Can Evidence Contained on a Cell Phone Be Used to Convict of Sex Crimes?

State in the Interest of G.C.

Appellate Docket No.: A-1615-18T1

Decided September 2, 2020

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division reviewed whether evidence contained on defendant’s cell phone used to convict him of sex crimes was properly admitted when defendant was not present at the home when the cell phone was retrieved by police.

In State in the Interest of G.C., appealed from a final disposition order entered following a bench trial finding he committed the following acts that would be crimes if committed by an adult: second-degree sexual assault by force or coercion, N.J.S.A. 2C:14-2(c)(1), and first-degree endangering the welfare of a child through the possession of child pornography, N.J.S.A. 2C:24-4(b)(3).

The victim returned to her home and reported to her sister that she had been raped.  Defendant was arrested.  Detectives returned to defendant’s home to retrieve his cell phone, which contained information the detectives suspected could be used as evidence of defendant’s sexual assault and child pornography. The police had an opportunity to obtain a search warrant for the phone, but chose not to.  Rather they asked defendant’s parents to search for the phone, which they eventually turned over.  It was passcode protected, and the detective informed defendant that if he did not provide the passcode they would get a warrant anyway.  Defendant eventually provided the passcode.

The phone contained an exchange of text messages between defendant and the victim, as well as a video recording depicting defendant and the victim engaging in sexual intercourse.  Defense counsel made a motion to suppress the evidence, but the trial court decided to consider the motion during the trial instead of having a separate motion hearing.  The court denied the motion to suppress, leading to defendant’s appeal after his conviction.

The Appellate Division found that the trial court was required to conduct a separate motion hearing for motions to suppress, as there are constitutional considerations that must be accounted for.  What’s more, the trial court failed to provide a factual basis for its denial of the motion to suppress. The Appellate Division remanded for a separate motion to suppress to be conducted. If the motion was granted, defendant would be afforded a new trial.

If your child is subject to juvenile proceedings and it is possible the State will attempt to try them as an adult, it is vital to hire an attorney versed in the appropriate evidence used to mitigate the State’s statement of reasons, such as school records, psychiatric records, and other key evidence such as family witnesses and other members of the public.  Motions to suppress are vital in cases involving incidents such as evidence found on a cell phone, in a car, or in a home.  They could be a turning point as to whether a defendant gets convicted or it found not guilty.

If you or your child has been charged with any first degree crime, second degree crime, third degree crime, fourth degree crime, disorderly persons offense, municipal ordinance violation, or traffic ticket / DUI/DWI, contact an experienced criminal defense attorney today. Failing to hire a defense attorney and putting your faith in a public defender could give you adverse results.

At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us immediately. At Hark & Hark, we represent clients for any case in any town in New Jersey including Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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