SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. William T. Evers (A-81/82-2001)

Argued September 24, 2002 -- Decided February 13, 2003

ALBIN, J., writing for the Court.

        Defendant William T. Evers challenges the validity of a search of his home authorized by a warrant that uncovered evidence of his possession and transmission of child pornography on the Internet and led to his conviction of multiple violations of the child endangerment statute, N.J.S.A. 2C:24-4. The State challenges Evers’ sentence to a probationary term for second-degree child endangerment, an offense that carries a presumption of imprisonment.

        By all appearances, Evers was a model of middle-class decorum and success. He had been happily married for thirty years, lived in the same Nutley home for twenty-five years, and reared a daughter, adopted at birth, for eleven years. But there was another side to Evers that he kept hidden from public view – an obsession with surfing the Internet for adult and child pornography.

        In 1997, Evers purchased his first personal computer. His wife opened an America Online (AOL) account with the charges billed to her credit card at their home in Nutley. Evers assumed two AOL screen names, one reserved exclusively for interactions with adult and child pornography Internet sites, “BTE324,” and the other for interacting with friends, family, and some other adult pornography sites. Evers initially visited adult pornography websites and chat rooms on his computer every morning, downloading photographs onto the hard drive of his computer. A year later, Evers began exploring “special interest” child pornography chat rooms and exchanging child pornography with other users. Over a period of approximately six weeks, Evers collected several hundred pornographic pictures of children through the Internet. In April 1999, he suffered an attack of “conscience” and became concerned he might be caught by law enforcement, his wife, or his daughter, so he ceased his excursions to the child pornography chat rooms. However, he maintained on his computer hard drive scores of pornographic images of nude ten- to fifteen-year-old girls engaged in sexual activities.

        In February 1999, Deputy Sheriff Michael A. DiMatteo of the San Bernardino County Sheriff’s Department in California was investigating the use of child pornography on the Internet. He logged onto AOL, entering a chat room bearing a title strongly suggestive of sexual activity involving children. He submitted his screen name and e-mail address to permit other AOL subscribers interested in the subject matter to communicate with him. On February 15, 1999, DiMatteo received over ninety-eight responses. One response, containing images of a nude female child, was from the user of a screen name “BTE324.”

        DiMatteo applied to the Superior Court of San Bernardino County for a search warrant to learn the identities of the users of the ninety-eight screen names trading in child pornography. He received the warrant and mailed it to AOL’s corporate headquarters in Virginia. AOL provided DiMatteo with the information demanded in the warrant, including the name of the account holder and the billing address of the screen name “BTE324.” DiMatteo forwarded the results of his investigation to the Nutley Police Department.

Nutley Police Detective Sergeant Daniel Meehan applied for a warrant to search Evers’ residence for computers and computer related equipment. A Superior Court judge issued the warrant. On May 25, 1999, Nutley police searched Evers’ residence, seizing the hard drive of the family computer. Evers, who was home at the time, was arrested and made a full confession concerning his use of the computer to acquire and trade in child pornography.

Evers initially was indicted on one count of second-degree endangering the welfare of a child by distributing a photograph through the Internet that depicted a child engaged in a prohibited sexual act, and one count of fourth-degree endangering for knowingly possessing and/or viewing the photograph. After Evers refused a plea offer, investigators “cracked” the hard drive of his computer and retrieved over forty images depicting naked girls under the age of sixteen engaged in various sexual acts.

The State obtained a superceding indictment charging the same single count of second-degree distribution and forty-three counts of fourth-degree possession of child pornography. Evers pled not guilty and sought admission into the Essex County Pretrial Intervention Program. The trial court affirmed the denial of the PTI request by the Essex County Prosecutor and denied Evers’ motion to suppress his confession and the evidence seized pursuant to the New Jersey search warrant. Evers entered into a conditional plea to one count of distribution of child pornography and to forty counts of possession of child pornography. The court agreed to consider downgrading the distribution charge by one degree for purposes of sentencing and imposing concurrent sentences.

At sentencing, the court downgraded the second-degree distribution offense to the third-degree sentencing range. It also concluded that imprisonment would constitute a “serious injustice,” N.J.S.A. 2C:44-1d, and sentenced Evers to five years probation condition on 364 days of incarceration in the Essex County jail. The court suspended the county jail term pending its six-month review of Evers’ probation; ordered that Evers receive counseling and treatment at the Avenel Adult Diagnostic and Treatment Center; and ordered Evers to comply with the registration requirements of Megan’s Law.

The State appealed the probationary sentence imposed on the second-degree charge, and Evers appealed, among other things, the denial of the motion to suppress evidence seized in the search. The Appellate Division affirmed the convictions and sentences in an unpublished opinion. In a dissent limited to the sentencing issue, Judge Steinberg concluded that the presumption of imprisonment on the charge of second-degree distribution of child pornography had not been overcome and that the trial court abused its discretion by imposing a term of probation.

The State’s appeal as of right, based on the dissent below, is limited to the propriety of Evers’ probationary sentence. The Supreme Court granted Evers’ petition for certification, limited to the issues arising out of his claim that the evidence seized pursuant to the New Jersey search warrant should be suppressed.

HELD: The evidence of child pornography seized pursuant to the search warrant was admissible at trial. The presumption of imprisonment for this second-degree offense was not overcome and the findings in support of a probationary sentence were in part based on irrelevant and inappropriate factors, and were otherwise not adequately supported by the record.

1.    Evers claims that the affidavit in support of the New Jersey warrant contained information acquired by law enforcement in California in violation of his Fourth Amendment right against unreasonable searches and seizures and its counterpart in the New Jersey Constitution. To invoke the protections of the Fourth Amendment and the New Jersey Constitution, Evers must show that government authorities trammeled a reasonable or legitimate expectation of privacy. A person ordinarily surrenders an expectation of privacy to information revealed to a third-party. Thus, Evers had no reasonable expectation of privacy in the content of e-mail he forwarded to fifty-one intended recipients, one of whom happened to be an undercover police officer. Evers also claims that he had a reasonable expectation of privacy to the subscriber information stored at AOL headquarters in Virginia. Deputy Sheriff DiMatteo of the San Bernardino Sheriff Department had no way of knowing that the holder of the screen name “BTE324” was a New Jersey resident, and New Jersey authorities did not assist DiMatteo in any way in procuring the warrant from a California magistrate. The New Jersey Constitution protects the rights of people within the State from unreasonable searches and seizures by State officials, not California officials. Nor does Evers have a protected privacy interest in the subscriber information under the Fourth Amendment. Even though the Federal Electronic Communications Privacy Act of 1986 (ECPA) establishes the means by which a government may acquire subscriber information from an Internet service provider, the federal courts have held that this does not constitute a legislative determination of a reasonable expectation of privacy. (pp. 9-18)

2.        Another question is whether a violation of a federal statute or sister-state law, if proved, is a sufficient ground for New Jersey to apply its exclusionary rule. Evers argues that the California warrant was unenforceable in Virginia, and delivery of the subscriber information to DiMatteo was in violation of the ECPA and California law, meaning the evidence would not have been admissible in a California court. The Supreme Court is unconvinced that there was any violation of the ECPA or California law. Nevertheless, even if there were a violation, the Court would not invoke the exclusionary rule of New Jersey. The purpose of the exclusionary rule is to deter unlawful police conduct. Ordinarily, the rule will not bar otherwise reliable and relevant evidence gathered by law enforcement authorities in another jurisdiction over which this State has no control or authority, as long as those authorities were not acting in concert with New Jersey authorities. To apply the exclusionary rule here would advance none of its purposes – deterrence, judicial integrity, and imposing a cost on illicit behavior – and would prevent the introduction of reliable and relevant evidence in a criminal prosecution. (pp. 18-26)

3.        Evers also claims that Detective Meehan’s affidavit did not provide probable cause to justify a warrant to search his home. More particularly, he argues that the AOL billing address for the screen name “BTE324” did not answer the question whether “BTE324” actually used the computer for illicit purposes at the same location, and therefore there was not a well-grounded suspicion that a search would yield evidence of child pornography. The Court disagrees. Under the circumstances, the billing address of the Internet screen name that e-mailed photographs of child pornography was a logical place to search for evidence of the identity of the holder of the screen name and evidence of the crime. The probable cause standard for the issuance of a search warrant was met in this case.
(pp. 27-35)

4.        The Court also must determine the propriety of Evers’ probationary sentence for the second-degree crime of child endangerment. Under the New Jersey Code of Criminal Justice, a second-degree crime has a sentencing range of between five and ten years, with a presumptive sentence of seven years. The Code also provides that for second-degree crimes, the sentencing court shall impose a sentence of imprisonment “unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.” N.J.S.A. 2C:44-1d. The standard for overcoming the presumption of imprisonment is distinct from that for downgrading an offense, and the reasons offered to dispel the presumption must be more compelling than those that might warrant downgrading an offense. In deciding whether the presumption of imprisonment is overcome, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence. The trial court also must look at the gravity of the offense with respect to the peculiar facts of a case to determine the role deterrence should play. Demands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense and the deliberateness of the offender. (pp. 35-50)

5.        The Court concludes that the factors relied on by the trial court to meet the serious injustice standard are not credibly supported by the record and are not so extraordinary as to dispel the presumption of imprisonment. Also, the trial judge’s estimation that the offense of child pornography distribution has been improperly graded by the Legislature has no bearing on the appropriate punishment for Evers’ crime. The Legislature determines the punishment for crimes. Although the Court recognizes that Evers’ previously blameless life evokes compassion, it cannot agree that the circumstances are so rare and extraordinary that the human cost of his imprisonment exceeds society’s imperative need to deter others from disseminating child pornography. (pp. 50-59)

        Judgment of the Appellate Division is AFFIRMED with respect to Evers’ appeal, and REVERSED with respect to the State’s appeal, and the matter is REMANDED to the Law Division for resentencing.

         JUSTICE COLEMAN has filed a separate, concurring opinion, expressing the view that some of the Fourth Amendment discussion in the Court’s opinion is not essential to the disposition of the appeal.    

         CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE ALBIN’s opinion. JUSTICE COLEMAN has filed a separate, concurring opinion.

                
                
    

SUPREME COURT OF NEW JERSEY
A-81/ 82 September Term 2001


STATE OF NEW JERSEY,

    Plaintiff-Appellant
and Cross-Respondent,

        v.

WILLIAM T. EVERS,

    Defendant-Respondent
and Cross-Appellant.

Argued September 24, 2002 – Decided February 13, 2003

On appeal from and certification to the Superior Court, Appellate Division.

Wendy Alice Way, Deputy Attorney General, argued the cause for appellant and cross-respondent (David Samson, Attorney General of New Jersey, attorney).

Paul J. Jackson argued the cause for respondent and cross-appellant.

    The opinion of the Court was delivered by

ALBIN, J.

    Defendant William T. Evers challenges the validity of a search of his home authorized by a warrant that uncovered evidence of his possession and transmission of child pornography on the Internet and led to his conviction of multiple violations of the child endangerment statute, N.J.S.A. 2C:24-4. The State challenges defendant’s sentence to a probationary term for second-degree child endangerment, an offense that carries a presumption of imprisonment, N.J.S.A. 2C:44-1d. We now resolve these claims.

I.
    By all appearances, defendant was the very model of middle-class decorum and success. He had been happily married for thirty years, lived in the same Nutley home for twenty-five years, and reared a daughter, adopted at birth, for eleven years. At age fifty, defendant had the satisfaction of steady employment and good health. He played a direct role in the upbringing of his daughter, participated in community activities, and had never been arrested in his life. All in all, he seemed an exemplary citizen. But there was another side to defendant, the side he kept hidden from public view, an obsession with surfing the Internet for adult and child pornography.
In 1997, defendant purchased his first personal computer, which he placed in the basement of his house. His wife, Elayne, opened an America Online (AOL) account with the charges billed to her credit card at their home in Nutley. Each family member used the computer, and each had separate AOL screen names and passwords.
Defendant assumed two AOL screen names, one reserved exclusively for interactions with adult and child pornography Internet sites, “BTE324,” and the other for interactions with friends, family, and some additional adult pornography sites, “WTE324.” In a familiar routine, defendant would visit adult pornography websites and chat rooms on his computer every morning. By downloading photographs onto the hard drive of the computer, defendant was able to assemble a pornographic library. More than a year after his first venture into on-line adult pornography, he began exploring “special interest” child pornography chat rooms on a daily basis and exchanging child pornography with other users. Over a period of approximately six weeks, defendant collected several hundred pornographic “pictures of kids” through the Internet. In April 1999, defendant suffered an attack of “conscience” and became concerned that he might be “caught” by law enforcement authorities, his wife, or his daughter, so he ceased his excursions to the child pornography chat rooms. His fear of detection, however, did not deter him from maintaining on his computer hard drive scores of pornographic images of nude ten- to fifteen-year-old girls engaged in sexual activities. The day before his arrest, defendant was browsing through his library of child pornography.
In February 1999, Deputy Sheriff Michael A. DiMatteo of the San Bernardino County Sheriff’s Department in California was investigating the use of child pornography on the Internet. He created a screen name — “Tightone4u” — and logged onto AOL, entering a chat room bearing a title strongly suggestive of sexual activity involving children — “NOxHAIRxYET.” He submitted his screen name and e-mail address to a list-serve See footnote 1 employed by the chat room that allowed other AOL subscribers interested in this subject matter to communicate with him. On February 15, 1999, DiMatteo checked his e-mail account and discovered responses from ninety-eight different screen names from the chat room “NOxHAIRxYET.” One response, containing images of a nude female child in a sexually provocative position, was from the user of screen name “BTE324,” who had sent the same images to fifty other screen names as well.
With this information, DiMatteo applied to the Superior Court of San Bernardino County for a search warrant for the purpose of learning the identities of the users of the ninety-eight screen names trading in child pornography. He received the warrant and mailed it to AOL’s corporate headquarters in Dulles, Virginia. Without challenging the manner of service or
jurisdiction, AOL simply provided DiMatteo with the information demanded in the warrant, including the name of the account holder and the billing address of the screen name “BTE324.”
After learning that the billing account for screen name “BTE324” was Elayne Evers of Nutley, New Jersey, DiMatteo forwarded the results of his investigation to the Nutley Police Department. Armed with that information, Nutley Police Detective Sergeant Daniel Meehan applied for a warrant to search the Evers’ residence for “any and all computers, computer programs, hard and soft drives, disks, or diskettes, or any computer related equipment, plus any and all information which may lead to the identity of the individuals using the screen name BTE324.”
A Superior Court judge reviewed Meehan’s affidavit and found probable cause to issue the warrant. On May 25, 1999, the Nutley police searched the Evers’ residence, seizing the hard drive of the family computer. Defendant, who was home at the time, was arrested and made a full confession concerning his use of the computer to acquire and trade in child pornography.
Defendant was initially indicted on one count of second-degree endangering the welfare of a child by distributing “a photograph through the Internet, which depicted a child engaged in a prohibited sexual act,” N.J.S.A. 2C:24-4b(4)(a) (current version at N.J.S.A. 2C:24-4b(5)(a)), and on one count of fourth-degree endangering by knowingly possessing and/or viewing that photograph on his personal computer, N.J.S.A. 2C:24-4b(4)(b) (current version at N.J.S.A. 2C:24-4b(5)(b)). After he refused a plea offer from the State, investigators “cracked” the hard drive of defendant’s computer and retrieved over forty images which defendant conceded depicted child pornography. The photographs generally depict naked girls under the age of sixteen engaged in various sexual acts with adults.
The State then obtained a superceding indictment charging defendant with the same single count of second-degree distribution and forty-three counts of fourth-degree possession of child pornography. Defendant pled not guilty to those charges and sought admission into the Essex County Pretrial Intervention Program (PTI). The trial court affirmed the prosecutor’s denial of defendant’s PTI request and denied defendant’s motion to suppress his confession and the evidence seized pursuant to the New Jersey search warrant. Defendant then entered a conditional guilty plea to one count of distribution of child pornography and to forty counts of possession of child pornography. The court agreed to consider downgrading the distribution charge by one degree and imposing concurrent sentences on the distribution and possession charges.
At sentencing, the court downgraded the second-degree distribution offense to the third-degree sentencing range, N.J.S.A. 2C:44-1f(2), and concluded that a sentence of imprisonment would constitute a “serious injustice,” N.J.S.A. 2C:44-1d. The court then sentenced defendant to five years’ probation conditioned on 364 days of incarceration in the Essex County jail. The court suspended the county jail custodial term pending its six-month review of defendant’s case and ordered that defendant receive outpatient counseling and treatment at the Avenel Adult Diagnostic and Treatment Center (Avenel). Defendant was also ordered to comply with the annual registration and address verification requirements of Megan’s Law, N.J.S.A. 2C:7-2; N.J.S.A. 43-6.4. The sentences imposed on the forty child pornography possession charges were made to run concurrent with one another and with the distribution charge. The three remaining possession counts were dismissed on the State’s motion.
The State appealed the probationary sentence imposed on the second-degree distribution charge, N.J.S.A. 2C:44-1f(2), and defendant appealed, among other things, the denial of his motion to suppress evidence seized in the search of his home. In an unpublished opinion, the Appellate Division panel affirmed the convictions and sentences in all respects. In a dissent limited to the sentencing issue, Judge Steinberg concluded that the presumption of imprisonment on the charge of second-degree distribution of child pornography had not been overcome and that the trial court had abused its discretion by imposing a term of probation.
Our consideration of the State’s appeal as of right, based on the dissent below, is limited to the propriety of defendant’s probationary sentence for second-degree distribution of child pornography. R. 2:2-1(a)(2); R. 2:12-3(b); R. 2:12-11. The State has not sought review of, and we shall not disturb, the trial court’s determination to downgrade the second-degree offense for sentencing purposes. We granted defendant’s petition for certification, limited to the issues arising out of defendant’s claim that the evidence seized pursuant to the New Jersey search warrant should be suppressed. R. 2:12-11; State v. W.T.E., 172 N.J. 179 (2002).

II.
In challenging the validity of the warrant issued for the search of his home, defendant raises two issues. First, defendant claims that the affidavit in support of the New Jersey search warrant contained information acquired by San Bernardino County Deputy Sheriff DiMatteo in violation of his reasonable expectations of privacy, as well as California and Virginia law, thereby tainting the affidavit and making fatally defective the warrant. Second, he claims that the search of his home was authorized by a warrant that did not meet the probable cause standard. The resolution of those issues must be found in the text and interpretation of the Fourth Amendment to the United States Constitution and its state analogue, Article I, Paragraph 7 of the New Jersey Constitution.

A.
Defendant claims that he had a reasonable expectation of privacy with respect to the pornographic material he unloosed into the electronic stream of commerce when he e-mailed two photographs of an under-aged nude girl in an exposed position to fifty-one chat-room subscribers. To invoke the protections of the Fourth Amendment See footnote 2 and its New Jersey counterpart, Article I, Paragraph 7,See footnote 3 defendant must show that a reasonable or legitimate expectation of privacy was trammeled by government authorities. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed.2d 220, 226 (1979); State v. Marshall, 123 N.J. 1, 66 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993). To meet this test, he must establish that he had both “an actual (subjective) expectation of privacy,” and “one that society is prepared to recognize as reasonable.” Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed.2d 576, 588 (1967) (Harlan, J., concurring); Marshall, supra, 123 N.J. at 66-67. It has long been accepted that “[w]hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.” Katz, supra, 389 U.S. at 351, 88 S. Ct. at 511, 19 L. Ed. 2d at 582 (citations omitted); Marshall, supra, 123 N.J. at 67. An individual ordinarily surrenders a reasonable expectation of privacy to information revealed to a third-party. If that third-party discloses the information to the government, the individual, who falsely believed his confidence would be maintained, will generally have no Fourth Amendment claim. United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed.2d 71, 79 (1976). See also Guest v. Leis, 255 F.3d 325, 335 (6th Cir. 2001).
    Applying these principles, defendant clearly had no reasonable expectation of privacy in the content of e-mail he forwarded to fifty-one intended recipients, one of whom happened to be an undercover police officer. Defendant transmitted the forbidden e-mail at peril that one of the recipients would disclose his wrongdoing. There is no constitutional protection for misplaced confidence or bad judgment when committing a crime. Nor can defendant find refuge in the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34. The Wiretapping Act does not give defendant a protected privacy interest in the child pornography e-mail communication he forwarded to a California law enforcement officer who, in turn, disclosed the illicit content of that communication. See, e.g., N.J.S.A. 2A:156A-4(b) (explicitly excluding interception of electronic communication by law enforcement officer, who “is a party to the communication,” from Act’s purview). See also 18 U.S.C.A. §2511(2)(c) (providing that “[i]t shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception”); 18 U.S.C.A. §2511(2)(d) (excluding person, who is party to communication, from prohibitions of Federal Wiretap Act as amended by Electronic Communications Privacy Act of 1986).
    We next examine whether defendant possessed an objectively reasonable expectation of privacy under our Federal or State Constitutions in the subscriber information stored at AOL headquarters in Virginia. Although defendant’s wife was the named AOL account holder for the Evers family, we will assume that defendant has a privacy interest sufficient to invoke standing to challenge the constitutionality of the use of the subscriber information to procure a New Jersey warrant. State v. Alston, 88 N.J. 211, 228-29 (1981). See also State v. Curry, 109 N.J. 1, 7-9 (1987).
The California search warrant served by mail on AOL headquarters in Dulles, Virginia, sought account information concerning screen name “BTE324” and yielded the name, address, and telephone number of Elayne Evers, other screen names associated with the account, the method of accessing the Internet, and additional basic account information. This account information did not contain a record of when each screen name logged on or off the Internet or the content of any e-mail communication.
At the time he received the pornographic e-mail, Deputy Sheriff DiMatteo had no way of knowing that the holder of screen name “BTE324” was a New Jersey resident. New Jersey law enforcement authorities did not assist DiMatteo in any way in procuring the warrant from the California magistrate. DiMatteo did not have any contact with the Nutley Police Department until after AOL, in response to the California warrant, forwarded to him the account information revealing the billing account holder for screen name “BTE324.”
No purpose would be served by applying New Jersey’s constitutional standards to people and places over which the sovereign power of the state has no power or control. See State v. Mollica, 114 N.J. 329, 347 (1989) (holding “protections afforded by the constitution of a sovereign entity control the actions only of the agents of that sovereign entity”). Article I, Paragraph 7 of our State Constitution protects the rights of people within New Jersey from unreasonable searches and seizures by state officials, and its jurisdictional power extends to agents of the state who act beyond the state’s borders in procuring evidence for criminal prosecutions in our courts. Our State Constitution has no ability to influence the behavior of a California law enforcement officer who does not even know that New Jersey has an interest in a matter he is investigating. Therefore, we decline to hold that defendant had a right of privacy protected by Article I, Paragraph 7 in the subscriber information at AOL headquarters in Virginia.
We now proceed with analysis under the Fourth Amendment. In Smith, supra, the United States Supreme Court held that a defendant did not have a legitimate expectation of privacy in the phone numbers he dialed that were revealed through a pen register (as opposed to the contents of the telephone calls) and, therefore, could not invoke the protection of the Fourth Amendment. 442 U.S. at 743-44, 99 S. Ct. at 2582, 61 L. Ed. 2d at 228-29. Other federal courts, likewise, have held that there is no protected Fourth Amendment privacy interest in subscriber information given to an Internet service provider. Guest, supra, 255 F. 3d at 336 (noting that “computer users do not have a legitimate expectation of privacy in their subscriber information because they have conveyed it to another person — the system operator”); United States v. Kennedy, 81 F. Supp.2d 1103, 1110 (D. Kan. 2000) (“When defendant entered into an agreement with Road Runner for Internet service, he knowingly revealed all information connected to the [Internet protocol] address 24.94.200.54. He cannot now claim to have a Fourth Amendment privacy interest in his subscriber information.”).
Defendant contends that the Federal Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C.A. §§ 2701-2712, which provides the means by which a government entity may acquire subscriber information from an Internet service provider, creates an objectively reasonable expectation of privacy recognized by the Fourth Amendment. The ECPA requires a government entity seeking to procure subscriber information from an Internet service provider to do so by warrant, court order, subpoena, or consent of the subscriber. 18 U.S.C.A.
§ 2703(c)(1). See footnote 4 Although 18 U.S.C.A. § 2703 provides statutory privacy rights for Internet service provider subscribers, it does not afford an objectively reasonable expectation of privacy under the Fourth Amendment.
In United States v. Hambrick, a New Hampshire police officer served a New Hampshire state subpoena on the defendant’s Internet service provider, MindSpring, in Atlanta, Georgia for defendant’s subscriber information. 55 F. Supp.2d 504, 505 (W.D. Va. 1999), aff’d 225 F.3d 656 (4th Cir. 2000), cert. denied, 531 U.S. 1099, 121 S. Ct. 832, 148 L. Ed.2d 714 (2001). The subpoena was signed by a New Hampshire Justice of the Peace, who was also a member of the local police department, and the government conceded the invalidity of the subpoena. Id. at 506. Through the invalid subpoena, subscriber information was procured and later used to secure a warrant to search the defendant’s home. In moving to suppress evidence gained from the search of the home, the defendant challenged the information acquired from the invalid subpoena served on MindSpring, which was used as the basis for obtaining the search warrant. Ibid. The district court held:
Although Congress is willing to recognize that individuals have some degree of privacy in the stored data and transactional records that their [Internet service providers] retain, the ECPA is hardly a legislative determination that this expectation of privacy is one that rises to the level of “reasonably objective” for Fourth Amendment purposes. Despite its concern for privacy, Congress did not provide for suppression where a party obtains stored data or transactional records in violation of the Act. . . . For Fourth Amendment purposes, this court does not find that the ECPA has legislatively determined that an individual has a reasonable expectation of privacy in his name, address, social security number, credit card number, and proof of Internet connection. The fact that the ECPA does not proscribe turning over such information to private entities buttresses the conclusion that the ECPA does not create a reasonable expectation of privacy in that information.

[Id. at 507.]

The defendant had no reasonable expectation of privacy in the subscriber information. The district court decided the issue as though MindSpring had disclosed the information to the government without requiring a subpoena. In that circumstance, the defendant could sue MindSpring for the unwarranted disclosure, but not insist on suppression of the evidence in a criminal prosecution. Id. at 509. See also Kennedy, supra, 81 F. Supp. 2d at 1110 (holding that defendant had “not demonstrated an objectively reasonable expectation of privacy in his subscriber information” despite his reliance on ECPA).
Accordingly, we hold that defendant had no Fourth Amendment or Article I, Paragraph 7 protected privacy right in the subscriber information provided to AOL.

B.
    Having decided that defendant possessed no constitutionally protected privacy right in the subscriber information at AOL headquarters in Virginia, the question remains whether a violation of a federal statute or sister-state law, even if proved, is a sufficient ground for New Jersey to apply its exclusionary rule. Defendant argues that the warrant was unenforceable in Virginia because the power of California law ends at its state line and, therefore, the subscriber information delivered by AOL to DiMatteo was in violation of the ECPA and California law and would not have been admissible in a California court. Defendant does not contest that the warrant served on AOL was issued by a California magistrate upon a finding of probable cause and comported with the basic warrant requirements of the Federal Constitution. Nevertheless, he claims that the subscriber information was unlawfully acquired and should not have been used as a basis for the issuance of a warrant to search a home in New Jersey.
    We begin by noting that we are not persuaded that the subscriber information that DiMatteo obtained from AOL would not have been admissible in a California court. DiMatteo obtained a search warrant from a neutral and detached California magistrate, “a court with jurisdiction over the offense.” 18 U.S.C.A. §2703(c)(1)(A). AOL chose to comply with the warrant despite the questionable jurisdictional authority of a California warrant over a company headquartered in Virginia. It is not at all clear that the California warrant, even though unenforceable in another jurisdiction such as Virginia, did not meet the standards of the ECPA. To the extent Congress intended the ECPA to require judicial scrutiny before the issuance of a warrant, that objective was met. Moreover, even if there was a violation of the ECPA, exclusion of evidence is not provided as a remedy. Kennedy, supra, 81 F. Supp. 2d at 1110 (holding “that even if Road Runner divulged defendant’s subscriber information pursuant to a court order based on an inadequate government application, suppression is not a remedy contemplated under the ECPA”); Hambrick, supra, 55 F. Supp 2d at 507. Accordingly, we remain unconvinced that the subscriber information would have been inadmissible under California law. See People v. Hines, 938 P.2d 388, 420 (Cal. 1997) (holding that pursuant to amendment of California Constitution, “relevant evidence that is illegally obtained under California law is nonetheless admissible, so long as federal law does not bar its admission”), cert. denied, 522 U.S. 1077, 118 S. Ct. 855, 139 L. Ed.2d 755 (1998). See also Cal. Const. art. I, § 28(d) (mandating that except as provided by state statute, “relevant evidence shall not be excluded in any criminal proceeding”); Miranda v. Superior Court, 16 Cal. Rptr. 2d 858, 860-62 (Cal. Ct. App. 1993) (applying “good faith” exception to exclusionary rule as stated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.2d 677 (1984)). Nevertheless, assuming arguendo violations of the ECPA and California law, we would not invoke the exclusionary rule of this state.
    The purpose of the exclusionary rule is to act as a “deterrent safeguard to ensure that the Fourth Amendment is not reduced to ‘a form of words.’” Mapp v. Ohio, 367 U.S. 643, 648, 81 S. Ct. 1684, 1688, 6 L. Ed.2d 1081, 1086 (1961) (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 183, 64 L. Ed. 319, 321 (1920)). “[T]he ‘prime purpose’ of the rule, if not the sole one, ‘is to deter future unlawful police conduct.’” United States v. Janis, 428 U.S. 433, 446, 96 S. Ct. 3021, 3028, 49 L. Ed.2d 1046, 1056 (1976) (quoting United States v. Calandra, 414 U.S. 338, 347, 94 S. Ct. 613, 619, 38 L. Ed.2d 561, 571 (1974)). See also Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed.2d 1669, 1677 (1960) (“The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.”). Other than deterrence, the exclusionary rule advances the “imperative of judicial integrity” and removes the profit motive from “lawless behavior.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.5(c) (3d ed. 1996 & Supp. 2003). See also State v. Mollica, supra, 114 N.J. at 353-54.
Ordinarily, this state’s exclusionary rule will not be invoked to bar otherwise reliable and relevant evidence gathered by law enforcement officers of another jurisdiction over which our state has no control or authority, when those officers act in conformity with the Federal Constitution. Mollica, supra, 114 N.J. at 347-49. “The prospect of deterrence is more remote, as is the judicial taint from acceptance of the evidence,” when New Jersey public officers have not profited from their own wrongdoing. 1 LaFave, supra, § 1.5(c).
In State v. Mollica, supra, federal officers, without a warrant, secured telephone billing records of an occupant of a hotel and turned the records over to state law enforcement authorities, who used the information to obtain a search warrant for Mollica’s hotel room. The federal officers acted independently of state authorities and in conformity with federal law in seizing the telephone billing records. 114 N.J. at 334-35. Article I, Paragraph 7, however, requires state officials to secure a search warrant before seizing telephone billing records. Id. at 345. See also State v. Hunt, 91 N.J. 338, 348 (1982). Nevertheless, we held that it was not unlawful for state law enforcement officers to use the information conveyed to them by the federal authorities for the purpose of establishing probable cause to issue a search warrant for Mollica’s hotel room. Mollica, supra, 114 N.J. at 349-50. We recognized that the absence of any agency or control over another jurisdiction’s law enforcement authorities limited the application of the constitutional standards of this state, id. at 349, and that “the application of the state constitution to the officers of another jurisdiction would disserve the principles of federalism and comity, without properly advancing legitimate state interests,” id. at 353.
In State v. Minter, 116 N.J. 269 (1989), similarly, federal agents conducted an investigation in accordance with federal wiretap law and intercepted a telephone call that would have been admissible in a federal court proceeding. The federal agents, however, did not follow procedures demanded of state agents under New Jersey’s wiretap law. Id. at 271, 276. The failure of a state agent to comply with state law results in the exclusion of the evidence in a state prosecution. Id. at 278-79. Nevertheless, respecting the notion of federalism, we held that “no principles or policies of the exclusionary rule would call for the categorical exclusion from state court proceedings of wiretap evidence that has been obtained by federal officers in accordance with federal law but not state wiretap requirements.” Id. at 280.
In State v. Knight, 145 N.J. 233, 240-41, 243 (1996), a federal agent, acting in conformity with federal law, interrogated a defendant in California, who was under indictment in New Jersey. Article I, Paragraph 10 of the New Jersey Constitution generally prohibits state law enforcement officers from initiating a conversation with a defendant after indictment without the consent of counsel. N.J. Const. art. I, ¶ 10; State v. Sanchez, 129 N.J. 261, 277, 279 (1991). In Knight, we found a sufficient record to conclude that the federal investigator was acting as an agent of a New Jersey prosecutor’s office when he interrogated the defendant, and we required the exclusion of the evidence under our state law. 145 N.J. at 258-61.
The analysis in this case, however, is different from Mollica and Minter, where the federal officers were acting in conformity with the federal law, and from Knight, where a federal officer was acting in concert with state authorities. Here, defendant alleges that DiMatteo was acting in violation of the law of his jurisdiction — California, and federal law — the ECPA. There is no suggestion that DiMatteo was acting in concert with New Jersey authorities.
The securing of evidence in violation of the Fourth Amendment in another state would require New Jersey, pursuant to the Supremacy Clause, to apply the exclusionary rule as though the evidence had been wrongfully obtained here. U.S. Const. art. VI, cl. 2. See also Mapp, supra, 367 U.S. at 651, 81 S. Ct. at 1689-90, 6 L. Ed. 2d at 1087; Elkins, supra, 364 U.S. at 1446, 80 S. Ct. at 221-22, 4 L. Ed. 2d at 1689-80. The question is whether it would be sound policy to exclude from a criminal prosecution in New Jersey the fruits of a violation of local law of another jurisdiction by a law enforcement officer of that jurisdiction. See 1 LaFave, supra, § 1.5(c).
None of New Jersey’s interests ordinarily advanced by the exclusionary rule would be vindicated in this case by suppressing the evidence gathered out-of-state. There is no allegation of insolence in office by New Jersey law enforcement authorities or any suggestion that Nutley Detective Meehan played any role in, or indeed had any knowledge of, the issuance of the California warrant served on AOL in Virginia. Any of the alleged defects in the use and service of the California warrant were not of a constitutional dimension in the prosecution of a case in New Jersey. Undoubtedly, AOL understood that it could raise a jurisdictional objection to a California warrant served by mail on its Virginia headquarters. AOL’s compliance with the extra-territorial warrant, moreover, may subject it to a possible civil suit by defendant. See 18 U.S.C.A. §2707(a). But suppressing evidence voluntarily given by AOL to California law enforcement authorities would further no deterrent purpose under the laws of New Jersey.
The courts of other jurisdictions have reached similar results. In State v. Lucas, 372 N.W.2d 731, 735-36 (Minn. 1985), the issue was whether telephone conversations taped in Wisconsin, allegedly in violation of Wisconsin law, were admissible in a Minnesota murder prosecution. Although the Minnesota Supreme Court ultimately decided that the law of neither state was violated by the means the police used to secure the evidence, it enunciated the principle guiding its exclusionary rule:
It is clear that evidence obtained in another state in violation of the Federal Constitution is subject to the same rule of exclusion that would apply if the evidence had been obtained in this state. There is, however, no requirement that evidence obtained in another state be excluded in this state merely because it would be inadmissible if the prosecution were in that other state.

[Id. at 736 (citations omitted).]

See also Burge v. Estelle, 496 F.2d 1177, 1178 (5th Cir. 1974) (holding that “Texas as the forum state may choose its own standards for determining the admissibility of evidence [gathered in Oklahoma] so long as minimum federal constitutional standards are honored,” and that Texas is not bound by “Oklahoma’s choice of a deterrent”).
In conclusion, no New Jersey official engaged or participated in any unlawful conduct in the acquisition of the Evers’ subscriber information in Virginia. To apply the exclusionary rule would advance none of its purposes — deterrence, judicial integrity, and imposing a cost on illicit behavior — and would disserve the process of doing justice in this state by preventing the introduction of reliable and relevant evidence in a criminal prosecution. Use of that evidence in this state will not offend the integrity of our judicial process. There may be circumstances in which the procuring of evidence by the agents of another jurisdiction, although in compliance with the Federal Constitution, would so offend the judicial conscience and our state’s basic notions of fairness and justice that our courts would not countenance the admission of such evidence in a trial. But this is not such a case. We therefore hold that the subscriber information obtained by AOL was properly used by Nutley Detective Meehan in securing a warrant for the search of defendant’s home.

C.
    Defendant also claims that Detective Meehan’s affidavit did not provide probable cause to justify a warrant to search his home. More particularly, he argues that the AOL billing address for screen name “BTE324” did not answer the question whether “BTE324” actually used the computer for illicit purposes at the same location, and therefore, that there was not a well-grounded suspicion that a search of the Evers’ home would yield evidence of child pornography. We disagree. In the present circumstances, the billing address of the Internet screen name — a screen name that had e-mailed photographs of child pornography — was a logical place to search for evidence of the identity of the holder of the screen name and evidence of the crime.
    The Fourth Amendment and Article I, Paragraph 7 enjoin a judge from issuing a search warrant unless probable cause is established in the record. Our analysis begins with a review of the four corners of Detective Meehan’s affidavit and the “totality of circumstances” presented in that affidavit to determine the sufficiency of information offered in support of the warrant. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 2328, 76 L. Ed.2d 527, 543-44 (1983); State v. Sullivan, 169 N.J. 204, 210-12 (2001). Before issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched. Sullivan, supra, 169 N.J. at 210-11; State v. Laws, 50 N.J. 159, 173 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 384 (1968); State v. Macri, 39 N.J. 250, 256-57 (1963). Probable cause has been defined in many different ways, defying scientific precision. It is a “common-sense, practical standard” dealing with “probabilities” and the “practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Sullivan, supra, 169 N.J. at 211 (internal quotation marks omitted). Probable cause is “less than legal evidence necessary to convict though more than mere naked suspicion.” State v. Mark, 46 N.J. 262, 271 (1966). It is “a ‘well grounded’ suspicion that a crime has been or is being committed” at a particular place. State v. Waltz, 61 N.J. 83, 87 (1972) (quoting State v. Burnett, 42 N.J. 377, 387 (1964)).
Our constitutional jurisprudence has a preference for searches conducted with warrants. United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed.2d 684, 689 (1965); State v. Valencia, 93 N.J. 126, 138 (1983); State v. Kasabucki, 52 N.J. 110, 115-16 (1968). A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause or that the search was otherwise unreasonable. Valencia, supra, 93 N.J. at 133. See also Gates, supra, 462 U.S. at 236, 103 S. Ct. at 2331, 76 L. Ed. 2d at 546-47; Kasabucki, supra, 52 N.J. at 117. Therefore, substantial deference must be paid by a reviewing court to the determination of the judge who has made a finding of probable cause to issue a search warrant.
    We conclude that Detective Meehan’s affidavit met the standard of probable cause. That affidavit, in addition to providing Meehan’s qualifications, training, and law enforcement experience, described with particularity the details of his investigation. Detective Meehan received the California case file of Deputy Sheriff DiMatteo on April 29, 1999, which revealed the following:
(1) In February 1999, Deputy Sheriff DiMatteo entered a child pornography chat room entitled “NOxHAIRxYET.”
(2) DiMatteo typed his screen name into a program that listed him at the chat room site.
(3) On February l5, 1999, at 9:35 p.m., Pacific Standard Time, DiMatteo checked his account and found an e-mail containing two pictures of a naked child from a sender with the screen name “BTE324.” Both photographs were reviewed by Detective Meehan, who determined that the individuals depicted appeared to be under the age of sixteen and that the photographs represented “both child pornography and child erotica.”
(4) In response to a warrant served on AOL, it was learned that the billing account for “BTE324” was in the name of Elayne Evers of Nutley, New Jersey.
(5) Detective Meehan explained how child pornographers rarely destroy the photographs and images of their prurient interest and that “child pornography may be stored on electronic media such as computers, hard drives, computer diskettes, magnetic or digital tapes and computer CD-ROMs.”
(6) Detective Meehan expressed an opinion based on his experience and training that there was probable cause to believe “the account of Elayne Evers of [address omitted] Nutley, New Jersey under the screen name of BTE324, engaged in child pornography in violation of the New Jersey Penal Code Statute 2C:24-4b, ‘Endangering the Welfare of Children.’”
(7) Detective Meehan requested a court order to seize “any and all computers, computer programs, hard and soft drives, any and all information which may lead to the identity of the individuals using the screen name BTE324 which is being used in the distribution of this child pornography.”
We are living in a world in which computers are a common feature of our society. Computers are in use in both homes and businesses, and, with the advent of the laptop, in almost every other conceivable place. Business people and students leave their homes with laptops, use them at other locations, and return home with them. The billing address of an account tied to a computer screen name may not be an absolute guarantee that the holder of the computer screen name used the computer at the billing address to commit criminal activity, but there is a fair and logical inference that the computer will probably be found at that address and, if not, at least evidence of the identity of the holder of the screen name will be found there. This simple and sensible conclusion has been reached by other courts as well. See, e.g., United States v. Campos, 221 F.3d 1143, 1145 (10th Cir. 2000) (upholding validity of search warrant for defendant’s residence after “[l]aw enforcement agents determined that AOL subscriber who used the name ‘IAMZEUS’ was [defendant]”); Hause v. Commonwealth, 83 S.W.3d 1, 4-5, 11-12 (Ky. Ct. App. 2001) (upholding validity of search warrant for defendant’s residence that was supported by subscriber information obtained from AOL through California search warrant, also by Deputy Sheriff DiMatteo, and verification of address by Kentucky law enforcement officials).
We also conclude that there was probable cause to believe that the pornographic images of children would be retained on the computer of the person using screen name “BTE324.” Detective Meehan set forth his particularized reasons for this belief in his affidavit. There is solid precedent for Meehan’s investigative reasoning. In United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996), the district court found:
The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.

[See also United States v. Cox, 190 F. Supp.2d 330, 333-34 (N.D.N.Y. 2002) (quoting Lamb).]

    Unlike State v. Kline, 42 N.J. 135, 138 (1964), a case in which a search pursuant to a warrant was held invalid because “[n]o facts or circumstances were set forth in the affidavit which afforded reasonable grounds to believe that bookmaking was being carried on in the home,” in the present case, the reasonable and natural inferences were that evidence of the crime would be found in the home. Before applying for the search warrant in this case, Detective Meehan ascertained that the billing address was, in fact, a residence.
The privacy interests of the home are entitled to the highest degree of respect and protection in the framework of our
constitutional system, and in securing a warrant for the search of a home, law enforcement authorities should present reliable and accessible information to establish probable cause. There is nothing in the present record to indicate whether or not it was possible to determine the precise point of transmission of the e-mail sent to Deputy Sheriff DiMatteo. At oral argument, the State admitted that it did not know whether such information was obtainable. We note with approval that in several other cases, law enforcement officials took additional steps to verify that the computers from which offending images were sent were located in the defendants’ residences. See, e.g., United States v. Bender, 290 F.3d 1279, 1281 (11th Cir. 2002) (noting that search warrant was based on information subpoenaed from AOL and BellSouth “that revealed that the person sending the e-mails [containing child pornography] used a computer located at [defendant’s address]”), cert. denied, U.S. , 123 S. Ct. 571, L. Ed.2d (2002); Cox, supra, 190 F. Supp. 2d at 334 (denying motion to suppress where affidavit used to secure search warrant “detailed the daily AOL account activity, ‘most notably between 6 p.m. and 2 a.m.’”); Lamb, supra, 945 F. Supp. at 446, 460 (denying motion to suppress and noting that after AOL subscriber information was released pursuant to federal grand jury subpoena, “[f]urther investigation confirmed that a computer equipped with a modem was located in defendant’s home” and that it “was used to access AOL”). Although there is nothing in the record to suggest that such additional information was available in this case, law enforcement officers should, when possible, turn to available sources of information which may give greater accuracy to the probable cause determination. The Fourth Amendment and Article I, Paragraph 7 do not render ignorance bliss.
We do not suggest that if it were possible to obtain the precise point of transmission in this case, the failure to do so would have invalidated the warrant. However, technological advances, if they do not already, may soon permit law enforcement officers to determine easily through Internet service providers the exact point of transmission of personal computer e-mail. A single billing account for an Internet service provider, such as AOL, may cover the charges for a number of computers used by different members of a family. Given the mobility of our society, even that of the nuclear family, some computers may be at home and others in more distant locations. For example, parents may pay the account for computers used by their children in college. A laptop computer can be used at any number of locations other than the billing address. For this reason, a judge reviewing an application for the search of a home should make certain that reliable information, which is accessible in a timely manner, is utilized in making the probable cause determination of the locale of a computer used for criminal purposes. In other words, our courts must consider the new realities of our ever-expanding technological world. Nonetheless, the proofs in support of a search warrant will continue to be examined in a common-sense and not a hypertechnical manner. See Ventresca, supra, 380 U.S. at 109, 85 S. Ct. at 746, 13 L. Ed. 2d at 689.
We are satisfied that the probable cause standard for the issuance of a search warrant was met in this case.

III.
We must also determine whether the trial court appropriately applied the “serious injustice” standard enunciated in N.J.S.A. 2C:44-1d in sentencing defendant to a probationary term for second-degree child endangerment. The Appellate Division panel unanimously affirmed the trial court’s downgrade of the child pornography distribution charge from a second-degree to a third-degree offense for sentencing purposes. The panel, howe