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

NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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
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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.
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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.
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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
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"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.
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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
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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.
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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).]
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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
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"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.
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[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.
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[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).]
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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
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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
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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.
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[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
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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).]
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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
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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
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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).]
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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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