Friday, May 29, 2009

Inevitable Discovery

This is another post about the rules that dictate what police can and cannot do in seizing evidence, including computers and laptops.

Unlike my earlier posts on this topic, this post is really about the remedy that is used to enforce those rules.

As I’ve explained in earlier posts, the 4th Amendment creates a right to be free from “unreasonable” searches and seizures conducted by law enforcement. As I’ve also explained, in order to be “reasonable” a search or seizure must be authorized either by a search (and seizure) warrant or by an exception to the 4th Amendment’s warrant requirement.

If the police conduct a search and/or seizure without complying with the 4th Amendment requirements, the search/seizure was unreasonable and is unconstitutional. This means the search/seizure violated someone’s 4th Amendment rights, and there has to be some remedy, some sanction, for the violation. If law enforcement officers can violate people’s constitutional rights with no adverse consequences, there is no incentive for them to abide by the law.

Since 1961, the remedy for law enforcement’s violating someone’s 4th Amendment rights is suppression of the evidence resulting from the violation; the U.S. Supreme Court adopted this principle – known as the exclusionary rule – in 1961 in Mapp v. Ohio. The premise behind the exclusionary rule is that if officers know they can’t use the evidence they obtain by violating the 4th Amendment, they will be much less likely to violate it. The assumption is that the only reason officers violate the 4th Amendment is obtain evidence to be used in prosecuting someone for a crime.

As is often true in the law, though, there are exceptions to the exclusionary rule. One of the exceptions is the inevitable discovery principle. As Wikipedia explains, the principle
allows evidence of a defendant's guilt that would otherwise be considered inadmissible under the exclusionary rule to be admitted into evidence in a trial.

The doctrine . . . . holds that evidence obtained through an unlawful search or seizure is admissible in court if it can be established, to a very high degree of probability, that normal police investigation would have inevitably led to the discovery of the evidence.
The rationale for the inevitable discovery principle is, as Wikipedia explains, that since the exclusionary rule was created “to deter police . . . misconduct, excluding evidence that would inevitably . . . have been discovered otherwise would not serve to deter police misconduct.”

The New Jersey Superior Court – Appellate Division recently analyzed the applicability of the inevitable discovery principle in State v. Finesmith, 406 N.J.Super. 510, 968 A.2d 715 (2009). I won’t go into detail on the facts in the case, because a lot was going on, most of which isn’t relevant to the inevitable discovery issue.

Basically, in 2005 the New Jersey State Police received information from the Wyoming Crimes Against Children Task Force that certain IP addresses “located in New Jersey had been making pornographic videos involving children available through peer-to-peer file-sharing networks.” The New Jersey State Police traced one of the IP addresses to the home of Ross Finesmith and his wife, Leslie. Based on that and other evidence, the State Police obtained a warrant to search the home for “computers, pornographic videos involving children and other related materials.” State v. Finesmith, supra.

As the officers prepared to execute the warrant, one of them asked Leslie Finesmith where the computers in the house were located. She told him; she also told him there was another computer Ross Finesmith carried back and forth from his home to his office. She also told the officer that (i) Ross used the laptop to access the Internet from home and (ii) she didn’t know where it was. Later, after officers had found the other computers and found child pornography on one of them, a detective asked Ross where the laptop was. Ross told him it was “`at the office.’” State v. Finesmith, supra. The detective sent an officer to Ross’ office to get the laptop, but it wasn’t there. When the detective told Ross the laptop wasn’t at his office, Ross said “`I forgot. It’s at home in my van.’” The detective asked Ross to consent to a search of the van, which he did; in the interim the officers had finished searching the Ross home and left. After the detective got Ross to sign a form consenting to the search of the van, officers went back to the Ross home, searched the van, found the laptop, seized it and found evidence on it.

The problem was that the detective asked Ross about the laptop after he’d given Ross the Miranda warnings and Ross had asked for a lawyer. Once you’re in police custody, are given the Miranda warnings and ask for a lawyer, police can’t ask you any questions about the crime(s) they’re investigating. If they do, that violates Miranda. After Ross was indicted for endangering the welfare of a child “based on his alleged distribution of child pornography from a computer in his home”, he moved to suppress the evidence found on the laptop, arguing that his consent to search the van was invalid because the police didn’t honor his Miranda right to counsel. State v. Finesmith, supra. The trial court agreed: It held that “because Detective Gorman had failed to honor defendant's request for counsel . . . [his] consent to the search of his van for the laptop was invalid.” State v. Finesmith, supra. Since the consent was invalid, the search of the van violated the 4th Amendment. (As I’ve explained, consent is an exception to the 4th Amendment’s requirement that police get a warrant to search a place and seize items.)

Since the search of the van violated the 4th Amendment, the evidence would have been suppressed, but the trial court held that the inevitable discovery principle applied. To reach that result, it had to deal with another issue: For the inevitable discovery principle to apply, the prosecution has to show it’s very likely that the police would have found the evidence even without the conduct that violated the 4th Amendment.

So for the principle to apply in this case, the police had to show it was very likely they would have found the laptop anyway. Ross said it was not likely because the police had finished searching his home and left; he said since they’d left his home (and the van), there was no way the police would have found the laptop in the van, absent Detective Gorman’s obtaining his consent to a search of the van. The trial court did not agree:
[T]he search for the laptop never really stopped. . . . the reentry to the home was a continuation of the original search. The police were led away from the home . . . because of some misstatements that were offered by the Defendant as to the laptop being in his Morristown office. . .

Had the laptop not been discovered at the home by comments from the Defendant, there's little doubt the investigation would have continued until [it] was recovered. At the end of the first search, it was not only known that the laptop existed, but also that it was used primarily by the Defendant.

Child pornography had already been found on the basement computer. It's apparent to me the police would have continued in searching for the laptop. The exclusionary rule is meant to [e]nsure the State does not profit from illegal activity by the police. However, the rule is not so broad as to make the State worse off than if the illegal activity had not occurred. . . .

It's clear to me that the police knowing the nature of the case, knowing that they had child pornography in the basement, knowing that the laptop existed, knowing that the Defendant used that same laptop to plug into the home system, would have continued. The discovery is inevitable.
State v. Finesmith, supra. Ross Finesmith appealed.

The appellate court noted that at the hearing on Ross’s motion to suppress the laptop it contained, Detective Gorman talked about what he would have done to find it:
I realized that laptop was a critical piece of evidence. . . . Had . . . he not told me where it was . . . we would have taken any necessary steps to locate that laptop. I would have advised everyone on the search [team] that there was a missing piece of evidence, there is something that we missed, most likely at the house. We would have to revisit that. We would have to go back into that house and search the house.
State v, Finesmith, supra. The appellate court upheld the trial court’s ruling:
[T]he trial court correctly concluded that the laptop was admissible under the inevitable discovery exception to the exclusionary rule even though the police determined its location as a result of a suppressed statement by defendant. The execution of a search warrant is . . . a `proper, normal and specific investigatory procedure [ ].’ . . . Moreover, the court's finding that the search pursuant to that warrant would have been continued until the laptop was discovered, regardless of what defendant told the police about its location, is supported by sufficient credible evidence, in particular Detective Gorman's testimony. . . .
State v. Finesmith, supra.

Finesmith was allowed to appeal the trial court’s ruling on the motion to suppress before the case went to trial, probably because the laptop and the evidence on it were essential to the prosecution’s case. His losing on appeal means the case will be going to trial at some point; an article published at the end of April said no trial date had been set, at least not at that point.

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