                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4665-14T4

STATE OF NEW JERSEY,

      Plaintiff-Respondent,                APPROVED FOR PUBLICATION

                                                 September 24, 2018
v.
                                               APPELLATE DIVISION

J.S.G.,1

     Defendant-Appellant.
___________________________

            Argued September 14, 2017 – Decided July 24, 2018

            Before Judges Simonelli, Haas and Rothstadt.

            On appeal from Superior Court of New Jersey, Law
            Division, Gloucester County, Indictment No. 13-12-
            1208.

            Daniel S. Rockoff, Assistant Deputy Public Defender,
            argued the cause for appellant (Joseph E. Krakora,
            Public Defender, attorney; Daniel S. Rockoff, of
            counsel and on the briefs).

            Steven A. Yomtov, Deputy Attorney General, argued
            the cause for respondent (Christopher S. Porrino,
            Attorney General, attorney; Steven A. Yomtov, of
            counsel and on the brief).


1
   We use initials to identify those individuals involved in this matter pursuant
to Rule 1:38-3.
      The opinion of the court was delivered by

SIMONELLI, P.J.A.D.

      This appeal involves the warrantless, nonconsensual search of children's

school records for the name of their father, defendant J.S.G., who was the

owner of a vehicle linked to two burglaries. Defendant pled guilty to fourth -

degree receiving stolen property, N.J.S.A. 2C:20-7, after the trial court denied

his motion to suppress, and was sentenced to a two-year probationary term.

We affirm the denial of the motion, but for different reasons than the court

expressed in its February 25, 2015 oral opinion. See Aquilio v. Cont'l Ins. Co.

of N.J., 310 N.J. Super. 558, 561 (App. Div. 1998).

                                       I.

      The parties stipulated to the following facts at the suppression hearing.

On August 18, 2013, Westville Police Officer Amanda Myers responded to a

reported burglary at a home located on Magnolia Street. The homeowner

informed Myers that someone broke into his home and stole numerous

household appliances and tools valued at approximately $4000. There were

no leads developed at the scene.

      On August 28, 2013, Westville Police Officer Daniel Garr responded to

a reported burglary at another home located on Magnolia Street.              An

electrician working at the home reported that several appliances valued at



                                                                        A-4665-14T4
                                       2
approximately $3000 were missing. Garr found tire tracks leading from the

driveway to the back door of the home that appeared to be wide enough to

belong to a large pickup truck. There were no leads developed at the scene.

      Westville Police Detective Donald Kiermeier, who was assigned to

investigate both burglaries, obtained video surveillance from a building

adjacent to the home burglarized on August 28, 2013. The video from one

camera showed a pickup truck with five orange lights on the front of the cab

driving away from the property, but did not show the driver or license plate

number. The vehicle resembled an older two-tone red and silver pickup truck

consistent with a 1980s Ford pickup truck (the truck). As the truck backed

out of the driveway, it appeared to have items in the bed that were consistent

with the appliances stolen from the home. A video from another camera also

showed items in the bed that appeared to be appliances.

      Kiermeier spoke to residents of Magnolia Street about the burglaries.

Based on his description of the truck, a resident said he saw a similar truck

frequently parked at another home on Magnolia Street and provided a photo

of the truck from his home surveillance system. Kiermeier went to the home

the resident identified and spoke to its occupant, L.H., who said the truck was

often parked there and belonged to her children's father. L.H. denied knowing




                                                                       A-4665-14T4
                                       3
about the recent burglaries on Magnolia Street and declined to give Kiermeier

any information about him.

      While speaking to L.H., Kiermeier noticed she had a child who

appeared to be approximately seven years old. He contacted the principal of a

local elementary school and asked if she was familiar with L.H. The principal

said L.H. had two children enrolled at the school.        Kiermeier obtained

parental contact information from the principal, which listed defendant as the

father. Kiermeier conducted a motor vehicle search and discovered defendant

had a red Ford pickup truck registered in his name.

      Kiermeier then went to Camden Iron & Metal, Inc. to determine

whether defendant had scrapped any of the stolen items there. He obtained

receipts for and photographs of items defendant had scrapped, which appeared

to match the items stolen on August 18, 2013. He also obtained photographs

of the truck, which showed the stolen items in the bed. He spoke to the

victim, who positively identified the items shown in the photographs as his

stolen property. Defendant was arrested the next day.

      On his motion to suppress, defendant argued he had a reasonable

expectation of privacy in personally identifiable information (his name)

contained in his children's school records because the Family Educational

Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, and its corresponding



                                                                       A-4665-14T4
                                       4
regulation, 34 C.F.R. § 99, and the New Jersey Pupil Records Act (NJPRA),

N.J.S.A. 18A:36-19, and its corresponding regulations, N.J.A.C. 6A:32-7.1 to

-7.8, guarantee parents the right to safeguard that information from improper

disclosure.

      The court found an individual ordinarily surrenders a reasonable

expectation of privacy in information revealed to a third party and that "a

person's name could hardly be thought of as protected privacy information."

The court also found the policy behind FERPA and the NJPRA is to protect

the student's privacy, not the privacy of the parent's name, and any violation

implicated the school, not the police. The court determined that a parent's

name could be disclosed under FERPA as "directory information." The court

concluded that "no privacy interest was violated so as to require a warrant as

to the parent's name" and "[n]o information on the student was used as part of

this investigation in any event." The court also held, sua sponte, that the

inevitable discovery doctrine applied.

      On appeal, defendant raises the following contentions.

              POINT I

              A   POLICE   OFFICER'S    WARRANTLESS,
              NONCONSENSUAL SEARCH OF CHILDREN'S
              SCHOOL    RECORDS     FOR    PATERNITY
              INFORMATION      PROTECTED       FROM
              UNAUTHORIZED ACCESS BY THE PLAIN TEXT
              OF FEDERAL, STATE, AND LOCAL PRIVACY

                                                                       A-4665-14T4
                                         5
LAWS VIOLATED DEFENDANT'S REASONABLE
EXPECTATION OF PRIVACY UNDER THE
FEDERAL AND STATE CONSTITUTIONS [U.S.
CONST., AMEND. IV; N.J. CONST., ART. I, ¶ 7].

  A. Federal, State, And Local Privacy Laws Reflect
  A Broad Societal Consensus: [Defendant] Had A
  Reasonable Expectation Of Privacy In His
  Children's School Records And The Personally
  Identifying    Information   Therein,   Including
  Paternity Information.

     1.    Federal    Law      Specifically  Defines
     Paternity Information In School Records As
     "Personally Identifiable Information," Protected
     From Warrantless Disclosure Without Written
     Parental Consent.

     2.    While Federal Law Allows Local
     Authorities To Designate, By Public Notice,
     Categories     Of    "Personally     Identifiable
     Information" That May Be Disclosed Without
     The Written Parental Consent Requirement
     ("Directory Information"), The State Offered No
     Proof That [The Children's Elementary School]
     Has Exempted Paternity Information In This
     Manner. If The State Had Looked, It Would
     Have Discovered That [The School's] Public
     Notice Actually Does Not Exempt Paternity
     Information From The Written Parental Consent
     Requirement.

     3.    Federal Law Prohibits Members Of The
     Public From Using A Mother's Name To Search
     School Records In Order To Learn The Names
     Of Her Children, And Any Paternity
     Information Associated With Those Children,
     Which Is Exactly What The Police Officer Did.




                                                         A-4665-14T4
                         6
  4.    New Jersey State Law Did Not Permit The
  Officer's Warrantless, Nonconsensual Search.
  Federal Law Establishes A Privacy Floor Below
  Which State Law Cannot Sink.

  5.   Because The Plain Text of Federal, State,
  And Local Privacy Laws Clearly and
  Unambiguously Barred The Police Officer's
  Warrantless, Nonconsensual Search, The Court
  Had No Reason To Examine Statutory Purpose.

  6.    Although The Trial Court Had No Reason
  To Look Beyond The Clear And Unambiguous
  Plain Text Of Federal, State, And Local Privacy
  Laws, The Purpose Of These Laws Is Plainly To
  Protect Familial Privacy, Not Just The Privacy
  Of Children.

  7.    Leaving Aside FERPA's Federal, State,
  And Local Statutory Scheme Protecting A Right
  To Privacy In School Records, The New Jersey
  Supreme      Court     Has     Also    Found
  Constitutionally-Based Rights Protecting The
  Privacy Of Familial Associations And
  Consensual Adult Sexual Relationships.

B. The Trial Court Erred By Not Applying The
Exclusionary Rule.

  1.    [Defendant] Did Not Waive His
  Reasonable Expectation Of Privacy In His
  Children's School Records And The Personally
  Identifying Information Therein.

  2.    The Trial Court Erroneously Applied The
  Inevitable Discovery Doctrine Sua Sponte,
  Without Any Explanation As To Why Or How
  The Evidence Would Have Been Inevitably
  Discovered, After The State Failed To Raise It
  Or Call Any Witnesses To Support It.

                                                    A-4665-14T4
                     7
                  3.    Because Federal, State, And Local
                  Privacy Laws Explicitly Required The Police To
                  Obtain A Judicial Search Warrant, And The
                  Police Did Not, Exclusion Of The Evidence
                  Here Would Only Acknowledge The Social
                  Choices Made By The Political Branches.

      Our Supreme Court has established the standard of review applicable to

consideration of a trial judge's ruling on a motion to suppress:

            We are bound to uphold a trial court's factual findings
            in a motion to suppress provided those "findings are
            'supported by sufficient credible evidence in the
            record.'" Deference to those findings is particularly
            appropriate when the trial court has the "opportunity
            to hear and see the witnesses and to have the feel of
            the case, which a reviewing court cannot enjoy."
            Nevertheless, we are not required to accept findings
            that are "clearly mistaken" based on our independent
            review of the record. Moreover, we need not defer "to
            a trial . . . court's interpretation of the law" because
            "[l]egal issues are reviewed de novo."

            [State v. Watts, 223 N.J. 503, 516 (2015) (alteration in
            original) (quoting State v. Vargas, 213 N.J. 301, 327
            (2013)).]

Because this appeal involves the court's interpretation of the law, our review is

de novo with no deference afforded to the court's legal conclusions. Ibid.

                                       II.

      We first address defendant's argument that the court erroneously applied

the inevitable discovery doctrine.    The inevitable discovery doctrine is an

exception to the exclusionary rule. Nix v. Williams, 467 U.S. 431, 444 (1984).



                                                                        A-4665-14T4
                                        8
"If the State can show that 'the information ultimately or inevitably would have

been discovered by lawful means . . . the deterrence rationale [of the

exclusionary rule] has so little basis that the evidence should be received.'"

State v. Maltese, 222 N.J. 525, 551-52 (2015) (alterations in original) (quoting

Nix, 467 U.S. at 444).

      In order to invoke the doctrine, the State must show by clear and

convincing evidence that:

            (1) proper, normal and specific investigatory
            procedures would have been pursued in order to
            complete the investigation of the case; (2) under all of
            the surrounding relevant circumstances the pursuit of
            those procedures would have inevitably resulted in
            discovery of the evidence; and (3) the discovery of the
            evidence through the use of such procedures would
            have occurred wholly independently of such evidence
            by unlawful means.

            [State v. Keaton, 222 N.J. 438, 451 (2015) (quoting
            State v. Sugar, 100 N.J. 214, 238 (1985) (Sugar II)).]

The State must demonstrate that "had the illegality not occurred, it would have

pursued established investigatory procedures that would have inevitably

resulted in the discovery of the controverted evidence, wholly apart from its

unlawful acquisition." Sugar II, 100 N.J. at 240. "[T]he central question to be

addressed in invoking the 'inevitable discovery' rule 'is whether that very item

of evidence would inevitably have been discovered, not merely whether

evidence roughly comparable would have been so discovered.'"           State v.

                                                                        A-4665-14T4
                                       9
Worthy, 141 N.J. 368, 390 (1995) (citation omitted). However, "the State need

not demonstrate the exact circumstances of the evidence's discovery . . . . It

need only present facts sufficient to persuade the court, by a clear and

convincing standard, that the [evidence] would be discovered." Maltese, 222

N.J. at 552 (alterations in original) (quoting State v. Sugar, 108 N.J. 151, 158

(1987) (Sugar III)).

      Here, the State did not raise the inevitable discovery doctrine and presented

no evidence, let alone clear and convincing evidence, satisfying the three

requirements noted in Keaton. Accordingly, the court erred in speculating that the

police would have inevitably discovered defendant's name.            Nevertheless,

defendant was not entitled to suppression of his name.

                                       III.

      Defendant contends that FERPA and the NJPRA create a reasonable

expectation of privacy in his children's school records, including "personally

identifiable information" (paternity information/his name) contained therein,

and protect that information from disclosure under the Fourth Amendment and

Article 1, paragraph 7 of the New Jersey Constitution without a war rant or

written parental consent. 2 We disagree.


2
   Post-argument, defendant cited to Brennan v. Bergen Cty. Prosecutor's
Office, ___ N.J. ___ (2018) to support this argument. However, Brennan
                                                            (continued)

                                                                          A-4665-14T4
                                        10
                 FERPA and the Corresponding Regulations

      FERPA governs the conditions for the availability of funds to

educational agencies or institutions and the release of education records. See

20 U.S.C. § 1232g(a). FERPA provides that:

            No funds shall be made available under any applicable
            program to any educational agency or institution
            which has a policy or practice of permitting the
            release of education records (or personally identifiable
            information contained therein other than directory
            information, as defined in [20 U.S.C. § 1232g(a)(5)])
            of students without the written consent of their parents
            to any individual, agency, or organization, other than
            [as stated in 20 U.S.C. § 1232g(b)(1)(A) to (L)].

            [20 U.S.C. § 1232g(b)(1) (emphasis added).]

FERPA defines "directory information" as follows:

            For the purposes of this section the term "directory
            information" relating to a student includes the
            following: the student's name, address, telephone
            listing, date and place of birth, major field of study,
            participation in officially recognized activities and
            sports, weight and height of members of athletic
            teams, dates of attendance, degrees and awards
            received, and the most recent previous educational
            agency or institution attended by the student.

            [20 U.S.C. § 1232g(a)(5)(A) (emphasis added).]



(continued)
involved the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, and has no
bearing on the issues in this case.


                                                                       A-4665-14T4
                                      11
The corresponding regulation, 34 C.F.R. § 99.3, defines "directory

information" as follows, in pertinent part:

            Directory information means information contained in
            an education record of a student that would not
            generally be considered harmful or an invasion of
            privacy if disclosed.

            (a) Directory information includes, but is not
            limited to, the student's name; address; telephone
            listing; electronic mail address; photograph; date and
            place of birth; major field of study; grade level;
            enrollment status (e.g., undergraduate or graduate,
            full-time or part-time); dates of attendance;
            participation in officially recognized activities and
            sports; weight and height of members of athletic
            teams; degrees, honors, and awards received; and the
            most recent educational agency or institution attended.

            [(Emphasis added).]

      FERPA has a public notice requirement for the disclosure of "directory

information":

            Any educational agency or institution making public
            directory information shall give public notice of the
            categories of information which it has designated as
            such information with respect to each student
            attending the institution or agency and shall allow a
            reasonable period of time after such notice has been
            given for a parent to inform the institution or agency
            that any or all of the information designated should
            not be released without the parent's prior consent.

            [20 U.S.C. § 1232g(a)(5)(B) (emphasis added).]




                                                                      A-4665-14T4
                                       12
The regulations also have a public notice requirement for the disclosure of

"directory information":

            An educational agency or institution may disclose
            directory information if it has given public notice to
            parents of students in attendance and eligible students
            in attendance at the agency or institution of:

            (1) The types of personally identifiable information
            that the agency or institution has designated as
            directory information;

            (2) A parent's or eligible student's right to refuse to
            let the agency or institution designate any or all of
            those types of information about the student as
            directory information; and

            (3) The period of time within which a parent or
            eligible student has to notify the agency or institution
            in writing that he or she does not want any or all of
            those types of information about the student
            designated as directory information.

            [34 C.F.R. § 99.37(a) (emphasis added).]

      Here, the State argues that the name of a student's parent is included as

"directory information" because the definition of "directory information"

"includes, but is not limited to, the student's name."      33 C.F.R. § 99.3.

However, the definition of "personally identifiable information" specifically

includes "the name of the student's parent or other family members." Ibid.

"Personally identifiable information" cannot be disclosed without written

parental consent unless the educational agency or institution designates it as



                                                                       A-4665-14T4
                                      13
"directory information" as described in 34 C.F.R. § 99.37.         20 U.S.C. §

1232g(b)(1); 34 C.F.R. §§ 99.30(a) and 99.31(a)(11).

      In this case, the school district's public notice advised that the district

must obtain written parental consent prior to the disclosure of "personally

identifiable information." The public notice also advised that the district "may

disclose appropriately designated 'directory information' without written

consent, unless [the parent has] advised the [d]istrict to the contrary in

accordance with [d]istrict procedures." The public notice did not designate the

name of the student's parent as "directory information." Thus, parental consent

was required before the disclosure of defendant's name under FERPA.

      Nevertheless, defendant was not entitled to suppression of his name.

FERPA is a funding statute with corresponding regulations establishing

procedures for administrative enforcement and administrative remedies for

improper disclosure of student records. See 20 U.S.C. § 1232g(f) and (g); 34

C.F.R. §§ 99.60(a) and (b), 99.63, 99.64(a) and (b), 99.65(a), 99.66(b) and

(c)(1); and 99.67(1), (2) and (3). As we have made clear,

            FERPA does not itself establish procedures for
            disclosure of school records. Rather, it provides that
            federal school funds will be withheld from any school
            that effectively [violates FERPA] . . . and it requires
            educational agencies or institutions to establish
            appropriate procedures for granting access to such
            records to parents of school children.



                                                                         A-4665-14T4
                                       14
              [K.L. v. Evesham Twp. Bd. of Educ., 423 N.J. Super.
              337, 363 (App. Div. 2011).]

In addition, the United States Supreme Court has held that "FERPA's

nondisclosure provisions further speak only in terms of institutional policy and

practice, not individual instances of disclosure." Gonzaga Univ. v. Doe, 536

U.S. 273, 288 (2002) (emphasis added) (citing 20 U.S.C. § 1232b(b)(1) to (2)

(prohibiting funding of "any educational agency or institution which has a

policy or practice of permitting the release of education records")).      What

occurred here was an individual instance of disclosure.

      More importantly, FERPA does not confer an enforceable right or

provide for suppression in the event of a violation. As the Supreme Court

made clear:

              [T]here is no question that FERPA's nondisclosure
              provisions fail to confer enforceable rights. To begin
              with, the provisions entirely lack the sort of "rights-
              creating" language critical to showing the requisite
              congressional intent to create new rights. Unlike the
              individually focused terminology of Titles VI and IX
              ("No person . . . shall . . . be subjected to
              discrimination"), FERPA's provisions speak only to
              the Secretary of Education, directing that "[n]o funds
              shall be made available" to any "educational agency or
              institution" which has a prohibited "policy or
              practice." 20 U.S.C. § 1232g(b)(1). This focus is two
              steps removed from the interests of individual students
              and parents and clearly does not confer the sort of
              "individual entitlement" that is enforceable under [42
              U.S.C.] § 1983.



                                                                        A-4665-14T4
                                        15
            [Id. at 287 (alterations in original) (citation omitted).]

See also Alexander v. Sandoval, 532 U.S. 275, 289 (2001) ("Statutes that focus

on the person regulated rather than the individuals protected create 'no

implication of an intent to confer rights on a particular class of persons'"). The

Supreme Court held:

            Our conclusion that FERPA's nondisclosure
            provisions fail to confer enforceable rights is
            buttressed by the mechanism that Congress chose to
            provide for enforcing those provisions. Congress
            expressly authorized the Secretary of Education to
            "deal with violations" of the Act, and required the
            Secretary to "establish or designate [a] review board"
            for investigating and adjudicating such violations.
            Pursuant to these provisions, the Secretary created the
            Family Policy Compliance Office (FPCO) "to act as
            the Review Board required under the Act [and] to
            enforce the Act with respect to all applicable
            programs." The FPCO permits students and parents
            who suspect a violation of the Act to file individual
            written complaints. If a complaint is timely and
            contains required information, the FPCO will initiate
            an investigation, notify the educational institution of
            the charge, and request a written response. If a
            violation is found, the FPCO distributes a notice of
            factual findings and a "statement of the specific steps
            that the agency or institution must take to comply"
            with FERPA. These administrative procedures . . .
            further counsel against our finding a congressional
            intent to create individually enforceable private rights.

            [Gonzaga Univ., 536 U.S. at 289-290 (alterations in
            original) (emphasis added) (citations omitted).]




                                                                         A-4665-14T4
                                        16
      With a person having no enforceable private right under FERPA for a

school's improper disclosure of "directory information" or "personally

identifiable information," it logically follows that a person would also have no

enforceable Fourth Amendment right for a school's improper disclosure of the

name of a student's parent contained in school records.

      We elaborate this point by reference to an analogous federal statute, the

Federal Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. §§

2701 to 2712, which our Supreme Court has interpreted to confer no Fourth

Amendment privacy interests. State v. Evers, 175 N.J. 355, 372-73 (2003). The

ECPA provides procedures by which a government entity may acquire subscriber

information from an Internet service provider. 18 U.S.C. § 2703(c). "The ECPA

requires a government entity seeking to procure subscriber information from an

Internet service provider must do so by warrant, court order, subpoena, or consent

of the subscriber."     Evers, 175 N.J. at 372 (citing 18 U.S.C. § 2703(c)(1)).

"Although 18 U.S.C. § 2703 provides statutory privacy rights for Internet service

provider subscribers, it does not afford an objectively reasonable expectation of

privacy under the Fourth Amendment." Evers, 175 N.J. at 372-373 (2001). As the

Court noted:

               Although Congress is willing to recognize that
               individuals have some degree of privacy in the stored
               data and transactional records that their [Internet service
               providers] retain, the ECPA is hardly a legislative

                                                                             A-4665-14T4
                                           17
               determination that this expectation of privacy is one that
               rises to the level of "reasonably objective" for Fourth
               Amendment purposes. Despite its concern for privacy,
               Congress did not provide for suppression where a party
               obtains stored data or transactional records in violation of
               the Act . . . . For Fourth Amendment purposes, this court
               does not find that the ECPA has legislatively determined
               that an individual has a reasonable expectation of privacy
               in his name, address, social security number, credit card
               number, and proof of Internet connection. The fact that
               the ECPA does not proscribe turning over such
               information to private entities buttresses the conclusion
               that the ECPA does not create a reasonable expectation
               of privacy in that information.

               [Id. at 374 (second alteration in original) (emphasis
               added) (quoting United States v. Hambrick, 55 F. Supp.
               2d 504, 507 (W.D.Va. 1999)).]

      We follow the holdings in Gonzaga Univ. and Evers that FERPA does

not create an objectively reasonable expectation of privacy in student records

recognized by the Fourth Amendment.                Accordingly, defendant had no

reasonable expectation of privacy in his children's school records, including

the paternity information contained therein, and was not entitled to suppression

of his name.

                  The NJPRA and the Corresponding Regulations

      The NJPRA requires the State Board of Education to:

               provide by regulation for the creation, maintenance
               and retention of pupil records and for the security
               thereof and access thereto, to provide general
               protection for the right of the pupil to be supplied with
               necessary information about herself or himself, the

                                                                              A-4665-14T4
                                           18
            right of the parent or guardian and the adult pupil to
            be supplied with full information about the pupil,
            except as may be inconsistent with reasonable
            protection of the persons involved, the right of both
            pupil and parent or guardian to reasonable privacy as
            against other persons and the opportunity for the
            public schools to have the data necessary to provide a
            thorough and efficient educational system for all
            pupils.

            [N.J.S.A. 18A:36-19.]

The corresponding regulation, N.J.A.C. 6A:32-7.1(b), requires school districts

to "compile and maintain student records and regulate access, disclosure, or

communication of information contained in educational records in a manner

that assures the security of such records in accordance with this subchapter."

      In addition to these requirements, N.J.A.C. 6A:32-7.1(g)(5) requires

school districts to "establish written policies and procedures for student

records that . . . [a]llow for release of school contact directory information for

official use, as defined in N.J.A.C. 6A:32-7.2." "Student record" is defined

as:

            information related to an individual student gathered
            within or outside the school district and maintained
            within the school district, regardless of the physical
            form in which it is maintained. Essential in this
            definition is the idea that any information that is
            maintained for the purpose of second-party review is
            considered a student record. Therefore, information
            recorded by certified school personnel solely as a
            memory aid and not for the use of a second party is
            excluded from this definition.

                                                                          A-4665-14T4
                                        19
            [N.J.A.C. 6A:32-2.1.]

Mandated student records that school districts must maintain include "[t]he

student's name, address, telephone number, date of birth, name of parent(s),

gender, standardized assessment results, grades, attendance, classes attended,

grade level completed, year completed, and years of attendance[,]" and "[a]ll

other records required by N.J.A.C. 6A." N.J.A.C. 6A:32-7.3(a)(1) and (6).

      N.J.A.C. 6A:32-7.5(a) provides that "[o]nly authorized organizations,

agencies or persons as defined in this section shall have access to student

records, including student health records."     N.J.A.C. 6A:32-7.5(e) lists the

authorized organizations, agencies, and persons permitted access to "student

records." The list does not include law enforcement.

      In addition to "student records," school districts must "compile and

maintain a school contact directory for official use that is separate and distinct

from the student information directory."       N.J.A.C. 6A:32-7.2(a); see also

N.J.A.C. 6A:32-7.3(a)(6) (requiring school districts to maintain "[a]ll other

records required by N.J.A.C. 6A").

      N.J.A.C. 6A:32-2.1 defines "school contact directory for official use" as

"a compilation by a district board of education that includes the following

information for each student: name, address, telephone number, date of birth

and school of enrollment. The directory may be provided for official use only



                                                                         A-4665-14T4
                                       20
to judicial, law enforcement, and medical personnel."        (Emphasis added).

N.J.A.C. 6A:32-7.2(a) requires school districts to:

            provide information from the school contact directory
            for official use only to judicial and law enforcement
            personnel, and to medical personnel currently
            providing services to the student in question. Upon
            request from a court, other judicial agency, law
            enforcement agency, or medical service provider
            currently providing services to the student in question,
            school personnel shall promptly verify the enrollment
            of a student and provide the requester with all
            information about the student that is contained in the
            school contact directory for official use.

            [(Emphasis added).]

      N.J.A.C. 6A:32-2.1 defines "student information directory" as:

            a publication of a district board of education that
            includes the following information relating to a
            student. . . .

            1.     Name;
            2.     Grade level;
            3.     Date and place of birth;
            4.     Dates of school attendance;
            5.     Major field of study;
            6.     Participation in officially recognized activities;
            7.     Weight and height relating to athletic team
            membership;
            8.     Degrees;
            9.     Awards;
            10. The most recent educational agency attended by
            the student; and
            11. Other similar information.

            [(Emphasis added).]



                                                                        A-4665-14T4
                                       21
N.J.A.C. 6A:32-2.1 further provides that information from a "student

information directory" "shall be used only by authorized school district

personnel and for designated official use by judicial, law enforcement, and

medical personnel and not for general public consumption."              (Emphasis

added).

      Putting this all together, although not explicitly stated in the regulations,

a "student information directory," which "shall be used only by . . . law

enforcement," could include as "[o]ther similar information" the name of a

student's parent. Ibid. Similarly, a "school contact directory for official use,"

which must be provided to law enforcement upon request, could include the

name of a student's parent. N.J.A.C. 6A:32-7.2(a). Defendant's name came

from the school's parental contact information, and thus, could be disclosed to

law enforcement without written parental consent.

      In any event, since a student's name can be disclosed to law

enforcement, N.J.A.C. 6A:32-2.1, and must be disclosed to law enforcement

upon request, N.J.A.C. 6A:32-7.2(a), it would be incongruous for the name of

a student's parent to garner any greater privacy protection than their child's

name. Accordingly, there was no violation of the NJPRA or its governing

regulations here.




                                                                          A-4665-14T4
                                        22
      Even if there was a violation, this did not entitle defendant to

suppression of his name.       Like FERPA, the NJPRA and its governing

regulations merely provide administrative remedies for a violation and do not

provide for a private right of action or suppression. L.S. v. Mount Olive Bd.

of Educ., 765 F. Supp. 2d 648, 664 (D.N.J. 2011) (holding that FERPA and the

NJPRA do not provide a private right of action); see also N.J.A.C. 6A:32-7.7

(administrative remedies).

      We conclude that the NJPRA does not create an objectively reasonable

expectation of privacy in student records recognized by the Fourth Amendment

or Article 1, paragraph 7 of the New Jersey Constitution.         Accordingly,

defendant had no reasonable expectation of privacy in his children's school

records, including the paternity information contained therein, and was not

entitled to suppression of his name.

                                       IV.

      Defendant contends the motion judge erred by not applying the

exclusionary rule. He argues that aside from FERPA and the NJPRA, he had a

reasonable expectation of privacy in the paternity information (his name)

contained in his children's school records, and argues he did not waive that

right by giving his name to the school. The State counters that a person has no

reasonable expectation of privacy in his or her name, and even if there was a



                                                                       A-4665-14T4
                                       23
privacy right, one's identity cannot be suppressed from criminal prosecution as

a matter of law. We agree with the State.

      "To invoke the protections of the Fourth Amendment and its New Jersey

counterpart, Article I, Paragraph 7, defendant must show that a reasonable or

legitimate expectation of privacy was trammeled by government authorities."

Evers, 175 N.J. at 355, 368-69. "To meet this test, [the defendant] must establish

that he had both 'an actual (subjective) expectation of privacy,' and 'one that society

is prepared to recognize as reasonable.'" Id. at 369 (quoting Katz v. United States,

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

      "It has long been accepted that '[w]hat a person knowingly exposes to the

public . . . is not a subject of Fourth Amendment protection.'" Ibid. (alterations in

original) (quoting Katz, 389 U.S. at 351). "An 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." Ibid.

      In addition, a person "cannot have a reasonable expectation of privacy" in

information "readily available through public records," including a person's name.

Doe v. Poritz, 142 N.J. 1, 80 (1995). However, although information "may be

available to the public, in some form or other, [that] does not mean [a person] has



                                                                              A-4665-14T4
                                          24
no interest in limiting its dissemination." Burnett v. Cty. of Bergen, 198 N.J. 408,

430 (2009) (first alteration in original) (quoting Poritz, 142 N.J. at 84). When such

information is "combined with other personal information" it may "elevate[] the

privacy concern at stake." Id. at 430. It is only when information, e.g., a person's

name, along with personal identifiers, are collectively assembled that protected

privacy interests are implicated. See id. at 430-31; Poritz, 142 N.J. at 81-82. For

example, New Jersey recognizes a reasonable expectation of privacy in the

following records that have information combined with other personal information:

subscriber information an individual provides to an Internet service provider, State

v. Reid, 194 N.J. 386, 399 (2008); utility records, State v. Domicz, 188 N.J. 285,

299 (2006); bank records, State v. McAllister, 184 N.J. 17, 31 (2005); and

telephone toll-billing, State v. Hunt, 91 N.J. 338, 347-48 (1982).

       However, New Jersey has not recognized a reasonable expectation of

privacy in a phone number. State v. DeFranco, 426 N.J. Super. 240, 248-50 (App.

Div. 2012). In DeFranco, the police were investigating the defendant for his

alleged sexual assault of a student and obtained his cell phone number from the

school to conduct a consensual telephone intercept between him and the victim.

Id. at 243-44. We disagreed with the defendant that his cell phone number should

be afforded the same protection as in Reid, Domicz, McAllister and Hunt. Id. at

248.     "We perceive[d] a significant difference between the 'generated



                                                                            A-4665-14T4
                                         25
information'[3] afforded protection by the New Jersey Supreme Court in its privacy

decisions and the 'assigned information' that defendant seeks to protect in this

case." Id. at 249. We found that:

             The [Internet service provider] records, the long-
             distance billing information, the banking records, and
             the utility usage records of Reid, Hunt, McAllister,
             and Domicz, respectively, constituted the keys to the
             details of the lives of those to which the seemingly
             innocuous initial information pertained. While in
             some circumstances, knowledge of a telephone
             number might be equally revelatory, here it was not.
             The number was simply a number.                In the
             circumstances of this case, we do not find that
             defendant's professed subjective expectation of
             privacy is one that society would be willing to
             recognize as reasonable.

             [Id. at 249-50 (emphasis added) (footnote omitted).]

We also determined that even if the defendant had a protectable privacy interest in

his cell phone number, he waived that interest by disclosing the number to third-

parties and including it in the school's staff directory. Id. at 250.

      Here, defendant had no reasonable expectation of privacy in his name

contained in his children's school records. The police simply obtained his name

from the school's parental contact information and no other records, personal


3
  Generated information refers to financial information such as credit card records,
medical records, and phone logs; assigned information includes name, address, and
social security number. DeFranco, 426 N.J. Super. at 249 (citation omitted).



                                                                           A-4665-14T4
                                           26
identifiers, information, or details of his life that would implicate constitutionally

protected privacy interests. Defendant's name, by itself, did not touch upon matters

that a reasonable person would deem private. Since defendant has no privacy

interest in his name, the exclusionary rule did not apply.

      Regardless of any expectation of privacy in a person's name, a

defendant's identity cannot be suppressed based on a purported violation under

either the Fourth Amendment or Article 1, paragraph 7 of the New Jersey

Constitution. The Supreme Court has held that the exclusionary rule only

applies to the fruits of a constitutional violation, such as tangible, physical

evidence seized, items observed or words overheard, or confessions or

statements of the accused. United States v. Crews, 445 U.S. 463, 470 (1980).

The exclusionary rule does not apply to a person's identity. As the United

States Supreme Court has held:

             [a]sking questions is an essential part of police
             investigations. In the ordinary course a police officer is
             free to ask a person for identification without implicating
             the Fourth Amendment. "[I]nterrogation relating to one's
             identity or a request for identification by the police does
             not, by itself, constitute a Fourth Amendment seizure."

             [Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185
             (2004) (second alteration in original) (quoting INS v.
             Delgado, 466 U.S. 210, 216 (1984)).]

The Supreme Court has also held that a defendant's identity "is never itself

suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful

                                                                              A-4665-14T4
                                          27
arrest, search, or interrogation occurred." INS v. Lopez-Mendoza, 468 U.S. 1032,

1039 (1984). The Supreme Court did not consider "egregious violations of Fourth

Amendment or other liberties that might transgress notions of fundamental

fairness and undermine the probative value of the evidence obtained." Id. at 1050-

51.

      In United States v. Farias-Gonzalez, 556 F.3d 1181 (11th Cir. 2009), the

Eleventh Circuit weighed the heavy social costs of suppressing identity evidence

and concluded that evidence "offered solely to prove the identity of [a] defendant"

was admissible. Id. at 1187, 1189. The court explained that in Hiibel, the Supreme

Court stated:

                "[i]n every criminal case, it is known and must be
                known who has been arrested and who is being tried."
                Both the court and the Government are entitled to
                know who the defendant is, since permitting a
                defendant to hide who he is would undermine the
                administration of the criminal justice system. For
                example, a defendant who successfully suppressed all
                evidence of his identity could preclude consideration
                of his criminal history, which could give rise to
                relevant and admissible evidence at trial.

                      ...

                The Constitution does not prohibit the Government
                from requiring a person to identi[f]y himself to a
                police officer.

                [Id. at 1187-88 (citations omitted).]




                                                                          A-4665-14T4
                                           28
The Farias-Gonzalez court further explained:

              Additionally, even if a defendant in a criminal
              prosecution successfully suppresses all evidence of his
              identity and the charges are dropped, the Government
              can collect new, admissible evidence of identity and
              re-indict him. This is so because identity-related
              evidence is not unique evidence that, once suppressed,
              cannot be obtained by other means. The application
              of the exclusionary rule to identity-related evidence
              will have a minimal deterrence benefit, as its true
              effect will often be merely to postpone a criminal
              prosecution.

              [Id. at 1188-89 (citation omitted).]

See also Reid, 194 N.J. at 406 (finding suppression of the Internet service provider

records did "not mean that the evidence is lost in its entirety[,]" as the records

"existed independently of the faulty process the police followed" and could be

"reliably reproduced and lawfully reacquired through a proper grand jury

subpoena").

      We are not concerned here with any egregious violations. All the police did

was obtain defendant's identity through the school's parental contact information

and no other evidence. Defendant's identity itself, even if it was obtained by an

unlawful search, was not suppressible under the exclusionary rule.          Lopez-

Mendoza, 468 U.S. at 1039-40.

      Affirmed.




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                                         29
