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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-6044-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JADE STEPHEN EPLIN, a/k/a JADE S. ELPIN,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided October 1, 2021
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 16-10-2424.
Mark E. Roddy, attorney for appellant.
Cary Shill, Acting Atlantic County Prosecutor, attorney for respondent (John J. Lafferty, IV, Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried by a jury, defendant was convicted of third-degree possession or
viewing child pornography, N.J.S.A. 2C:24-4(b)(5)(b)(iii), arising from child
pornographic images discovered on his computer when he was a student at
Stockton State University. He appeals, arguing:
POINT I
[DEFENDANT]'S CONVICTION WAS BASED UPON EVIDENCE DERIVED FROM AN ILLEGAL WIRETAP.
POINT II
AN INDIVIDUAL CANNOT CONSENT TO SOMETHING HE DOES NOT KNOW ABOUT.
POINT III
THE TRIAL COURT'S DECISION TO SLAM THE DOOR SHUT ON THE DEFENDANT'S SUPPRESSION HEARING DEPRIVED HIM OF AN OPPORTUNITY TO LITIGATE THE FOURTH AMENDMENT ISSUES IN HIS CASE.
POINT IV
ARTICLE 1, PARAGRAPH 1 OF THE NEW JE[R]SEY CONSTITUTION OF 1947 PROHIBITS A CONVICTION FOR ANY INDIVIDUAL WHO WAS SIMPLY "LOOKING" AT SOMETHING. (Not Raised Below)
POINT V
A-6044-17 2 IT WAS ERROR FOR THE TRIAL COURT NOT TO GRANT THE MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY VERDICT.
We reject defendant's arguments that his motion to suppress evidence and
motion for acquittal should have been granted. We conclude that his acceptance
of the University's computer acceptable use standards policy in employing its
server to access the internet gave the University the right to monitor his
computer and retain the child pornographic images linked to his computer. We
further conclude that there was sufficient evidence from those images as well as
testimony presented by the State's witnesses for the jury to find defendant guilty
of possession or control of child pornography.
We begin by addressing defendant's contention that the child
pornographic images linked to his computer through the use of the University's
computer server should have been suppressed because the seizure violated his
privacy rights under the Fourth Amendment of the U.S. Constitution and Article
1, paragraph 7 of the N.J. Constitution against unreasonable search and seizure
of information linked to his computer. He maintains that the University's
interception and recording of his internet activity constituted a "wiretap"
because his internet activity is a "wire communication" under N.J.S.A.
2A:156A-2(a). He stresses that because the University was operating at the
A-6044-17 3 behest "of the police and the prosecutor's office" without obtaining a "wiretap
order," the University's wiretap was illegal. He contends he did not consent to
the wiretap of his internet activity because he was unaware the University was
monitoring his internet use. He adds that "consent has absolutely no place in a
wiretap analysis."
Defendant's contentions erroneously equate the University's conduct with
wiretapping. The University's monitoring of defendant's internet activity when
he used its computer server was not a wiretap. The motion judge properly
applied the University's acceptable use standards policy in finding the
University had the right to monitor defendant's internet activity because he
consented to the University's access when he employed its server to go onto the
internet.
In her oral decision, the motion judge found support in the following
pertinent parts of the policy,1 stating:
"Authorized use of an access to [U]niversity's computing and communications facilities is intended and permitted solely to support legitimate educational, administrative, and mission-centered institution."
1 The record before us does not provide a full copy of the University's acceptable use standards policy. A-6044-17 4 And this is in bold. "The [U]niversity may regularly review access logs of servers and network devices to ensure appropriate utilization."
Standard (1) of this appropriate use [policy] says as follows: "(1) Forms of expression that are not protected by First Amendment and, therefore, are subject to appropriate restrictions and/or referral to authorities by the [U]niversity include obscene material, child pornography, or other material that violates local, state, or federal statutes."
And I'm reading this directly from the privacy standard. Standard (3) says as follows: "Appropriate use of accessible materials. The [U]niversity reserves the right to inspect the content of electronic files when it has reasonable belief that the content of material would violate university policy, state[,] or federal law. The [U]niversity retains the right to review the content of any files when the content of such files is likely to be material to the alleged violation or in a death, illness, or separation of a user. The contents of the [U]niversity's email and electronic communication systems may be subject to disclosure under subpoena or other written request made pursuant to authorized procedures, including requests made pursuant to the Open Public Records Act."
[Emphasis added.]
The judge further noted that in using the University's server to access the
internet, "defendant does not have to agree to the terms in the agreement, simply
— [he] had the opportunity . . . to disagree with the terms of the agreement
simply by not using the [U]niversity's network."
A-6044-17 5 Defendant does not argue that he accessed the internet from a non-
University server. Because he was on notice that the University––to ensure
compliance with its internet acceptable use standards policy––had the right to
review his internet activity when he used its server, there was no violation of
defendant's federal or state constitutional rights. Defendant accordingly had no
expectation of privacy given his acceptance of the University's policy. There
was no restriction on the University recording and sharing with the State what
it obtained when monitoring defendant's internet use.
In sum, the motion judge's factual findings are supported by credible
evidence in the record, see State v. Lamb, 218 N.J. 300, 313 (2014) (citing State
v. Elders, 192 N.J. 224, 243 (2007)), and we discern no basis to upset the denial
of defendant's suppression motion.
We also see no merit to defendant's argument that he was entitled to an
evidentiary hearing to determine his motion to suppress, and that we should
reverse "[his] conviction and direct the trial court to conduct a full evidentiary
hearing on the facts and circumstances surrounding the wiretap." Based on the
record provided, defendant never made a request for a hearing. When the judge
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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-6044-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JADE STEPHEN EPLIN, a/k/a JADE S. ELPIN,
Defendant-Appellant. ________________________
Submitted September 13, 2021 – Decided October 1, 2021
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 16-10-2424.
Mark E. Roddy, attorney for appellant.
Cary Shill, Acting Atlantic County Prosecutor, attorney for respondent (John J. Lafferty, IV, Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Tried by a jury, defendant was convicted of third-degree possession or
viewing child pornography, N.J.S.A. 2C:24-4(b)(5)(b)(iii), arising from child
pornographic images discovered on his computer when he was a student at
Stockton State University. He appeals, arguing:
POINT I
[DEFENDANT]'S CONVICTION WAS BASED UPON EVIDENCE DERIVED FROM AN ILLEGAL WIRETAP.
POINT II
AN INDIVIDUAL CANNOT CONSENT TO SOMETHING HE DOES NOT KNOW ABOUT.
POINT III
THE TRIAL COURT'S DECISION TO SLAM THE DOOR SHUT ON THE DEFENDANT'S SUPPRESSION HEARING DEPRIVED HIM OF AN OPPORTUNITY TO LITIGATE THE FOURTH AMENDMENT ISSUES IN HIS CASE.
POINT IV
ARTICLE 1, PARAGRAPH 1 OF THE NEW JE[R]SEY CONSTITUTION OF 1947 PROHIBITS A CONVICTION FOR ANY INDIVIDUAL WHO WAS SIMPLY "LOOKING" AT SOMETHING. (Not Raised Below)
POINT V
A-6044-17 2 IT WAS ERROR FOR THE TRIAL COURT NOT TO GRANT THE MOTION FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE JURY VERDICT.
We reject defendant's arguments that his motion to suppress evidence and
motion for acquittal should have been granted. We conclude that his acceptance
of the University's computer acceptable use standards policy in employing its
server to access the internet gave the University the right to monitor his
computer and retain the child pornographic images linked to his computer. We
further conclude that there was sufficient evidence from those images as well as
testimony presented by the State's witnesses for the jury to find defendant guilty
of possession or control of child pornography.
We begin by addressing defendant's contention that the child
pornographic images linked to his computer through the use of the University's
computer server should have been suppressed because the seizure violated his
privacy rights under the Fourth Amendment of the U.S. Constitution and Article
1, paragraph 7 of the N.J. Constitution against unreasonable search and seizure
of information linked to his computer. He maintains that the University's
interception and recording of his internet activity constituted a "wiretap"
because his internet activity is a "wire communication" under N.J.S.A.
2A:156A-2(a). He stresses that because the University was operating at the
A-6044-17 3 behest "of the police and the prosecutor's office" without obtaining a "wiretap
order," the University's wiretap was illegal. He contends he did not consent to
the wiretap of his internet activity because he was unaware the University was
monitoring his internet use. He adds that "consent has absolutely no place in a
wiretap analysis."
Defendant's contentions erroneously equate the University's conduct with
wiretapping. The University's monitoring of defendant's internet activity when
he used its computer server was not a wiretap. The motion judge properly
applied the University's acceptable use standards policy in finding the
University had the right to monitor defendant's internet activity because he
consented to the University's access when he employed its server to go onto the
internet.
In her oral decision, the motion judge found support in the following
pertinent parts of the policy,1 stating:
"Authorized use of an access to [U]niversity's computing and communications facilities is intended and permitted solely to support legitimate educational, administrative, and mission-centered institution."
1 The record before us does not provide a full copy of the University's acceptable use standards policy. A-6044-17 4 And this is in bold. "The [U]niversity may regularly review access logs of servers and network devices to ensure appropriate utilization."
Standard (1) of this appropriate use [policy] says as follows: "(1) Forms of expression that are not protected by First Amendment and, therefore, are subject to appropriate restrictions and/or referral to authorities by the [U]niversity include obscene material, child pornography, or other material that violates local, state, or federal statutes."
And I'm reading this directly from the privacy standard. Standard (3) says as follows: "Appropriate use of accessible materials. The [U]niversity reserves the right to inspect the content of electronic files when it has reasonable belief that the content of material would violate university policy, state[,] or federal law. The [U]niversity retains the right to review the content of any files when the content of such files is likely to be material to the alleged violation or in a death, illness, or separation of a user. The contents of the [U]niversity's email and electronic communication systems may be subject to disclosure under subpoena or other written request made pursuant to authorized procedures, including requests made pursuant to the Open Public Records Act."
[Emphasis added.]
The judge further noted that in using the University's server to access the
internet, "defendant does not have to agree to the terms in the agreement, simply
— [he] had the opportunity . . . to disagree with the terms of the agreement
simply by not using the [U]niversity's network."
A-6044-17 5 Defendant does not argue that he accessed the internet from a non-
University server. Because he was on notice that the University––to ensure
compliance with its internet acceptable use standards policy––had the right to
review his internet activity when he used its server, there was no violation of
defendant's federal or state constitutional rights. Defendant accordingly had no
expectation of privacy given his acceptance of the University's policy. There
was no restriction on the University recording and sharing with the State what
it obtained when monitoring defendant's internet use.
In sum, the motion judge's factual findings are supported by credible
evidence in the record, see State v. Lamb, 218 N.J. 300, 313 (2014) (citing State
v. Elders, 192 N.J. 224, 243 (2007)), and we discern no basis to upset the denial
of defendant's suppression motion.
We also see no merit to defendant's argument that he was entitled to an
evidentiary hearing to determine his motion to suppress, and that we should
reverse "[his] conviction and direct the trial court to conduct a full evidentiary
hearing on the facts and circumstances surrounding the wiretap." Based on the
record provided, defendant never made a request for a hearing. When the judge
asked defense counsel to state, "what you're seeking and why you're seeking it,"
counsel gave a factual synopsis of how the University obtained the child
A-6044-17 6 pornographic images linked to defendant's computer, acknowledging "[t]here’s
actually not much [facts] in dispute," and why it violated defendant's privacy
rights. Because there was no request for a hearing, we review for plain error.
State v. Santamaria, 236 N.J. 390, 404 (2019) (citing R. 2:10-2).
Defendant fails to establish that there were material facts in dispute that
needed to be resolved in an evidentiary hearing. See State v. Green, 346 N.J.
Super. 87, 90-91 (App. Div. 2001) (holding that mere allegation of a warrantless
search, coupled with the State's burden to justify it, does not constitute a material
dispute of fact requiring an evidentiary hearing). The judge maintained the sole
issue in the motion was whether defendant had a privacy expectation from using
the University's server. And, as noted above, we agree with her that the
University's monitoring of defendant's computer was permissible because he
accepted the University's acceptable use standards policy, which allowed it to
monitor his activity when he accessed its server to go onto the internet.
Finally, we reject defendant's contention that the trial judge––who did not
decide the motion to suppress––erred in not granting the motion for acquittal
because "the State's proofs did not rise to the level of proof beyond a reasonable
doubt." Specifically, defendant argues the State failed to prove that he possessed
or observed the child pornographic images linked to his computer. He also
A-6044-17 7 maintains, for the first time, the Legislature did not criminalize someone for
"merely 'looking at something,'" apparently referring to the child pornographic
images.
When reviewing a trial judge's denial of a motion of acquittal, we consider
whether "based on the entirety of the evidence and after giving the State the
benefit of all its favorable testimony and all the favorable inferences drawn from
that testimony, a reasonable jury could find guilt beyond a reasonable doubt."
State v. Williams, 218 N.J. 576, 594 (2014) (citing State v. Reyes, 50 N.J. 454,
458-59 (1967)). That deferential standard was met here.
In accordance with N.J.S.A. 2C:24-4(b)(5)(b)(iii), "[a] person commits a
crime of the third degree if he knowingly possesses, knowingly views, or
knowingly has under his control, through any means, including the Internet, less
than 1,000 items depicting the sexual exploitation or abuse of a child." Our
review of the trial record informs us that the State presented sufficient evidence
for the jury to find defendant possessed or had control over child pornographic
images in violation of the statute.
Defendant's friend Katherine Cairns testified that while she was in
defendant's dormitory room, she declined his offer to see child pornography he
had on his computer. Defendant, majoring in computer science, further told
A-6044-17 8 Cairns he had the capability to change his computer's IP address so that when
he viewed child pornography, there would be no indication that it was on his
computer.
After Cairns reported her conversation with defendant to the University
police, Robert Heinrich, the University's Chief Information Officer in charge of
the Division of Information Technology Services, was instructed to monitor
defendant's internet activity. Heinrich directed Brian Gormley, the University's
Associate Director of Network Telecommunications and Network
Infrastructure, to monitor defendant's internet activity and network traffic, and
to "maintain those logs." Heinrich also testified about the University's
acceptable use standards policy.
A three-month investigation ensued, resulting in Gormley finding that
defendant encrypted his network traffic, which prevented––except
occasionally––Gormley from observing defendant's internet searches and
viewings on the University's network. However, Gormley was eventually able
to view a large amount of child pornography that was accessed by defendant's
computer. He collected the data from the University's network, kept it on a
separate server in its original format, and turned it over to the Atlantic County
Prosecutor's Office. Gormley could neither confirm that defendant accessed
A-6044-17 9 specific photos after the child pornographic website was accessed nor that
defendant accessed any of the thumbnails of pornography depicted on the
website.
Through the testimony of Prosecutor's Office Detective Christopher
Hallett, the State displayed thirty-five files of individual thumbnails of child
pornographic images that Gormley testified were accessed by defendant's
computer through the University network. Hallett stated that after defendant's
computer and cell phone were seized, an encryption software running on
defendant's computer was discovered, which prevented anyone from locating
what was on his computer.
Defendant did not testify, nor did he present any witnesses. His arguments
that the State's evidence did not prove his guilt beyond a reasonable doubt are
unconvincing. Contrary to defendant's contention, his conviction was not based
on the State's assertion that he viewed child pornographic images, but as evinced
by this use of the University's network, the aforementioned State's evidence
clearly showed that he possessed or controlled child pornographic images as
prohibited by N.J.S.A. 2C:24-4(b)(5)(b)(iii). The motion for acquittal was
properly denied.
A-6044-17 10 Affirmed.
A-6044-17 11