               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2102-17T2

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                 JUNE 2, 2020

v.                                        APPELLATE DIVISION


MARQUIS ARMSTRONG,

     Defendant-Appellant.
____________________________

           Argued December 9, 2019 – Decided June 2, 2020

           Before Judges Messano, Ostrer and Susswein.

           On appeal from the State of New Jersey, Law
           Division, Essex County, Indictment No. 15-05-0932.

           Zachary Gilbert Markarian, Assistant Deputy Public
           Defender, argued the cause for appellant (Joseph E.
           Krakora, Public Defender, attorney; Michael Timothy
           Denny, Assistant Deputy Public Defender, of counsel
           and on the briefs; Zachary Gilbert Markarian, on the
           briefs).

           Adam David Klein, Deputy Attorney General, argued
           the cause for respondent (Gurbir S. Grewal, Attorney
           General, attorney; Adam David Klein, of counsel and
           on the briefs).

     The opinion of the court was delivered by

MESSANO, P.J.A.D.
      An Essex County grand jury indicted defendant Marquis Armstrong for

the September 4, 2014 murder of Rhasan Heath. Defendant filed a pre-trial

motion to suppress "evidence seized without a communications data warrant

[(CDW)]." At issue were text messages defendant sent to Nache DeWitt, his

former girlfriend and with whom he fathered a daughter. The judge denied the

motion to suppress without conducting an evidentiary hearing.

      Defendant subsequently pled guilty during trial to the lesser-included

offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The

judge sentenced defendant to a twenty-five-year term of imprisonment subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the aggravated

manslaughter conviction; and, a concurrent eight-year term on the weapons

offense, with a forty-two-month parole disqualifier pursuant to the Graves Act,

N.J.S.A. 2C:43-6(c).

                                        I.

      Because there was no evidentiary hearing held on the suppression

motion, we recite some of the trial evidence to place the issue in context.

      Defendant and DeWitt ended their relationship in April 2014. However,

months later, on September 2, the two were heading home together from a

family picnic they had attended. Heath, DeWitt's current boyfriend, bore some



                                                                         A-2102-17T2
                                        2
animosity toward defendant, and, when he saw them together, he began driving

aggressively and pulled his car alongside theirs at a red light. The two men

screamed taunts at each other until the light changed, when they both drove

off.

       The following evening, DeWitt was with Heath at his sister's apartment

when she began receiving what the State contended were threatening texts and

calls from defendant on her cellphone. She did not respond to the texts or

answer the calls. In the last text, at 11:37 p.m., defendant told DeWitt he was

"[ab]out to get crazy." In what the State alleged was a fit of jealous pique,

defendant went to Heath's sister's apartment to search for DeWitt. He saw her

car parked outside and waited. As DeWitt left with her daughter and walked to

her car shortly after midnight, defendant emerged, and an altercation ensued.

Shortly thereafter, Heath came outside, and defendant began shooting at him.

Heath ran into the street, only to be struck by an oncoming car. As Heath lay

at the curb, defendant approached and shot him three times, killing him.

       At the pre-trial hearing on defendant's suppression motion, the State

argued that defendant lacked standing to suppress text messages police

recovered from DeWitt's phone, allegedly with her consent. Alternatively, the

State contended defendant had no expectation of privacy in those messages.

Defendant argued that he had standing under State v. Alston, 88 N.J. 211, 228



                                                                       A-2102-17T2
                                       3
(1981), and its progeny to seek suppression of the messages, and the State

failed to produce any proof that DeWitt consented to the search of her phone. 1

      In a very brief oral opinion, the judge held "defendant does not have

standing to challenge the information in a third party's phone, nor has any case

law . . . support[ed] that proposition." Furthermore, the judge determined that

"even if [] defendant were to have standing . . . there is no . . . logical

argument that can be made that anyone would have a reasonable expectation of

privacy in communications that they put out over . . . a . . . cell phone." He

denied defendant's motion to suppress.

                                      II.

      Defendant raises the following point on appeal:

            POINT I

            THE TRIAL COURT ERRED BY RULING THAT
            THE DEFENDANT DID NOT HAVE STANDING
            TO CHALLE[N]GE TEXT MESSAGES HE SENT
            TO A WITNESS AND THAT THERE WAS NO
            REASONABLE EXPECTATION OF PRIVACY IN
            THE CONTENT OF THE MESSAGES.



1
   The State did not produce the consent form signed by DeWitt in pre-trial
discovery. However, it did supply the form at some point during trial,
although it is unclear from the record exactly when. A copy of the form is in
the appellate record. The form is dated September 4, 2014, the date of the
homicide. DeWitt testified at trial that she gave police consent to search her
phone.


                                                                        A-2102-17T2
                                         4
                 A. Armstrong Had Standing to Challenge
                 the Seizure Because He Had a
                 Participatory Interest in the Text
                 Messages.

                 B. Armstrong Had a Reasonable
                 Expectation of Privacy in His Personal
                 Communications With the Mother of His
                 Child.

     Defendant contends that the trial court's errors compel reversal and a

remand for a new trial. However, that overlooks any substantive consideration

of the State's assertion that DeWitt consented to the search of her phone.

Alternatively, defendant urges us to remand for a hearing at which the State

"can attempt to prove whether the evidence is otherwise admissible under an

exception to the warrant requirement." In other words, defendant argues that

we should require the State prove at a remand hearing whether police validly

obtained DeWitt's consent.

     We have considered this alternative argument in light of the record and

applicable legal principles.   We conclude defendant lacked standing to

challenge the recovery of text messages from DeWitt's phone, to which he had

no reasonable expectation of privacy, and affirm the denial of his motion to

suppress.

                                     A.

     Our Supreme Court has



                                                                     A-2102-17T2
                                     5
            repeatedly reaffirmed that, under Article I, Paragraph
            7 of the New Jersey Constitution, "a criminal
            defendant is entitled to bring a motion to suppress
            evidence obtained in an unlawful search and seizure if
            he has a proprietary, possessory or participatory
            interest in either the place searched or the property
            seized."

            [State v. Randolph, 228 N.J. 566, 581–82 (2017)
            (quoting Alston, 88 N.J. at 228).] 2

"[T]he State bears the burden of showing that defendant has no proprietary,

possessory, or participatory interest in either the place searched or the property

seized." Randolph, 228 N.J. at 582 (citing State v. Brown, 216 N.J. 508, 528

(2014)).

      Our "automatic standing rule[,]" State v. Lamb, 218 N.J. 300, 313

(2014), "deviates from the federal approach, which requires that 'a person

alleging a Fourth Amendment violation . . . establish that law enforcement

officials violated "an expectation of privacy" that he possessed in the place

searched or item seized.'"      Randolph, 228 N.J. at 582 (quoting State v.

Johnson, 193 N.J. 528, 542 (2008)). Analysis of such an expectation rests on

two inquiries: first, "whether the individual, by his [or her] conduct, has

'exhibited an actual (subjective) expectation of privacy'"; and second, "whether

2
  "The phrase 'proprietary, possessory[,] or participatory interest' in relation to
standing derives in New Jersey from its original expression in Maguire,
Evidence of Guilt 216 (1959)." State v. Curry, 109 N.J. 1, 9 (1987) (citations
omitted).


                                                                          A-2102-17T2
                                        6
the individuals . . . expectation . . . is 'one that society is prepared to recognize

as "reasonable[.]"'" Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Katz

v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)).

      Our benchmark for standing incorporates, but is not limited to, "the

legitimate expectation of privacy standard[.]" State v. Shaw, 237 N.J. 588,

616 (2019) (citing Johnson, 193 N.J. at 543).            In Randolph, the Court

cautioned that for physical spaces where an expectation of privacy has

"historically" existed, courts need not "engage in an additional reasonable

expectation of privacy analysis as a supplement to our standing rule[,]"

although it is appropriate to consider a defendant's reasonable expectation of

privacy in determining his standing to assert constitutional claims "in a novel

class of objects or category of places[.]" 228 N.J. at 583–84.

                                         B.

      Defendant argues without citing any authority that text messages are

"direct, one-on-one communications . . . emblematic of the private spaces"

secured by the Fourth Amendment and our constitution. He contends it was

error for the judge to engage in any expectation of privacy analysis.             We

disagree.

      Our courts have not specifically addressed whether the sender of a text

message maintains a reasonable expectation of privacy after the message is



                                                                            A-2102-17T2
                                         7
delivered to a device the sender does not possess, own or control, and after the

sender has relinquished any ability to limit distribution of the text message to

another.   Other courts that follow traditional Fourth Amendment standing

jurisprudence have consistently concluded he does not. As Professor LaFave

has said in considering the issue in the context of more traditional forms of

communication, "The standing of the sender, to the extent it is based solely

upon the fact of his being the sender, terminates once delivery of the goods has

been made." 6 Wayne R. LaFave, Search and Seizure, § 11.3(f) (5th ed. 2012).

      Some courts have focused their analysis on the device itself, and the

defendant's lack of physical control over it. 3 For example, in United States v.

Stringer, the court held that the defendant lacked standing to challenge a

search of a juvenile victim's cell phone containing pornographic images. 739

F.3d 391, 396 (8th Cir. 2014); see also United States v. McHenry, 849 F.3d

699, 706 (8th Cir. 2017) (citing Stringer and expressing doubt that the

defendant had standing to assert a Fourth Amendment right in a cell phone

registered to another and being used by another while being tracked on GPS);

Christensen v. Cty. of Boone, 483 F.3d 454, 461 (7th Cir. 2007) (holding there

3
   In Riley v. California, the United States Supreme Court clearly held that
absent other recognized exceptions to the warrant requirement, the Fourth
Amendment requires police to obtain a search warrant prior to searching the
contents of a cell phone seized incident to arrest. 573 U.S. 373, 401 –02
(2014).


                                                                        A-2102-17T2
                                       8
was no Fourth Amendment violation when police searched a cell phone

belonging to another person); United States v. Gatson, 744 Fed. Appx. 97, 100

(3rd Cir. 2018) (citing Stringer and holding the defendant lacked standing to

assert suppression of data on cellphones for which the government obtained a

CDW because he never "owned, possessed, used, or had any privacy interest"

in one phone and the second phone was owned by another person).

      In State v. Patino, presented with factual circumstances very similar to

ours, the Rhode Island Supreme Court considered "whether a person ha[d] a

reasonable expectation of privacy in . . . messages stored in a cell phone

belonging to, or possessed by, another person." 93 A.3d 40, 55 (R.I. 2014).

Surveying decisions from other jurisdictions, the court found "the most

important factor . . . is from whose phone the messages are accessed." Ibid.

The court reasoned, "a cell phone user retains control over what becomes of

the content on his or her phone, but entirely loses control of the messages

contained on the phone of another." Id. at 57. The court concluded that the

defendant "had no reasonable expectation of privacy, and thus no standing to

challenge the search and seizure of [his girlfriend's] phone, its contents, a nd all

derivatives therefrom[,]" even though "there exist[ed] an identical copy of the

messages on the [defendant's] phone." Ibid.; see also State v. Sexton, 159




                                                                           A-2102-17T2
                                         9
A.3d 335, 344 (Me. 2017) (holding the defendant lacked standing to suppress

evidence obtained from the cellphone records of his girlfriend).

      In State v. Tentoni, the court held the defendant lacked an objectively

reasonable expectation of privacy in text messages that he sent and that were

discovered through a warrantless search of the recipient's phone. 871 N.W.2d

285, 290 (Wis. Ct. App. 2015). The court found it critical that the defendant

had no property interest in the recipient's phone, control over the phone, or any

ability to exclude others from accessing the messages he had sent to recipient

and were now stored in the recipient's phone. Ibid.

      Other courts, while still focusing on traditional property concepts, have

nonetheless recognized a defendant's standing to seek suppression of messages

retrieved from a device, even though the defendant never asserted an

ownership or possessory interest in the device. For example, in United States

v. Mompie, distinguishing Stringer, the court upheld the defendant's standing

to challenge a search pursuant to a warrant of a cellphone recovered from her

person, and cellphones and computers in her rental car. 216 F. Supp. 3d. 944,

953 (S.D. Ind. 2016). In Commonwealth v. Cruzado, the court held that the

defendant had standing to challenge the seizure of a cellphone found near him,

but which he did not own, because he had a "possessory interest in it[,]" and




                                                                         A-2102-17T2
                                       10
the government asserted the cellphone was the defendant's. 103 N.E.3d 732,

740 (Mass. 2018).

      As to other forms of communication, many other courts have held that a

defendant's expectation of privacy terminates after a message is sent, not

because he lacked physical control or possession of the receiving device, but

rather because the defendant lost any ability to control what happened to the

data itself once in the hands of another. See, e.g., United States v. Jacobsen,

466 U.S. 109, 117 (1984) ("[W]hen an individual reveals private information

to another," a reasonable expectation of privacy no longer exists because "he

assumes the risk that his confidant will reveal that information to the

authorities[.]"); United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)

("[T]he sender's expectation of privacy ordinarily terminates upon delivery[,]

(citing 4 Wayne R. LaFave, Search and Seizure, § 11.3(f) (1987)) (citations

omitted) . . . even though the sender may have instructed the recipient to keep

the letters private." (quoting United States v. Williams, 951 F.2d 853, 856 (7th

Cir. 1992)).

      In United States v. Meriwether, the defendant claimed his Fourth

Amendment rights were violated when his telephone number was seized from

a message sent to a co-conspirator's text message pager. 917 F.2d 955, 957

(6th Cir. 1990).    The Sixth Circuit concluded defendant lacked standing,



                                                                        A-2102-17T2
                                      11
holding that "[a] party sending a message to a pager has expressed his

subjective desire to preserve his privacy even less than" he would be if he were

speaking on the telephone. Id. at 959. The court observed that whereas in a

phone conversation the speaker may discern the identity of the listener, by

sending a text message, the sender has no way of knowing who is on the

receiving end. Ibid. As such, the court noted, the sender "runs the risk that

either the owner or someone in possession of the pager will disclose the

contents of his message."     Ibid.      Finding the "actual confidentiality of a

message to a pager . . . quite uncertain," the court "decline[d] to protect [the

defendant's] misplaced trust[.]" Ibid.

     In United States v. Jones, the defendants "used text message pagers to

communicate with each another." 149 Fed. Appx. 954, 957 (11th Cir. 2005).

When one co-conspirator entered a plea agreement and agreed to testify to the

contents of the text messages, his co-conspirators moved to suppress the

records. Id. at 958. Reversing the district court's grant of the motion, the

Eleventh Circuit held that the co-conspirators did not have a reasonable

expectation of privacy in their text communications. Id. at 957. The court

analogized text messages to e-mails, noting that "an individual sending an e-

mail loses 'a legitimate expectation of privacy in an e-mail that had already

reached its recipient.'" Id. at 959 (quoting Guest v. Leis, 255 F.3d 325, 333



                                                                         A-2102-17T2
                                          12
(6th Cir. 2001) (citations omitted)).        The court also noted, "once the

transmissions are received by another person, the transmitter no longer

controls [their] destiny." Ibid. (quoting United States v. Maxwell, 45 M.J.

406, 416 (C.A.A.F. 1996)); see also State v. Carle, 337 P.3d 904, 908–09 (Or.

Ct. App. 2014) (the defendant had no reasonable expectation of privacy in text

message sent to another and found on the other person's phone, even though

she "'implicitly entrusted'" the message to the other person and "did not expect

law enforcement to see the message").

      In Guest, the Sixth Circuit drew attention to the distinction between a

reasonable expectation of privacy in the device itself, as opposed to the data

contained on the device. In that case, the plaintiffs alleged law enforcement's

seizure of the contents of two electronic bulletin board systems violated their

rights under the Fourth Amendment. The defendants asserted that plaintiffs

lacked standing to allege a constitutional violation. 255 F.3d at 333. The

court reasoned that while the plaintiffs could not assert the claim as to

"someone else's . . . computer, . . . [t]heir interest in the computer content

present[ed] a different question and would depend on their expectations of

privacy in the materials." Ibid. Noting a disclaimer posted on the bulletin

board "stating that personal communications were not private[,]" the court

rejected the standing of some of the plaintiffs to allege a Fourth Amendment



                                                                        A-2102-17T2
                                        13
violation.   Ibid.   As to a second group of plaintiffs who used a different

bulletin board, the court held:

             Users would logically lack a legitimate expectation of
             privacy in the materials intended for publication or
             public posting. They would lose a legitimate
             expectation of privacy in an e-mail that had already
             reached its recipient; at this moment, the e-mailer
             would be analogous to a letter-writer, whose
             "expectation of privacy ordinarily terminates upon
             delivery" of the letter.

             [Ibid. (quoting King, 55 F.3d. at 1196) (citation
             omitted).]

                                      C.

      Our Supreme Court has considered a defendant's reasonable expectation

of privacy in certain data in a variety of contexts.      Without specifically

addressing the issue of standing, in State v. Evers, the Court needed to decide

whether California law enforcement officers violated the defendant's federal

and state constitutional rights by using pornographic material of children he

posted in an internet chat room to secure a search warrant. 175 N.J. 355, 368

(2003). The Court said, "[t]o invoke the protections of the Fourth Amendment

and its New Jersey counterpart, Article I, Paragraph 7, [a] defendant must

show that a reasonable or legitimate expectation of privacy was trammeled by

government authorities." Id. at 368–69 (citations omitted). In rejecting the

defendant's claim that he had such an expectation, the Court said, "An



                                                                       A-2102-17T2
                                      14
individual ordinarily surrenders a reasonable expectation of privacy to

information revealed to a third party.       If that third party discloses the

information to the government, the individual, who falsely believed his

confidence would be maintained, will generally have no Fourth Amendment

claim." Id. at 369 (citing United States v. Miller, 425 U.S. 435, 443 (1976);

Guest, 255 F.3d at 335).

      The Court, however, specifically addressed the defendant's standing to

challenge law enforcement's use of subscriber information stored at the

internet service provider's headquarters in Virginia to obtain a search warran t

in New Jersey. Id. at 370. Before addressing the merits of the defendant's

argument, the Court said that even though the defendant's wife was the account

holder, it would "assume that [the] defendant ha[d] a privacy interest sufficient

to invoke standing[.]" Ibid. (citing Alston, 88 N.J. at 228–29; Curry, 109 N.J.

at 7–9). It concluded that the defendant had no federal or state constitutional

privacy right to the subscriber information stored in Virginia. Id. at 374.

      Defendant argues that Evers' expectation of privacy analysis has no

application to the facts presented because "in that case [the defendant] sent an

email directly to a police officer." 4 However, that has little relevance to the


4
  The defendant in Evers was responding to an anonymous email that police
forwarded using a list-serve to a pornographic chat room. The defendant did


                                                                         A-2102-17T2
                                       15
Court's decision, which was premised on the defendant's lack of control over

the information once sent to a third party, even if he believed the data would

remain confidential. Id. at 369.

      Certainly, as to data maintained by service providers and not intended to

be shared by a defendant with others, our Court has been a vigilant guarantor

of protections provided by New Jersey's Constitution.         See, e.g., State v.

Lundsford,    226   N.J.   129     (2016)   (tracing   jurisprudence    regarding

constitutionally protected privacy interests in various forms of data, including

phone billing records); accord State v. Mollica, 114 N.J. 329, 341–42 (1989)

(finding that persons have a strong expectation of privacy in their telephone

billing records); State v. Hunt, 91 N.J. 338, 347 (1982); State v. Earls, 214 N.J.

564, 588 (2013) (holding constitution protects privacy interest in cellphone

location data stored by cell phone provider); State v. Reid, 194 N.J. 386, 389

(2008) (recognizing privacy interest in subscriber information given to an

internet service provider); State v. McAllister, 184 N.J. 17, 32–33 (2005)

(recognizing bank account holder's expectations of privacy in their banking

records).    We also acknowledge blanket assertions that persons lack a

(continued)
not send the pornographic material directly to a "police officer"; rather, he and
dozens of other chat room users on the list-serve sent child pornography to the
undercover detective. Id. at 364–65.



                                                                         A-2102-17T2
                                       16
reasonable expectation of privacy regarding information disclosed to third

parties have been widely criticized.5 There also may be important differences

between a third party who is contractually or legally bound to hold a person's

digital "papers and effects" and shield them from disclosure, and a third party

who is simply counted on to exercise good judgment and discretion.                 See

Carpenter, ___ U.S. at ___, 138 S. Ct. at 2268–69 (Gorsuch, J., dissenting)

(suggesting that property law, including law of bailments, may justify

protection of data contractually entrusted to third parties); Positive Law


5
   See, e.g., William Baude & James Y. Stern, The Positive Law Model of the
Fourth Amendment, 129 Harv. L. Rev. 1821, 1872 (2016) (Positive Law
Model) (stating, regarding the doctrine, "[a]s an empirical statement about
subjective expectations of privacy, it seems quite dubious[, and a]s a
normative assessment of when a person ought to be able to expect
confidentiality (never), it is antisocial at best."). Justices have questioned the
doctrine from varying perspectives. See United States v. Carpenter, ___ U.S.
___, ___ , 138 S. Ct. 2206, 2263 (2018) (Gorsuch, J., dissenting) (noting that
"[p]eople often do reasonably expect that information they entrust to third
parties, especially information subject to confidentiality agreements, will be
kept private"); United States v. Jones, 565 U.S. 400, 417 (2012) (Sotomayor,
J., concurring) (stating "it may be necessary to reconsider the premise that an
individual has no reasonable expectation of privacy in information voluntarily
disclosed to third parties," noting the doctrine "is ill suited to the digital age, in
which people reveal a great deal of information about themselves to third
parties in the course of carrying out mundane tasks"). Notably, in Carpenter,
the Court apparently narrowed the doctrine, stating even where data is shared
with a third party, a court must consider "'the nature of the particular
documents sought' to determine whether 'there is a legitimate "expectation of
privacy" concerning their contents.'" ___ U.S. at ___, 138 S. Ct. at 2219
(quoting Miller, 425 U.S. at 442)).



                                                                             A-2102-17T2
                                         17
Model, 129 Harv. L. Rev. at 1860 (suggesting that positive law principles may

provide a basis for an expectation of privacy); Laura K. Donohue, Functional

Equivalence and Residual Rights Post-Carpenter: Framing a Test Consistent

with Precedent and Original Meaning, 2018 Sup. Ct. Rev. 347, 400, 402–03

(2018) (suggesting that where federal or state law create a right or privilege

over information and access, government intrusion may constitute a search or

seizure).

      Although our Court has declined to follow the third-party doctrine where

the third party is a common carrier, an internet provider, or a bank, the Court

in Evers applied it to person-to-person digital communications, holding,

"[t]here is no constitutional protection for misplaced confidence [.]" 175 N.J.

at 370. The defendant in Evers had no basis to question consent, but the

Court's broad application of the doctrine forecloses a reasonable expectation of

privacy in this case, particularly absent a contractual or other legal obligation

to protect defendant's text messages to DeWitt. However persuasive criticism

of the third-party doctrine may ultimately be, we will not chart a path

independent of the United States Supreme Court regarding the Fourth

Amendment, or our State Supreme Court regarding Article I, Paragraph 7 of

the New Jersey Constitution.

      We are aware of no reported case holding that an individual maintains a



                                                                         A-2102-17T2
                                       18
reasonable expectation of privacy protected by the New Jersey Constitution as

to data he chooses to share directly with another after that data has been

received by the intended recipient. Furthermore, under the facts of this case,

defendant has not demonstrated that he had "an actual (subjective) expectation

of privacy[,]" Katz, 389 U.S. at 361 (Harlan, J., concurring), that is, he

subjectively expected DeWitt to keep his threatening messages to herself; nor

has he demonstrated that "society is prepared to recognize as 'reasonable[,]'"

ibid., an expectation that threats of violence will remain private. We conclude

that defendant had no reasonable expectation of privacy in the text messages

he sent to DeWitt once she received them.

      How does that conclusion affect defendant's standing to challenge the

warrantless search of DeWitt's phone?

                                     III.

      It seems logical that if a defendant has no reasonable expectation of

privacy as to the place searched or item seized, he can have no standing to

assert a claim under Article I, Paragraph 7 of the New Jersey Constitution.

Yet, as already noted, while "[o]ur standard . . . incorporates the legitimate

expectation of privacy standard[, it] offers broader protections that advance

three important State interests." Shaw, 237 N.J. at 616 (citing Johnson, 193

N.J. at 543).



                                                                       A-2102-17T2
                                        19
            The first is the State's interest in protecting defendants
            from having to admit possession to vindicate their
            constitutional right against unreasonable searches and
            seizures. The second is to prevent the State from
            arguing a defendant should be subject to criminal
            liability for possessing contraband, while asserting the
            same defendant had no privacy interest in the area
            from which police obtained the contraband without a
            warrant.      Our third aim is to increase privacy
            protections for our citizens and to promote respect for
            our Constitution by discouraging law enforcement
            from carrying out warrantless searches and seizures
            where unnecessary.

            [Ibid. (citing Johnson, 193 N.J. at 543).]

Nevertheless, "[w]hether in a particular case a defendant should be permitted

to object to the use of illegally obtained evidence in a criminal trial will

depend       . . . on the particular factual circumstances in which the issue

arises." Curry, 109 N.J. at 8.

      The Court has made clear that the two concepts — possessing a

reasonable expectation of privacy and standing to challenge a search and

seizure — are not congruent. At least as it relates to searches "concerning real

property," the Court has carved out "three exceptions to the automatic standing

rule" without regard to whether a defendant had an expectation of privacy in

the place searched. Randolph, 228 N.J. at 585. A defendant lacks "standing to

challenge a search of abandoned property, property on which he was




                                                                         A-2102-17T2
                                       20
trespassing," ibid. (citing Brown, 216 N.J. at 529), "or property from which he

was lawfully evicted[.]" Ibid. (citing State v. Hinton, 216 N.J. 211 (2013)). 6

      Before us, defendant concedes he had no proprietary or possessory

interest in the text messages he sent to DeWitt but argues that he had a

"participatory interest" in that data. Defendant asserts he was "intimately tied

to the creation of this evidence . . . because [he] was one of only two parties

involved in the conversation." We therefore focus our attention on those cases

that have considered standing to suppress evidence based upon a defendant's

"participatory interest" in the seized evidence, in this case, the text messages

defendant sent to DeWitt. 7

      Perhaps the Court's first elaboration on the concept of standing based on

a defendant's participatory interest in the seized evidence was in Mollica.


6
   However, in Hinton, the Court specifically implied that the defendant had
automatic standing to challenge the search of an apartment from which his
mother had been evicted, but for which the warrant of removal was in the
process of execution. 216 N.J. at 234–35. The Court said, "Even when a
defendant has automatic standing, if . . . the merits rest on whether defendant
possesses a reasonable expectation of privacy, the court must address that issue
as part of the substantive constitutional analysis. That inquiry is separate and
distinct from the question of standing." Id. at 234 (citing State v. Harris, 211
N.J. 566, 589–90 (2012)).
7
  Defendant's argument does not specifically include any other data, such as a
call log, which also was presumably retrieved from DeWitt's phone. Our
analysis applies to all data recovered by police from her phone without a
CDW.


                                                                         A-2102-17T2
                                       21
There, the defendant moved to suppress the toll call records from his co -

defendant's hotel room, obtained by the Federal Bureau of Investigation

without a warrant and used to secure warrants for the hotel rooms both men

occupied as part of an alleged bookmaking operation. Id. at 335–36. The

Court succinctly framed the issue:

            We must determine preliminarily whether one of the
            defendants in this appeal . . . has standing to challenge
            the seizure of the telephone toll records involving the
            hotel room telephone of another individual. This issue
            arises because the telephone involved was not in [the
            defendant's] hotel room, but in that of the co-
            defendant . . . .

            [Id. at 337.]

      The Court noted that "[a] participatory interest . . . stresses the

relationship of the evidence to the underlying criminal activity and defendant's

own criminal role in the generation and use of such evidence." Id. at 339. The

Court refined this observation, stating,

            Unlike the terms "possessory" or "proprietary," which
            denote property concepts, "participatory" connotes
            some involvement in the underlying criminal conduct
            in which the seized evidence is used by the
            participants to carry out the unlawful activity. It thus
            provides standing to a person who, challenging the
            seizure and prosecutorial use of incriminating
            evidence, had some culpable role, whether as a
            principal, conspirator, or accomplice, in a criminal
            activity that itself generated the evidence.




                                                                        A-2102-17T2
                                           22
            [Id. at 339–40 (emphasis added) (citing Black's Law
            Dictionary 1007 (5th ed. 1979)).]

The Court concluded that "the involvement of [the] defendant in criminal

gambling activities that generated telephone toll records invest[ed the]

defendant with standing to challenge the validity of the seizure of this

evidence." Id. at 340.

      In State v. Arthur, while conducting surveillance in a heavily trafficked

narcotics area, police observed a person enter the defendant's car, briefly sit in

the passenger's seat, and exit carrying a paper bag. They stopped the person

and searched the bag, finding narcotics paraphernalia. The defendant's car had

already left the scene, but when it was later stopped by police, the defendant

admitted to having cocaine, which police found upon searching his pockets.

149 N.J. 1, 3 (1997). In reversing our judgment, the Court found that the

police stop of defendant's car was justified, independent of the prior stop of the

passenger. Id. at 12–13.

      Nevertheless, because we had concluded the stop of the passenger was

"intertwined" with the stop of the defendant's car, the Court discussed, without

deciding, whether the defendant had standing to challenge the seizure of drug




                                                                         A-2102-17T2
                                       23
paraphernalia from the passenger. Ibid.8 The Court noted that despite the

"broad standing rule" established by Alston and Mollica, neither "address[ed]

the standing requirement in cases in which a defendant clearly had abandoned

or relinquished his possessory interest in the property being seized[,] or in

which his participatory interest in that property had become very remote or

attenuated at the time of the seizure." Ibid. (emphasis added); see also Curry,

109 N.J. at 10 (noting "the nexus between the [seized] property and the

individual defendants [may] become[] so attenuated as to eliminate standing").

      In State v. Bruns, police conducted a motor vehicle stop, arrested the

driver on an outstanding warrant, conducted a search of the passenger

compartment after removing Evans, a passenger, and "found a [toy] gun and a

large knife under the front passenger seat." 172 N.J. 40, 44 (2002). Police did

not enter the items into evidence until months later when they realized there

was an open investigation of an armed robbery that occurred seven days before

the motor vehicle stop, and which possibly involved Evans and the defendant.

Ibid. After a survey of our case law, including Curry, Mollica and Arthur, and

decisions from federal circuit courts, the Court reiterated its adherence to the


8
  See also State v. Biancamano, 284 N.J. Super 654, 657–59 (App. Div. 1995)
(holding "[t]here [was] no question that under [Alston]" the defendant,
involved with another student in distributing LSD at school, had standing to
suppress the seizure of drugs from a pen carried by the other student).


                                                                        A-2102-17T2
                                      24
"broad standing rule" it articulated in Alston. Id. at 56. The Court noted that

on the record presented, the "defendant cannot claim a proprietary or

possessory interest in the vehicle that was searched." Ibid.

      Turning to the defendant's asserted "participatory interest in the weapons

seized because they were used to commit the robbery for which he was

charged[,]" the Court noted that the robbery took place one week before the

seizure, and the search and seizure was based upon the driver's arrest following

a motor vehicle violation, committed while the defendant "was not a passenger

in the vehicle and . . . was not in the vicinity of the vehicle at the time it was

searched." Id. at 57. "Accepting th[e] generalized connection" that could be

drawn "between the weapons seized from [the] car and the crime with which

[the defendant] was charged[,]" the Court was "unpersuaded that that

connection [was] adequate to confer standing based on a participatory

interest." Id. at 57–58.

            That evidence implicates a defendant in a crime is not,
            in and of itself, sufficient to confer standing. There
            also must be at a minimum some contemporary
            connection between the defendant and the place
            searched or the items seized. Despite our broad
            standing rule, we acknowledge the soundness of the
            general principle that "suppression of the product of a
            Fourth Amendment violation can be successfully
            urged only by those whose rights were violated by the
            search itself, not by those who are aggrieved solely by
            the introduction of damaging evidence."



                                                                         A-2102-17T2
                                       25
                  ....

                   Although we recognize that in most cases in
            which the police seize evidence implicating a
            defendant in a crime that defendant will be able to
            establish an interest in the property seized or place
            searched, our broad standing rule necessarily has
            limits. If substantial time passes between the crime
            and the seizure of the evidence, and a proprietary
            connection between defendant and the evidence no
            longer exists, the defendant's basis for being aggrieved
            by the search will have diminished. In addition to the
            temporal aspects of a specific search or seizure, a
            showing that the search was not directed at the
            defendant or at someone who is connected to the
            crime for which he has been charged also will
            diminish a defendant's interest in the property
            searched or seized.

            [Id. at 58–59 (emphasis added) (citation omitted)
            (quoting Alderman v. United States, 394 U.S. 165,
            171–72 (1969)).]

The Court concluded the defendant lacked standing to challenge the seizure of

the evidence. Id. at 59; see also State v. Abdullah, 372 N.J. Super. 252, 273–

74 (App. Div. 2004) (concluding the defendant had no standing to suppress

incriminating evidence seized from the deceased victim's apartment because he

lacked "a proprietary, possessory or participatory interest" in the apartme nt),

rev'd on other grounds, 184 N.J. 497 (2005).

      In State v. Harris, we considered whether the defendant had standing to

seek suppression of the tape from an answering machine located in the

bedroom of a co-conspirator's apartment, where the murder victim was found.

                                                                       A-2102-17T2
                                      26
298 N.J. Super. 478, 482 (App. Div. 1997). The State contended that the

defendant was hired by two co-conspirators to kill the victim after luring him

to the apartment. Id. at 481. The tape contained a recorded conversation made

several minutes after the shooting between the co-conspirators about the

payment due to the defendant. Id. at 482–83. We concluded the defendant had

a participatory interest in the tape because he "had some culpable role, whether

as a principal, conspirator or accomplice in a criminal activity that generated

the evidence seized." Id. at 484 (citing Mollica, 114 N.J. at 339–40); see also

State v. Arias, 283 N.J. Super. 269, 276 (Law Div. 1992) (interpreting Mollica

and holding "'participatory' connotes some involvement in the underlying

criminal conduct in which the seized evidence is used by the participants to

carry out the unlawful activity").

      Here, the mere fact that the text messages could be evidence used by the

State to prove defendant's commission of a crime does not confer standing

upon him to seek their suppression. Bruns, 172 N.J. at 58. If the potential

evidentiary use of a seized item were alone sufficient, every defendant could

conceivably assert rights untethered to the Fourth Amendment or Article I ,

Paragraph 7 of our Constitution.

      Nor do we accept defendant's argument that his authorship of the texts

conferred standing upon him to challenge their warrantless seizure from



                                                                        A-2102-17T2
                                      27
DeWitt's cell phone.    Defendant and DeWitt were not participants in the

commission of a crime. "[T]he search was not directed at . . . defendant or at

someone who [was] connected to the crime for which he has been charged[.]"

Id. at 59 (emphasis added). Defendant and DeWitt were not co-conspirators,

nor was defendant her accomplice, and, unlike the gambling activity in

Mollica, defendant's criminal activity — the deadly shooting of Heath — was

not "that [which] itself generated the evidence." 114 N.J. at 340 (emphasis

added); accord Harris, 298 N.J. Super. at 484; Arias, 283 N.J. Super. at 286.

                                      IV.

      As noted, our expansive "automatic standing" rule promotes three

specific interests in addition to the reasonable expectation of privacy in places

and things protected by the Fourth Amendment. Shaw, 237 N.J. at 616. By

permitting a defendant to challenge a search or seizure based on his proprietary

or possessory interest in the place searched or property seized, ideas deeply

rooted in "property concepts," Mollica, 114 N.J. at 339, we "protect[]

defendants from having to admit possession to vindicate their constitutional

right . . . [and] prevent the State from arguing a defendant should be subject to

criminal liability for possessing contraband, while asserting the same

defendant had no privacy interest in the area from which police obtained the

contraband without a warrant."     Shaw, 237 N.J. at 616 (citations omitted).



                                                                         A-2102-17T2
                                       28
Those interests are not involved in this case, as defendant essentially concedes

by not arguing that his standing rests on these grounds.

       Nor does permitting defendant to challenge the search of DeWitt's phone

in this case serve the third interest that undergirds our automatic standing

jurisprudence. Granting defendant standing in this case does not "increase

privacy protections for our citizens[,]" ibid., since, as we explained in detail

above, defendant had no reasonable expectation of privacy in those text

messages on DeWitt's phone. And, under the particular facts of this case,

permitting defendant to bring a challenge to the search of DeWitt's phone does

not have the salutary effect of "discouraging law enforcement from carrying

out warrantless searches and seizures where unnecessary." Ibid.; see Bruns,

172 N.J. at 58 ("Despite our broad standing rule, we acknowledge the

soundness of the general principle that 'suppression of the product of a Fourth

Amendment violation can be successfully urged only by those whose rights

were violated by the search itself, not by those who are aggrieved solely by the

introduction of damaging evidence.'") (quoting Alderman, 394 U.S. at 171–

72).

       Affirmed.




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                                       29
