State v. Missak

Docket NumberA-0193-22
Decision Date25 May 2023
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. ZAK A. MISSAK, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued March 15, 2023

Andrew Gimigliano argued the cause for appellant (Mandelbaum Barrett PC, attorneys; Andrew Gimigliano and Damian P. Conforti, of counsel and on the briefs; Stacey E. Zyriek, on the briefs).

Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney Steven A. Yomtov, of counsel and on the brief; Lila B Leonard, Deputy Attorney General, on the briefs).

Jennifer Stisa Granick (American Civil Liberties Union Foundation) of the California bar, admitted pro hac vice, argued the cause for amici curiae American Civil Liberties Union Foundation and American Civil Liberties Union of New Jersey Foundation (American Civil Liberties Union of New Jersey Foundation and Jennifer Stisa Granick, attorneys; Alexander Shalom, Jeanne LoCicero and Jennifer Stisa Granick, on the brief).

Before Judges Accurso, Vernoia and Firko.

PER CURIAM

In this appeal we consider the proper scope of a search warrant for the contents of a cellular phone seized from defendant Zak A Missak following his arrest for second-degree luring, N.J.S.A. 2C:13-6(a), and second-degree attempted sexual assault, N.J.S.A. 2C:14-2(c)(4) and N.J.S.A. 2C:5-1(a). The State alleges that prior to his arrest, defendant used two online chatting applications to communicate with an individual he believed was a fourteen-year-old girl, solicited the child's agreement to meet him for a sexual encounter, and traveled to an agreed upon location to perform sex acts with her. The arrest occurred, and his cellular phone was seized, after defendant arrived at the location and discovered his online communications had been with United States Department of Homeland Security Special Agent Laura Hurley (Hurley).

The State obtained a search warrant for the phone's contents and moved for an order compelling defendant to provide the phone's passcode. 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 Hurley's certification supporting the warrant application.

By leave granted, defendant appeals from an order denying his motion to quash the search warrant. Having considered the motion record, the applicable legal principles, and the arguments presented by the parties and amici curiae, the American Civil Liberties Union and the American Civil Liberties Union of New Jersey, we reverse the court's order denying defendant's motion to quash the search warrant, and remand for further proceedings.

I.

To provide context for our discussion of the issues and arguments presented, we first summarize the pertinent facts. Because defendant challenges the search warrant's validity, we limit our summary of the facts to those set forth within the four corners of Hurley's certification, which provided the sole support for the State's search warrant application. See State v. Marshall, 199 N.J. 602, 613 (2009) (quoting Maryland v. Garrison, 480 U.S. 79, 85 (1987)) (explaining the validity of a search warrant "must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate").

Hurley's Certification

In her supporting certification, Hurley detailed her extensive law enforcement background and experience; noted she is employed as a Special Agent of the United States Department of Homeland Security, Homeland Security Investigations; and explained she is empowered to conduct investigations and make arrests for crimes involving "the use of high-end technology, such as computers, telecommunications equipment, and other advanced technology," and particularly crimes "involving the exploitation of children."

Hurley's certification asserted that based on knowledge she obtained during her participation in an "undercover chat investigation," she had "probable cause to believe" the cellular phone seized from defendant following his arrest "contain[ed] evidence of"' two "[s]pecified [c]rimes" - luring and attempted sexual assault - allegedly committed on December 8 and 9, 2021.

According to Hurley, on the afternoon of December 8, 2021, she posed as a fourteen-year-old child on the mobile chat application, Skout.[1] An individual displaying the name M.W., who the State claims is defendant, initiated a conversation with Hurley through Skout, stating, "Hey gorgeous I would love to be your sugar daddy and spoil you."[2]

Hurley provided a cellular phone number to M.W., and later that day received a text message from an unfamiliar phone number stating, "Hey gorgeous." When Hurley asked the sender to identify himself, the sender replied, "[M.]."

M.W. then texted Hurley he was "trynna get [his] dick sucked wya," and Hurley texted M.W. she was fourteen years old. That afternoon, M.W. continued to send Hurley messages comprised of sexually explicit statements.

On December 9, 2021, in the early evening hours, Hurley received unsolicited messages on another mobile chat application, Kik, from a user named "Kazeblack," who was later identified as defendant.[3] Those messages stated, "Hey sexy" and "What's up beautiful its [M.]." "Kazeblack" continued to send messages, including a "photograph of a shirtless male seen from his chest up" and a request for photographs of the juvenile.

As Hurley described in the certification, later in the evening of December 9, 2021, "Kazeblack"/"[M.W.]" arrived at a Franklin Park location in a motor vehicle "in an attempt to meet up with the juvenile with whom he was chatting." The individual, who was identified as defendant, was arrested by members of the New Jersey Internet Crimes Against Children Task Force. During a search incident to defendant's arrest, the officers seized a cellular phone in defendant's possession. The officers secured the phone pending the approval of a search warrant.

Based on those facts, Hurley's certification asserted she had probable cause to believe the phone contained evidence of the crimes of luring and attempted sexual assault. Hurley further represented that based on her training and experience, proving who used, controlled, or accessed an electronic device, and who entered, controlled, or saw data on it, is generally important to an investigation and "requires examination of data that, on its face, might be innocent, such as registry information and files accessed around that time." Based on that assertion, and the other facts set forth in the certification, Hurley stated a "forensic examiner must be allowed to access and examine ALL of the data on a computer, electronic device, or storage media."

Hurley also stated that computer storage devices, including mobile devices, generally store the equivalent of thousands of pages of information. Hurley averred that "a suspect may try to conceal criminal evidence" and "might store it in random order with deceptive file names." Hurley asserted that, for those reasons, the search may require an examination of "all the stored data to determine which particular files are evidence or instruments of crimes."

Hurley sought the search warrant for the express purpose of "obtaining] evidence of the crimes of"' luring and attempted sexual assault allegedly committed by defendant on December 8 and 9, 2021. 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. More particularly, Hurley sought a warrant authorizing a search of the phone'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.

The court granted the State's search warrant application. The court found Hurley's certification established probable cause to believe the cellular phone "will yield evidence of the crimes of"' luring and attempted sexual assault. The warrant authorized the State to "examine" the cellular phone "with necessary and proper assistance."

The Motion To Compel Defendant To Provide The Phone's Passcode and Defendant's Cross-Motion To Quash The Search Warrant

The State moved for an order compelling defendant to provide the phone's passcode to allow the search of the device authorized by the warrant. Defendant filed a cross-motion to quash the search warrant based on claims: the search warrant constituted an unconstitutional general warrant that was not supported by probable cause; and the warrant did not set forth the places to...

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