State v. Finesmith

968 A.2d 715, 406 N.J. Super. 510
CourtNew Jersey Superior Court Appellate Division
DecidedApril 21, 2009
DocketDOCKET NO. A-1056-08T4
StatusPublished
Cited by15 cases

This text of 968 A.2d 715 (State v. Finesmith) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Finesmith, 968 A.2d 715, 406 N.J. Super. 510 (N.J. Ct. App. 2009).

Opinion

968 A.2d 715 (2009)
406 N.J. Super. 510

STATE of New Jersey, Plaintiff-Respondent,
v.
Ross FINESMITH, Defendant-Appellant.

DOCKET NO. A-1056-08T4.

Superior Court of New Jersey, Appellate Division.

Argued January 27, 2009.
Decided April 21, 2009.

*717 Paul B. Brickfield, River Edge, argued the cause for appellant (Brickfield & Donahue and Fox Rothschild, L.L.P., attorneys; Mr. Brickfield and Alain Leibman, Lawrenceville, of counsel and on the briefs).

Jeanne Screen, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Ms. Screen, of counsel and on the brief).

Before Judges SKILLMAN, GRAVES and GRALL.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

The most significant issue presented by this appeal is whether police officers executing a search warrant may re-enter the premises the warrant authorizes them to search if the officers are unable to locate an item of evidence specified in the warrant during their initial entry. The federal courts have recognized that such a re-entry is appropriate in limited circumstances under what is known as the "reasonable continuation doctrine." Applying this doctrine, we conclude that the trial court correctly ruled that the re-entry into defendant's residence that revealed incriminating evidence—specifically a computer containing evidence of child pornography —was a reasonable continuation of the search authorized by a warrant even though there was a two-hour interval between the end of the first entry into the residence and the re-entry to complete the search. We also conclude that the trial court correctly ruled that the search for and seizure of the computer were valid even though the police officers determined its precise location from a suppressed statement by defendant, because the officers inevitably would have discovered the computer even if defendant had not told them its location.

I.

On July 14, 2005, defendant Dr. Ross Finesmith was indicted for second-degree endangering the welfare of a child based on his alleged distribution of child pornography from a computer in his home and fourth-degree endangering the welfare of a child based on his alleged possession of child pornography on his computers. A substantial part of the State's evidence against defendant was obtained in a search of his residence pursuant to a search warrant that resulted in the seizure of computers containing pornographic videos of children. During the search and following his arrest, defendant made certain inculpatory statements.

Before trial, defendant filed a motion to suppress a computer found in his van parked in the garage of his residence and his inculpatory statements. The trial court denied defendant's motion to suppress the computer but granted the motion to suppress his statements except for statements made immediately after the police entered his house to execute the warrant.

We granted defendant's motion for leave to appeal from the order denying his motion to suppress the computer.[1] The State did not seek leave to cross-appeal from the *718 order that suppressed defendant's inculpatory statements.

The search of defendant's residence was based on information provided to the New Jersey State Police by the Wyoming Internet Crimes Against Children Task Force that certain Internet Protocol ("IP") addresses located in New Jersey had been making pornographic videos involving children available through peer-to-peer file-sharing networks. One of the officers who conducted the search, Detective John Gorman of the State Police Digital Technology Investigations Unit, explained that if a person has computer files he wants to share, he can download a program that will connect him to a peer-to-peer network and place those files in a folder on his computer. The files will then be available for downloading by anyone anywhere in the world.

Based on the information provided by the Wyoming Task Force, the registration to defendant's wife, Leslie Finesmith, of one of the IP addresses disclosed by the Wyoming search, and surveillance of the Finesmith residence, the State Police obtained a warrant on January 21, 2005 to search that residence for computers, pornographic videos involving children and other related materials. The police were authorized to execute the warrant within ten days of its issuance between 5:00 a.m. and 11:00 p.m.

At approximately 5:45 a.m. on January 27, 2005, Detective Gorman, accompanied by seven other officers representing the State Police, local police departments and the FBI, went to defendant's residence to execute the warrant. The police knocked on the front door and rang the door bell, and after a few minutes, defendant opened the door. Defendant's wife and daughters were awoken shortly thereafter and brought downstairs. The police informed defendant that they were investigating pornographic videos involving children and would be searching the house for evidence of those videos.

Detective Gorman asked defendant how many computers were in the house. He responded that there were five, two in his daughters' upstairs bedrooms, two on the first floor and one in the basement.

Detective Gorman also asked Mrs. Finesmith about the locations of computers in the house. She told him that in addition to the five computers mentioned by defendant, he also had a laptop computer he transported back and forth between his office and home and that he would sometimes plug this computer into the Internet from home. Mrs. Finesmith told Detective Gorman she did not know the current location of the laptop.

After Detective Gorman finished speaking with Mrs. Finesmith, he walked downstairs to speak with another member of the search team who was conducting a "forensic preview" of the computer located in the basement. Such a preview enables the police to conduct a cursory search that will reveal any "media on that computer such as video files or pictures." The forensic preview of the basement computer revealed one video called "Baby J. Flower" and another called "Baby Shivid," which were videos of an adult male having sex with a prepubescent female. These were the same titles as the files tracked by the Wyoming investigators to defendant's residence.

Upon receiving this information, Detective Gorman returned upstairs and asked defendant who used the computer in the basement. Defendant responded that he was the one who used that computer and that it rarely would be used by anyone else. Detective Gorman then administered Miranda warnings to defendant.

*719 Thereafter, Detective Gorman asked defendant about the laptop computer Mrs. Finesmith had mentioned. According to Gorman: "[This computer] was critical to the investigation at that point. We had another computer that was not accounted for, another article of evidence that we knew existed but it was not accounted for, so I needed to know where that was." In response to Gorman's inquiry, defendant stated the laptop was "at his office."

Shortly thereafter, Detective Gorman placed defendant under arrest for possession and distribution of child pornography and transported him to police headquarters. A number of other members of the search team stayed in the Finesmith residence to continue the search.

After defendant's arrest, his family retained an attorney, Alain Leibman, to represent him. According to Leibman, he spoke to Detective Gorman by telephone around 9:20 a.m. Leibman told Gorman that he represented defendant and that all questioning of defendant should cease.

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968 A.2d 715, 406 N.J. Super. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-finesmith-njsuperctappdiv-2009.