                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4971-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent/
          Cross-Appellant,

v.

ROBERT G. WHITE,

     Defendant-Appellant/
     Cross-Respondent.
_______________________

                    Argued April 9, 2019 – Decided June 5, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 10-17-0636.

                    Paul E. Zager argued the cause for appellant/cross-
                    respondent (Palumbo, Renaud & De Appolonio,
                    attorneys; Jeff Thakker, of counsel and on the briefs;
                    Anthony N. Palumbo, on the briefs).

                    Lila B. Leonard, Deputy Attorney General, argued the
                    cause for respondent/cross-appellant (Gurbir S.
            Grewal, Attorney General, attorney; Lila B. Leonard,
            of counsel and on the brief).

PER CURIAM

      In March 2017, law enforcement officers executed a search warrant at

defendant's residence in Morristown and seized certain computer devices. The

court had granted the State's application for the warrant based on information

that child pornography was being shared on the internet through devices at

defendant's home. The officers could not gain access to two computer hard

drives and a computer tower, which were encrypted.

      The State thereafter filed a motion to compel defendant to produce the

passcodes for, or otherwise decrypt, the devices. Defendant opposed the motion,

arguing that the compelled disclosure violated his right against self-

incrimination under the Fifth Amendment to the United States Constitution and

New Jersey law. He also argued that the State's motion was an improper attempt

to obtain discovery and not permitted by the court rules.

      The trial court conducted an evidentiary hearing on the State's motion, and

thereafter entered an order dated May 25, 2018, which granted the State's motion

as to the hard drives, but denied the motion with regard to the computer tower.

We thereafter granted defendant's motion for leave to appeal, and the State filed

a cross-appeal pursuant to Rule 2:3-4(a). For the reasons stated herein, we

                                                                         A-4971-17T4
                                       2
affirm on defendant's appeal, reverse on the State's cross-appeal, and remand the

matter to the trial court for further proceedings.

                                         I.

        The record discloses the following. In September 2016, the Division of

Criminal Justice (DCJ) in the State's Department of Law and Public Safety

began investigating individuals who were suspected of sharing images of child

pornography on the internet. During the investigation, Detective Laura Hurley

discovered an Internet Protocol (IP) address 1 that was offering to share such

images with others by utilizing peer-to-peer file sharing networks. Hurley used

BitTorrent software and downloaded thirty-eight images of child pornography

from the IP address. DCJ's investigators traced the IP address to defendant's

home.

        In January 2017, detectives from the Bayonne Police Department (BPD)

began a separate investigation using similar investigative software to identify an

IP address that was being used to share images of child pornography with other

users on the internet. The BPD detectives downloaded hundreds of such images




1
  An IP address is an identifying number assigned to an internet subscriber by
the subscriber's service provider. State v. Reid, 194 N.J. 386, 389 (2008).
                                                                          A-4971-17T4
                                         3
from this IP address, twenty-four of which depicted child pornography. The

detectives also traced the IP address to defendant's residence.

      The DCJ learned that the BPD was investigating the same IP address and

they merged their investigations. The BDP provided Hurley with a disk that

contained files the BDP had downloaded from the IP address. On March 10,

2017, the court issued a warrant, which authorized the DCJ to search defendant's

home in Morristown and "seize evidence pertaining to" crimes related to the

"distribution and possession of child pornography."

      The warrant stated that the investigators could search and seize "[a]ny and

all computers, computer systems, computer programs, computer software,

computer hardware, including central processing units, external storage units,

flash drives, . . . hard disk drives/units, . . . documentation, passwords and data

security devices . . . ." The warrant also stated that the investigators could

"conduct a forensic examination performed by any qualified examiner, whether

sworn law enforcement or civilian, on scene and later in a recognized laboratory

environment on all items until such examination is complete."

      On March 17, 2017, the DCJ executed the warrant and searched

defendant's home. Defendant was home at the time and remained downstairs

while the investigators searched his home. The DCJ seized a number of devices


                                                                           A-4971-17T4
                                        4
from defendant's second-floor office, including a Lenovo P500 laptop, an Asus

computer tower, two external hard drives, a universal serial bus (USB) thumb

drive, and other peripheral devices.

      At the scene, DCJ Detective Kevin Madore attempted to access the

contents of the seized devices. The laptop was logged on, so Madore was able

to access its contents.   To preserve the laptop's data, Madore performed a

forensic "preview" of the laptop's files and created reports detailing his

preliminary findings. Madore later completed a "Forensic Analysis Report ."

      In his report, Madore stated that the two external hard drives and the

computer tower were encrypted and therefore "could not be read." He found,

however, that the laptop's hard drive contained eighty-two images of suspected

child pornography. He noted that the laptop was registered to an e-mail address

with defendant's name.

      Madore also found that the serial number of one of the encrypted external

hard drives appeared on the laptop's hard drive, which indicated that the external

hard drive had at some point been connected to the laptop. In addition, the

laptop contained a link to a "tor browser," which Madore explained is "primarily

used to gain access to the dark web" and help maintain the user's anonymity

while browsing on the internet. Madore noted that the "tor browser" contained


                                                                          A-4971-17T4
                                        5
a "bookmark" to a page titled "The Pedophile's Handbook," which is an internet

publication that provides adults suggestions on having sex with minors.

       After the search, the DCJ detectives arrested defendant and charged him

with second-degree endangering the welfare of a child by distributing child

pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(a)(i), and third-degree

endangering the welfare of a child by possessing, viewing or controlling child

pornography, in violation of N.J.S.A. 2C:24-4(b)(5)(b).

       On August 27, 2017, the State filed a motion to compel defendant "to

provide the passcodes necessary to decrypt" the two external hard drives and the

computer tower. As we noted previously, defendant opposed the motion. The

trial court thereafter held an evidentiary hearing on the motion.

       At the hearing, the State presented testimony from Hurley and Madore

regarding the DCJ's investigation and the execution of the search warrant.

Hurley testified that when DCJ conducted the search, she read defendant his

Miranda2 rights and asked defendant for the passcodes to access the encrypted

devices. Defendant told Hurley he knew the passcodes for the devices, but he

refused to disclose them because "he did not want [the police] looking through

his stuff." Madore testified about the information he obtained from the devices,


2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                          A-4971-17T4
                                        6
and his inability to gain access to the encrypted external hard drives and tower.

The State also presented testimony from Detective Ryan Foley of the Somerset

County Prosecutor's Office, who explained various technical terms for the court.

      On May 25, 2018, the trial court filed a written opinion in which it

concluded that defendant's act of producing the passcodes to decrypt the devices

is a testimonial communication for purposes of the Fifth Amendment privilege

against self-incrimination.   The court noted, however, that the "foregone

conclusion" principle is a recognized exception to the Fifth Amendment

privilege. Quoting Fisher v. United States, 425 U.S. 391, 411 (1976), the court

stated the act of production does not violate the Fifth Amendment privilege

against self-incrimination if the facts communicated by the act of production

"add[] little or nothing to the sum total of the [g]overnment's information."

      The court held that the facts that would be communicated by defendant's

act of decryption of the hard drives are a "foregone conclusion" that would not

violate the Fifth Amendment privilege against self-incrimination. The court

stated that the State had established that it "knows of the existence and location

of child pornography files on the hard drives, and knows of defendant's custody,

control and access to the devices."      The court also found that compelled




                                                                          A-4971-17T4
                                        7
production of the passcodes to the hard drives would not violate defendant's

privilege against self-incrimination under New Jersey's common law.

      The court held, however, that the State had not presented sufficient

evidence to satisfy the "foregone conclusion" exception with regard to the

computer tower. The court found that the State had not shown that it has

"knowledge of the existence and location of child pornography on the tower."

The court also found that the State had not shown defendant had exclusive

possession or control of the tower, since the forensic examination revealed there

were three "user profiles" associated with the tower.

      The court memorialized its decision in an order dated May 25, 2018,

which granted the State's motion to compel production of the passcodes to the

external hard drives, but denied the motion with regard to the computer tower.

This appeal and the State's cross-appeal followed.

      On appeal, defendant argues:

            [POINT I]
            THE STATE EXECUTED THE WARRANT AND
            FILED ITS CHARGES, AND [DEFENDANT'S]
            DISCOVERY OBLIGATIONS AT THAT JUNCTURE
            (IF ANY) WERE GOVERNED BY THE COURT
            RULES; THE STATE LACKED LEGAL GROUNDS
            FOR FILING A MOTION TO COMPEL
            DISCLOSURE FROM [DEFENDANT].



                                                                         A-4971-17T4
                                       8
            [POINT II]
            THE DETECTIVES' ASSUMPTIONS ABOUT WHAT
            THE LAPTOP'S VIRTUAL DRIVES[] ONCE
            CONTAINED (AND THEIR ASSUMPTIONS
            ABOUT THE ASSOCIATION OF THE TOSHIBA
            HARD DRIVES WITH THE VIRTUAL DRIVES) DID
            NOT MAKE THE CONTENT OF THE HARD
            DRIVES A "FOREGONE CONCLUSION"; THE
            COMPELLED DISCLOSURE WAS (AND IS) IN
            VIOLATION   OF     [DEFENDANT'S]  FIFTH
            AMENDMENT RIGHTS.

            [POINT III]
            PASSWORD DISCLOSURE SHOULD BE ALSO
            EXCLUDED IN THE CONTEXT OF NEW JERSEY'S
            SELF-INCRIMINATION/PRIVACY PRIVILEGE.

      In response to defendant's arguments, and in support of its cross -appeal,

the State argues:

            [POINT I]
            BECAUSE DEFENDANT ADMITTED HE KNOWS
            THE PASSWORDS TO HIS ELECTRONIC
            DEVICES, THIS COURT SHOULD [AFFIRM THE
            TRIAL     COURT'S  ORDER    COMPELLING]
            DEFENDANT TO USE THOSE PASSWORDS TO
            DECRYPT ALL OF HIS DEVICES.

            [POINT II]
            IT IS A FOREGONE CONCLUSION THAT
            DEFENDANT      POSSESSES      CHILD
            PORNOGRAPHY ON HIS LAPTOP AND HARD
            DRIVES.

            [POINT III]
            THE SEARCH WARRANT, DATED MARCH 10,
            2017, AUTHORIZED THE STATE TO SEIZE AND

                                                                        A-4971-17T4
                                       9
            SEARCH        DEFENDANT'S         ENCRYPTED       HARD
            DRIVES.

                                        II.

      The trial court filed its opinion and order on the State's motion before this

court decided State v. Andrews, 457 N.J. Super. 14 (App. Div. 2018), leave to

appeal granted,    N.J.    (2019). In Andrews, the defendant appealed from an

order, which required him to disclose personal identification numbers and

passcodes for his iPhones. Id. at 18. The defendant argued that the compelled

disclosure of this information violated his right against self-incrimination under

the Fifth Amendment, and the protections afforded against self-incrimination

under New Jersey law. Ibid.

      We rejected the defendant's arguments and affirmed the order requiring

disclosure of the passcodes. Id. at 18. In our opinion, we noted that the Fifth

Amendment privilege against self-incrimination applies to verbal and written

communications as well as to the production of documents because "[t]he act of

product[ion]" may communicate incriminating statements. Id. at 22 (alteration

in original) (quoting Fisher, 425 U.S. at 410).

      We noted, however, that the "foregone conclusion" principle is an

exception to the "act of production" doctrine. Ibid. (citing Fisher, 425 U.S. at

411). We stated that the exception applies when the State establishes with

                                                                           A-4971-17T4
                                       10
"reasonable particularity" (1) that it has "knowledge of the existence of the

evidence demanded"; (2) that defendant has "possession and control of that

evidence"; and (3) that the evidence is authentic. Id. at 22-23 (citing United

States v. Hubbell, 530 U.S. 27, 30, 40-41 (2000)). We stated that "when an

accused implicitly admits the existence and possession of evidence, the accused

has 'add[ed] little or nothing to the sum total' of the information the government

has, and the information provided is a 'foregone conclusion.'"          Id. at 23

(alteration in original) (quoting Fisher, 425 U.S. at 411).

      We held that the "foregone conclusion" exception applied to the

compelled disclosure of the defendant's passcodes. Id. at 23-24. We determined

that the testimonial aspects of the act of producing the passcodes are a "foregone

conclusion" because the State had established that the defendant "exercised

possession, custody, or control" of the phones, and the fact that defendant knows

the passcodes "adds little or nothing to the sum total of the [g]overnment's

information." Id. at 24 (quoting Fisher, 425 U.S. at 411).

      We stated that the act of disclosing the passcodes did "not convey any

implicit factual assertions about the 'existence' or 'authenticity' of the data on

the device[s]." Id. at 23. We also stated that the State had described with

"reasonable particularity" the evidence it was seeking, "which is the passcodes


                                                                          A-4971-17T4
                                       11
to the phones." Id. at 24. We observed that the defendant had argued that the

State had not shown that it knew of the possible contents on the devices, but

held that this was immaterial because the court had ordered the defendant to

disclose the passcodes, not the contents of the phones unlocked by those

passcodes. Id. at 23.

        Here, the trial court determined that for the "foregone conclusion"

exception to apply, the State had to establish, among other things, that it had

sufficient knowledge of the existence and location of child pornography files on

the hard drives and tower. Under Andrews, however, the State need only show

with "reasonable particularity" the knowledge of the existence of the evidence,

that defendant has possession and control of that evidence, and that the evidence

is authentic. Id. at 22-23.

        The evidence that the State sought in this case is the passcodes, not the

contents of the external hard drives or computer tower. As we explained in

Andrews, the facts implicitly conveyed by the act of disclosing the passcodes

are that the defendant knows the passcodes, and that the defendant had

possession, custody, and control of the devices encrypted with those passcodes.

Ibid.




                                                                         A-4971-17T4
                                       12
      Moreover, in the opinion, the trial court commented that the State had to

prove defendant had exclusive possession of the tower. The court noted there

were two other user profiles for the tower. However, in Andrews, we did not

state that the "foregone conclusion" exception would only apply if the defendant

has exclusive possession and control of the encrypted devices. The State has to

prove defendant has possession and control of the encrypted devices, not

exclusive possession and control.

      Therefore, for the reasons stated in Andrews, we conclude the trial court

correctly determined that the "foregone conclusion" exception applied to the

passwords to the external hard drives, but erred by finding that the exception did

not apply to the computer tower. We conclude the State presented sufficient

evidence for the application of the exception to all three devices.

                                       III.

      On appeal, defendant argues that the evidence presented at the hearing

does not support the trial court's finding that he acknowledged he knew the

passcodes to the external hard drives and the computer tower. Defendant asserts

that, when Hurley questioned him at the time of the search, she asked if he knew

the password for his "computer." Defendant asserts that Hurley asked him about

a password for "one unspecified computer," not any other devices.


                                                                          A-4971-17T4
                                       13
      Defendant's argument is not supported by the record. At the hearing,

Hurley was asked if she requested defendant to provide the password to his

"computers" and she replied, "Yes, I did." She further testified that defendant

would not provide "his password" because "he did not want" the detectives

"looking through his stuff."     The trial court did not err by interpreting

defendant's statements to be an acknowledgement that he knew the pass words

to all of his computer devices, including the external hard drives and the

computer tower.

      Defendant also suggests that Hurley elicited his statements about the

passcodes in violation of his rights under Miranda. At the hearing, defendant

objected to Hurley's testimony on the ground that the court had not yet

conducted a Miranda hearing. The court decided to take testimony on whether

defendant was informed of his rights under Miranda, and whether he had waived

those rights.

      Hurley then testified that she read defendant his Miranda rights, and he

did not invoke those rights. Hurley further testified that the detectives did not

arrest defendant before she questioned him about the passwords. She also said

that she did not threaten defendant or make any promises to induce him to make

the statements about the passcodes.


                                                                         A-4971-17T4
                                      14
      In its opinion, the trial court found the testimony established that Hurley

read defendant his Miranda rights before he made his statements. The court

found there was no evidence of compulsion and defendant was not under arrest

at the time he made his statements. We must defer to the trial court's findings

of facts where, as here, they are "supported by sufficient credible evidence in

the record." State v. Brown, 216 N.J. 508, 538 (2014) (quoting State v. Elders,

192 N.J. 224, 246 (2007)).

      Defendant further argues that the State did not present sufficient evidence

to show with "reasonable particularity" that there were images of child

pornography on defendant's two external hard drives. As we noted previously,

under Andrews, the focus of the analysis for application of the "foregone

conclusion" exception is the facts implicitly conveyed by the disclosure of the

passcodes, not the content of the devices encrypted with those passcodes.

Andrews, 457 N.J. Super. at 24. Therefore, we need not address defendant's

argument.

                                      IV.

      Defendant further argues that the trial court's order compelling him to

produce the passcodes or otherwise decrypt the external hard drives violates his

right against self-incrimination under New Jersey law. As noted, the trial court


                                                                         A-4971-17T4
                                      15
rejected defendant's contention that the State's common law privilege against

self-incrimination precludes the court from requiring defendant to provide his

passcodes or otherwise decrypt the external hard drives.

      The court stated that New Jersey's right against self-incrimination did not

employ the decryption of defendant's devices. The court noted that defendant

may generally have a right "to a private enclave where he may lead a private

life," but he does not have the right to a "private enclave" replete "with images

of child exploitation."

      We agree with the trial court's analysis, which applies not only to the

external hard drives, but also to the computer tower. We reject defendant's

argument that the court's order violates his privilege against self-incrimination

under New Jersey law substantially for the reasons stated in Andrews. Id. at 30-

34.

                                       V.

      Defendant further argues that our court rules do not authorize the State to

seek an order compelling him to produce the passcodes or otherwise decrypt the

external hard drives and computer tower. He contends that by seeking to compel

him to produce the passcodes months after it seized the devices, the State is

improperly engaging in discovery, rather than the actions to execute the search


                                                                         A-4971-17T4
                                      16
warrant. Defendant's arguments lack sufficient merit to warrant discussion. R.

2:11-3(e)(2).

      We note, however, that in this case, the DCJ obtained a search warrant,

which authorized it to search for and seize evidence of child pornography in

defendant's home, including computers, computer hardware, hard drives,

computer storage media, and peripheral devices. The warrant also authorized

the DCJ to conduct forensic examination "on scene and later in a recognized

laboratory environment on all items until such examination is complete."

      As explained previously, in executing the warrant, the DCJ found and

seized defendant's encrypted external hard drives and computer tower.

Defendant admitted he owned the devices and knew the passcodes, but refused

to provide the passwords or decrypt the devices. The State thereafter moved to

compel decryption. In doing so, the State was not engaged in discovery. It was

seeking information that would allow it to complete the forensic examination of

the devices seized, which was specifically authorized by the warrant.

      The record shows that the State sought the passcodes so that it could

complete the search authorized by the warrant. The State was not attempting to

conduct a "new and separate search" and its effort to complete the search was

"reasonable under the totality of the circumstances." State v. Hai Kim Nguyen,


                                                                        A-4971-17T4
                                     17
419 N.J. Super. 413, 427 (App. Div. 2011) (quoting State v. Finesmith, 406 N.J.

Super. 510, 519 (App. Div. 2009), and United States v. Keszthelyi, 308 F.3d

557, 569 (6th Cir. 2002)).

      Accordingly, we affirm on defendant's appeal, reverse on the State's cross-

appeal, and remand the matter for further proceedings consistent with this

opinion. We do not retain jurisdiction.




                                                                         A-4971-17T4
                                      18
