State v. Wilson

1

STATE OF NEW JERSEY, Plaintiff-Appellant, v. CHARLES R. WILSON, Defendant-Respondent

No. A-0671-22

Superior Court of New Jersey, Appellate Division

April 25, 2023

NOT FOR PUBLICATION

Argued February 14, 2023

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Indictment No 20-12-0900.

Jaimee M. Chasmer, Assistant Prosecutor, argued the cause for appellant (Mark Musella, Bergen County Prosecutor, attorney Jaimee M. Chasmer, of counsel and on the brief).

David J. Bruno argued the cause for respondent (The Bianchi Law Group, LLC, attorneys; Robert A. Bianchi and Jorge E Morales, on the brief).

Before Judges Messano, Gilson and Rose.

PER CURIAM.

In this interlocutory appeal, we consider the admissibility of cell phone extraction records seized pursuant to a search warrant issued after the phone was twice unlocked while in police custody but without any of the searched content giving rise to probable cause for issuance of the warrant. Concluding police impermissibly searched the phone before the warrant issued, the motion judge suppressed the evidence seized after the warrant was executed. The judge rejected the State's alternate theory that the forensic evidence was admissible under the attenuation doctrine and did not consider the State's second theory that the evidence was derived from an independent source. In view of her decision, the judge declined to consider defendant's contentions that police unlawfully seized his phone and demanded his passcode, and that the search warrant issued by another judge was supported by a deficient affidavit.

We granted the State leave to appeal from the September 8, 2022 order granting defendant's motion. The State contends the judge's pivotal factual and credibility findings are not supported by the record. Alternatively, the State argues forensic evidence seized pursuant to the warrant after it was issued is admissible under the attenuation and independent source doctrines.

We conclude the motion record supports the judge's decision that defendant's cell phone was unlawfully searched when it was twice unlocked in police custody. We are persuaded, however, the record further supports admission of defendant's cell phone extraction records under the independent source doctrine. Because the parties addressed the propriety of the seizure of defendant's cell phone before the motion judge and on appeal, and the area of law is rapidly evolving, we consider the issue and conclude the seizure was not unreasonable. Accordingly, we discern no deficiency in the search warrant affidavit and reverse the order under review.

I.

In December 2020, defendant was charged in a Bergen County indictment with two counts of second-degree death by auto, N.J.S.A. 2C:11-5. The State alleges that around 9:25 a.m. on August 27, 2020, a Corvette driven by defendant Charles R. Wilson struck another car on the George Washington Bridge, killing both occupants. Evidence obtained from a search of the Corvette's event data recorder (EDR) after the warrant issued revealed seconds before the crash, defendant was driving more than eighty miles per hour in a forty-five-mile-per-hour zone.

Defendant was taken by ambulance from the crash scene to the hospital. Police viewed video footage of the crash and responded to the hospital. Shortly after noon, defendant was interviewed by Detective Carl Holmsen of the Bergen County Prosecutor's Office (BCPO) and Detective Anthony Cutrone of the Port Authority Police Department (PAPD). Prior to administering Miranda^[1]warnings, Holmsen requested defendant's cell phone; Cutrone was not present for the exchange. At the conclusion of defendant's initial statement to the detectives,^[2] Holmsen asked defendant for his phone's passcode. Defendant complied with both requests. Holmsen neither asked defendant to sign consent forms nor advised defendant he had a right to refuse consent before he turned over his phone or disclosed his passcode. Nor were these conversations recorded.

During their ensuing questioning, defendant told the detectives he was on the phone with his son at the time of the crash. Defendant claimed he was utilizing the car's Bluetooth feature. Defendant's cell phone was twice unlocked at the hospital while it was in police custody. Later that day - without citing any information obtained while defendant's cell phone was unlocked in his affidavit - Cutrone secured a warrant to search the phone for stored data.^[3] Cutrone asserted:

[a] forensic analysis of Charles Wilson's cell phone may provide information as to whether Wilson was utilizing his cell phone at the time of the crash and/or as to his activities prior to the crash. In my experience, cell phones can be a distraction that leads to motor vehicle crashes. An analysis of his cell phone will enable investigators to determine if his cell phone was a cause of the crash, and whether it was in fact connected to Bluetooth. Wilson's cell phone was transported to the hospital with him and subsequently secured at the BCPO by Detective Holmsen.

A forensic search later revealed a deleted FaceTime call had transpired at the time of the crash. According to the extraction report admitted in evidence, an incoming FaceTime call was received from a contact named, "Matthew," at 9:16:01 a.m.

Because defendant moved to suppress evidence seized pursuant to a warrant, defendant bore the burden of proof and production of evidence. See State v. Chippero, 201 N.J. 14, 26 (2009). Defendant testified at the suppression hearing and called four witnesses: Holmsen; Cutrone; BCPO Detective Michael Venezia; and BCPO forensic analyst, Anand Patel. The State did not call any witnesses but introduced into evidence various documents, including certain pages of the extraction report.

Testimony concerning the "seizure" of defendant's cell phone and passcode.

Holmsen testified about the interviewing procedure. Prior to questioning, defendant was not considered a suspect, but Holmsen requested his cell phone because police "find that phones are a distraction during the interview" and, as such, they "hold them for safekeeping." Additionally, in this case, the detectives believed defendant's phone could "yield[] potential evidence," and Holmsen wanted to ensure "nothing [wa]s deleted" before speaking with him.

Holmsen took steps to ensure defendant's cell phone remained powered on "in order to facilitate the forensic examiner's job." Those steps included setting the phone to airplane mode by swiping the screen in a downward motion, without unlocking the phone, and charging the phone at the nurses' station.

Holmsen said after the first statement concluded, he requested defendant's passcode to the phone and memorialized the code in his notebook. He denied unlocking the phone with the passcode. At least two other officers "watched over" defendant's phone while it was charging at the nurses' station. Defendant was arrested two days later.

After Cutrone left the crash scene, he met Holmsen at the hospital. By that time, Holmsen had taken defendant's phone. Cutrone acknowledged that although PAPD policy did not require removal of phones from the interview room, police do so "as a matter of procedure" for the interviewer's safety. Based on his "training and experience," Cutrone knew of "several devices out there that appear to be cell phones that are actually weapons, such as small caliber rounds, like a firearm and/or stun guns."

Cutrone stated he was present in the room when defendant shared his passcode with Holmsen. Cutrone was "pretty confident" defendant provided the code "seconds after his first statement ended" but acknowledged the exchange was not recorded. The detectives requested the passcode because they "were going to apply for a search warrant" in view of defendant's statement "that he was operating the cell phone while he was operating his vehicle at the time of the accident. "Cutrone explained disclosure of a cell phone's passcode "expedites any sort of extraction of data from the phone."

Defendant's account seemingly differed from that of the detectives in terms of timing. Defendant claimed Holmsen entered his room before the interview began and said "Charles, I need your phone. And my phone -(indiscernible) a password to it." Holmsen then left defendant's room with phone in hand. The motion judge found defendant's testimony "generally credible, although at times, his demeanor seemed defensive. "

Testimony concerning the "search" of defendant's cell phone.

Venezia assisted in the investigation. He received defendant's cell phone from Holmsen on the date of the incident and said the phone was signed out to Patel the following morning.

Venezia testified about the BCPO's policies and procedures for securing a cell phone in police custody. Venezia confirmed police either ask the owner to place the phone "in airplane mode to preserve the data on the phone," or police do so. According to Venezia, "With past practice, with iPhones you're able to just swipe down from the top righthand corner and access the airplane mode." However, the data on the phone would not have been accessed during that process. Venezia acknowledged: "That would be against practice and policy."

Assigned to the forensics laboratory division within the BCPO's Cyber Crimes Unit, Patel examined defendant's iPhone 11 Pro Max.^[4] Patel acknowledged that placing the phone in airplane mode preserves the data and the phone need not be unlocked with the passcode to do so. He defined the term, "unlocking," as "gaining access to the device [in] one of two ways. Either [by] facial rec[ognition] or passcode."

Patel testified about his forensic examination of defendant's cell phone. He...