
was undergoing methadone treatment for opioid use disorder receiving 95mg of
methadone daily. An unnamed forensic toxicologist indicated to the MCPO
"that in evaluating the extent of a person's impairment, and any potential
tolerance to substances, it is useful to learn the extent of the person's history
with narcotic substances, including what narcotics were used, in what amounts,
in what combinations, for how long, and how often."
Officer Scherbinski asserted there was "probable cause to believe that []
[defendant's] cell phone's contents from the date of January 1, 2020, through,
until, and including January 13, 2024, will provide evidence relating to this
investigation into [a]ggravated [m]anslaughter and [DWI]." He emphasized that
drug transactions are frequently arranged via digital messaging or apps, and that
location, contacts, and calendar data could provide evidence regarding the
accident and defendant's substance use patterns. He requested authorization to
A-1602-24 6 search all contents of the cell phone and the driving navigation units for the
specified time period for any relevant evidence.
Detective Jados' Affidavit
Detective Jados has been employed in law enforcement since 2013,
including stints as a detective in both the Hunterdon County Prosecutor's Office
and MCPO. He has a Bachelor of Science degree in Information Technology
and a graduate degree in Computer Forensics. He is certified as a Mobile Device
Forensic Examiner, a Forensic Computer Examiner and a Computer Crime
Examiner. He has testified in state court as an expert witness in the field of
computer forensics.
Detective Jados claimed the warrant sought the search of "each electronic
device identified in a forensically sound manner," noting that a comprehensive
forensic extraction is necessary because of how data can be stored and
interrelated throughout a device. He explained that a targeted extraction is often
not feasible due to the complexity and commingling of data in modern devices.
Forensic tools cannot extract only specific items without processing the whole
device, and a manual "targeted" extraction would be prohibitively time-
consuming. Furthermore, electronic devices can contain a wide variety of
information relevant to criminal investigations: messages, photos, videos,
A-1602-24 7 communications, call logs, passwords, emails, contacts, calendars, browser
history, notes, geographical data, etc. Devices can also contain deleted
information that may be recoverable.
Jados sought permission to conduct physical and forensic analyses of all
storage media, explaining the necessity to preserve both processed reports and
"raw" data for proceedings against defendant. He wanted to use any forensic
tools necessary for acquisition and processing; search all extracted data as
reasonably needed to locate relevant evidence; preserve and securely store all
extracted raw data; seek assistance from other qualified law enforcement or
civilian forensic examiners as needed; and continue examinations as long as
necessary to complete them.
B.
On February 16, 2024, a search warrant judge granted the State's request
to search defendant's cell phone based on Officer Scherbinski and Detective
Jados' affidavits. The order stated:
There has been and now is located [in defendant's cell phone] and data:
(a) obtained in violation of the penal laws of the State of New Jersey;
(b) possessed, controlled, designed, intended for use in violation of the penal laws of the State of New Jersey;
A-1602-24 8 (c) which has been used in connection with the violation of the penal laws of the State of New Jersey;
(d) which constitutes evidence of or tends to show a violation of the penal laws of the State of New Jersey, to wit:
Data and information stored on or within the above-described electronic device, including any removable flash media, relevant to the investigation of the crime(s) of Murder2 and Aggravated Manslaughter, including items of investigative and/or evidential value which may be found, from the time period of January 1, 2020 through, to, and including January 13, 2024, to include:
1) Information regarding passwords or enabling encryption of the device(s);
2) Information pertaining to the identity of the subscriber, owner, or user of the device(s);
3) Stored contact information providing corroborative evidence and communication with involved persons, or tending to establish an association with others who are likely involved in the investigated crime(s), including address books, directories, calendars, etc.;
4) Incoming, outgoing, and missed telephone calls, call detail records, and/or
2 This is erroneous as defendant was not charged with murder. A-1602-24 9 text messages relating to the investigated crime(s);
5) Internet history, favorites, profiles, caches, cookies, metadata and stored pages relating to the investigated crime(s);
6) E-mails, read and/or maintained on the device(s), that bear upon any of the investigated crime(s);
7) Stored electronic information, including graphic files (both video and photo) on said devices, that bear upon the investigated crime(s);
8) Location data, whether recorded by the Global Positioning System (GPS), Bluetooth, WiFi, or other wireless antenna system(s), of the device(s) relevant to the investigated crime(s);
9) Applications capable of transmitting multimedia (files, photos, videos, audio, etc.) electronic messages, including SMS, MMS, itext, or social media applications, inclusive of the messages, whether opened or unopened, deleted, read or unread, relevant to the investigated crime(s) (i.e. Facebook, Twitter, Instagram, KIK, Snapchat, Telegram, Whisper, Skout, et al.), via Personal Communications Service; Telephone/Voice Over Internet Protocol (including Mobile Broadband Networks and Wifi); Global Standard for Mobile; Code Division Multiple Access; or other wireless messaging applications or software programs; however, said
A-1602-24 10 applications may only access information and data resident on said device(s) and may not be used to access the Internet or to upload or download additional information and data;
10) Data stored on user downloaded applications related to the investigated crime(s) and/or regarding related incidents described prior, including any password- protected, deleted or encrypted data or information;
11) Databases, and information, electronic or otherwise, stored on or within the above referenced electronic device(s), including any removable flash media, relevant to the investigated crime(s), including items of evidential value which may be found;
12) Stored electronic information, or otherwise stored information (registry keys, plists, databases, event logs, etc.), within the above references device(s), necessary to acquire, process, decrypt, and/or interpret the above-specified items; and
13) Data, databases, metadata, and/or information, with respect to the above- specified items, that may be located in deleted, unallocated, or slack spaces within the electronic device(s).
A-1602-24 11 Thus, the State was authorized to conduct a forensic examination of defendant's
cell phone from January 1, 2020 through January 13, 2024, covering a wide
range of data types.
Initially, the State moved to compel defendant to provide the password to
her locked cell phone, but this motion was withdrawn after the State gained
access to the phone's contents without the password. Detective Jados conducted
a full forensic extraction of the phone using software enabling the recovery of
extensive data, including location history, texts, and information relevant to the
search warrant.
C.
On April 12, 2024, a Monmouth County Grand Jury indicted defendant on
first-degree aggravated manslaughter, two counts of second-degree aggravated
assault, and two counts of fourth-degree assault by auto. Three months later,
defendant moved to suppress evidence extracted from the cell phone.3
After argument on October 15, the motion court reserved decision. 4 Eight
days later, the court issued an oral decision. Citing State v. Sullivan, 169 N.J.
3 The day after defendant filed her motion, the State filed a motion in limine to admit N.J.R.E. 404(b) evidence. The denial of that motion is not before us. 4 The argument transcript is not in the record before us. A-1602-24 12 204, 210 (2001), the court determined a search warrant is presumed valid unless
the party opposing its issuance establishes there was no "probable cause to
believe that evidence of a crime is at the place to be searched." The court found
defendant did not satisfy her burden under State v. Marshall, 123 N.J. 1, 72
(1991), to show the warrant was invalid. The court held, based on the affidavits
of Officer Scherbinski and Detective Jados, the "[e]vidence found on defendant's
phone related to defendant's drug usage going directly to [] aggravated
manslaughter" and "probable cause exists to support the idea that defendant's
history of drug use was facilitated by the use of defendant's cell phone ." The
court stated the search warrant allowed the search of defendant's phone for
information "within the period of January 1st, 2022 and January 13th, 2024."
However, the actual time frame in the search warrant was January 1, 2020
through January 13, 2024.
II.
In her appeal, defendant argues in a single point: "THE SEARCH
WARRANT IS CONSTITUTIONALLY INVALID." To resolve this argument,
we are guided by some general principles.
Both the Fourth Amendment to the United States Constitution and Article
I, Paragraph 7 of the New Jersey Constitution "protect individuals' rights 'to be
A-1602-24 13 secure in their persons, houses, papers, and effects' by requiring that search
warrants be 'supported by oath or affirmation' and describe with particularity the
places subject to search." State v. Andrews, 243 N.J. 447, 464 (2020). "[N]o
warrant shall issue except upon probable cause." N.J. Const. art. I, ¶ 7.
"The application for a warrant must satisfy the issuing authority 'that there
is probable cause to believe that a crime has been committed, or is being
committed, at a specific location or that evidence of a crime is at the place sought
to be searched.'" State v. Boone, 232 N.J. 417, 426 (2017) (emphasis added)
(quoting State v. Jones, 179 N.J. 377, 388 (2004)). The same standard applies
to a search warrant to obtain information from a cell phone. Andrews, 243 N.J.
at 465-66. Probable cause is "a fluid concept—turning on the assessment of
probabilities in particular factual contexts—not readily, or even usefully,
reduced to a neat set of legal rules." State v. Chippero, 201 N.J. 14, 27 (2009)
(quoting United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)). There
must be "substantial evidence" supporting a court's probable cause
determination. Id. at 28. The probable cause inquiry requires courts to "make
a practical, common sense determination whether, given all of the
circumstances, there is a fair probability that contraband or evidence of a crime
will be found in a particular place." Marshall, 199 N.J. at 610 (quoting State v.
A-1602-24 14 O'Neal, 190 N.J. 601, 612 (2007)). "[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.'" Jones, 179 N.J. at 388
(quoting State v. Valencia, 93 N.J. 126, 133 (1983)); see also Boone, 232 N.J.
at 427. A search warrant affidavit containing hearsay is acceptable to support a
search warrant as long as it "contain[s] 'facts which give the statement an
appearance of trustworthiness.'" State v. Gathers, 234 N.J. 208, 223 (2018)
(quoting State v. DiRienzo, 53 N.J. 360, 385 (1969)).
We "should reverse [an order authorizing a search warrant] only when the
trial court's determination is 'so clearly mistaken that the interests of justice
demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014)
(quoting State v. Elders, 192 N.J. 224, 244 (2007)) (internal quotation marks
omitted). The trial court's "factual findings underlying [its] decision [are
upheld] so long as those findings are supported by sufficient credible evidence
in the record." State v. Lamb, 218 N.J. 300, 313 (2014). "A trial court's
interpretation of the law, however, and the consequences that flow from
established facts are not entitled to any special deference. Therefore, a trial
court's legal conclusions are reviewed de novo." Gamble, 218 N.J. at 425
A-1602-24 15 (citation omitted). Any "[d]oubt as to the validity of the warrant 'should
ordinarily be resolved by sustaining the search.'" State v. Keyes, 184 N.J. 541,
554 (2005) (quoting Jones, 179 N.J. at 389).
III.
Defendant challenges the motion court's ruling that probable cause existed
to issue the search warrant of her cell phone because it contained evidence
related to her indictment for aggravated manslaughter. Thus, our review of the
ruling is de novo. See Gamble, 218 N.J. at 425.
To convict defendant of aggravated manslaughter, the State had to prove
she "recklessly cause[d] death under circumstances manifesting extreme
indifference to human life." N.J.S.A. 2C:11-4(a)(1). Aggravation occurs when
defendant's conduct "manifesting extreme indifference to human life elevates
the risk level from a mere possibility to a probability." State v. Curtis, 195 N.J.
Super. 354, 364 (1984) (internal quotation omitted). The State contends
"Scherbinski's affidavit established probable cause to believe evidence relevant
to establishing an element of [aggravated manslaughter] –– the recklessness and
indifference to human life occasioned by her impaired driving, . . . –– could be
found in locations [in defendant's cell phone] beyond the call logs for the date
and time of the collision."
A-1602-24 16 A decade ago, the United State Supreme Court recognized the need to
protect people from Fourth Amendment violations that arise when the
government accesses information in a person's cell phone. In Riley v.
California, the Court held "[m]odern cell phones are not just another
technological convenience. With all they contain and all they may reveal, they
hold for many Americans the privacies of life." 573 U.S. 373, 403 (2014)
(citation and internal quotation marks omitted). See also Carpenter v. United
States, 585 U.S. 296, 320, (2018) (noting the judiciary is obligated "to ensure
that [technological progress] does not erode Fourth Amendment protections").
And given the immeasurably expanded use of cell phones since Riley, this court
recently acknowledged our State constitution's recognition of "the strong
privacy interests associated with the contents[] of individuals' personal
electronic devices, which often include an extraordinary amount of confidential
and even privileged information." Lipsky v. N.J. Ass'n of Health Plans, Inc.,
474 N.J. Super. 447, 473, 475 (App. Div. 2023) (reversing a discovery "order to
the extent the trial court mandated that the [New Jersey] Department [of Health]
and its employees turn over State-issued and personal electronic devices for
forensic review by plaintiffs' [information technology] expert").
A-1602-24 17 Viewing the totality of the circumstances, we agree with defendant and
amicus that the search warrant was not based upon probable cause that her cell
phone contained evidence related to the charged crimes, thereby making the
warrant constitutionally invalid. We conclude there is nothing within the four
corners of Officer Scherbinski's affidavit, or a reasonable interpretation of the
facts or hearsay he asserts, to establish a connection between the cell phone and
the proofs needed to sustain an aggravated manslaughter charge. We appreciate
the officer's assertion that defendant probably used her phone to acquire illegal
drugs. But in an effort to establish defendant's driving at the time of the fatal
accident was reckless and demonstrated indifference to human life,
Scherbinski's his affidavit relied upon an unnamed toxicologist's vague claim
that to determine whether a person is impaired by substances: "[I]t is useful to
learn the extent of the person's history with narcotic substances, including what
narcotics were used, in what amounts, in what combinations, for how long, and
how often." The toxicologist's purported statement makes no reference to what
defendant's post-accident blood tests revealed nor does it specify how long a
history of her substance abuse is needed. The mere claim that the cell phone
may contain "useful" information is an unreasonable basis under our federal or
state constitutions to search defendant's cell phone containing her most private
A-1602-24 18 thoughts and communications to determine whether she was impaired at the time
of the accident based on potential cell phone data showing the extent of her
illegal substance consumption. One might reasonably expect the phone to reveal
defendant's drug purchases, but to expect the phone to indicate how much or
what drugs defendant may have consumed over a period of time is certainly
doubtful at best.
Defendant has a documented history of substance abuse disorder. To the
extent her drug use other than the day or so before the accident may be relevant,
this information is accessible and more reliably obtained through other means
outside of her cell phone, which contains personal privileged information
unrelated to the indictment. Indeed, defendant acknowledged at argument
before us that the State has obtained her substance abuse disorder treatment
records.
We also find it constitutionally problematic that the warrant allows for a
search of defendant's cell phone information covering a four-year period,
January 1, 2020 through January 13, 2024. There is no reasonable indication in
the State's affidavits why the search covered this length of time. At argument,
the State conceded that the January 1, 2020 date goes back to defendant's first
arrest for possession of CDS. As noted, given the toxicologist's vague statement
A-1602-24 19 regarding the importance of drug use history, we conclude a four-year lookback
for the search of defendant's cell phone is overbroad.
The search warrant is further overbroad for the scope of information or
data sought in defendant's cell phone. Considering the State claims it was
specifically looking for evidence showing the extent of defendant's drug use, the
warrant's authorization for information or data related to a violation of any of
our state's criminal laws is constitutionally invalid. See, e.g., United States v.
Winn, 79 F.Supp. 3d 904, 918, 927 (S.D. Ill. 2015) (finding a communications
data warrant "ha[d] no valid portions" because the description of the search—
"any and all files"—was broader than the evidence over which the police had
probable cause). The warrant was not limited to information or data related to
the use of illegal drugs that would assist the State's investigation regarding the
charge of aggravated manslaughter.
To the extent we conclude that Officer Scherbinski's affidavit does not
establish probable cause to justify the search of defendant's cell phone,
defendant and amicus' reliance on our recent decision in State v. Missak, 476
N.J. Super. 302 (App. Div. 2023), is appropriate. In Missak, we addressed the
proper scope of a search warrant for the contents of the defendant's cell phone
taken from him incident to his arrest for attempted sexual assault. Id. at 307.
A-1602-24 20 The trial court granted a search warrant which sought "all of the data" on
defendant's smart phone, including stored electronic data, all recent calls and
messages, stored pictures and videos, GPS data, calendar information, encrypted
files, and any other stored information helpful to the investigation. Id. at 310-
11. The trial court found there was probable cause to search the entire contents
of the phone. Id. at 311. We, however, ruled the warrant was overbroad,
because "the warrant's constitutional infirmity [was] grounded in its
authorization of searches of information and data within the phone for which
[the affiant]'s certification d[id] not adequately establish probable cause." Id. at
322. Taking into consideration "the complexity" of cell phones and "law
enforcement's ability to cull through the information and data," the court
instructed that "any future search warrant application should address such issues
to allow the court to determine the locations within the data and information on
the cellular phone there is probable cause to believe relevant information
concerning the crimes charged may be found." Id. at 323.
Defendant and amicus also argue the search warrant application was
deficient because Scherbinski's affidavit failed to particularize the locations in
the cell phone where information or data can be found. However, as was the
situation in Missak, it is unnecessary "to reach the argument because the fatal
A-1602-24 21 flaw in the warrant is not that it does not define with particularity where the
search may be conducted." Id. at 322.
IV.
In sum, we conclude the search warrant violates our federal and state
constitutional protections against unreasonable searches and seizures. The
State's warrant application did not provide probable cause to search defendant's
cell phone for information or data to support the charge of aggravated
manslaughter––that defendant was reckless and indifferent to human life by her
impaired driving––and is overbroad by covering a four-year search span and
violations of any state criminal law.
Reversed and remanded for further proceedings. We do not retain
jurisdiction.
A-1602-24 22