State v. Armstrong

• Citation: 233 A.3d 610,463 N.J.Super. 576
• Decision Date: 02 June 2020
• Docket Number: DOCKET NO. A-2102-17T2
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Marquis ARMSTRONG, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

463 N.J.Super. 576

233 A.3d 610

STATE of New Jersey, Plaintiff-Respondent,

v.Marquis ARMSTRONG, Defendant-Appellant.

DOCKET NO. A-2102-17T2

Superior Court of New Jersey, Appellate Division.

Argued December 9, 2019

Decided June 2, 2020

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

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

Before Judges Messano, Ostrer and Susswein.

The opinion of the court was delivered by

MESSANO, P.J.A.D.

An Essex County grand jury indicted defendant Marquis Armstrong for the September 4, 2014 murder of Rhasan Heath. Defendant filed a pre-trial motion to suppress "evidence seized without a communications data warrant [ (CDW) ]." At issue were text messages defendant sent to Nache DeWitt, his former girlfriend and with whom he fathered a daughter. The judge denied the motion to suppress without conducting an evidentiary hearing.

Defendant subsequently pled guilty during trial to the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The judge sentenced defendant to a twenty-five-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the aggravated manslaughter conviction; and, a concurrent eight-year term on the weapons offense, with a forty-two-month parole disqualifier pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).

I.

Because there was no evidentiary hearing held on the suppression motion, we recite some of the trial evidence to place the issue in context.

Defendant and DeWitt ended their relationship in April 2014. However, months later, on September 2, the two were heading home together from a family picnic they had attended. Heath, DeWitt's current boyfriend, bore some animosity toward defendant, and, when he saw them together, he began driving aggressively and pulled his car alongside theirs at a red light. The two men screamed taunts at each other until the light changed, when they both drove off.

The following evening, DeWitt was with Heath at his sister's apartment when she began receiving what the State contended were threatening texts and calls from defendant on her cellphone. She did not respond to the texts or answer the calls. In the last text, at 11:37 p.m., defendant told DeWitt he was "[ab]out to get crazy." In what the State alleged was a fit of jealous pique, defendant went to Heath's sister's apartment to search for DeWitt. He saw her car parked outside and waited. As DeWitt left with her daughter and walked to her car shortly after midnight, defendant emerged, and an altercation ensued. Shortly thereafter, Heath came outside, and defendant began shooting at him. Heath ran into the street, only to be struck by an oncoming car. As Heath lay at the curb, defendant approached and shot him three times, killing him.

At the pre-trial hearing on defendant's suppression motion, the State argued that defendant lacked standing to suppress text messages police recovered from DeWitt's phone, allegedly with her consent. Alternatively, the State contended defendant had no expectation of privacy in those messages. Defendant argued that he had standing under State v. Alston, 88 N.J. 211, 228, 440 A.2d 1311 (1981), and its progeny to seek suppression of the messages, and the State failed to produce any proof that DeWitt consented to the search of her phone.¹

In a very brief oral opinion, the judge held "defendant does not have standing to challenge the information in a third party's phone, nor has any case law ... support[ed] that proposition." Furthermore, the judge determined that "even if [ ] defendant were to have standing ... there is no ... logical argument that can be made that anyone would have a reasonable expectation of privacy in communications that they put out over ... a ... cell phone." He denied defendant's motion to suppress.

II.

Defendant raises the following point on appeal:

POINT I

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

A. Armstrong Had Standing to Challenge the Seizure Because He Had a Participatory Interest in the Text Messages.

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

Defendant contends that the trial court's errors compel reversal and a remand for a new trial. However, that overlooks any substantive consideration of the State's assertion that DeWitt consented to the search of her phone. Alternatively, defendant urges us to remand for a hearing at which the State "can attempt to prove whether the evidence is otherwise admissible under an exception to the warrant requirement." In other words, defendant argues that we should require the State prove at a remand hearing whether police validly obtained DeWitt's consent.

We have considered this alternative argument in light of the record and applicable legal principles. We conclude defendant lacked standing to challenge the recovery of text messages from DeWitt's phone, to which he had no reasonable expectation of privacy, and affirm the denial of his motion to suppress.

A.

Our Supreme Court has

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

[ State v. Randolph, 228 N.J. 566, 581–82, 159 A.3d 394 (2017) (quoting Alston, 88 N.J. at 228, 440 A.2d 1311 ).]²

"[T]he State bears the burden of showing that defendant has no proprietary, possessory, or participatory interest in either the place searched or the property seized." Randolph, 228 N.J. at 582, 159 A.3d 394 (citing State v. Brown, 216 N.J. 508, 528, 83 A.3d 45 (2014) ).

Our "automatic standing rule[,]" State v. Lamb, 218 N.J. 300, 313, 95 A.3d 123 (2014), "deviates from the federal approach, which requires that ‘a person alleging a Fourth Amendment violation ... establish that law enforcement officials violated "an expectation of privacy" that he possessed in the place searched or item seized.’ " Randolph, 228 N.J. at 582, 159 A.3d 394 (quoting State v. Johnson, 193 N.J. 528, 542, 940 A.2d 1185 (2008) ). Analysis of such an expectation rests on two inquiries: first, "whether the individual, by his [or her] conduct, has ‘exhibited an actual (subjective) expectation of privacy’ "; and second, "whether the individuals ... expectation ... is ‘one that society is prepared to recognize as "reasonable[.]" ’ " Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)).

Our benchmark for standing incorporates, but is not limited to, "the legitimate expectation of privacy standard[.]"

State v. Shaw, 237 N.J. 588, 616, 207 A.3d 229 (2019) (citing Johnson, 193 N.J. at 543, 940 A.2d 1185 ). In Randolph, the Court cautioned that for physical spaces where an expectation of privacy has "historically" existed, courts need not "engage in an additional reasonable expectation of privacy analysis as a supplement to our standing rule[,]" although it is appropriate to consider a defendant's reasonable expectation of privacy in determining his standing to assert constitutional claims "in a novel class of objects or category of places[.]" 228 N.J. at 583–84, 159 A.3d 394.

B.

Defendant argues without citing any authority that text messages are "direct, one-on-one communications ... emblematic of the private spaces" secured by the Fourth Amendment and our constitution. He contends it was error for the judge to engage in any expectation of privacy analysis. We disagree.

Our courts have not specifically addressed whether the sender of a text message maintains a reasonable expectation of privacy after the message is delivered to a device the sender does not possess, own or control, and after the sender has relinquished any ability to limit distribution of the text message to another. Other courts that follow traditional Fourth Amendment standing jurisprudence have consistently concluded he does not. As Professor LaFave has said in considering the issue in the context of more traditional forms of communication, "The standing of the sender, to the extent it is based solely upon the fact of his being the sender, terminates once delivery of the goods has been made." 6 Wayne R. LaFave, Search and Seizure, § 11.3(f) (5th ed. 2012).

Some courts have focused their analysis on the device itself, and the defendant's lack of physical control over it.³ For example, in United States v. Stringer, the court held that the defendant lacked standing to challenge a search of a juvenile victim's cell phone containing pornographic images. 739 F.3d 391, 396 (8th Cir. 2014) ; see also United States v. McHenry, 849 F.3d 699, 706 (8th Cir. 2017) (citing Stringer and expressing doubt that the defendant had standing to assert a Fourth Amendment right in a cell phone registered to another and being used by another while being tracked on GPS); Christensen v. Cty. of Boone, 483 F.3d 454, 461 (7th Cir. 2007) (holding there was no Fourth Amendment violation when police searched a cell phone belonging to another person); United States v. Gatson, 744 Fed. Appx. 97, 100 (3rd Cir. 2018) (citing Stringer and holding the defendant lacked standing to assert suppression of data on cellphones for which the government obtained a CDW...