Police are permitted Long-term Warrant for Data Searches – State v. Finesmith

[7/13/09 – 2:24 pm] This morning’s Appellate Division decision in State v. Finesmith is the second reported opinion from that Court to stem from this case. (See State v. Finesmith, 406 N.J. Super. 510 (App. Div. 2009)). The defendant in this matter is a medical doctor. The indictment in the case relates to possession of so-called “kiddie-porn” found on the defendant’s household computers. The defense maintained that numerous people in the defendant’s household could have accessed his computers for the purpose of downloading the prohibited images. To rebut this defense, the prosecutors sought a Communications Data Warrant (CDW) under the authority of N.J.S.A. 2A:156A-2 thru 156A-29. The state sought to review data, including data on a medical web site service, for a one-year period in order to establish a pattern of what sites were being accessed at or near the times the kiddie porn was being downloaded. The defendant objected, maintaining that the proposed one-year length of the warrant was unreasonable and siding with the trial-court’s limitation of a 2-week CDW.

Under the New Jersey Wiretapping and Electronic Surveillance Control Act, a CDW is different from a wiretap order in both the nature of the communication to which it is addressed and the standard for its issuance. A wiretap order permits the interception by law enforcement of a communication contemporaneous with the transmission while a CDW is directed to acquisition of communications in post-transmission electronic storage kept by an electronic communication service or remote computing service for reasons of backup protection for the communication. By definition, an electronic communication in storage cannot be “intercepted” because it is not contemporaneous with the transmission.

As a result, a CDW is not subject to the more restrictive procedures and enhanced protections of the Wiretap Act, which include a showing of necessity because normal investigative procedures have failed, N.J.S.A. 2A:156A-10. Instead, the statutory standard for a CDW requires only a showing of “reasonable grounds to believe that the record or other information pertaining to a subscriber or customer of an electronic communications server is relevant and material to an ongoing criminal investigation.”

Accordingly, since the information sought was relevant and the time period necessary to establish a pattern through circumstantial evidence, the Court ruled that the one-year length of the CDW was reasonable and permitted under the statute.

Download a copy of State v. Finesmith

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