N.J. Court Adopts "Reasonable Continuation" Doctrine

Yesterday, in State v. Finesmith, the Appellate Division of the Superior Court of N.J. adopted the "reasonable continuation doctrine," which had previously been approved by federal courts. Essentially this doctrine permits certain re-entry to a premises to continue a search previously authorized by warrant.

The facts in Finesmith are interesting. Wyoming authorities revealed IP addresses ascribed to Mrs. Finesmith indicating peer-to-peer file sharing of certain child pornography videos. N.J. authorities obtain a search warrant for the home to search for computers and other evidence. At the home, the police find 5 computers. On one, they find child porn. In a statement later suppressed per Miranda, Defendant admitted he was the user of that computer.

Mrs. Finesmith then helpfully told police that Defendant had another laptop which he took to and from work. Defendant indicated it was at work. Police went there, but the laptop was not present. Then Defendant -- whose counsel was assured would not be further interrogated -- was questioned and revealed that the laptop must be in his van at his house. This statement was likewise suppressed. But the police returned to the house and seized the laptop from the van.

The Court held that the original warrant was valid basis for the police to re-enter the house in these circumstances to search for the missing laptop. There was no mention of the fact that the polcie did not have any warrant for the van. In any event, the Court further found that there was no problem with the police relying upon the improperly-obtained statement about the precise location of the laptop. The reason for this was the Court's finding that the laptop was inevitably discovered, and that police would have continued looking until it was found.

The Court's analysis left, in my opinion, much to be desired in terms of analysis of purported inevitabiliy. For one thing, the police did not have a warrant for the van. For another thing, it is far from clear that the police would have returned to the house, would have done so promptly and would have entered the van, in the absence of the statement obtained in violation of Miranda. Finally, it is apparent that the evidence was seized as a direct result of the Miranda violation. here was no attenuation. The Court in fact found there was a Miranda violation giving rise to suppression of statements. This violation was all the more egregious because the police apparently misled Defendant's counsel by telling him there would be no questioning. The police also did not advise Defendant that he had counsel, even though he specifically invoked his right to counsel.

It will be interesting to see whether the N.J. Supreme Court ever accepts this case and rules on the merits.