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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4971-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent/ Cross-Appellant,
v.
ROBERT G. WHITE,
Defendant-Appellant/ Cross-Respondent. _______________________
Argued April 9, 2019 – Decided June 5, 2019
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-17-0636.
Paul E. Zager argued the cause for appellant/cross- respondent (Palumbo, Renaud & De Appolonio, attorneys; Jeff Thakker, of counsel and on the briefs; Anthony N. Palumbo, on the briefs).
Lila B. Leonard, Deputy Attorney General, argued the cause for respondent/cross-appellant (Gurbir S. Grewal, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief).
PER CURIAM
In March 2017, law enforcement officers executed a search warrant at
defendant's residence in Morristown and seized certain computer devices. The
court had granted the State's application for the warrant based on information
that child pornography was being shared on the internet through devices at
defendant's home. The officers could not gain access to two computer hard
drives and a computer tower, which were encrypted.
The State thereafter filed a motion to compel defendant to produce the
passcodes for, or otherwise decrypt, the devices. Defendant opposed the motion,
arguing that the compelled disclosure violated his right against self-
incrimination under the Fifth Amendment to the United States Constitution and
New Jersey law. He also argued that the State's motion was an improper attempt
to obtain discovery and not permitted by the court rules.
The trial court conducted an evidentiary hearing on the State's motion, and
thereafter entered an order dated May 25, 2018, which granted the State's motion
as to the hard drives, but denied the motion with regard to the computer tower.
We thereafter granted defendant's motion for leave to appeal, and the State filed
a cross-appeal pursuant to Rule 2:3-4(a). For the reasons stated herein, we
A-4971-17T4 2 affirm on defendant's appeal, reverse on the State's cross-appeal, and remand the
matter to the trial court for further proceedings.
I.
The record discloses the following. In September 2016, the Division of
Criminal Justice (DCJ) in the State's Department of Law and Public Safety
began investigating individuals who were suspected of sharing images of child
pornography on the internet. During the investigation, Detective Laura Hurley
discovered an Internet Protocol (IP) address 1 that was offering to share such
images with others by utilizing peer-to-peer file sharing networks. Hurley used
BitTorrent software and downloaded thirty-eight images of child pornography
from the IP address. DCJ's investigators traced the IP address to defendant's
home.
In January 2017, detectives from the Bayonne Police Department (BPD)
began a separate investigation using similar investigative software to identify an
IP address that was being used to share images of child pornography with other
users on the internet. The BPD detectives downloaded hundreds of such images
1 An IP address is an identifying number assigned to an internet subscriber by the subscriber's service provider. State v. Reid, 194 N.J. 386, 389 (2008). A-4971-17T4 3 from this IP address, twenty-four of which depicted child pornography. The
detectives also traced the IP address to defendant's residence.
The DCJ learned that the BPD was investigating the same IP address and
they merged their investigations. The BDP provided Hurley with a disk that
contained files the BDP had downloaded from the IP address. On March 10,
2017, the court issued a warrant, which authorized the DCJ to search defendant's
home in Morristown and "seize evidence pertaining to" crimes related to the
"distribution and possession of child pornography."
The warrant stated that the investigators could search and seize "[a]ny and
all computers, computer systems, computer programs, computer software,
computer hardware, including central processing units, external storage units,
flash drives, . . . hard disk drives/units, . . . documentation, passwords and data
security devices . . . ." The warrant also stated that the investigators could
"conduct a forensic examination performed by any qualified examiner, whether
sworn law enforcement or civilian, on scene and later in a recognized laboratory
environment on all items until such examination is complete."
On March 17, 2017, the DCJ executed the warrant and searched
defendant's home. Defendant was home at the time and remained downstairs
while the investigators searched his home. The DCJ seized a number of devices
A-4971-17T4 4 from defendant's second-floor office, including a Lenovo P500 laptop, an Asus
computer tower, two external hard drives, a universal serial bus (USB) thumb
drive, and other peripheral devices.
At the scene, DCJ Detective Kevin Madore attempted to access the
contents of the seized devices. The laptop was logged on, so Madore was able
to access its contents. To preserve the laptop's data, Madore performed a
forensic "preview" of the laptop's files and created reports detailing his
preliminary findings. Madore later completed a "Forensic Analysis Report ."
In his report, Madore stated that the two external hard drives and the
computer tower were encrypted and therefore "could not be read." He found,
however, that the laptop's hard drive contained eighty-two images of suspected
child pornography. He noted that the laptop was registered to an e-mail address
with defendant's name.
Madore also found that the serial number of one of the encrypted external
hard drives appeared on the laptop's hard drive, which indicated that the external
hard drive had at some point been connected to the laptop. In addition, the
laptop contained a link to a "tor browser," which Madore explained is "primarily
used to gain access to the dark web" and help maintain the user's anonymity
while browsing on the internet. Madore noted that the "tor browser" contained
A-4971-17T4 5 a "bookmark" to a page titled "The Pedophile's Handbook," which is an internet
publication that provides adults suggestions on having sex with minors.
After the search, the DCJ detectives arrested defendant and charged him
with second-degree endangering the welfare of a child by distributing child
pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(a)(i), and third-degree
endangering the welfare of a child by possessing, viewing or controlling child
pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(b).
On August 27, 2017, the State filed a motion to compel defendant "to
provide the passcodes necessary to decrypt" the two external hard drives and the
computer tower. As we noted previously, defendant opposed the motion. The
trial court thereafter held an evidentiary hearing on the motion.
At the hearing, the State presented testimony from Hurley and Madore
regarding the DCJ's investigation and the execution of the search warrant.
Hurley testified that when DCJ conducted the search, she read defendant his
Miranda2 rights and asked defendant for the passcodes to access the encrypted
devices. Defendant told Hurley he knew the passcodes for the devices, but he
refused to disclose them because "he did not want [the police] looking through
his stuff." Madore testified about the information he obtained from the devices,
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-4971-17T4 6 and his inability to gain access to the encrypted external hard drives and tower.
The State also presented testimony from Detective Ryan Foley of the Somerset
County Prosecutor's Office, who explained various technical terms for the court.
On May 25, 2018, the trial court filed a written opinion in which it
concluded that defendant's act of producing the passcodes to decrypt the devices
is a testimonial communication for purposes of the Fifth Amendment privilege
against self-incrimination. The court noted, however, that the "foregone
conclusion" principle is a recognized exception to the Fifth Amendment
privilege. Quoting Fisher v. United States, 425 U.S. 391, 411 (1976), the court
stated the act of production does not violate the Fifth Amendment privilege
against self-incrimination if the facts communicated by the act of production
"add[] little or nothing to the sum total of the [g]overnment's information."
The court held that the facts that would be communicated by defendant's
act of decryption of the hard drives are a "foregone conclusion" that would not
violate the Fifth Amendment privilege against self-incrimination. The court
stated that the State had established that it "knows of the existence and location
of child pornography files on the hard drives, and knows of defendant's custody,
control and access to the devices." The court also found that compelled
A-4971-17T4 7 production of the passcodes to the hard drives would not violate defendant's
privilege against self-incrimination under New Jersey's common law.
The court held, however, that the State had not presented sufficient
evidence to satisfy the "foregone conclusion" exception with regard to the
computer tower. The court found that the State had not shown that it has
"knowledge of the existence and location of child pornography on the tower."
The court also found that the State had not shown defendant had exclusive
possession or control of the tower, since the forensic examination revealed there
were three "user profiles" associated with the tower.
The court memorialized its decision in an order dated May 25, 2018,
which granted the State's motion to compel production of the passcodes to the
external hard drives, but denied the motion with regard to the computer tower.
This appeal and the State's cross-appeal followed.
On appeal, defendant argues:
[POINT I] THE STATE EXECUTED THE WARRANT AND FILED ITS CHARGES, AND [DEFENDANT'S] DISCOVERY OBLIGATIONS AT THAT JUNCTURE (IF ANY) WERE GOVERNED BY THE COURT RULES; THE STATE LACKED LEGAL GROUNDS FOR FILING A MOTION TO COMPEL DISCLOSURE FROM [DEFENDANT].
A-4971-17T4 8 [POINT II] THE DETECTIVES' ASSUMPTIONS ABOUT WHAT THE LAPTOP'S VIRTUAL DRIVES[] ONCE CONTAINED (AND THEIR ASSUMPTIONS ABOUT THE ASSOCIATION OF THE TOSHIBA HARD DRIVES WITH THE VIRTUAL DRIVES) DID NOT MAKE THE CONTENT OF THE HARD DRIVES A "FOREGONE CONCLUSION"; THE COMPELLED DISCLOSURE WAS (AND IS) IN VIOLATION OF [DEFENDANT'S] FIFTH AMENDMENT RIGHTS.
[POINT III] PASSWORD DISCLOSURE SHOULD BE ALSO EXCLUDED IN THE CONTEXT OF NEW JERSEY'S SELF-INCRIMINATION/PRIVACY PRIVILEGE.
In response to defendant's arguments, and in support of its cross -appeal,
the State argues:
[POINT I] BECAUSE DEFENDANT ADMITTED HE KNOWS THE PASSWORDS TO HIS ELECTRONIC DEVICES, THIS COURT SHOULD [AFFIRM THE TRIAL COURT'S ORDER COMPELLING] DEFENDANT TO USE THOSE PASSWORDS TO DECRYPT ALL OF HIS DEVICES.
[POINT II] IT IS A FOREGONE CONCLUSION THAT DEFENDANT POSSESSES CHILD PORNOGRAPHY ON HIS LAPTOP AND HARD DRIVES.
[POINT III] THE SEARCH WARRANT, DATED MARCH 10, 2017, AUTHORIZED THE STATE TO SEIZE AND
A-4971-17T4 9 SEARCH DEFENDANT'S ENCRYPTED HARD DRIVES.
II.
The trial court filed its opinion and order on the State's motion before this
court decided State v. Andrews, 457 N.J. Super. 14 (App. Div. 2018), leave to
appeal granted, N.J. (2019). In Andrews, the defendant appealed from an
order, which required him to disclose personal identification numbers and
passcodes for his iPhones. Id. at 18. The defendant argued that the compelled
disclosure of this information violated his right against self-incrimination under
the Fifth Amendment, and the protections afforded against self-incrimination
under New Jersey law. Ibid.
We rejected the defendant's arguments and affirmed the order requiring
disclosure of the passcodes. Id. at 18. In our opinion, we noted that the Fifth
Amendment privilege against self-incrimination applies to verbal and written
communications as well as to the production of documents because "[t]he act of
product[ion]" may communicate incriminating statements. Id. at 22 (alteration
in original) (quoting Fisher, 425 U.S. at 410).
We noted, however, that the "foregone conclusion" principle is an
exception to the "act of production" doctrine. Ibid. (citing Fisher, 425 U.S. at
411). We stated that the exception applies when the State establishes with
A-4971-17T4 10 "reasonable particularity" (1) that it has "knowledge of the existence of the
evidence demanded"; (2) that defendant has "possession and control of that
evidence"; and (3) that the evidence is authentic. Id. at 22-23 (citing United
States v. Hubbell, 530 U.S. 27, 30, 40-41 (2000)). We stated that "when an
accused implicitly admits the existence and possession of evidence, the accused
has 'add[ed] little or nothing to the sum total' of the information the government
has, and the information provided is a 'foregone conclusion.'" Id. at 23
(alteration in original) (quoting Fisher, 425 U.S. at 411).
We held that the "foregone conclusion" exception applied to the
compelled disclosure of the defendant's passcodes. Id. at 23-24. We determined
that the testimonial aspects of the act of producing the passcodes are a "foregone
conclusion" because the State had established that the defendant "exercised
possession, custody, or control" of the phones, and the fact that defendant knows
the passcodes "adds little or nothing to the sum total of the [g]overnment's
information." Id. at 24 (quoting Fisher, 425 U.S. at 411).
We stated that the act of disclosing the passcodes did "not convey any
implicit factual assertions about the 'existence' or 'authenticity' of the data on
the device[s]." Id. at 23. We also stated that the State had described with
"reasonable particularity" the evidence it was seeking, "which is the passcodes
A-4971-17T4 11 to the phones." Id. at 24. We observed that the defendant had argued that the
State had not shown that it knew of the possible contents on the devices, but
held that this was immaterial because the court had ordered the defendant to
disclose the passcodes, not the contents of the phones unlocked by those
passcodes. Id. at 23.
Here, the trial court determined that for the "foregone conclusion"
exception to apply, the State had to establish, among other things, that it had
sufficient knowledge of the existence and location of child pornography files on
the hard drives and tower. Under Andrews, however, the State need only show
with "reasonable particularity" the knowledge of the existence of the evidence,
that defendant has possession and control of that evidence, and that the evidence
is authentic. Id. at 22-23.
The evidence that the State sought in this case is the passcodes, not the
contents of the external hard drives or computer tower. As we explained in
Andrews, the facts implicitly conveyed by the act of disclosing the passcodes
are that the defendant knows the passcodes, and that the defendant had
possession, custody, and control of the devices encrypted with those passcodes.
Ibid.
A-4971-17T4 12 Moreover, in the opinion, the trial court commented that the State had to
prove defendant had exclusive possession of the tower. The court noted there
were two other user profiles for the tower. However, in Andrews, we did not
state that the "foregone conclusion" exception would only apply if the defendant
has exclusive possession and control of the encrypted devices. The State has to
prove defendant has possession and control of the encrypted devices, not
exclusive possession and control.
Therefore, for the reasons stated in Andrews, we conclude the trial court
correctly determined that the "foregone conclusion" exception applied to the
passwords to the external hard drives, but erred by finding that the exception did
not apply to the computer tower. We conclude the State presented sufficient
evidence for the application of the exception to all three devices.
III.
On appeal, defendant argues that the evidence presented at the hearing
does not support the trial court's finding that he acknowledged he knew the
passcodes to the external hard drives and the computer tower. Defendant asserts
that, when Hurley questioned him at the time of the search, she asked if he knew
the password for his "computer." Defendant asserts that Hurley asked him about
a password for "one unspecified computer," not any other devices.
A-4971-17T4 13 Defendant's argument is not supported by the record. At the hearing,
Hurley was asked if she requested defendant to provide the password to his
"computers" and she replied, "Yes, I did." She further testified that defendant
would not provide "his password" because "he did not want" the detectives
"looking through his stuff." The trial court did not err by interpreting
defendant's statements to be an acknowledgement that he knew the pass words
to all of his computer devices, including the external hard drives and the
computer tower.
Defendant also suggests that Hurley elicited his statements about the
passcodes in violation of his rights under Miranda. At the hearing, defendant
objected to Hurley's testimony on the ground that the court had not yet
conducted a Miranda hearing. The court decided to take testimony on whether
defendant was informed of his rights under Miranda, and whether he had waived
those rights.
Hurley then testified that she read defendant his Miranda rights, and he
did not invoke those rights. Hurley further testified that the detectives did not
arrest defendant before she questioned him about the passwords. She also said
that she did not threaten defendant or make any promises to induce him to make
the statements about the passcodes.
A-4971-17T4 14 In its opinion, the trial court found the testimony established that Hurley
read defendant his Miranda rights before he made his statements. The court
found there was no evidence of compulsion and defendant was not under arrest
at the time he made his statements. We must defer to the trial court's findings
of facts where, as here, they are "supported by sufficient credible evidence in
the record." State v. Brown, 216 N.J. 508, 538 (2014) (quoting State v. Elders,
192 N.J. 224, 246 (2007)).
Defendant further argues that the State did not present sufficient evidence
to show with "reasonable particularity" that there were images of child
pornography on defendant's two external hard drives. As we noted previously,
under Andrews, the focus of the analysis for application of the "foregone
conclusion" exception is the facts implicitly conveyed by the disclosure of the
passcodes, not the content of the devices encrypted with those passcodes.
Andrews, 457 N.J. Super. at 24. Therefore, we need not address defendant's
argument.
IV.
Defendant further argues that the trial court's order compelling him to
produce the passcodes or otherwise decrypt the external hard drives violates his
right against self-incrimination under New Jersey law. As noted, the trial court
A-4971-17T4 15 rejected defendant's contention that the State's common law privilege against
self-incrimination precludes the court from requiring defendant to provide his
passcodes or otherwise decrypt the external hard drives.
The court stated that New Jersey's right against self-incrimination did not
employ the decryption of defendant's devices. The court noted that defendant
may generally have a right "to a private enclave where he may lead a private
life," but he does not have the right to a "private enclave" replete "with images
of child exploitation."
We agree with the trial court's analysis, which applies not only to the
external hard drives, but also to the computer tower. We reject defendant's
argument that the court's order violates his privilege against self-incrimination
under New Jersey law substantially for the reasons stated in Andrews. Id. at 30-
34.
Defendant further argues that our court rules do not authorize the State to
seek an order compelling him to produce the passcodes or otherwise decrypt the
external hard drives and computer tower. He contends that by seeking to compel
him to produce the passcodes months after it seized the devices, the State is
improperly engaging in discovery, rather than the actions to execute the search
A-4971-17T4 16 warrant. Defendant's arguments lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
We note, however, that in this case, the DCJ obtained a search warrant,
which authorized it to search for and seize evidence of child pornography in
defendant's home, including computers, computer hardware, hard drives,
computer storage media, and peripheral devices. The warrant also authorized
the DCJ to conduct forensic examination "on scene and later in a recognized
laboratory environment on all items until such examination is complete."
As explained previously, in executing the warrant, the DCJ found and
seized defendant's encrypted external hard drives and computer tower.
Defendant admitted he owned the devices and knew the passcodes, but refused
to provide the passwords or decrypt the devices. The State thereafter moved to
compel decryption. In doing so, the State was not engaged in discovery. It was
seeking information that would allow it to complete the forensic examination of
the devices seized, which was specifically authorized by the warrant.
The record shows that the State sought the passcodes so that it could
complete the search authorized by the warrant. The State was not attempting to
conduct a "new and separate search" and its effort to complete the search was
"reasonable under the totality of the circumstances." State v. Hai Kim Nguyen,
A-4971-17T4 17 419 N.J. Super. 413, 427 (App. Div. 2011) (quoting State v. Finesmith, 406 N.J.
Super. 510, 519 (App. Div. 2009), and United States v. Keszthelyi, 308 F.3d
557, 569 (6th Cir. 2002)).
Accordingly, we affirm on defendant's appeal, reverse on the State's cross-
appeal, and remand the matter for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-4971-17T4 18