In State v. Missak, __ N.J. Super ___, ___ (App. Div. 2023) (slip op. at 2) the Appellate Division addressed the proper scope of a search warrant for the contents of a cellular phone seized from the defendant following his arrest for second-degree luring, in violation of N.J.S.A. 2C:13-6(a), and second-degree attempted sexual assault, in violation of N.J.S.A. 2C:14-2(c)(4).

In Missak the defendant used two online chatting applications to communicate with an individual he believed was a fourteen-year-old girl, but who was in fact United States Department of Homeland Security Special Agent Laura Hurley (Hurley) posing as a minor as part of an investigation. Id. at ___ (slip op. at 2). The defendant solicited the individual he believed was a minor’s agreement to meet him for a sexual encounter and traveled to an agreed upon location to perform sex acts with her. Id. at ___ (slip op. at 2). The defendant was arrested upon arrival at the location and his cellphone was seized. Id. at ___ (slip op. at 2).

In her certification in support of the State’s application for a search warrant, Hurley asserted she had probable cause to believe the cellphone contained evidence of the crimes of luring and attempted sexual assault. Id. at ___ (slip op. at 6). “Hurley stated a ‘forensic examiner must be allowed to access and examine ALL of the data on a computer, electronic device, or storage media.’”

Id. at ___ (slip op. at 6). “Hurley requested the warrant authorize the State to ‘access, search, forensically examine, and document all information contained within [the cellular phone], for evidence relating to offenses involving the exploitation of children’ specifically involving the crimes of luring and attempted sexual assault defendant allegedly committed on December 8 and 9, 2021.” Id. at ___ (slip op. at 6). More particularly, Hurley sought a warrant authorizing a search of the defendant’s cellphone’s
stored electronic data, encrypted or password protected files/data, the assigned cellular number, cellular billing number, address book/contact(s) information, all recent calls, to include dialed, received, missed, erased calls, duration of said calls, any Internet access information, incoming and outgoing text messages, text message content, any stored pictures, stored video, calendar information, Global Positioning System (GPS) data, memory or Secure Digital Memory cards (SD cards) and any other stored information on said mobile device that will assist in the continuation of this investigation.[Id. at ___ (slip op. at 7).]

The trial court granted the State’s search warrant application, finding the certification established probable cause to believe the cellular phone “will yield evidence of the crimes of” luring and attempted sexual assault, and authorized the State to “examine” the cellular phone “with necessary and proper assistance.” Id. at ___ (slip op. at 8).

The State then moved for an order compelling the defendant to provide the phone’s passcode to allow the search authorized by the warrant. Id. at ___ (slip op. at 8). The defendant filed a cross-motion to quash the search warrant, arguing it authorized an unconstitutional general search of the phone by allowing access to information for which no probable cause to search was established in the certification supporting the warrant application. Id. at ___ (slip op. at 2-3). The trial court granted the State’s motion to compel and denied the defendant’s cross-motion to quash the search warrant. Id. at ___ (slip op. at 9).

The Appellate Division granted the defendant’s motion for leave to appeal the denial of his motion to quash the search warrant. Id. at ___ (slip op. at 3). The Appellate Division initially found that the defendant’s challenge to the search warrant and appeal of the court’s order denying the motion to quash was ripe for judicial review. Id. at ___ (slip op. at 12).

In addressing the validity of the warrant, the Appellate Division set forth that “[e]ven in the context of a cellular phone search, valid warrant requires ‘probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched.’” Id. at ___ (slip op. at 16) (quoting State v. Sullivan, 169 N.J. 204, 210 (2001)). The Appellate Division found that “Hurley’s certification expressly sought a search warrant for evidence pertaining only to the crimes of luring and attempted sexual assault the defendant allegedly committed on December 8 and 9, 2021.” Id. at ___ (slip op. at 21) (emphasis added). “What is missing from Hurley’s certification are any facts establishing probable cause for an examination of data and other information, whatever it might be, that either predates defendant’s alleged commission of the crimes or does not constitute evidence of his use of the phone ‘around the time’ the crimes were committed.” Id. at ___ (slip op. at 23-24).

Thus, the Appellate Division found that on its face Hurley’s certification did not provide sufficient facts supporting the expansive search warrant for all the data and information on the seized cellular phone and reversed the court’s order and quashed the search warrant. Id. at ___ (slip op. at 24). “The search warrant clearly permits a search for data and information in various forms on the cellular phone for which the State failed to establish probable cause to believe may contain evidence of the crimes for which defendant has been charged and for which the search warrant was sought.” Id. at ___ (slip op. at 24). And all parties had agreed that “extensive and voluminous information . . . is stored on a cellular phone.” Id. at ___ (slip op. at 18).

Because the court’s decision was based on the facts set forth in Hurley’s certification, the Appellate Division did not reach the “defendant’s argument the warrant should be reversed because it violates the federal and state constitutional requirement that warrants must state with particularity the place to be searched.” Id. at ___ (slip op. at 24). Nonetheless, the Appellate Division instructed that:

Given the complexity of the technology concerning a cellular phone’s data and information, and law enforcement’s ability to cull through the information and data, any future search warrant application should address such issues to allow the court to determine the locations within the data and information on the cellular phone there is probable cause to believe relevant information concerning the crimes charged may be found. That information will assist the court in determining with particularity the locations within the data and information on the cellular phone for which there is probable cause to search. [Id. at ___ (slip op. at 26).]

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