                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NOS. A-1838-11T3
                                                   A-3182-11T3
J.O.,

      Plaintiff-Appellant,
                                           APPROVED FOR PUBLICATION
v.
                                              October 31, 2013
TOWNSHIP OF BEDMINSTER,                      APPELLATE DIVISION
NANCI ARRAIAL, COUNTY OF
SOMERSET, BOROUGH OF
WESTWOOD, and ROBERT SAUL,

      Defendants-Respondents.

______________________________

J.O.,

      Plaintiff-Respondent,

v.

TOWNSHIP OF BEDMINSTER
and NANCI ARRAIAL,

      Defendants-Appellants,

and

COUNTY OF SOMERSET, BOROUGH
OF WESTWOOD, and ROBERT SAUL,

     Defendants.
________________________________________________________________

          Argued April 8, 2013 – Decided October 31, 2013

          Before    Judges      Ashrafi,      Espinosa     and
          Guadagno.
            On appeal from Superior Court of New Jersey,
            Chancery Division, General Equity Part,
            Bergen County, Docket No. C-35-10.

            J.O. Jr., argued the cause for
            appellant in A-1838-11 and respondent in A-
            3182-11.

            Richard J. Guss argued the cause for
            Township of Bedminster and Nancy Arraial,
            respondents in A-1838-11 and appellants in
            A-3182-11   (DiFrancesco,   Bateman,   Coley,
            Yospin, Kunzman, Davis, Lehrer & Flaum,
            P.C., attorneys; Mr. Guss, on the briefs).

            Scott D. Rodgers, Deputy County Counsel,
            argued the cause for respondent County of
            Somerset in A-1838-11 (William T. Cooper,
            III, Somerset County Counsel, attorney; Mr.
            Rodgers, on the brief).

            Mary C. McDonnell argued the cause for
            respondents   Robert  Saul  &   Borough  of
            Westwood in A-1838-11 (Pfund McDonnell,
            P.C., attorneys; Ms. McDonnell and David T.
            Pfund, on the brief).

       The opinion of the court was delivered by

ESPINOSA, J.A.D.

       Although it was enacted in 1979, there are no published

opinions    that   interpret   or   apply   the   Subpoena   First    Act,

N.J.S.A.    2A:84A-21.9   to   -21.13   (the   Act),1   which   has   been

described as "narrowly circumscrib[ing] the situations in which

the State can properly search and seize materials acquired in

the course of newsgathering."        In re Woodhaven Lumber and Mill


1
    L. 1979, c. 488, § 1 (effective Feb. 28, 1980).



                                    2                            A-1838-11T3
Work,   123     N.J.   481,    491   (1991)    (analyzing    the    Shield   Law,

N.J.S.A. 2A:84A-21 to -21.8); see also In re Subpoena Issued to

Schuman,   114    N.J.   14,    24    (1989)   (same).      In   this   case,    we

consider the application of the Act to a suspect in a criminal

investigation who asserted a claim to its protection based upon

his status as an "internet publisher" after a search warrant was

executed and his suppression motion was denied.                    We affirm the

dismissal of plaintiff's complaint against all defendants.                       As

for his claims under the Act, we hold that plaintiff waived any

claim to protection; that the officers here were not required to

conduct    an   investigation        to   determine   whether    plaintiff      was

protected by the Act prior to seeking a warrant; and that, even

if plaintiff had timely asserted his claim, he was not entitled

to the Act's protection because the materials sought were not

obtained in the course of newsgathering activities.

    Defendants Township of Bedminster and Nanci Arraial (the

Bedminster defendants) appeal from the denial of their motion

for counsel fees pursuant to Rule 1:4-8.                 For the reasons that

follow, we affirm that denial as well.

                                          I.

    It is generally acknowledged that the Act, like its federal

counterpart, the Privacy Protection Act (PPA), 42 U.S.C.A. §§

2000aa-aa12, was a legislative response to the United States




                                          3                              A-1838-11T3
Supreme Court's decision in Zurcher v. Stanford Daily, 436 U.S.

547, 567-68, 98 S. Ct. 1970, 1982-83, 56 L. Ed. 2d 525, 543 (1978).

See Sennett v. United States, 667 F.3d 531, 535 (4th Cir. 2012);

Guest    v.    Leis,      255   F.3d   325,          340   (6th      Cir.    2001);      Byrnes,

Current New Jersey Arrest, Search & Seizure 573-74 (2012-13);

Debra L. Stone, The Criminal Justice System and the News Media:

Recent Developments, 7 Crim. Just. Q. 178, 196 (1980).

       Zurcher had its roots in an April 1971 demonstration at

Stanford University Hospital that devolved into a violent clash

in which a group of demonstrators, armed with sticks and clubs,

attacked and injured nine police officers.                            Zurcher, supra, 436

U.S.    at    550,   98    S.   Ct.    at       1973-74,        56    L.    Ed.    2d   at   532.

Articles      and    photographs       published           in   the    Stanford         Daily,    a

student newspaper, suggested that a Daily staff member might

have photographed the assault on the officers.                               Although there

was    no    allegation     that      any       members     of       the   Daily    staff      had

engaged in unlawful activity, the Santa Clara County District

Attorney's      Office      obtained        a    warrant        to    search      the    Daily's

office for negatives and photographs that would assist in the

identification of the persons who assaulted the officers.                                      Id.

at 551, 98 S. Ct. at 1974, 56 L. Ed. 2d at 532.                                         When the

warrant was executed, the only photographs found were those that

had already been published.                 No materials were removed from the




                                                 4                                       A-1838-11T3
Daily's office.       Id. at 551-52, 98 S. Ct. at 1974, 56 L. Ed. 2d

at 533.

       The student newspaper and various staff members brought a

civil action, seeking declaratory and injunctive relief under 42

U.S.C.A. § 1983, against the law enforcement officials involved

and the judge who issued the warrant.             Judgment was entered in

favor of the newspaper and its staff members and affirmed by the

Court of Appeals.        However, the Supreme Court reversed, stating,

               [W]e decline to reinterpret the [Fourth]
               Amendment to impose a general constitutional
               barrier against warrants to search newspaper
               premises, to require resort to subpoenas as
               a general rule, or to demand prior notice
               and hearing in connection with the issuance
               of search warrants.

               [Id. at 567, 98 S. Ct. at 1982, 56 L. Ed. 2d
               at 543.]

The    Court    added,   "Of   course,   the   Fourth   Amendment   does     not

prevent or advise against legislative or executive efforts to

establish nonconstitutional protections against possible abuses

of    the   search   warrant   procedure[.]"      Ibid.     Congress     and    a

number of state legislatures,2 including New Jersey, accepted the

invitation to establish such protections.




2
    Or. Rev. Stat. § 44.520(2) (2011); Wash. Rev. Code §
10.79.015(3) (2013); Wis. Stat. § 968.13(1)(d) (2013); Conn.
Gen. Stat. § 54-33j(a) (2013); Tex. Code Crim. Proc. art.
18.01(e) (West 2001); 725 Ill. Comp. Stat. 5/108-3(b) (2013).



                                         5                             A-1838-11T3
    The protection provided by the federal statute does not

turn on whether the person who possesses the materials sought is

a member of the news media.    Rather, the prohibition applies

when the person in possession has "a purpose to disseminate to

the public a newspaper, book, broadcast, or other similar form

of public communication."   42 U.S.C.A. § 2000aa(a), (b).      The

PPA has certain limited exceptions, which include a "suspect"

exception:

         [T]his provision shall not impair or affect
         the ability of any government officer or
         employee, pursuant to otherwise applicable
         law, to search for or seize such materials,
         if--

              (1) there is probable cause to believe
         that the person possessing such materials
         has committed or is committing the criminal
         offense  to   which  the  materials  relate
         . . . .

         [Ibid.]

    The prohibition in New Jersey's Act provides in pertinent

part:

              Any person . . . engaged on, engaged
         in, connected with, or otherwise employed in
         gathering,      procuring,      transmitting,
         compiling,     editing,    publishing,     or
         disseminating news for the public . . .
         shall be free from searches and seizures, by
         . . . law enforcement officers with respect
         to any documentary materials obtained in the
         course of pursuing the aforesaid activities
         whether or not such material has been or
         will be disseminated or published.




                               6                         A-1838-11T3
             [N.J.S.A. 2A:84A-21.9.]

      Like    the    PPA,     the    Act       has    exceptions        to    the     general

prohibition,        which   include        a       "suspect"      exception      virtually

identical to that in the federal statute:

             This section shall not restrict or impair
             the ability of any law enforcement officer,
             pursuant to otherwise applicable law, to
             search for or seize such materials, if there
             is probable cause to believe that:

             a. The person, corporation, partnership,
             proprietorship or other entity possessing
             the materials has committed or is committing
             the criminal offense for which the materials
             are sought . . . .

             [Ibid.]

      That the statute was a legislative response to Zurcher is

reflected in the distinction between the Act's application to

materials     possessed       by    persons          who    are   not     suspects       in    a

criminal investigation and its explicit exception for situations

where the person in possession is suspected of "committing the

criminal     offense    for    which       the      materials     are     sought."            The

salient facts in Zurcher that caught the public's attention were

related to the unequivocal status of the persons in possession

as   journalists      doing    their    job.           No   Daily   staff      member       was

suspected    of     criminal       activity,         and    the   items      sought     –     the

photographs and negatives – were unquestionably obtained in the

course of newsgathering activity.                      As the Assembly Judiciary,




                                               7                                      A-1838-11T3
Law,    Public     Safety   and      Defense   Committee   Statement      on    this

legislation explained:

                 The purpose of this bill is to preserve
            the first amendment's freedom of the press
            by insuring that the files of the news media
            shall not be the subject of searches and
            seizures   by  law   enforcement  officials,
            except . . . in specifically enumerated
            special cases.     The exceptions [include]
            where there is probable cause to believe
            that: the news media is involved in a crime
            . . . .

            [Assembly Judiciary, Law, Public Safety and
            Defense Committee, Statement to A.1535 (June
            28, 1979) (emphasis added).]

       This distinction is further evident in the nature of the

remedy    provided.         If   a    search   or   seizure   is    conducted     in

violation of the Act, the aggrieved party may bring a civil

action.    N.J.S.A.     2A:84A-21.11.          However,    the     Act   does    not

provide for the suppression of evidence seized in violation of

the statute.

                                         II.

       We now turn to the facts of this case, which are derived

from the record and the trial court's decision.

       Detective Nanci Arraial of the Bedminster Township Police

Department initiated an investigation in 2007 after Amy Wollock,

an     associate     dean    at      Rutgers    University,        contacted     her

concerning a website, amywollock.com.               Wollock told Arraial she

advised plaintiff, a master's degree student, that he needed



                                          8                               A-1838-11T3
some additional humanities classes before she would approve his

certification to become a teacher in New Jersey.                          Plaintiff

threatened to sue Rutgers if he was not approved for a teacher

certification.         Wollock     told    Arraial       she     was     afraid     of

plaintiff.

       Amywollock.com was a self-described "web gripe site."                      The

text on the website began,

            I have a gripe with Amy Wollock (former
            Director   of   Teacher   Education)   of  the
            Rutgers   University    Graduate   School   of
            Education    (GSE),    New    Brunswick,   NJ.
            Unfortunately,     I     was    systematically
            threatened and excluded from opportunities
            to file a formal grievance against Amy
            Wollock while I was a student at Rutgers, so
            this web site had become my only recourse.

       The website had a photograph of Wollock, with a countdown

feature immediately below that stated, "Only 208 days until the

fun begins."     The number of days was reduced on a daily basis.

The    website   did   not   explain      what   was     meant   by    "the    fun."

Plaintiff invited readers to return to the site to "tell your

own horror story" and promised not to publish names or contact

information unless requested to do so.

       Through the use of grand jury subpoenas, Arraial learned

that    amywollock.com       was   created       using    an     email     account,

amywollock@gmail.com, and that the registrant for that account

was listed as Amy Wollock.          Arraial confirmed that Wollock had




                                       9                                    A-1838-11T3
not created the email account and, investigating further, was

able to ascertain, through the IP address, that the creator of

the website was J.O.

      Arraial filed a complaint against plaintiff alleging that

amywollock.com constituted harassment in violation of N.J.S.A.

2C:33-4(a).    Plaintiff was found guilty in Bedminster Municipal

Court and sentenced to probation in February 2009, with the

conditions that plaintiff have no contact with Wollock and was

prohibited from "using [his] computer to make inquiries of any

kind about" her.     Plaintiff appealed and was found not guilty by

the Superior Court on July 23, 2009.

      However, on June 10, 2009, before plaintiff's conviction

was      reversed,        Wollock      contacted     Arraial      regarding

amywollock.wordpress.com, a website she believed violated the

municipal court's order.            The wording on the website mirrored

the nature and content         of amywollock.com.        In addition, the

website included hyperlinks to: a mapping system that showed

Wollock's home address with an aerial map of her home; Wollock's

email address, phone number, and a background check on her; and

other links to websites that offered personal information such

as the names of several of Wollock's relatives, her previous

addresses,    date   of    birth,    average   income,   and   average   home

value.




                                       10                           A-1838-11T3
       Through the use of grand jury subpoenas, Arraial obtained

subscriber        information         for    the        website          and    learned     that

amywollock.wordpress.com              was     registered            on     June    30,    2007.

Arraial    also       learned    the    subscriber's           username          (amywollock),

user   email      (amywollock@gmail.com),               and    IP    address.         None    of

these were created by Wollock.                  Through the IP address, Arraial

determined that the website and email account were created and

used on plaintiff's computer.

       In November 2009, the Somerset County Prosecutor's Office

applied    for    a     search   warrant/communications                   data    warrant    for

plaintiff's residence in Westwood.                       The stated purpose of the

warrant        application             was         to         obtain           evidence       of

impersonation/theft             of     identity,          N.J.S.A.             2C:21-17(a)(1);

trafficking in personal identifying information pertaining to

another person, N.J.S.A. 2C:21-17.3(a); forgery, N.J.S.A. 2C:21-

1(a)(2); and uttering, N.J.S.A. 2C:21-1(a)(3).

       The warrant was issued by a Superior Court judge and, on

November     9,      2009,     executed       by    Arraial,         another        Bedminster

detective,        and     two        Somerset       County          Prosecutor's          Office

detectives.       Robert Saul, a police detective from the Borough of

Westwood       who       had     been        involved          in        prior,      unrelated




                                             11                                       A-1838-11T3
investigations concerning plaintiff,3 was present as local law

enforcement.      He did not participate in the search and seizure

of   plaintiff's     property.        Approximately       eighteen     items,

including   plaintiff's     computers     and   related   equipment,      cell

phone, and digital camera, were seized.

     According to plaintiff, when the officers arrived at his

home at 9:00 a.m. on November 9, 2009, they announced they were

executing   a   search   warrant/communications      data    warrant.         He

asked what this was about.       One of the officers replied that it

was "about a website."      Plaintiff replied that he had "a lot of

websites"   and     asked   which   one    they    were     talking    about.

Plaintiff stated the officers did not respond but threatened him

with arrest for obstruction.        He testified he told the officers,

"I need to call my attorney.        I need to see the search warrant."

The officers passed the search warrant through the door, and

plaintiff then called his attorney.




3
    In March 2005, Saul conducted an investigation after a
complainant informed him that his deceased father's name had
been used as the registrant of westwoodcops.com.        Saul's
investigation revealed that plaintiff was the operator of the
site, but no charges were filed because the victim suffered no
monetary loss.



                                     12                               A-1838-11T3
      At no time before, during, or after the execution of the

warrant did plaintiff advise the officers that he was entitled

to the protection afforded by the Act.4                 He testified,

              I told them that I had websites.     So they
              were on notice that I was an internet
              publisher. I don't have to be a journalist
              under the statute.   I could be a publisher
              of news and information.   Via an electronic
              medium.

      Plaintiff filed a motion to suppress the seized evidence.

The   motion     judge     found     that   the    application        for   the     search

warrant was supported by sufficient evidence to establish the

requisite probable cause and denied the motion on January 19,

2010.     Plaintiff did not appeal the denial of his suppression

motion or his subsequent motion for reconsideration.                          Plaintiff

was   never    charged       with    any    of    the   offenses      listed      in    the

warrant.

      In January 2010, more than two months after the search

warrant    was      executed    and    approximately          one   week    after       his

challenge      to    the    search    warrant      failed,     plaintiff       filed       a

verified complaint against the Bedminster defendants, Somerset

County,    and      the    Borough    of    Westwood    and    Saul    (the    Westwood

defendants), seeking injunctive relief and damages.                           It was in

4
   Given the relative obscurity of the Act, it could be that
plaintiff was unaware of its existence at the time the warrant
was executed. However, neither he nor Arraial claimed a lack of
knowledge of the Act as an explanation for their conduct.



                                            13                                    A-1838-11T3
this complaint that plaintiff asserted for the first time that

the execution of the search warrant was a violation of the Act

because   he   "is   a   person   engaged      in    gathering,      procuring,

transmitting, compiling, editing, publishing, or disseminating

news for the public, via the internet."

    In June 2010, the Bedminster defendants filed a demand for

withdrawal of frivolous pleadings pursuant to Rule 1:4-8.                    All

parties filed motions for summary judgment.                   The trial court

granted summary judgment in favor of Somerset County and the

Westwood defendants, dismissing the claims against them.                     The

court denied the summary judgment motions of plaintiff and the

Bedminster defendants.

    The    court     conducted    a    hearing       to   determine     whether

plaintiff qualified as a news media person within the meaning of

N.J.S.A. 2A:84A-21.9.     Following the Supreme Court's decision in

Too Much Media, LLC v. Hale, 206 N.J. 209 (2011), the court

heard re-argument and issued a written decision finding that

plaintiff did not qualify as a newsperson under the Act.

    The   Bedminster     defendants    filed     a   motion    for   attorney's

fees and costs pursuant to Rule 1:4-8, which was denied by the

trial court.   They appeal from that order.

    Plaintiff appeals from the trial court's dismissal of his

claims against all defendants.             He argues that the trial court




                                      14                               A-1838-11T3
erred    in    dismissing      his   claims        that    defendants    Township      of

Bedminster, County of Somerset, and Borough of Westwood violated

the    Act    because     he   is    a    person     protected    by    the     Act   and

therefore      enjoys     absolute       freedom    from    searches    and    seizures

(Points I and VI).             He challenges the trial court's findings

that    the    defendants      had   a    good     faith   defense     under    the   Act

(Point II); that Arraial neither knew nor had a duty to know

that he is a newsperson (Point III); and that Somerset County

was not a proper party (Point IV).                   Plaintiff also argues that

defendants violated the Act because they failed to obtain the

approval of the Attorney General or the Bergen County Prosecutor

prior to obtaining the warrant (Point V).                        Finally, plaintiff

argues that the trial court erred in dismissing his allegations

that Arraial and Saul violated the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2(c) (Point VII).

       We hold that plaintiff's claims resting upon the Act were

properly dismissed.            Because defendant did not appeal from the

order denying his motion to suppress evidence, the argument that

the warrant was not supported by probable cause advanced in

Point VI is not properly before us.                        We also conclude that

plaintiff's claims based upon alleged violations of the Civil

Rights       Act   were   properly       dismissed.         Plaintiff's        remaining




                                            15                                  A-1838-11T3
arguments    lack     sufficient       merit        to   warrant       discussion    in    a

written opinion.          R. 2:11-3(e)(1)(E).

      The    facts        concerning      plaintiff's         activities       and    the

issuance and execution of the search warrant are essentially

undisputed.        The issue here is the legal significance of those

facts.      Therefore, our review is de novo.                      Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

                                          III.

      The    Act     declares      that    persons         engaged       in   enumerated

activities are "free from searches and seizures" of documentary

materials obtained during the course of those activities, with

certain exceptions.           N.J.S.A. 2A:84A-21.9.                Significantly, the

Act is designed to reach searches and seizures that would be

sanctioned     if    only    subject      to    a    Fourth      Amendment    analysis.

Plaintiff's arguments require us to address "who" and "what" the

Legislature intended to protect and the obligations of claimant

and law enforcement when a suspect in a criminal investigation

who   claims        the    Act's    protection           lacks     a     connection       to

traditional news media.

      "In reading and interpreting a statute, primary regard must

be given to the fundamental purpose for which the legislation

was enacted."        N.J. Builders, Owners & Managers Ass'n v. Blair,

60 N.J. 330, 338 (1972).            "To discern the Legislature's intent,




                                           16                                   A-1838-11T3
courts    first    turn      to    the    plain    language    of   the      statute      in

question."       In re Young, 202 N.J. 50, 63 (2010); DiProspero v.

Penn, 183 N.J. 477, 492 (2005); Hubbard v. Reed, 168 N.J. 387,

392   (2001).          "If   the    plain    language       leads   to   a    clear      and

unambiguous result, then [the] interpretive process is over."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192

N.J. 189, 195 (2007).              "However, where a literal interpretation

would    create    a    manifestly        absurd   result,     contrary       to    public

policy, the spirit of the law should control."                       Turner v. First

Union Nat'l Bank, 162 N.J. 75, 84 (1999).                     "Thus, when a literal

interpretation of individual statutory terms or provisions would

lead to results inconsistent with the overall purpose of the

statute,    that       interpretation        should    be    rejected."         Hubbard,

supra,     168    N.J.       at    392-93    (internal       quotation       marks       and

citations omitted).

      The "who" element of the Act establishes a category of

persons who may seek its protection, identifying them by their

engagement        in     enumerated          activities,        i.e.,        "gathering,

procuring,       transmitting,           compiling,    editing,      publishing,          or

disseminating news for the public."                   N.J.S.A. 2A:84A-21.9 (news-

persons).        There is also a "what" component that limits its

application to documentary materials obtained in the course of

pursuing news activities.                 "Documentary materials" are defined




                                             17                                    A-1838-11T3
as "materials upon which information is recorded and includes,

but   is    not        limited   to,        written     or   printed     materials,

photographs, tapes, videotapes, negatives, films, outtakes and

interview files."         N.J.S.A.      2A:84A-21.12(a).        The Act does not

require    that   the     material     in    question    "has   been    or   will   be

disseminated or published."            N.J.S.A. 2A:84A-21.9.

      Plaintiff has never been employed as a journalist by any

conventional news outlet.            He argues that he is protected by the

Act   because     he    considers    himself     "a   legitimate       gatherer     and

publisher of news and information for the public."                     It is clear,

however, that a person does not become "free from searches and

seizures" under the Act solely by virtue of a claimed newsperson

status.    Cf. Too Much Media, supra, 206 N.J. at 240-42.                     As the

Court recognized in addressing the application of the Shield

Law, it requires little analysis to determine whether a person

associated with traditional media may claim the privilege under

that law. Id. at 241-42.               However, when, as here, a "self-

appointed" journalist or publisher claims statutory protection,

more scrutiny is required.           Id. at 242.

      Analyses of the Shield Law provide limited guidance.                            A

person who claims the privilege afforded by the Shield Law must

show a connection to "news media" as defined in the statute,

i.e., "newspapers, magazines, press associations, news agencies,




                                            18                               A-1838-11T3
wire   services,   radio,    television   or    other     similar   printed,

photographic, mechanical or electronic means of disseminating

news    to   the   general    public."         N.J.S.A.     2A:84A-21a(a).5

Accordingly, the Court's "focus" in Too Much Media was on the

meaning of "news media."      206 N.J. at 231.

       A similar nexus to "news media" was included when the Act

was first proposed.     The Assembly Judiciary, Law, Public Safety

and Defense Committee Statement (June 28, 1979) declares the

bill, A.1535, was intended "to preserve the first amendment's

freedom of the press by insuring that the files of the news

media shall not be the subject of searches and seizures by law

enforcement officials."       (Emphasis added).         However, the terms

"news" and "news media" were not defined and "news media" was

not even mentioned in the final version of the Act.6


5
    N.J.S.A. 2A:84A-21.3(a) requires claimants to make a prima
facie showing that (1) they have the requisite connection with
news media, (2) they have the necessary purpose to gather or
disseminate news, and (3) the materials subpoenaed were obtained
in the ordinary course of pursuing professional newsgathering
activities.
6
    "News media" is mentioned in the headnote for the Act.
However, because headnotes are not the product of legislative
action, N.J.S.A. 1:3-1; State v. Darby, 246 N.J. Super. 432,
440-41 (App. Div.), certif. denied, 126 N.J. 342 (1991), they
are not deemed part of the legislation itself and do not assist
in statutory interpretation.   N.J.S.A. 1:1-6; State v. Malik,
365 N.J. Super. 267, 279 (App. Div. 2003), certif. denied, 180
N.J. 354 (2004).




                                   19                               A-1838-11T3
       As introduced, the "who" component of the Act tracked the

language of the Shield Law to identify the category of persons

covered.     But    amendments   to   the    bill   arguably   expanded      the

category   of    persons   who   might      claim   its   protection.        For

example,   the     amendments    deleted     language     requiring   that     a

protected person be employed "by news media for the purpose of"

news    gathering    and   disseminating       activities.7       The      word

"professional" was deleted from the description of activities.

Publishing was added to the enumerated activities that could

provide a basis for protection under the Act.




7
   For clarification, we provide the amendments to the relevant
paragraph,   with  deletions   struck  through   and  additions
underlined:

           Any    person,    corporation,     partnership,
           proprietorship or other entity engaged on,
           engaged in, connected with, or otherwise
           employed by news media for the purpose of in
           gathering,       procuring,       transmitting,
           compiling,     editing,      publishing,     or
           disseminating news for the general public,
           or on whose behalf news is so gathered,
           procured,   transmitted,    compiled,   edited,
           published or disseminated has a privilege to
           shall be free from searches and seizures, by
           State, county and local law enforcement
           officers,    for    with    respect    to   any
           documentary materials obtained in the course
           of pursuing his professional the aforesaid
           activities whether or not such material has
           been or will be disseminated or published.



                                      20                              A-1838-11T3
    At the time the Act became law, the enumerated activities

were performed by readily identifiable, traditional newspersons.8

Today,    the    performance        of     those    activities,      made   far     more

accessible through the widespread use of electronic media, is a

commonplace.      See Reno v. ACLU, 521 U.S. 844, 853, 117 S. Ct.

2329,    2335,   138     L.   Ed.    2d    874,     886   (1997)    ("Any   person    or

organization      with    a   computer       connected      to     the   Internet    can

'publish' information."); Too Much Media, LLC v. Hale, 413 N.J.

Super. 135, 154 (App. Div. 2010), aff'd in part and modified,

206 N.J. 209 (2011); Developments in the Law -- The Law of

Media, 120 Harv. L. Rev. 990, 993 (2007).                        Today, a cellphone

can be used by a pedestrian to take a video of an incident of

police    brutality      that       will    be     played   on     the   evening    news

broadcast.       The same phone can be used to record a kitten who

refuses to leave a warm bath, producing a video seen by close to

four million people on YouTube.                     In each case, it could be

argued that the person who took the video engaged in an activity

described in the Act.               Nonetheless, we are confident that the

Legislature      did   not    intend       to    provide    protection      above    and




8
   Indeed, the statement issued by the Governor's Office after
the bill became law states the Act "imposes a strict prohibition
against searches and seizures of a newsman's 'work product'
materials, except in specific situations."      (Feb. 28, 1980)
(emphasis added).



                                            21                                A-1838-11T3
beyond that provided by the Fourth Amendment to someone based

upon the posting of a video of a wet kitten on the Internet.

    The absence of a definition of "news" and the deletion of

language requiring a nexus to "news media" and "professional"

activities invite an evaluation of the newsworthiness of the

material published that is bound to be subjective in nature.                  In

light of the stated purpose to preserve freedom of the press,

such a result is undesirable.          Cf. Too Much Media, supra, 206

N.J. at 242 ("Hearings       [to determine whether the Shield Law

privilege applies] should not devolve into extensive questioning

about an author's editorial, writing, or thought processes.").

    As a self-described "internet publisher," plaintiff's claim

to protection under the Act merited more scrutiny than a claim

made by a member of traditional news media.             See ibid.     From the

officers'   perspective,    they   went    to   plaintiff's    residence     to

execute a lawfully issued warrant to search for evidence of

offenses committed by plaintiff relating to his two "web gripe

sites"   regarding   Amy   Wollock.        Asked   if   she   could   make   an

evaluation as to whether plaintiff was "a legitimate gatherer

and publisher of news and information for the public" based upon

the content of his websites, Arraial testified:

            If there were any indication based on the
            facts that I had at any point that Mr.
            O was a news-reporting individual, I
            could look at a website and decide that.



                                      22                              A-1838-11T3
           But there was absolutely no indication
           whatsoever that Mr. O was reporting
           news    during     my    investigation    of
           amywollock.wordpress.com   or    any   other
           investigation that I've done on behalf of
           Ms. Wollock with regard to Mr. O as
           a suspect.

    Arraial's     opinion         that    the    websites    failed      to    establish

plaintiff's     status      as    "a   news-reporting       individual"         was   not

unreasonable.     Plaintiff used a subterfuge to distance himself

from the Amy Wollock websites, creating an email account in her

name and using that to create the websites.                         Consistent with

that conduct, the stated purpose of the warrant application was

to obtain evidence that plaintiff used his computer to engage in

identity theft and related offenses.

    Moreover,        plaintiff's         own    conduct    when    the    warrant     was

executed failed to alert the officers to any claim of protected

status.    When the officers announced their purpose, plaintiff

demanded   to   see    the       search    warrant.        He     did    not   tell   the

officers that the warrant was invalid because he was free from

searches and seizures under the Act.                In fact, he did not assert

this claim until more than two months later, after a court had

determined    that    the    search       and    seizure    did    not    violate     his

constitutional rights.

    Plaintiff argues, however, that he had no obligation to

identify himself as a newsperson.                 He contends that the officers




                                           23                                   A-1838-11T3
were on "inquiry notice" as to his status because he "told them

[he] had websites," and Arraial knew he had other websites based

upon Saul's prior investigation.9                      As a result, he argues that

the officers had an obligation to conduct an investigation to

determine     if     he    was   protected        by    the    Act     before    seeking     a

warrant.      We disagree.

    As support for his position that the officers had a duty to

investigate     his       status,    plaintiff         cites    Steve     Jackson       Games,

Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993),

aff'd   on    other       grounds,    36     F.3d      457    (5th    Cir.     1994).      His

reliance is misplaced.

    In       Steve    Jackson       Games,    the      Secret        Service    agents     had

probable cause to believe that an employee of Steve Jackson

Games (the company) had hacked into Bell South's 911 program and

stored the information on his computers at home and at work.

They obtained a warrant for the company's offices, believing


9
   Plaintiff identified four other websites, which he relies upon
to establish his bona fides as a newsperson.         The website
mrwestwood.com identifies itself as "Westwood, NJ – Pascack
Valley Blog" and contains news and information about that
municipality.    Plaintiff also created and maintained uhaul-
sucks.com and uhaulsucks.wordpress.com "after a horrible moving
experience" and described the websites as containing news and
information about unsafe equipment rented by the company.      On
jo.com, plaintiff identifies himself as a biology,
chemistry, science, and tech teacher; SAT and ACT tutor; and
publisher, and blogs about related topics. This last website is
the only website on which plaintiff used his real name.



                                             24                                     A-1838-11T3
that its business was to "put out games."                     816 F. Supp. at 436.

But, unlike here, there was never any suspicion that the owner

of   the   company   or      any   other    plaintiff         had    engaged    in   any

criminal activities.          Id. at 435.        It was for this reason that

the District Court faulted the agents for failing to conduct any

investigation regarding the nature of the company's business.

Id. at 436, n.4.

      Indeed,   Steve     Jackson     Games          provides       support    for   the

concept that the claimant's timely assertion of the statutory

protection   should     be    considered        by    the    court    in   determining

whether the protection applies.                 Unlike here, an employee told

the agent that the company was in the publishing business at the

time the warrant was executed.              Id. at 437.         It was because the

Secret Service agents were advised of facts during the search

that put them on notice of probable violations of the PPA that

the Court found the continued seizure of the items thereafter

was a basis for liability under the PPA.                    Id. at 440-41.

      Plaintiff also argues that he was not required to divulge

his claimed status to law enforcement, relying upon language in

Too Much Media, supra, 206 N.J. at 239.                     Again, his reliance is

misplaced.

      First of all, the Court did not state that a newsperson

need not assert his status in order to invoke the privilege




                                           25                                  A-1838-11T3
under the Shield Law.             To the contrary, the Court observed that

N.J.S.A.      2A:84A-21.3        "outlines         a    procedure   for    invoking     the

newsperson's privilege."               Too Much Media, supra, 206 N.J. at

240.    Before a newsperson is permitted to withhold information

otherwise       subject     to     compulsory            disclosure,      the   claim   of

privilege must be invoked and the requisite prima facie showing

must be made.        See ibid.

       Although the Act does not address this issue, the case for

timely disclosure is even stronger when the protection afforded

is to be "free from searches and seizures."                            By their nature,

there is a measure of urgency in securing items sought in search

warrants.       See Sgro v. United States, 287 U.S. 206, 210-11, 53

S. Ct. 138, 140, 77 L. Ed. 260, 263 (1932) ("[I]t is manifest

that the proof [of probable cause] must be of facts so closely

related to the time of the issue of the warrant as to justify a

finding    of    probable      cause     at    that       time.")   (emphasis     added);

State v. Novembrino, 105 N.J. 95, 124 (1987).

       Freedom      of   the     press   is        not    compromised      by   requiring

persons who claim protection under the Act to assert that claim

as early as practicable.             In this case, that would have been at

the    time   the    officers      arrived         at     plaintiff's     residence     and

announced they had a warrant.                  However, not only did plaintiff

fail to assert his claim, he demanded to see the warrant as a




                                              26                                 A-1838-11T3
condition   of   admission,     an   act   that   ratified     the   officers'

belief they were acting in full compliance with applicable laws.

       Moreover, plaintiff's failure to timely advise the officers

of his claimed status deprived them of the opportunity to comply

with the requirement of N.J.S.A. 2A:84A-21.10 that applications

to the court for warrants sought under the Act be approved in

advance by the Attorney General "or the prosecutor of the county

in which execution of the warrant will take place."                   The Act

carved out an exception to the statutory prohibition for lawful

searches and seizures where there is probable cause to believe a

person who possesses the materials to be seized "has committed

or is committing the criminal offense for which the materials

are sought."     N.J.S.A. 2A:84A-21.9(a).         The search and seizure

here    unequivocally   falls    within     the   four   corners     of   this

"suspect"   exception   as    the    sufficiency    of   the    evidence      to

support a finding of probable cause is established.                   However,

the warrant was approved by the prosecutor of Somerset County,

not the prosecutor of Bergen County, where it was executed.                 The

presence of Saul at the execution of the search warrant suggests

an awareness and tacit approval of the search by Bergen County

law enforcement authorities.         It is reasonable to conclude that,

if plaintiff had made his position known to the officers before

the warrant was executed, the approval of the Bergen County




                                      27                              A-1838-11T3
Prosecutor would have been secured or the search would have been

abandoned.         No purpose identified by the Legislature is served

by permitting a suspect in a criminal investigation to evade the

application of the suspect exception by concealing his claim to

protected status under the Act.

      In   sum,      the    legislative      intent       to    preserve         the     First

Amendment's freedom of the press is not compromised by requiring

persons    who      claim     protection       under   the          Act    to    alert    law

enforcement officers to that fact in a timely manner.                              And, in

our view, it would place a wholly unnecessary burden upon law

enforcement        officers     to    require      them        to     conduct      Internet

searches of postings by the targets of criminal investigations

to determine whether those persons might be protected under the

Act   prior    to    obtaining       validly     issued    search          warrants      under

circumstances such as those here.

      We   therefore        hold     that   the    detectives             here   were     not

required      to    conduct     an    investigation        to        determine      whether

plaintiff was protected by the Act under the facts known to them

when they sought and executed the warrant.                                We further hold

that, by failing to assert his claim to such protection when the

warrant was executed, plaintiff waived any right to pursue a

civil action under the Act.




                                            28                                     A-1838-11T3
                                           IV.

    Even     if    plaintiff        had    alerted    law    enforcement       to   his

claimed   status     in   a    timely      manner,    he    was    not   entitled    to

protection under the Act.            Rather than provide a blanket freedom

from otherwise lawful searches and seizures, the Act limits the

prohibited    searches        and    seizures    to    those       for   "documentary

materials obtained in the course of pursuing" the enumerated

activities, N.J.S.A. 2A:84A-21.9, or what might be described as

work product materials.

    The materials sought by warrant here were not obtained by

plaintiff    in     any   newsgathering          activity,        and    he   has   not

identified    any     seized        item    as   such.            Plaintiff    created

amywollock.com to publish his personal "gripe" with Amy Wollock

and invited others to "tell your own horror story."                       The website

acknowledged its limited purpose, stating, "Web gripe sites are

a protected form of free speech, well-established by case law.

If you encounter the RU Screw or any other injustice, keep notes

and wait until the time is right for your story to be safely

told."    The second website, amywollock.wordpress.com, described

a similar purpose: "We hope that this website will be a place

where kindred spirits can come together to heal and to learn how

to enjoy life after escaping from Amy Wollock."




                                           29                                 A-1838-11T3
       Implicitly      acknowledging      that       these      websites       were    not

employed in newsgathering, plaintiff contends that the removal

of amywollock.com from the Internet in 2007 and the condition

attached      to     his   probationary        sentence      prevented         him    from

developing      the    websites    as   he     had    developed        other    Internet

websites.       However, his unrealized aspirations for the websites

will not validate his claim to protection under the Act.                               Cf.

Too Much Media, supra, 206 N.J. at 218-21, 238.                            We therefore

conclude      that    plaintiff     was      not     "free      from    searches       and

seizures" of the materials sought in the warrant because they

were    not    documentary       materials     obtained         in   the    pursuit     of

activities enumerated in the Act.

                                          V.

       In    Point    VII,   plaintiff       argues    that      Arraial        and   Saul

violated      N.J.S.A.     10:6-2(c)    by     "act[ing]        in   bad    faith,     and

without probable cause that plaintiff had committed any crimes,

to deprive plaintiff of his rights . . . and to confiscate" his

property.      He argues their involvement in the search and seizure

of     his    property     was    "retaliatory        in     nature,"       based     upon

"harbored      ill    will   toward     plaintiff"         as    a     result    of    his

publishing activity and his successful appeal of the harassment

conviction.        He states their actions violated N.J. Const., art.




                                          30                                     A-1838-11T3
I,   ¶¶   6,   7,    and   that     they    are       not     entitled    to    qualified

immunity.      These arguments lack merit.

      Plaintiff's       challenge     to     the       search       on   constitutional

grounds was rejected in the denial of his suppression motion and

again in the denial of his motion for reconsideration.                               He did

not appeal either of those decisions and cannot relitigate the

sufficiency of the evidence to establish probable cause for the

issuance of the warrant now.               See Velasquez v. Franz, 123 N.J.

498, 505 (1991).           Because plaintiff has not been "deprived of

any . . . substantive rights, privileges or immunities secured

by the Constitution or laws of this State," his claim under

N.J.S.A. 10:6-2(c) fails.

                                           VI.

      We next turn to the Bedminster defendants' argument that

the trial court erred in denying their motion for counsel fees

pursuant to Rule 1:4-8.            This court's review of an order denying

a    motion    for     attorneys'    fees        is    guided       by   the    abuse      of

discretion standard.            See Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 444 (2001); Barr v. Barr, 418 N.J. Super. 18, 46

(App. Div. 2011).

      Rule     1:4-8    provides    litigants          with    "a   monetary        sanction

remedy    including        an   attorney's            fee     allowance"       to    punish

"frivolous pleadings."            Pressler & Verniero, Current N.J. Court




                                           31                                       A-1838-11T3
Rules, comment 1 on R. 1:4-8 (2014); see R. 1:4-8(d)(2).                              Our

courts have strictly construed the nature of conduct warranting

sanction under R. 1:4-8, LoBiondo v. Schwartz, 199 N.J. 62, 116-

17 (2009), mindful that "honest and creative advocacy should not

be discouraged."         Wyche v. Unsatisfied Claim and Judgment Fund

of State, 383 N.J. Super. 554, 561 (App. Div. 2006) (quoting

Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990)).

Therefore, an award of attorney's fees under Rule 1:4-8 will not

be appropriate where there is an objectively reasonable belief

in the merits of an argument, see First Atl. Fed. Credit Union

v. Perez, 391 N.J. Super. 419, 433 (App. Div. 2007); K.D. v.

Bozarth,        313   N.J.   Super.    561,       574-75   (App.    Div.),      certif.

denied, 156 N.J. 425 (1998); or where the plaintiff is engaged

in   a    legitimate     effort   to        extend   the   law     on    a    previously

undecided issue.         See Wyche, supra, 383 N.J. Super. at 560-61;

see also N.J.S.A. 2A:15-59.1(b).

         As we have noted, there have been no published opinions

that interpreted or applied the Act in more than three decades.

Under     the    circumstances,       the    trial   court   did        not   abuse   its

discretion in declining to award counsel fees to the Bedminster

defendants pursuant to Rule 1:4-8.

         Affirmed.




                                             32                                 A-1838-11T3
