The Jersey Lawyer

In State v. Finesmith, the Appellate Division adopted the “reasonable continuation doctrine” of the federal courts, which permits law enforcement authorities executing a search warrant to re-enter a premises a second time if they are unable to find an item specified in the search warrant during the initial search.  The Court determined that where a second search under the same warrant is a continuation of the first search and not, in fact, a new search, and the decision to continue the search is reasonable under the totality of the circumstances, the second search is not invalid.

In this case, police obtained a warrant to search for and seize defendant’s computers.  The warrant specified that the search could be conducted between 5:00 a.m. and 11:00 p.m. within 10 days of its issuance.  The police executed the warrant at 5:45 a.m. on January 27, 2005.   They were advised by defendant that the home contained five computers, and police seized one of the computers because it contained inculpatory evidence.  During the search, defendant’s wife told officers that defendant also had a laptop computer that he transported between his home and his office.  During the initial search, police were unable to locate the laptop.

Police officers arrested defendant and took him to headquarters for questioning.  After reading defendant the Miranda warning regarding his right to counsel, defendant responded: “Can I see one?”  In the meantime, defendant’s family retained a criminal defense lawyer to represent defendant.  The criminal defense lawyer called police headquarters and told them to stop any questioning of defendant.  Police assured the defense lawyer that they were not questioning defendant and they would be releasing him on his own recognizance.  After hanging up with the defense lawyer, police read defendant Miranda warnings again and began questioning defendant.  As a result of the questioning, police discovered that the missing laptop was in defendant’s minivan, which was parked in his home’s garage.

Detectives were unsure whether the warrant authorized them to return to the home on the same day.  They decided to err on the side of caution and had defendant sign a “State Police Consent Form.”  Defendant expressed reluctance to sign the consent form, but eventually the form was signed.  Police returned to defendant’s home later that same day an seized the missing laptop.  The trial court determined that all incriminating statements made by defendant after asking detectives whether he could see a lawyer should be suppressed because the inquiry as to whether defendant could see a lawyer was an invocation of his right to counsel.  The trial court also found that the consent to continue the search was invalid.

Nevertheless, the Court determined that the second search was not invalid because the search warrant provided the requisite authority for police officers to return to the home.  The Appellate Division first noted that this issued had not previously been decided by New Jersey state courts.  However, the federal courts had adopted the “reasonable continuation doctrine,” which permits police to suspend a search and re-enter a premises a second time using the same warrant under certain circumstances.  The Appellate Division noted that two conditions must be satisfied: (1) the subsequent entry must be a continuation of the first search, rather than a new and separate search; and (2) the decision to conduct a second search must be reasonable under the totality of the circumstances.

Applying these conditions to the present case, the Court first noted that the search warrant authorized police to search for “any and all computers.”  Thus, the laptop that was recovered in the second search was an item that the included in the original search warrant.  During the first search, police were also advised of the existence of the laptop.  Since police did not find the laptop during the first search, the Court reasoned that the search was incomplete.  Also, a large part of the elapse of time between the first and second search was as a result of defendant telling police that the laptop was at his office.  Under these circumstances, the Appellate Division determined that the second search was a reasonable continuation of the first search. 

Anyone accused of a crime in New Jersey should contact a New Jersey criminal defense lawyer to assess whether any evidence or statements obtained by police can be suppressed.  Many constitutional issues arise during searches and seizures by police, and the assistance of a New Jersey criminal defense lawyer can be crucial in helping protect an accused’s constitutional rights.