STATE OF NEW JERSEY v. BRIAN FARMER

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-5247-16T4


STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

BRIAN FARMER,

     Defendant-Respondent.
_______________________________

              Argued December 4, 2017 – Decided January 29, 2018

              Before Judges Sabatino, Ostrer, and Whipple.

              On appeal from an interlocutory order of
              Superior Court of New Jersey, Law Division,
              Monmouth County, Indictment No. 15-11-2054.

              Monica do Outeiro, Assistant Prosecutor,
              argued the cause for appellant (Christopher
              J. Gramiccioni, Monmouth County Prosecutor,
              attorney; Monica do Outeiro, of counsel and
              on the brief).

              Margaret McLane, Assistant Deputy Public
              Defender, argued the cause for respondent
              (Joseph E. Krakora, Public Defender, attorney;
              Margaret McLane, of counsel and on the
              briefs).

              Jane C. Schuster, Deputy Attorney General,
              argued the cause for amicus curiae Attorney
            General of New Jersey (Christopher S. Porrino,
            Attorney General, attorney; Jane C. Schuster,
            of counsel and on the brief).

            Tess Borden of the New York bar, admitted pro
            hac vice, argued the cause for amicus curiae
            American Civil Liberties Union of New Jersey
            Foundation (Tess Borden, Alexander R. Shalom,
            Edward L. Barocas and Jeanne M. LoCicero, on
            the brief).

PER CURIAM

      On   leave       granted,   the   State   appeals   a     June   21,    2017

interlocutory      order    of    the   trial   court   suppressing     evidence

recovered from defendant Brian Farmer's cell phone that implicated

him in two homicide investigations.             We affirm.

                                         I.

      On August 1, 2014, family members found sixty-one-year-old

J.C.1 and her ten-year-old foster daughter, V.R., dead in their

apartment.    Both were strangled.

      From the outset, defendant, J.C.'s immediate relative, was a

suspect.     On August 8, 2014, after Detective Richard Chapman and

Detective Ross Zotti interviewed defendant's daughter, defendant

called and requested to speak with them.                  The detectives met

defendant    at    a    community   resource    center,   and    he    agreed    to

accompany them to the Monmouth County Prosecutor's office to be

interviewed.


1
    We use initials to protect the identities of the victims.

                                         2                                A-5247-16T4
      The   detectives    brought    defendant    to   an   interview     room

equipped with video and audio recording devices.               Early in the

interview,   Detective     Chapman   asked     defendant    some   background

questions,    including    disclosure     of   his   cell   phone    numbers.

Defendant had two cell phones, which he described as an LG phone

and a Virgin Mobile phone.       Defendant was able to provide a cell

phone number for one of his phones but not the other.               Defendant

and the officers discussed ways they could retrieve the missing

cell phone number.        Defendant said he "would get it for them."

Detective Chapman advised defendant of his Miranda2 rights, which

defendant then waived.       While defendant was signing the Miranda

forms, Detective Chapman asked defendant if he was still trying

to find the number and suggested defendant go to his contacts or

settings on the cell phone to find the number.                Defendant was

apparently unsuccessful.

      After discussing various other topics, Detective Chapman

said, "[l]et me see if I can get somebody to work on that phone."

Later, the following exchange took place:

            Detective Chapman:   There's two things.   We
            have someone that can get your number but we
            also want to get a consent from you for cell
            phone records. Okay. That's something that
            we want to do while we're here. That's a part
            of something that we would like to do. But
            also you're here to clear your name. That's

2
    Miranda v. Arizona, 
384 U.S. 436 (1966).

                                      3                               A-5247-16T4
          something that we want to do to clear your
          name.

          Defendant:   All right.

          Detective Chapman:     Okay.   We have to be
          thorough. Okay. We have to be thorough. We
          have to go over, you know, every bit and piece.
          You watch TV and that's always something
          that's one of the first things they have to
          do. Okay.

          Defendant:   All right.

     The officers presented defendant with a "Monmouth County

Consent To Search Electronic Evidence" form for him to execute.

Detective Chapman asked defendant about his employment status.     He

then suddenly turned the conversation back to defendant's consent,

explaining the search, and reading from the consent form:

          Detective Chapman:    Again this is for the
          phone. . . . We just want to get your phone
          and also going to do our thing as far as
          looking through any records, because this is
          going to show where we need to be. I, Brian
          Farmer, hereby authorize the [police] . . .
          to take the phone and conduct a complete
          search of the following devices and any and
          all   internal   and/or    attached   storage.
          Anything that we need, we're just focusing on
          this.   Anything else, we could care about.
          We're worried about in the death of [J.C.] and
          [V.R.].

          Defendant:   Uh-huh.

          Detective Chapman: Okay? So it's regarding
          our   investigation  into   this  incident.
          Anything else, I'm not concerned with that.
          Okay?



                                 4                          A-5247-16T4
After discussing the types of phones and defendant's eyeglasses,

the following exchange transpired.

          Detective Chapman:  Now we're gonna do both
          of the phones. Is that okay with you?

          Defendant:   What?

          Detective Chapman: This phone and that phone.

          Defendant:   Oh, what you mean like, um - -

          Detective Chapman:    We're gonna check the
          records.

          Defendant:   I don't care.

          Detective Chapman:   Oh, okay.   All right.

          Defendant:   I have no problem with that.

Detective Chapman then read defendant the consent form.    Pertinent

to this appeal, the consent form stated:

          I understand that the search will encompass
          all data and/or information stored in this
          specific    electronic   devices,    including
          deleted items that may be recovered during the
          examination    process,    invisible    files,
          password-protected files and encrypted files.

While signing the consent form, defendant asked, "but I thought

you just wanted the phone records?"    Detective Chapman replied,

"Yeah, that's . . . what's in the phone . . .   But in order to get

to those records, these are the things that we're going to be

looking at.   These are part of the file."   He further explained,

"You're saying you're agreeing to this and are allowing us to do




                                5                            A-5247-16T4
the search of your phone records.3         Okay."     There was no discussion

of photographs, deleted, encrypted or otherwise, contained in the

phone and no mention of photographs in the consent form. Defendant

signed the consent form and handed over his phones.

     The phones were given to an officer in the computer crimes

unit, who conducted a thorough search and found deleted photographs

of V.R.   In some of these photographs, V.R. was naked or partially

naked, and posing in a sexually explicit manner.

     Detective Chapman was informed of the photographs, returned

to the interview room, and confronted defendant with printed

copies.     Defendant then invoked his right to counsel, and the

interrogation immediately halted.

     Soon     thereafter,   other   officers        arrived      to   transport

defendant to the Long Branch Police Department.               While en route,

defendant asked to speak with the detectives again.               The officers

transported     defendant   to   the       Monmouth     County    Prosecutor's

satellite office in Asbury Park.

     Defendant explained his version of the events leading up to

the deaths of J.C. and V.R.      According to defendant, J.C. caught

V.R. posing in a sexually explicit manner for him.               Defendant then



3
   After reviewing the record, the trial court determined that it
is unclear whether Detective Chapman said "phone and records" or
"phone records."

                                       6                                A-5247-16T4
ran out of the apartment, heard J.C. and V.R. fighting inside, and

returned in order to beg J.C. to not report him to the police.

Upon re-entering the apartment, he observed V.R. on the floor

"gurgling."     Defendant "snapped," struck J.C. with an object,

choked her, and covered her lifeless body with a blanket.

     Following an indictment on numerous charges, including two

counts of first-degree murder, 
N.J.S.A. 2C:11-3(a), defendant

moved to suppress: (1) certain oral statements made under Miranda;

and (2) evidence obtained during the warrantless search of his

cell phones.

     After hearing testimony and oral argument, and watching video

recordings of the interrogations, on June 12, 2017, the Honorable

David F. Bauman, J.S.C., denied defendant's Miranda motion but

granted his motion to suppress evidence from the warrantless search

of the cell phones.

     In a well-founded supplemental written opinion, Judge Bauman

found defendant voluntarily consented to the search of his cell

phones, however, "although defendant knew he could refuse consent,

defendant was not reasonably apprised of the geographic scope of

the search.    Therefore, any consent given was not knowing."              The

judge further found "the failure of detectives to clarify the

meaning   of   the   term   phone   records   and   the   overbroad    search



                                      7                               A-5247-16T4
conducted under the auspices of that ambiguous term contributed

to an unknowing consent to the scope of the search."

      The     judge    noted   on   three       occasions    Detective     Chapman

expressly stated the search was limited to defendant's "phone

records," and defendant, on at least two occasions, attempted to

clarify the meaning of "phone records."                 He found when defendant

attempted to clarify the meaning of "phone records," Detective

Chapman's reply was "disingenuous."                The judge considered the

definition of "phone records" to comprise "meta data" or call

logs, and even if "phone records" is an ambiguous term, the

"detective's failure to clarify the meaning of phone records limits

the scope of the search to the colloquial definition of phone

records."      Judge Bauman concluded the information was obtained

illegally     and     suppressed    the   photographs       and   the   derivative

confession.

      The State moved for leave to appeal the suppression order,

which we granted on August 7, 2017.               On appeal, the State argues

the trial court erred in suppressing the cell phone search and all

evidence obtained derivatively.               We invited the Attorney General

of New Jersey and the American Civil Liberties Union of New Jersey

to   appear    as     amicus   curiae     and    both    submitted      briefs   and

participated in oral argument.



                                          8                                 A-5247-16T4
                                             II.

       "Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record."       State v. Hubbard, 
222 N.J. 249, 262 (2015).                   "The

traditional deference given to factual findings of the trial court

has deep roots in our jurisprudence."               S.S. v. State, 
229 N.J.
 360, 374 (2017).        Our Supreme Court has "cautioned that a trial

court's factual findings should not be overturned merely because

an appellate court disagrees with the inferences drawn and the

evidence accepted by the trial court or because it would have

reached a different conclusion."              Ibid. (citing State v. Elders,


192 N.J. 224, 244 (2007)). A trial court's factual findings should

only be disturbed if they are "so clearly mistaken that the

interests of justice demand intervention and correction."                   State

v. Gamble, 
218 N.J. 412, 425 (2014) (quoting Elders, 
192 N.J. at
 244).

       The    United   States   and   New     Jersey     Constitutions   protect

individuals against unreasonable searches and seizures.                      U.S.

Const., amend IV; N.J. Const., art. I, ¶ 7.              "Warrantless seizures

and searches are presumptively invalid as contrary to the United

States and the New Jersey Constitutions."                State v. Pineiro, 
181 N.J.    13,    19   (2004)   (citation       omitted).      To   overcome    this

                                         9                               A-5247-16T4
presumption, the State must show the search falls within one of

the well-recognized exceptions to the warrant requirement.                  State

v. Maryland, 
167 N.J. 471, 482 (2001) (citing Schneckloth v.

Bustamonte, 
412 U.S. 218, 219 (1973)).                  Consent is one such

exception.     State v. Hampton, 
333 N.J. Super. 19, 27 (App. Div.

2000); see also Bustamonte, 
412 U.S.  at 219.

     "Under     our        State     Constitution,      we    have     heightened

requirements to ensure that the waiver of the right to refuse a

consent search is voluntarily and knowingly exercised."                  State v.

Domicz, 
188 N.J. 285, 307 (2006); see State v. Carty, 
170 N.J.
 632, 639 (2002) ("[A]ny consent given by an individual to a police

officer to conduct a warrantless search must be given knowingly

and voluntarily.").

     The trial court found defendant voluntarily consented to a

search   but   not    to    the    full   extent   of   the   search    that   was

subsequently conducted.            The judge determined defendant only had

consented to a search of his "phone records" – not the entire

contents of the phones.            The State argues defendant knew he had

the right to refuse to give consent, and thus the consent was

voluntary and knowing.        Further, the State argues defendant's lack

of knowledge about what the officers were actually seeking does

not undercut the voluntary consent given when defendant signed the

form.

                                          10                              A-5247-16T4
     We agree the generic consent form signed by defendant is so

broadly   phrased   that,   if   the    surrounding    circumstances    were

ignored, it would have literally permitted the extensive search

of the phone undertaken.     However, the court determined Detective

Chapman's oral comments gave defendant reason to believe the search

was limited to less than what was outlined in the unwritten consent

form.4

     "There is no question that the scope of a consent search is

limited by the terms of its authorization."           State v. Santana, 
215 N.J. Super. 63, 72 (App. Div. 1987) (citing Walter v. United

States, 
447 U.S. 649, 656-57 (1980)).        The standard for measuring

the scope of consent under the Fourth Amendment is objective

reasonableness: "What would the typical reasonable person have

understood by the exchange and the person granting the consent?"

Florida v. Jimeno, 
500 U.S. 248, 251 (1991).

     Here, Judge Bauman engaged in the requisite fact-sensitive

inquiry of whether it was reasonable for Detective Chapman to

believe the scope of defendant's consent included searching all


4
   We note, the consent form makes no reference to photographs.
Perhaps   if   it  did,   utilizing   a   standard  of   objective
reasonableness, defendant's argument might be less compelling.
See Florida v. Jimeno, 
500 U.S. 248, 252 (1991) ("A suspect may
of course delimit as he chooses the scope of the search to which
he consents. But if his consent would reasonably be understood
to extend to a particular container, the Fourth Amendment provides
no grounds for requiring a more explicit authorization.").

                                   11                               A-5247-16T4
photographs stored on the phones.       He soundly determined that the

circumstances of the request implicitly limited the scope of the

consent.    At the outset, the detectives stated the purpose of the

search only was to ascertain defendant's phone number.           Defendant

was repeatedly told the search would be restricted to "phone

records."    The judge found that when defendant tried to clarify

his understanding of the scope, the detective's explanations were

disingenuous and misleading.       That conclusion has ample support

in the record, and we do not second-guess it.

     Accordingly, because there is credible evidence in the record

to support the trial court's determination that defendant did not

authorize the all-encompassing search of his cell phones, we affirm

the trial court's order suppressing the search and all evidence

derivatively    obtained.    Our   ruling,    based   on   the   discrete

circumstances presented here makes it unnecessary for us reach

broader constitutional questions that may arise in other settings

involving cell phone searches.

     Affirmed.




                                   12                              A-5247-16T4