STATE OF NEW JERSEY v. JAMES HENRY BIRCHFIELD, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4371-05T44371-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES HENRY BIRCHFIELD, III,

Defendant-Appellant.

_____________________________

 

Submitted May 7, 2007 - Decided May 17, 2007

Before Judges S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-08-00132.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, James Henry Birchfield, III, appeals from his conviction for third-degree attempting to lure or entice a minor into a motor vehicle, N.J.S.A. 2C:13-6. We affirm.

I

This case arose from defendant's participation in an internet chat room bearing a sexually explicit title. According to his negotiated plea of guilty, while participating in the chat room, defendant "engaged in a conversation over the Internet with . . . RichNJ14," an undercover police officer posing as a fourteen-year-old boy. Defendant "set up a meeting with him to meet on [a specified] day, drove out to that location with the intent to meet him." Defendant, age thirty-two, also admitted that he believed his internet correspondent was only fourteen, and that when he set up the meeting it was his purpose to pick up the boy in his car and have sex with him.

Prior to entering his guilty plea, defendant unsuccessfully moved to suppress the evidence as the product of an unlawful search. He did not, however, raise a claim of selective prosecution. At the motion hearing on June 6, 2005, Investigator Brian Damiani of the New Jersey Division of Criminal Justice, testified that he was assigned and trained to investigate computer crimes and was specifically trained to investigate "on-line child predator investigations." He focused on the chat room in question because of its sexually explicit title and because it included a reference to New Jersey. The investigation was aimed at locating child predators in New Jersey, and to that end, he testified that he would be likely to enter "any chat room that seemed to . . . advertise sexually explicit conversation" and might be linked to persons in New Jersey.

Damiani admitted that he did not apply for a search warrant before logging in to the chat room. Nor did he contact the service provider, Yahoo!, before entering the chat room, although he agreed to the Yahoo! online privacy agreement the first time he accessed the chat room. He created a user name that implied that he was underage, but in order to access the chat room he had to indicate to Yahoo! that he was over eighteen. Damiani testified that he listed his age as "114."

Damiani described a chat room as "basically just an on-line forum where people can join in and talk about a variety of topics." Users can either join in a general online conversation in which everyone using the chat room can see their communications, or by clicking on a user name listed on the right side of the screen, a user can enter into a private online chat with just that person. This particular forum was limited to twenty-four users at a time. He also explained that, unlike e-mail, which is a private communication between two or more people, chat room communication is not set up to be private unless users who are already in the chat room affirmatively choose to have a private conversation. He distinguished a chat room from a private club, explaining that a chat room is open to any member of the public who is over age eighteen.

While in the chat room Damiani was contacted by defendant, who was using the name "EternalMetGod." The parties stipulated that for purposes of the suppression motion, the court could consider Damiani's grand jury testimony which described the encounter in greater detail. In that testimony, Damiani further described the open nature of the chat room, and the manner in which his investigation was conducted so as to avoid entrapment. He also read to the grand jury transcripts of his online chats with "eternalmechgod," during which it was clear that "eternalmechgod" approached Damiani's fourteen-year-old online character, asked the character's age, and then suggested in quite explicit terms that they meet to engage in assorted sexual activities. "Eternalmechgod" also indicated that he liked "young women" as well as "young boys." Damiani testified that he learned through later investigation that "eternalmechgod" was defendant's screen name.

In support of the suppression motion, the defense contended that chat rooms are "a vehicle for self expression" and that in investigating the chat room, the investigator would chill law-abiding chat room participants from using the chat room "for fear of being thought of as predators." The State contended that internet messages are like telephone calls and that chat room participants have no reasonable expectation of privacy with respect to their communications with other participants.

Relying on State v. Evers, 175 N.J. 355 (2003), the trial judge concluded that defendant had no legitimate expectation of privacy in the communication he directed to another chat room participant. He also noted that the wiretap law, N.J.S.A. 2A:156A-4b, did not apply to "the interception of electronic communication when a law enforcement officer is a party to the communication." Thus, the judge concluded that

[t]here is no constitutional protection from misplaced confidence.

When one transmits a message over the Internet, one does so at his peril, not knowing who is at the other end of that conversation, whether it is a minor, whether it is an adult, or whether, if it is a minor, whether the conduct will be reported to an adult, or whether, in fact, it is somebody who will pass the information on or whether it is even a law enforcement officer.

So based upon the constitutional principle set forth in [Evers], and specifically the wiretap law in New Jersey, the Court does not find that the Fourth Amendment applies and that there is no Fourth Amendment protection for this conduct.

The judge also rejected defendant's First Amendment argument, concluding that "when the speech constitutes a commission of an offense, then it is no longer protected." He rejected the argument that the investigation would chill legitimate speech, because "absent attempting to lure a minor . . . there would be no consequences. One could enter a chat room, the subject matter being sex or any other topic, and absent the commission of a crime, could communicate." He also reasoned that a chat room was not like a private club, because at a club one expects to communicate face to face and "know exactly who you're dealing with." Whereas in "a chat room, you do not know, and you communicate with others at your peril." He found no likelihood of a "chilling effect" on legitimate users of the chat room.

Several months after the motion was denied, defendant entered a guilty plea and was sentenced to five years of probation conditioned on serving 180 days in the county jail.

II

On this appeal, defendant raises the following contentions:

POINT I: THE POLICE VIOLATED THE DEFENDANT'S RIGHT TO EQUAL PROTECTION AND DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION AND THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 7 OF THE NEW JERSEY CONSTITUTION BY PROFILING HOMOSEXUALS AND TARGETING THEIR CHAT ROOM FOR A WARRANTLESS AND SUSPICIONLESS CRIMINAL INVESTIGATION.

POINT II: THE POLICE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 7 OF THE NEW JERSEY CONSTITUTION BECAUSE THE OFFICER MADE HIS OBSERVATIONS FROM AN IMPERMISSIBLE VANTAGE POINT.

POINT III: THE POLICE CONDUCT OF ENTERING A CHAT ROOM WITHOUT LEGAL AUTHORIZATION VIOLATES THE DEFENDANT'S RIGHT TO FREE EXPRESSION AS GUARANTEED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 6 OF THE NEW JERSEY CONSTITUTION.

We will not consider defendant's Point I because it asserts arguments not raised in the trial court. See State v. Souss, 65 N.J. 453, 460 (1974). However, if we were to consider those contentions, they find no support in this record and do not warrant further discussion. R. 2:11-3(e)(2).

Defendant's remaining contentions are equally unpersuasive. We agree with the trial judge that defendant had no reasonable expectation of privacy in the chat room, which was conducted as an open discussion forum which any adult member of the public could join. Like the defendant in State v. Evers, supra, who e-mailed child pornography to an undercover police officer, defendant had no expectation of privacy in a series of criminal sexual communications he instant-messaged to another chat room participant. As the Court observed in Evers, "[t]here is no constitutional protection for . . . bad judgment when committing a crime." Evers, supra, 175 N.J. at 370.

We reject defendant's argument, premised on the Yahoo! licensing agreement, that Damiani "did not have a permissible vantage point because he was not legally authorized to be in a restricted area." The Yahoo! licensing agreement, which users must click to accept before signing on, prohibits users from misrepresenting their identities. However, it is clearly intended to prevent adults from going online and pretending to be children in order to lure other children; the agreement indicates that this is its purpose. The agreement did not give defendant a legally protected expectation that he would not encounter undercover police officers in the chat room. See State v. Turner, 805 N.E.2d 124, 132 (Ohio Ct. 2004) ("[I]ndividuals have no reasonable expectation of privacy in statements they make to unknown individuals over the internet.") For constitutional purposes, Damiani's activities were fairly analogous to those of a detective entering a bookstore and buying obscene material offered openly for sale. See Maryland v. Macon, 472 U.S. 463, 105 S. Ct. 2778, 86 L. Ed. 2d 370 (1985).

Moreover, since users of the chat room do not enter under their real names but rather use fictional screen names such as "eternalmechgod," they have no guarantee as to the true identity of any of their online correspondents. See State v. Reid, 389 N.J. Super. 563, 575 (App. Div. 2007) (discussing use of screen names and users' right to anonymity). The fact that an undercover police officer might be the recipient of some of their anonymous chat messages is not likely to chill any lawful speech. Damiani's presence in the chat room did not compromise the anonymity of lawful users or interfere with their right to speak in the public forum of the chat room. His activities affected only defendant, whose efforts to lure a minor into sexual activity were unlawful and not protected by the First Amendment.

 
Affirmed.

We decline to publicize the chat room by giving its title. Suffice to say, it was a crude reference to a sexual act and did not indicate that the chat room was necessarily aimed at persons based on their sexual identity.

In the grand jury transcript the name is spelled "eternalmechgod."

We need not address here the scenario of a genuinely private forum, such as a corporate bulletin board set up with appropriate security to limit participation to corporate employees. If the police hacked into such a private system, that would present an entirely different constitutional issue.

(continued)

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A-4371-05T4

May 17, 2007