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State v. Finesmith

April 21, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROSS FINESMITH, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-07-111.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 27, 2009

Before Judges Skillman, Graves and Grall.

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.*fn1 The State did not seek leave to cross-appeal from the 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. ...


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