NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-1838-11T3 A-3182-11T3 J.O.,

Plaintiff-Appellant, APPROVED FOR PUBLICATION v. October 31, 2013 TOWNSHIP OF BEDMINSTER, APPELLATE DIVISION NANCI ARRAIAL, COUNTY OF SOMERSET, BOROUGH OF WESTWOOD, and ROBERT SAUL,

Defendants-Respondents.

______________________________

J.O.,

Plaintiff-Respondent,

v.

TOWNSHIP OF BEDMINSTER and NANCI ARRAIAL,

Defendants-Appellants,

and

COUNTY OF SOMERSET, BOROUGH OF WESTWOOD, and ROBERT SAUL,

Defendants. ________________________________________________________________

Argued April 8, 2013 – Decided October 31, 2013

Before Judges Ashrafi, Espinosa and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket No. C-35-10.

J.O. Jr., argued the cause for appellant in A-1838-11 and respondent in A- 3182-11.

Richard J. Guss argued the cause for Township of Bedminster and Nancy Arraial, respondents in A-1838-11 and appellants in A-3182-11 (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys; Mr. Guss, on the briefs).

Scott D. Rodgers, Deputy County Counsel, argued the cause for respondent County of Somerset in A-1838-11 (William T. Cooper, III, Somerset County Counsel, attorney; Mr. Rodgers, on the brief).

Mary C. McDonnell argued the cause for respondents Robert Saul & Borough of Westwood in A-1838-11 (Pfund McDonnell, P.C., attorneys; Ms. McDonnell and David T.

Pfund, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

Although it was enacted in 1979, there are no published

opinions that interpret or apply the Subpoena First Act,

N.J.S.A. 2A:84A-21.9 to -21.13 (the Act),1 which has been

described as "narrowly circumscrib[ing] the situations in which

the State can properly search and seize materials acquired in

the course of newsgathering." In re Woodhaven Lumber and Mill

N.J.S.A. 2A:84A-21 to -21.8); see also In re Subpoena Issued to

Schuman, 114 N.J. 14, 24 (1989) (same). In this case, we

consider the application of the Act to a suspect in a criminal

investigation who asserted a claim to its protection based upon

his status as an "internet publisher" after a search warrant was

executed and his suppression motion was denied. We affirm the

dismissal of plaintiff's complaint against all defendants. As

for his claims under the Act, we hold that plaintiff waived any

claim to protection; that the officers here were not required to

conduct an investigation to determine whether plaintiff was

protected by the Act prior to seeking a warrant; and that, even

if plaintiff had timely asserted his claim, he was not entitled

to the Act's protection because the materials sought were not

obtained in the course of newsgathering activities.

Defendants Township of Bedminster and Nanci Arraial (the

Bedminster defendants) appeal from the denial of their motion

for counsel fees pursuant to Rule 1:4-8. For the reasons that

follow, we affirm that denial as well.

I.

It is generally acknowledged that the Act, like its federal

counterpart, the Privacy Protection Act (PPA), 42 U.S.C.A. §§

2000aa-aa12, was a legislative response to the United States

See Sennett v. United States, 667 F.3d 531, 535 (4th Cir. 2012);

Guest v. Leis, 255 F.3d 325, 340 (6th Cir. 2001); Byrnes,

Current New Jersey Arrest, Search & Seizure 573-74 (2012-13);

Debra L. Stone, The Criminal Justice System and the News Media:

Recent Developments, 7 Crim. Just. Q. 178, 196 (1980).

Zurcher had its roots in an April 1971 demonstration at

Stanford University Hospital that devolved into a violent clash

in which a group of demonstrators, armed with sticks and clubs,

attacked and injured nine police officers. Zurcher, supra, 436 U.S. at 550, 98 S. Ct. at 1973-74, 56 L. Ed. 2d at 532.

Articles and photographs published in the Stanford Daily, a

student newspaper, suggested that a Daily staff member might

have photographed the assault on the officers. Although there

was no allegation that any members of the Daily staff had

engaged in unlawful activity, the Santa Clara County District

Attorney's Office obtained a warrant to search the Daily's

office for negatives and photographs that would assist in the

identification of the persons who assaulted the officers. Id. at 551, 98 S. Ct. at 1974, 56 L. Ed. 2d at 532. When the

warrant was executed, the only photographs found were those that

had already been published. No materials were removed from the

The student newspaper and various staff members brought a

civil action, seeking declaratory and injunctive relief under 42

U.S.C.A. § 1983, against the law enforcement officials involved

and the judge who issued the warrant. Judgment was entered in

favor of the newspaper and its staff members and affirmed by the

Court of Appeals. However, the Supreme Court reversed, stating,

[W]e decline to reinterpret the [Fourth] Amendment to impose a general constitutional barrier against warrants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection with the issuance of search warrants.

[Id. at 567, 98 S. Ct. at 1982, 56 L. Ed. 2d at 543.]

The Court added, "Of course, the Fourth Amendment does not

prevent or advise against legislative or executive efforts to

establish nonconstitutional protections against possible abuses

of the search warrant procedure[.]" Ibid. Congress and a

number of state legislatures,2 including New Jersey, accepted the

invitation to establish such protections.

Or. Rev. Stat. § 44.520(2) (2011); Wash. Rev. Code § 10.79.015(3) (2013); Wis. Stat. § 968.13(1)(d) (2013); Conn. Gen. Stat. § 54-33j(a) (2013); Tex. Code Crim. Proc. art. 18.01(e) (West 2001); 725 Ill. Comp. Stat. 5/108-3(b) (2013).

turn on whether the person who possesses the materials sought is

a member of the news media. Rather, the prohibition applies

when the person in possession has "a purpose to disseminate to

the public a newspaper, book, broadcast, or other similar form

of public communication." 42 U.S.C.A. § 2000aa(a), (b). The

PPA has certain limited exceptions, which include a "suspect"

exception:

[T]his provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if--

(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate . . . .

[Ibid.]

The prohibition in New Jersey's Act provides in pertinent

part:

Any person . . . engaged on, engaged in, connected with, or otherwise employed in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the public . . .

shall be free from searches and seizures, by . . . law enforcement officers with respect to any documentary materials obtained in the course of pursuing the aforesaid activities whether or not such material has been or will be disseminated or published.

6 A-1838-11T3 [N.J.S.A. 2A:84A-21.9.]

Like the PPA, the Act has exceptions to the general

prohibition, which include a "suspect" exception virtually

identical to that in the federal statute:

This section shall not restrict or impair the ability of any law enforcement officer, pursuant to otherwise applicable law, to search for or seize such materials, if there is probable cause to believe that:

a. The person, corporation, partnership, proprietorship or other entity possessing the materials has committed or is committing the criminal offense for which the materials are sought . . . .

[Ibid.]

That the statute was a legislative response to Zurcher is

reflected in the distinction between the Act's application to

materials possessed by persons who are not suspects in a

criminal investigation and its explicit exception for situations

where the person in possession is suspected of "committing the

criminal offense for which the materials are sought." The

salient facts in Zurcher that caught the public's attention were

related to the unequivocal status of the persons in possession

as journalists doing their job. No Daily staff member was

suspected of criminal activity, and the items sought – the

photographs and negatives – were unquestionably obtained in the

course of newsgathering activity. As the Assembly Judiciary,

legislation explained:

The purpose of this bill is to preserve the first amendment's freedom of the press by insuring that the files of the news media shall not be the subject of searches and seizures by law enforcement officials, except . . . in specifically enumerated special cases. The exceptions [include] where there is probable cause to believe that: the news media is involved in a crime . . . .

[Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to A.1535 (June 28, 1979) (emphasis added).]

This distinction is further evident in the nature of the

remedy provided. If a search or seizure is conducted in

violation of the Act, the aggrieved party may bring a civil

action. N.J.S.A. 2A:84A-21.11. However, the Act does not

provide for the suppression of evidence seized in violation of

the statute.

II.

We now turn to the facts of this case, which are derived

from the record and the trial court's decision.

Detective Nanci Arraial of the Bedminster Township Police

Department initiated an investigation in 2007 after Amy Wollock,

an associate dean at Rutgers University, contacted her

concerning a website, amywollock.com. Wollock told Arraial she

advised plaintiff, a master's degree student, that he needed

certification to become a teacher in New Jersey. Plaintiff

threatened to sue Rutgers if he was not approved for a teacher

certification. Wollock told Arraial she was afraid of

plaintiff.

Amywollock.com was a self-described "web gripe site." The

text on the website began,

I have a gripe with Amy Wollock (former Director of Teacher Education) of the Rutgers University Graduate School of Education (GSE), New Brunswick, NJ.

Unfortunately, I was systematically threatened and excluded from opportunities to file a formal grievance against Amy Wollock while I was a student at Rutgers, so this web site had become my only recourse.

The website had a photograph of Wollock, with a countdown

feature immediately below that stated, "Only 208 days until the

fun begins." The number of days was reduced on a daily basis.

The website did not explain what was meant by "the fun."

Plaintiff invited readers to return to the site to "tell your

own horror story" and promised not to publish names or contact

information unless requested to do so.

Through the use of grand jury subpoenas, Arraial learned

that amywollock.com was created using an email account,

[email protected], and that the registrant for that account

was listed as Amy Wollock. Arraial confirmed that Wollock had

able to ascertain, through the IP address, that the creator of

the website was J.O.

Arraial filed a complaint against plaintiff alleging that

amywollock.com constituted harassment in violation of N.J.S.A.

2C:33-4(a). Plaintiff was found guilty in Bedminster Municipal

Court and sentenced to probation in February 2009, with the

conditions that plaintiff have no contact with Wollock and was

prohibited from "using [his] computer to make inquiries of any

kind about" her. Plaintiff appealed and was found not guilty by

the Superior Court on July 23, 2009.

However, on June 10, 2009, before plaintiff's conviction

was reversed, Wollock contacted Arraial regarding

amywollock.wordpress.com, a website she believed violated the

municipal court's order. The wording on the website mirrored

the nature and content of amywollock.com. In addition, the

website included hyperlinks to: a mapping system that showed

Wollock's home address with an aerial map of her home; Wollock's

email address, phone number, and a background check on her; and

other links to websites that offered personal information such

as the names of several of Wollock's relatives, her previous

addresses, date of birth, average income, and average home

value.

subscriber information for the website and learned that

amywollock.wordpress.com was registered on June 30, 2007.

Arraial also learned the subscriber's username (amywollock),

user email ([email protected]), and IP address. None of

these were created by Wollock. Through the IP address, Arraial

determined that the website and email account were created and

used on plaintiff's computer.

In November 2009, the Somerset County Prosecutor's Office

applied for a search warrant/communications data warrant for

plaintiff's residence in Westwood. The stated purpose of the

warrant application was to obtain evidence of

impersonation/theft of identity, N.J.S.A. 2C:21-17(a)(1);

trafficking in personal identifying information pertaining to

another person, N.J.S.A. 2C:21-17.3(a); forgery, N.J.S.A. 2C:21-

1(a)(2); and uttering, N.J.S.A. 2C:21-1(a)(3).

The warrant was issued by a Superior Court judge and, on

November 9, 2009, executed by Arraial, another Bedminster

detective, and two Somerset County Prosecutor's Office

detectives. Robert Saul, a police detective from the Borough of

Westwood who had been involved in prior, unrelated

enforcement. He did not participate in the search and seizure

of plaintiff's property. Approximately eighteen items,

including plaintiff's computers and related equipment, cell

phone, and digital camera, were seized.

According to plaintiff, when the officers arrived at his

home at 9:00 a.m. on November 9, 2009, they announced they were

executing a search warrant/communications data warrant. He

asked what this was about. One of the officers replied that it

was "about a website." Plaintiff replied that he had "a lot of

websites" and asked which one they were talking about.

Plaintiff stated the officers did not respond but threatened him

with arrest for obstruction. He testified he told the officers,

"I need to call my attorney. I need to see the search warrant."

The officers passed the search warrant through the door, and

plaintiff then called his attorney.

In March 2005, Saul conducted an investigation after a complainant informed him that his deceased father's name had been used as the registrant of westwoodcops.com. Saul's investigation revealed that plaintiff was the operator of the site, but no charges were filed because the victim suffered no monetary loss.

warrant did plaintiff advise the officers that he was entitled

to the protection afforded by the Act.4 He testified,

I told them that I had websites. So they were on notice that I was an internet publisher. I don't have to be a journalist under the statute. I could be a publisher of news and information. Via an electronic medium.

Plaintiff filed a motion to suppress the seized evidence.

The motion judge found that the application for the search

warrant was supported by sufficient evidence to establish the

requisite probable cause and denied the motion on January 19,

2010. Plaintiff did not appeal the denial of his suppression

motion or his subsequent motion for reconsideration. Plaintiff

was never charged with any of the offenses listed in the

warrant.

In January 2010, more than two months after the search

warrant was executed and approximately one week after his

challenge to the search warrant failed, plaintiff filed a

verified complaint against the Bedminster defendants, Somerset

County, and the Borough of Westwood and Saul (the Westwood

defendants), seeking injunctive relief and damages. It was in

Given the relative obscurity of the Act, it could be that plaintiff was unaware of its existence at the time the warrant was executed. However, neither he nor Arraial claimed a lack of knowledge of the Act as an explanation for their conduct.

the execution of the search warrant was a violation of the Act

because he "is a person engaged in gathering, procuring,

transmitting, compiling, editing, publishing, or disseminating

news for the public, via the internet."

In June 2010, the Bedminster defendants filed a demand for

withdrawal of frivolous pleadings pursuant to Rule 1:4-8. All

parties filed motions for summary judgment. The trial court

granted summary judgment in favor of Somerset County and the

Westwood defendants, dismissing the claims against them. The

court denied the summary judgment motions of plaintiff and the

Bedminster defendants.

The court conducted a hearing to determine whether

plaintiff qualified as a news media person within the meaning of

N.J.S.A. 2A:84A-21.9. Following the Supreme Court's decision in

Too Much Media, LLC v. Hale, 206 N.J. 209 (2011), the court

heard re-argument and issued a written decision finding that

plaintiff did not qualify as a newsperson under the Act.

The Bedminster defendants filed a motion for attorney's

fees and costs pursuant to Rule 1:4-8, which was denied by the

trial court. They appeal from that order.

Plaintiff appeals from the trial court's dismissal of his

claims against all defendants. He argues that the trial court

Bedminster, County of Somerset, and Borough of Westwood violated

the Act because he is a person protected by the Act and

therefore enjoys absolute freedom from searches and seizures

(Points I and VI). He challenges the trial court's findings

that the defendants had a good faith defense under the Act

(Point II); that Arraial neither knew nor had a duty to know

that he is a newsperson (Point III); and that Somerset County

was not a proper party (Point IV). Plaintiff also argues that

defendants violated the Act because they failed to obtain the

approval of the Attorney General or the Bergen County Prosecutor

prior to obtaining the warrant (Point V). Finally, plaintiff

argues that the trial court erred in dismissing his allegations

that Arraial and Saul violated the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2(c) (Point VII).

We hold that plaintiff's claims resting upon the Act were

properly dismissed. Because defendant did not appeal from the

order denying his motion to suppress evidence, the argument that

the warrant was not supported by probable cause advanced in

Point VI is not properly before us. We also conclude that

plaintiff's claims based upon alleged violations of the Civil

Rights Act were properly dismissed. Plaintiff's remaining

written opinion. R. 2:11-3(e)(1)(E).

The facts concerning plaintiff's activities and the

issuance and execution of the search warrant are essentially

undisputed. The issue here is the legal significance of those

facts. Therefore, our review is de novo. Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

III.

The Act declares that persons engaged in enumerated

activities are "free from searches and seizures" of documentary

materials obtained during the course of those activities, with

certain exceptions. N.J.S.A. 2A:84A-21.9. Significantly, the

Act is designed to reach searches and seizures that would be

sanctioned if only subject to a Fourth Amendment analysis.

Plaintiff's arguments require us to address "who" and "what" the

Legislature intended to protect and the obligations of claimant

and law enforcement when a suspect in a criminal investigation

who claims the Act's protection lacks a connection to

traditional news media.

"In reading and interpreting a statute, primary regard must

be given to the fundamental purpose for which the legislation

was enacted." N.J. Builders, Owners & Managers Ass'n v. Blair,

60 N.J. 330, 338 (1972). "To discern the Legislature's intent,

question." In re Young, 202 N.J. 50, 63 (2010); DiProspero v.

Penn, 183 N.J. 477, 492 (2005); Hubbard v. Reed, 168 N.J. 387, 392 (2001). "If the plain language leads to a clear and

unambiguous result, then [the] interpretive process is over."

Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007). "However, where a literal interpretation

would create a manifestly absurd result, contrary to public

policy, the spirit of the law should control." Turner v. First

Union Nat'l Bank, 162 N.J. 75, 84 (1999). "Thus, when a literal

interpretation of individual statutory terms or provisions would

lead to results inconsistent with the overall purpose of the

statute, that interpretation should be rejected." Hubbard, supra, 168 N.J. at 392-93 (internal quotation marks and

citations omitted).

The "who" element of the Act establishes a category of

persons who may seek its protection, identifying them by their

engagement in enumerated activities, i.e., "gathering,

procuring, transmitting, compiling, editing, publishing, or

disseminating news for the public." N.J.S.A. 2A:84A-21.9 (news-

persons). There is also a "what" component that limits its

application to documentary materials obtained in the course of

pursuing news activities. "Documentary materials" are defined

but is not limited to, written or printed materials,

photographs, tapes, videotapes, negatives, films, outtakes and

interview files." N.J.S.A. 2A:84A-21.12(a). The Act does not

require that the material in question "has been or will be

disseminated or published." N.J.S.A. 2A:84A-21.9.

Plaintiff has never been employed as a journalist by any

conventional news outlet. He argues that he is protected by the

Act because he considers himself "a legitimate gatherer and

publisher of news and information for the public." It is clear,

however, that a person does not become "free from searches and

seizures" under the Act solely by virtue of a claimed newsperson

status. Cf. Too Much Media, supra, 206 N.J. at 240-42. As the

Court recognized in addressing the application of the Shield

Law, it requires little analysis to determine whether a person

associated with traditional media may claim the privilege under

that law. Id. at 241-42. However, when, as here, a "self-

appointed" journalist or publisher claims statutory protection,

more scrutiny is required. Id. at 242.

Analyses of the Shield Law provide limited guidance. A

person who claims the privilege afforded by the Shield Law must

show a connection to "news media" as defined in the statute,

i.e., "newspapers, magazines, press associations, news agencies,

photographic, mechanical or electronic means of disseminating

news to the general public." N.J.S.A. 2A:84A-21a(a).5

Accordingly, the Court's "focus" in Too Much Media was on the

meaning of "news media." 206 N.J. at 231.

A similar nexus to "news media" was included when the Act

was first proposed. The Assembly Judiciary, Law, Public Safety

and Defense Committee Statement (June 28, 1979) declares the

bill, A.1535, was intended "to preserve the first amendment's

freedom of the press by insuring that the files of the news

media shall not be the subject of searches and seizures by law

enforcement officials." (Emphasis added). However, the terms

"news" and "news media" were not defined and "news media" was

not even mentioned in the final version of the Act.6

N.J.S.A. 2A:84A-21.3(a) requires claimants to make a prima facie showing that (1) they have the requisite connection with news media, (2) they have the necessary purpose to gather or disseminate news, and (3) the materials subpoenaed were obtained in the ordinary course of pursuing professional newsgathering activities.

"News media" is mentioned in the headnote for the Act.

However, because headnotes are not the product of legislative action, N.J.S.A. 1:3-1; State v. Darby, 246 N.J. Super. 432, 440-41 (App. Div.), certif. denied, 126 N.J. 342 (1991), they are not deemed part of the legislation itself and do not assist in statutory interpretation. N.J.S.A. 1:1-6; State v. Malik, 365 N.J. Super. 267, 279 (App. Div. 2003), certif. denied, 180 N.J. 354 (2004).

language of the Shield Law to identify the category of persons

covered. But amendments to the bill arguably expanded the

category of persons who might claim its protection. For

example, the amendments deleted language requiring that a

protected person be employed "by news media for the purpose of"

news gathering and disseminating activities.7 The word

"professional" was deleted from the description of activities.

Publishing was added to the enumerated activities that could

provide a basis for protection under the Act.

For clarification, we provide the amendments to the relevant paragraph, with deletions struck through and additions underlined:

Any person, corporation, partnership, proprietorship or other entity engaged on, engaged in, connected with, or otherwise employed by news media for the purpose of in gathering, procuring, transmitting, compiling, editing, publishing, or disseminating news for the general public, or on whose behalf news is so gathered, procured, transmitted, compiled, edited, published or disseminated has a privilege to shall be free from searches and seizures, by State, county and local law enforcement officers, for with respect to any documentary materials obtained in the course of pursuing his professional the aforesaid activities whether or not such material has been or will be disseminated or published.

were performed by readily identifiable, traditional newspersons.8

Today, the performance of those activities, made far more

accessible through the widespread use of electronic media, is a

commonplace. See Reno v. ACLU, 521 U.S. 844, 853, 117 S. Ct. 2329, 2335, 138 L. Ed. 2d 874, 886 (1997) ("Any person or

organization with a computer connected to the Internet can

'publish' information."); Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 154 (App. Div. 2010), aff'd in part and modified,

206 N.J. 209 (2011); Developments in the Law -- The Law of

Media, 120 Harv. L. Rev. 990, 993 (2007). Today, a cellphone

can be used by a pedestrian to take a video of an incident of

police brutality that will be played on the evening news

broadcast. The same phone can be used to record a kitten who

refuses to leave a warm bath, producing a video seen by close to

four million people on YouTube. In each case, it could be

argued that the person who took the video engaged in an activity

described in the Act. Nonetheless, we are confident that the

Legislature did not intend to provide protection above and

Indeed, the statement issued by the Governor's Office after the bill became law states the Act "imposes a strict prohibition against searches and seizures of a newsman's 'work product' materials, except in specific situations." (Feb. 28, 1980) (emphasis added).

upon the posting of a video of a wet kitten on the Internet.

The absence of a definition of "news" and the deletion of

language requiring a nexus to "news media" and "professional"

activities invite an evaluation of the newsworthiness of the

material published that is bound to be subjective in nature. In

light of the stated purpose to preserve freedom of the press,

such a result is undesirable. Cf. Too Much Media, supra, 206 N.J. at 242 ("Hearings [to determine whether the Shield Law

privilege applies] should not devolve into extensive questioning

about an author's editorial, writing, or thought processes.").

As a self-described "internet publisher," plaintiff's claim

to protection under the Act merited more scrutiny than a claim

made by a member of traditional news media. See ibid. From the

officers' perspective, they went to plaintiff's residence to

execute a lawfully issued warrant to search for evidence of

offenses committed by plaintiff relating to his two "web gripe

sites" regarding Amy Wollock. Asked if she could make an

evaluation as to whether plaintiff was "a legitimate gatherer

and publisher of news and information for the public" based upon

the content of his websites, Arraial testified:

If there were any indication based on the facts that I had at any point that Mr. O was a news-reporting individual, I could look at a website and decide that.

Arraial's opinion that the websites failed to establish

plaintiff's status as "a news-reporting individual" was not

unreasonable. Plaintiff used a subterfuge to distance himself

from the Amy Wollock websites, creating an email account in her

name and using that to create the websites. Consistent with

that conduct, the stated purpose of the warrant application was

to obtain evidence that plaintiff used his computer to engage in

identity theft and related offenses.

Moreover, plaintiff's own conduct when the warrant was

executed failed to alert the officers to any claim of protected

status. When the officers announced their purpose, plaintiff

demanded to see the search warrant. He did not tell the

officers that the warrant was invalid because he was free from

searches and seizures under the Act. In fact, he did not assert

this claim until more than two months later, after a court had

determined that the search and seizure did not violate his

constitutional rights.

Plaintiff argues, however, that he had no obligation to

identify himself as a newsperson. He contends that the officers

[he] had websites," and Arraial knew he had other websites based

upon Saul's prior investigation.9 As a result, he argues that

the officers had an obligation to conduct an investigation to

determine if he was protected by the Act before seeking a

warrant. We disagree.

As support for his position that the officers had a duty to

investigate his status, plaintiff cites Steve Jackson Games,

Inc. v. U.S. Secret Service, 816 F. Supp. 432 (W.D. Tex. 1993),

aff'd on other grounds, 36 F.3d 457 (5th Cir. 1994). His

reliance is misplaced.

In Steve Jackson Games, the Secret Service agents had

probable cause to believe that an employee of Steve Jackson

Games (the company) had hacked into Bell South's 911 program and

stored the information on his computers at home and at work.

They obtained a warrant for the company's offices, believing

Plaintiff identified four other websites, which he relies upon to establish his bona fides as a newsperson. The website mrwestwood.com identifies itself as "Westwood, NJ – Pascack Valley Blog" and contains news and information about that municipality. Plaintiff also created and maintained uhaul- sucks.com and uhaulsucks.wordpress.com "after a horrible moving experience" and described the websites as containing news and information about unsafe equipment rented by the company. On jo.com, plaintiff identifies himself as a biology, chemistry, science, and tech teacher; SAT and ACT tutor; and publisher, and blogs about related topics. This last website is the only website on which plaintiff used his real name.

But, unlike here, there was never any suspicion that the owner

of the company or any other plaintiff had engaged in any

criminal activities. Id. at 435. It was for this reason that

the District Court faulted the agents for failing to conduct any

investigation regarding the nature of the company's business.

Id. at 436, n.4.

Indeed, Steve Jackson Games provides support for the

concept that the claimant's timely assertion of the statutory

protection should be considered by the court in determining

whether the protection applies. Unlike here, an employee told

the agent that the company was in the publishing business at the

time the warrant was executed. Id. at 437. It was because the

Secret Service agents were advised of facts during the search

that put them on notice of probable violations of the PPA that

the Court found the continued seizure of the items thereafter

was a basis for liability under the PPA. Id. at 440-41.

Plaintiff also argues that he was not required to divulge

his claimed status to law enforcement, relying upon language in

Too Much Media, supra, 206 N.J. at 239. Again, his reliance is

misplaced.

First of all, the Court did not state that a newsperson

need not assert his status in order to invoke the privilege

N.J.S.A. 2A:84A-21.3 "outlines a procedure for invoking the

newsperson's privilege." Too Much Media, supra, 206 N.J. at 240. Before a newsperson is permitted to withhold information

otherwise subject to compulsory disclosure, the claim of

privilege must be invoked and the requisite prima facie showing

must be made. See ibid.

Although the Act does not address this issue, the case for

timely disclosure is even stronger when the protection afforded

is to be "free from searches and seizures." By their nature,

there is a measure of urgency in securing items sought in search

warrants. See Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 140, 77 L. Ed. 260, 263 (1932) ("[I]t is manifest

that the proof [of probable cause] must be of facts so closely

related to the time of the issue of the warrant as to justify a

finding of probable cause at that time.") (emphasis added);

State v. Novembrino, 105 N.J. 95, 124 (1987).

Freedom of the press is not compromised by requiring

persons who claim protection under the Act to assert that claim

as early as practicable. In this case, that would have been at

the time the officers arrived at plaintiff's residence and

announced they had a warrant. However, not only did plaintiff

fail to assert his claim, he demanded to see the warrant as a

belief they were acting in full compliance with applicable laws.

Moreover, plaintiff's failure to timely advise the officers

of his claimed status deprived them of the opportunity to comply

with the requirement of N.J.S.A. 2A:84A-21.10 that applications

to the court for warrants sought under the Act be approved in

advance by the Attorney General "or the prosecutor of the county

in which execution of the warrant will take place." The Act

carved out an exception to the statutory prohibition for lawful

searches and seizures where there is probable cause to believe a

person who possesses the materials to be seized "has committed

or is committing the criminal offense for which the materials

are sought." N.J.S.A. 2A:84A-21.9(a). The search and seizure

here unequivocally falls within the four corners of this

"suspect" exception as the sufficiency of the evidence to

support a finding of probable cause is established. However,

the warrant was approved by the prosecutor of Somerset County,

not the prosecutor of Bergen County, where it was executed. The

presence of Saul at the execution of the search warrant suggests

an awareness and tacit approval of the search by Bergen County

law enforcement authorities. It is reasonable to conclude that,

if plaintiff had made his position known to the officers before

the warrant was executed, the approval of the Bergen County

abandoned. No purpose identified by the Legislature is served

by permitting a suspect in a criminal investigation to evade the

application of the suspect exception by concealing his claim to

protected status under the Act.

In sum, the legislative intent to preserve the First

Amendment's freedom of the press is not compromised by requiring

persons who claim protection under the Act to alert law

enforcement officers to that fact in a timely manner. And, in

our view, it would place a wholly unnecessary burden upon law

enforcement officers to require them to conduct Internet

searches of postings by the targets of criminal investigations

to determine whether those persons might be protected under the

Act prior to obtaining validly issued search warrants under

circumstances such as those here.

We therefore hold that the detectives here were not

required to conduct an investigation to determine whether

plaintiff was protected by the Act under the facts known to them

when they sought and executed the warrant. We further hold

that, by failing to assert his claim to such protection when the

warrant was executed, plaintiff waived any right to pursue a

civil action under the Act.

28 A-1838-11T3 IV.

Even if plaintiff had alerted law enforcement to his

claimed status in a timely manner, he was not entitled to

protection under the Act. Rather than provide a blanket freedom

from otherwise lawful searches and seizures, the Act limits the

prohibited searches and seizures to those for "documentary

materials obtained in the course of pursuing" the enumerated

activities, N.J.S.A. 2A:84A-21.9, or what might be described as

work product materials.

The materials sought by warrant here were not obtained by

plaintiff in any newsgathering activity, and he has not

identified any seized item as such. Plaintiff created

amywollock.com to publish his personal "gripe" with Amy Wollock

and invited others to "tell your own horror story." The website

acknowledged its limited purpose, stating, "Web gripe sites are

a protected form of free speech, well-established by case law.

If you encounter the RU Screw or any other injustice, keep notes

and wait until the time is right for your story to be safely

told." The second website, amywollock.wordpress.com, described

a similar purpose: "We hope that this website will be a place

where kindred spirits can come together to heal and to learn how

to enjoy life after escaping from Amy Wollock."

employed in newsgathering, plaintiff contends that the removal

of amywollock.com from the Internet in 2007 and the condition

attached to his probationary sentence prevented him from

developing the websites as he had developed other Internet

websites. However, his unrealized aspirations for the websites

will not validate his claim to protection under the Act. Cf.

Too Much Media, supra, 206 N.J. at 218-21, 238. We therefore

conclude that plaintiff was not "free from searches and

seizures" of the materials sought in the warrant because they

were not documentary materials obtained in the pursuit of

activities enumerated in the Act.

V.

In Point VII, plaintiff argues that Arraial and Saul

violated N.J.S.A. 10:6-2(c) by "act[ing] in bad faith, and

without probable cause that plaintiff had committed any crimes,

to deprive plaintiff of his rights . . . and to confiscate" his

property. He argues their involvement in the search and seizure

of his property was "retaliatory in nature," based upon

"harbored ill will toward plaintiff" as a result of his

publishing activity and his successful appeal of the harassment

conviction. He states their actions violated N.J. Const., art.

immunity. These arguments lack merit.

Plaintiff's challenge to the search on constitutional

grounds was rejected in the denial of his suppression motion and

again in the denial of his motion for reconsideration. He did

not appeal either of those decisions and cannot relitigate the

sufficiency of the evidence to establish probable cause for the

issuance of the warrant now. See Velasquez v. Franz, 123 N.J. 498, 505 (1991). Because plaintiff has not been "deprived of

any . . . substantive rights, privileges or immunities secured

by the Constitution or laws of this State," his claim under

N.J.S.A. 10:6-2(c) fails.

VI.

We next turn to the Bedminster defendants' argument that

the trial court erred in denying their motion for counsel fees

pursuant to Rule 1:4-8. This court's review of an order denying

a motion for attorneys' fees is guided by the abuse of

discretion standard. See Packard-Bamberger & Co. v. Collier,

167 N.J. 427, 444 (2001); Barr v. Barr, 418 N.J. Super. 18, 46

(App. Div. 2011).

Rule 1:4-8 provides litigants with "a monetary sanction

remedy including an attorney's fee allowance" to punish

"frivolous pleadings." Pressler & Verniero, Current N.J. Court

courts have strictly construed the nature of conduct warranting

sanction under R. 1:4-8, LoBiondo v. Schwartz, 199 N.J. 62, 116-

17 (2009), mindful that "honest and creative advocacy should not

be discouraged." Wyche v. Unsatisfied Claim and Judgment Fund

of State, 383 N.J. Super. 554, 561 (App. Div. 2006) (quoting

Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990)).

Therefore, an award of attorney's fees under Rule 1:4-8 will not

be appropriate where there is an objectively reasonable belief

in the merits of an argument, see First Atl. Fed. Credit Union

v. Perez, 391 N.J. Super. 419, 433 (App. Div. 2007); K.D. v.

Bozarth, 313 N.J. Super. 561, 574-75 (App. Div.), certif.

denied, 156 N.J. 425 (1998); or where the plaintiff is engaged

in a legitimate effort to extend the law on a previously

undecided issue. See Wyche, supra, 383 N.J. Super. at 560-61;

see also N.J.S.A. 2A:15-59.1(b).

As we have noted, there have been no published opinions

that interpreted or applied the Act in more than three decades.

Under the circumstances, the trial court did not abuse its

discretion in declining to award counsel fees to the Bedminster

defendants pursuant to Rule 1:4-8.

Affirmed.