STATE OF NEW JERSEY VS. J.S.G. (13-12-1208, GLOUCESTER COUNTY AND STATEWIDE) , 456 N.J. Super. 87 ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4665-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
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.
PER CURIAM
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. 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, a Westville police
officer responded to a reported burglary at a home located on
Magnolia Street. The homeowner informed Meyers 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, a Westville police officer responded to
a reported burglary at another home located on Magnolia Street.
An electrician working at the home reported that several
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appliances valued at approximately $3000 were missing. The police
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 sliver pickup
truck consistent with a 1980's 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.
3 A-4665-14T4
L.H. denied knowing 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 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 regulation, 34 C.F.R. § 99, and the
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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 CHILDRENS' SCHOOL RECORDS FOR
PATERNITY INFORMATION PROTECTED FROM
UNAUTHORIZED ACCESS BY THE PLAIN TEXT OF
FEDERAL, STATE, AND LOCAL PRIVACY LAWS
VIOLATED DEFENDANT'S REASONABLE EXPECTATION
OF PRIVACY UNDER THE FEDERAL AND STATE
5 A-4665-14T4
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.
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.
6 A-4665-14T4
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.
3. Because Federal, State, And Local
Privacy Laws Explicitly Required The
Police To Obtain A Judicial Search
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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) (citations
omitted).]
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
8 A-4665-14T4
rule. Nix v. Williams, 467 U.S. 431, 444 (1984). "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
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whether evidence roughly comparable would have been so
discovered.'" State v. 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
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Article 1, paragraph 7 of the New Jersey Constitution without a
warrant or written parental consent.2 We disagree.
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 educational
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
2
Post-argument, defendant cited to Brennan v. Bergen Cty.
Prosecutor's Office, ___ N.J. ___ (2018) to support this argument.
However, Brennan 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.
11 A-4665-14T4
educational agency or institution attended by
the student.
[20 U.S.C. § 1232g(a)(5)(A) (emphasis added).]
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.
12 A-4665-14T4
[20 U.S.C. § 1232g(a)(5)(B) (emphasis added).]
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
13 A-4665-14T4
written parental consent unless the educational agency or
institution designates it as "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
14 A-4665-14T4
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." K.L. v. Evesham Twp. Bd. of Educ.,
423 N.J. Super. 337, 363 (App. Div. 2011) (citation omitted). 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:
There 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 "no funds shall
15 A-4665-14T4
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.
[Id. at 287 (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
16 A-4665-14T4
administrative procedures . . . further
counsel against our finding a congressional
intent to create individually enforceable
private rights[.]
[Gonzaga Univ., 536 U.S. at 289-290 (emphasis
added) (citations omitted).]
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 school records.
We elaborate this point in 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. See 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. § 270(c)(1)). "Although
18 U.S.C. § 2703 provides statutory privacy rights for Internet
service provider subscribers, it does not afford an objectively
17 A-4665-14T4
reasonable expectation of privacy under the Fourth Amendment."
Evers, 175 N.J. at 372-373 (2001). As the Court held:
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 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 [i]nternet
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 (emphasis added) (citation
omitted).]
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.
18 A-4665-14T4
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
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 denied
by 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
19 A-4665-14T4
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.
[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.
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
20 A-4665-14T4
(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 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;
21 A-4665-14T4
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).]
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." Ibid. (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. N.J.A.C.
6A:32-2.1. 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. Defendant's name
came from the school's parental contact information, and thus,
could be disclosed to law enforcement without written parental
consent.
22 A-4665-14T4
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's to garner any
greater privacy protection than their child's name. Accordingly,
there was no violation of the NJPRA or its governing regulations
here.
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. and R.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.
23 A-4665-14T4
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 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,
369. "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(citations omitted).
"It has long been accepted that '[w]hat a person knowingly
exposes to the public . . . is not a subject of Fourth Amendment
protection.'" Ibid. (citations omitted). "An individual
ordinarily surrenders a reasonable expectation of privacy to
information revealed to a third-party. If that third-party
24 A-4665-14T4
discloses the information to the government, the individual, who
falsely believed his confidence would be maintained, will
generally have no Fourth Amendment claim." Ibid. (citations
omitted).
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
no interest in limiting its dissemination." Burnett v. Cty. of
Bergen, 198 N.J. 408, 430 (2009) (citation omitted). 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, 198 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. at 17, 31 (2005); and telephone toll-billing, State v. Hunt,
25 A-4665-14T4
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 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
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).
26 A-4665-14T4
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) (citations
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 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
27 A-4665-14T4
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) (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 arrest, search, or
interrogation occurred." INS v. Lopez-Mendoza, 468 U.S. 1032,
1039-40 (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-Gonzales, 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.28 A-4665-14T4
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).]
The Farias-Gonzales 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
29 A-4665-14T4
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.
30 A-4665-14T4