Constance Days-Chapman with her attorney, Lee Vartan.
The Atlantic City High School principal accused of failing to report child abuse allegations against the mayor and superintendent was the victim of illegal search warrants, her attorney claims.
But her attorney alleges the investigation includes search warrants to seize her two cell phones and an Apple Watch violated Days-Chapman's Fourth Amendment rights.
The state "did not have probable cause to believe that evidence of crimes was on devices it seized and searched," attorney Lee Vartan wrote in a 13-page motion filed Friday.
Vartan, a former federal prosecutor who also was once second-in-command in the state Attorney General's Office, claims the search warrants did not meet probable cause standards and were too overly broad.
The certification of probable cause mentions just one cell phone, not a second one also seized nor the Apple Watch, he wrote.
Vartan also takes issue that, while the alleged conspiracy between his clients and the Smalls occurred from December 2023 through January of this year, the warrants offer no limits as to time or what information can be taken from the devices.
"The warrants failed to provide search terms or subject matter restrictions such that the officers would know what was, and what was not, within their authority to seize," Varatan wrote.
"Executing officers could equally seize Days-Chapman's communications with her doctor as they could her communications with the Smalls about the alleged abuse."
Days-Chapman is close friends with the Smalls. She was the mayor's campaign manager and, as the High School's principal, directly reported to Dr. Small.
As a result, a high level of communication between her and the Smalls would be expected, Vartan wrote. But the state did not mention any of those relationships in its attempt to prove probable cause, "was misleading by omission."
Instead, he said the state "implied there was something suspect in the number of toll records between Days-Chapman and the Smalls when the State knew better."
Vartan also claims the only "suspect call" was one Days-Chapman made to Dr. Small the day the Smalls' daughter disclosed the alleged abuse to her counselor, when she also claimed she had previously told Days-Chapman.
That call lasted just a minute.
"There was no time for Days-Chapman to communicate anything of substance to Mrs. Small," Vartan wrote, adding: "It's not even clear the two spoke."
The warrants were signed by Superior Court Judge Bernard DeLury on March 20, the same day they were executed.
She was criminally charged eight days later, the same day the Smalls' home was searched as part of the investigation.
Vartan has maintained his client's innocence, previously claiming she is collateral damage.
"But for her relationship with the mayor and the superintendent, she wouldn't be in this position," he said in May, just after her first court appearance.
Vartan's motion calls for the evidence collected from the three devices be suppressed.
The motion also offers a little extra insight into the state's claims.
The state's theory is that the conspiracy occurred in person, not over the phone.
"The certification spends considerable effort identifying who entered and exited Days-Chapman's car on January 22, 2024 and at what times," Vartan wrote.
Several hundred pages of discovery were made available to the defense after Days-Chapman was indicted, Chief Assistant Prosecutor Kate Robinson told the judge during her arraignment Oct. 3.
She also suggested that the defense provide her office with an external hard drive so that they can transfer over the digital discovery in the case.
That information appears to have sparked the defense's motion.
Vartan promised motions would be coming, and predicted that "the indictment will be dismissed without ever getting to a jury."
Days-Chapman is due back in court Dec. 5.
Mayor Small also is due in court, after he was issued a new charge of witness tampering for allegedly asking his daughter to "twist up" what she told investigators of how she suffered a head injury.
The mayor allegedly beat her unconscious with a broom. But he is accused asking her to say she tripped and fell in her room.
