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State v. Evers

February 13, 2003

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
WILLIAM T. EVERS, DEFENDANT-RESPONDENT AND CROSS-APPELLANT.



On appeal from and certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. William T. Evers (A-81/82-2001)

Argued September 24, 2002 -

Decided February 13, 2003

ALBIN, J., writing for the Court.

Defendant William T. Evers challenges the validity of a search of his home authorized by a warrant that uncovered evidence of his possession and transmission of child pornography on the Internet and led to his conviction of multiple violations of the child endangerment statute, N.J.S.A. 2C:24-4. The State challenges Evers' sentence to a probationary term for second-degree child endangerment, an offense that carries a presumption of imprisonment.

By all appearances, Evers was a model of middle-class decorum and success. He had been happily married for thirty years, lived in the same Nutley home for twenty-five years, and reared a daughter, adopted at birth, for eleven years. But there was another side to Evers that he kept hidden from public view - an obsession with surfing the Internet for adult and child pornography.

In 1997, Evers purchased his first personal computer. His wife opened an America Online (AOL) account with the charges billed to her credit card at their home in Nutley. Evers assumed two AOL screen names, one reserved exclusively for interactions with adult and child pornography Internet sites, "BTE324," and the other for interacting with friends, family, and some other adult pornography sites. Evers initially visited adult pornography websites and chat rooms on his computer every morning, downloading photographs onto the hard drive of his computer. A year later, Evers began exploring "special interest" child pornography chat rooms and exchanging child pornography with other users. Over a period of approximately six weeks, Evers collected several hundred pornographic pictures of children through the Internet. In April 1999, he suffered an attack of "conscience" and became concerned he might be caught by law enforcement, his wife, or his daughter, so he ceased his excursions to the child pornography chat rooms. However, he maintained on his computer hard drive scores of pornographic images of nude ten-to fifteen-year-old girls engaged in sexual activities.

In February 1999, Deputy Sheriff Michael A. DiMatteo of the San Bernardino County Sheriff's Department in California was investigating the use of child pornography on the Internet. He logged onto AOL, entering a chat room bearing a title strongly suggestive of sexual activity involving children. He submitted his screen name and e- mail address to permit other AOL subscribers interested in the subject matter to communicate with him. On February 15, 1999, DiMatteo received over ninety-eight responses. One response, containing images of a nude female child, was from the user of a screen name "BTE324."

DiMatteo applied to the Superior Court of San Bernardino County for a search warrant to learn the identities of the users of the ninety-eight screen names trading in child pornography. He received the warrant and mailed it to AOL's corporate headquarters in Virginia. AOL provided DiMatteo with the information demanded in the warrant, including the name of the account holder and the billing address of the screen name "BTE324." DiMatteo forwarded the results of his investigation to the Nutley Police Department.

Nutley Police Detective Sergeant Daniel Meehan applied for a warrant to search Evers' residence for computers and computer related equipment. A Superior Court judge issued the warrant. On May 25, 1999, Nutley police searched Evers' residence, seizing the hard drive of the family computer. Evers, who was home at the time, was arrested and made a full confession concerning his use of the computer to acquire and trade in child pornography.

Evers initially was indicted on one count of second-degree endangering the welfare of a child by distributing a photograph through the Internet that depicted a child engaged in a prohibited sexual act, and one

St. v. Evers (A-89-01) Page 2

count of fourth-degree endangering for knowingly possessing and/or viewing the photograph. After Evers refused a plea offer, investigators "cracked" the hard drive of his computer and retrieved over forty images depicting naked girls under the age of sixteen engaged in various sexual acts.

The State obtained a superceding indictment charging the same single count of second-degree distribution and forty-three counts of fourth-degree possession of child pornography. Evers pled not guilty and sought admission into the Essex County Pretrial Intervention Program. The trial court affirmed the denial of the PTI request by the Essex County Prosecutor and denied Evers' motion to suppress his confession and the evidence seized pursuant to the New Jersey search warrant. Evers entered into a conditional plea to one count of distribution of child pornography and to forty counts of possession of child pornography. The court agreed to consider downgrading the distribution charge by one degree for purposes of sentencing and imposing concurrent sentences.

At sentencing, the court downgraded the second-degree distribution offense to the third-degree sentencing range. It also concluded that imprisonment would constitute a "serious injustice," N.J.S.A. 2C:44-1d, and sentenced Evers to five years probation condition on 364 days of incarceration in the Es sex County jail. The court suspended the county jail term pending its six-month review of Evers' probation; ordered that Evers receive counseling and treatment at the Avenel Adult Diagnostic and Treatment Center; and ordered Evers to comply with the regis tration requirements of Megan's Law.

The State appealed the probationary sentence imposed on the second-degree charge, and Evers appealed, among other things, the denial of the motion to suppress evidence seized in the search. The Appellate Division affirmed the convictions and sentences in an unpublished opinion. In a dissent limited to the sentencing issue, Judge Steinberg concluded that the presumption of imprisonment on the charge of second-degree distribution of child pornography had not been overcome and that the trial court abused its discretion by imposing a term of probation.

The State's appeal as of right, based on the dissent below, is limited to the propriety of Evers' probationary sentence. The Supreme Court granted Evers' petition for certification, limited to the issues arising out of his claim that the evidence seized pursuant to the New Jersey search warrant should be suppressed.

HELD: The evidence of child pornography seized pursuant to the search warrant was admissible at trial. The presumption of imprisonment for this second-degree offense was not overcome and the findings in support of a probationary sentence were in part based on irrelevant and inappropriate factors, and were otherwise not adequately supported by the record.

1. Evers claims that the affidavit in support of the New Jersey warrant contained information acquired by law enforcement in California in violation of his Fourth Amendment right against unreasonable searches and seizures and its counterpart in the New Jersey Constitution. To invoke the protections of the Fourth Amendment and the New Jersey Constitution, Evers must show that government authorities trammeled a reasonable or legitimate expectation of privacy. A person ordinarily surrenders an expectation of privacy to information revealed to a third-party. Thus, Evers had no reasonable expectation of privacy in the content of e-mail he forwarded to fifty-one intended recipients, one of whom happened to be an undercover police officer. Evers also claims that he had a reasonable expectation of privacy to the subscriber information stored at AOL headquarters in Virginia. Deputy Sheriff DiMatteo of the San Bernardino Sheriff Department had no way of knowing that the holder of the screen name "BTE324" was a New Jersey resident, and New Jersey authorities did not assist DiMatteo in any way in procuring the warrant from a California magistrate. The New Jersey Constitution protects the rights of people within the State from unreasonable searches and seizures by State officials, not California officials. Nor does Evers have a protected privacy interest in the subscriber information under the Fourth Amendment. Even though the Federal Electronic Communications Privacy Act of 1986 (ECPA) establishes the means by which a government may acquire subscriber information from an Internet service provider, the federal courts have held that this does not constitute a legislative determination of a reasonable expectation of privacy. (pp. 9-18)

2. Another question is whether a violation of a federal statute or sister-state law, if proved, is a sufficient

St. v. Evers (A-89-01) Page 3

ground for New Jersey to apply its exclusionary rule. Evers argues that the California warrant was unenforceable in Virginia, and delivery of the subscriber information to DiMatteo was in violation of the ECPA and California law, meaning the evidence would not have been admissible in a California court. The Supreme Court is unconvinced that there was any violation of the ECPA or California law. Nevertheless, even if there were a violation, the Court would not invoke the exclusionary rule of New Jersey. The purpose of the exclusionary rule is to deter unlawful police conduct. Ordinarily, the rule will not bar otherwise reliable and relevant evidence gathered by law enforcement authorities in another jurisdiction over which this State has no control or authority, as long as those authorities were not acting in concert with New Jersey authorities. To apply the exclusionary rule here would advance none of its purposes - deterrence, judicial integrity, and imposing a cost on illicit behavior - and would prevent the introduction of reliable and relevant evidence in a criminal prosecution. (pp. 18-26)

3. Evers also claims that Detective Meehan's affidavit did not provide probable cause to justify a warrant to search his home. More particularly, he argues that the AOL billing address for the screen name "BTE324" did not answer the question whether "BTE324" actually used the computer for illicit purposes at the same location, and therefore there was not a well-grounded suspicion that a search would yield evidence of child pornography. The Court disagrees. Under the circumstances, the billing address of the Internet screen name that e-mailed photographs of child pornography was a logical place to search for evidence of the identity of the holder of the screen name and evidence of the crime. The probable cause standard for the issuance of a search warrant was met in this case.

(pp. 27-35)

4. The Court also must determine the propriety of Evers' probationary sentence for the second-degree crime of child endangerment. Under the New Jersey Code of Criminal Justice, a second-degree crime has a sentencing range of between five and ten years, with a presumptive sentence of seven years. The Code also provides that for second- degree crimes, the sentencing court shall impose a sentence of imprisonment "unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d. The standard for overcoming the presumption of imprisonment is distinct from that for downgrading an offense, and the reasons offered to dispel the presumption must be more compelling than those that might warrant downgrading an offense. In deciding whether the presumption of imprisonment is overcome, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence. The trial court also must look at the gravity of the offense with respect to the peculiar facts of a case to determine the role deterrence should play. Demands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense and the deliberateness of the offender. (pp. 35-50)

5. The Court concludes that the factors relied on by the trial court to meet the serious injustice standard are not credibly supported by the record and are not so extraordinary as to dispel the presumption of imprisonment. Also, the trial judge's estimation that the offense of child pornography distribution has been improperly graded by the Legislature has no bearing on the appropriate punishment for Evers' crime. The Legislature determines the punishment for crimes. Although the Court recognizes that Evers' previously blameless life evokes compassion, it cannot agree that the circumstances are so rare and extraordinary that the human cost of his imprisonment exceeds society's imperative need to deter others from disseminating child pornography. (pp. 50-59)

Judgment of the Appellate Division is AFFIRMED with respect to Evers' appeal, and REVERSED with respect to the State's appeal, and the matter is REMANDED to the Law Division for resentencing.

JUSTICE COLEMAN has filed a separate, concurring opinion, expressing the view that some of the Fourth Amendment discussion in the Court's opinion is not essential to the disposition of the appeal.

CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE ALBIN's opinion. JUSTICE COLEMAN has filed a separate, concurring opinion.

The opinion of the court was delivered by: Albin, J.

Argued September 24, 2002

Defendant William T. Evers challenges the validity of a search of his home authorized by a warrant that uncovered evidence of his possession and transmission of child pornography on the Internet and led to his conviction of multiple violations of the child endangerment statute, N.J.S.A. 2C:24-4. The State challenges defendant's sentence to a probationary term for second-degree child endangerment, an offense that carries a presumption of imprisonment, N.J.S.A. 2C:44-1d. We now resolve these claims.

I.

By all appearances, defendant was the very model of middle- class decorum and success. He had been happily married for thirty years, lived in the same Nutley home for twenty-five years, and reared a daughter, adopted at birth, for eleven years. At age fifty, defendant had the satisfaction of steady employment and good health. He played a direct role in the upbringing of his daughter, participated in community activities, and had never been arrested in his life. All in all, he seemed an exemplary citizen. But there was another side to defendant, the side he kept hidden from public view, an obsession with surfing the Internet for adult and child pornography.

In 1997, defendant purchased his first personal computer, which he placed in the basement of his house. His wife, Elayne, opened an America Online (AOL) account with the charges billed to her credit card at their home in Nutley. Each family member used the computer, and each had separate AOL screen names and passwords.

Defendant assumed two AOL screen names, one reserved exclusively for interactions with adult and child pornography Internet sites, "BTE324," and the other for interactions with friends, family, and some additional adult pornography sites, "WTE324." In a familiar routine, defendant would visit adult pornography websites and chat rooms on his computer every morning. By downloading photographs onto the hard drive of the computer, defendant was able to assemble a pornographic library. More than a year after his first venture into on-line adult pornography, he began exploring "special interest" child pornography chat rooms on a daily basis and exchanging child pornography with other users. Over a period of approximately six weeks, defendant collected several hundred pornographic "pictures of kids" through the Internet. In April 1999, defendant suffered an attack of "conscience" and became concerned that he might be "caught" by law enforcement authorities, his wife, or his daughter, so he ceased his excursions to the child pornography chat rooms. His fear of detection, however, did not deter him from maintaining on his computer hard drive scores of pornographic images of nude ten- to fifteen-year-old girls engaged in sexual activities. The day before his arrest, defendant was browsing through his library of child pornography.

In February 1999, Deputy Sheriff Michael A. DiMatteo of the San Bernardino County Sheriff's Department in California was investigating the use of child pornography on the Internet. He created a screen name -- "Tightone4u" -- and logged onto AOL, entering a chat room bearing a title strongly suggestive of sexual activity involving children -- "NOxHAIRxYET." He submitted his screen name and e-mail address to a list-serve *fn1 employed by the chat room that allowed other AOL subscribers interested in this subject matter to communicate with him. On February 15, 1999, DiMatteo checked his e-mail account and discovered responses from ninety-eight different screen names from the chat room "NOxHAIRxYET." One response, containing images of a nude female child in a sexually provocative position, was from the user of screen name "BTE324," who had sent the same images to fifty other screen names as well.

With this information, DiMatteo applied to the Superior Court of San Bernardino County for a search warrant for the purpose of learning the identities of the users of the ninety- eight screen names trading in child pornography. He received the warrant and mailed it to AOL's corporate headquarters in Dulles, Virginia. Without challenging the manner of service or jurisdiction, AOL simply provided DiMatteo with the information demanded in the warrant, including the name of the account holder and the billing address of the screen name "BTE324."

After learning that the billing account for screen name "BTE324" was Elayne Evers of Nutley, New Jersey, DiMatteo forwarded the results of his investigation to the Nutley Police Department. Armed with that information, Nutley Police Detective Sergeant Daniel Meehan applied for a warrant to search the Evers' residence for "any and all computers, computer programs, hard and soft drives, disks, or diskettes, or any computer related equipment, plus any and all information which may lead to the identity of the individuals using the screen name BTE324."

A Superior Court judge reviewed Meehan's affidavit and found probable cause to issue the warrant. On May 25, 1999, the Nutley police searched the Evers' residence, seizing the hard drive of the family computer. Defendant, who was home at the time, was arrested and made a full confession concerning his use of the computer to acquire and trade in child pornography.

Defendant was initially indicted on one count of second- degree endangering the welfare of a child by distributing "a photograph through the Internet, which depicted a child engaged in a prohibited sexual act," N.J.S.A. 2C:24-4b(4)(a) (current version at N.J.S.A. 2C:24-4b(5)(a)), and on one count of fourth- degree endangering by knowingly possessing and/or viewing that photograph on his personal computer, N.J.S.A. 2C:24-4b(4)(b) (current version at N.J.S.A. 2C:24-4b(5)(b)). After he refused a plea offer from the State, investigators "cracked" the hard drive of defendant's computer and retrieved over forty images which defendant conceded depicted child pornography. The photographs generally depict naked girls under the age of sixteen engaged in various sexual acts with adults.

The State then obtained a superceding indictment charging defendant with the same single count of second-degree distribution and forty-three counts of fourth-degree possession of child pornography. Defendant pled not guilty to those charges and sought admission into the Essex County Pretrial Intervention Program (PTI). The trial court affirmed the prosecutor's denial of defendant's PTI request and denied defendant's motion to suppress his confession and the evidence seized pursuant to the New Jersey search warrant. Defendant then entered a conditional guilty plea to one count of distribution of child pornography and to forty counts of possession of child pornography. The court agreed to consider downgrading the distribution charge by one degree and imposing concurrent sentences on the distribution and possession charges.

At sentencing, the court downgraded the second-degree distribution offense to the third-degree sentencing range, N.J.S.A. 2C:44-1f(2), and concluded that a sentence of imprisonment would constitute a "serious injustice," N.J.S.A. 2C:44-1d. The court then sentenced defendant to five years' probation conditioned on 364 days of incarceration in the Essex County jail. The court suspended the county jail custodial term pending its six-month review of defendant's case and ordered that defendant receive outpatient counseling and treatment at the Avenel Adult Diagnostic and Treatment Center (Avenel). Defendant was also ordered to comply with the annual registration and address verification requirements of Megan's Law, N.J.S.A. 2C:7-2; N.J.S.A. 43-6.4. The sentences imposed on the forty child pornography possession charges were made to run concurrent with one another and with the distribution charge. The three remaining possession counts were dismissed on the State's motion.

The State appealed the probationary sentence imposed on the second-degree distribution charge, N.J.S.A. 2C:44-1f(2), and defendant appealed, among other things, the denial of his motion to suppress evidence seized in the search of his home. In an unpublished opinion, the Appellate Division panel affirmed the convictions and sentences in all respects. In a dissent limited to the sentencing issue, Judge Steinberg concluded that the presumption of imprisonment on the charge of second-degree distribution of child pornography had not been overcome and that the trial court had abused its discretion by imposing a term of probation.

Our consideration of the State's appeal as of right, based on the dissent below, is limited to the propriety of defendant's probationary sentence for second-degree distribution of child pornography. R. 2:2-1(a)(2); R. 2:12-3(b); R. 2:12-11. The State has not sought review of, and we shall not disturb, the trial court's determination to downgrade the second-degree offense for sentencing purposes. We granted defendant's petition for certification, limited to the issues arising out of defendant's claim that the ...


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