Tampa Bay Criminal Defense Lawyer Blog
One of the biggest things you can do to strengthen your defense position in a criminal case is to find ways to get the state’s evidence that was obtained from a search warrant thrown out. This evidence will probably be critical to the state’s case, so if you can get it suppressed, then you have a vastly better chance of obtaining an acquittal. This often means knowing how to attack your search warrant the right way. To give yourself the best chance of attacking a search warrant successfully, be sure you have an experienced Tampa Bay criminal defense attorney handling your case.
As an example, consider the case of D.G., a man suspected of possessing and distributing child pornography. The police’s suspicion arose after receiving a tip from an internet chatroom service, which reported that an image depicting child pornography had been uploaded to one of its chatrooms in October 2017 and that it came from a computer registered to D.G.’s home.
During their investigation, the Sarasota County Sheriff’s Office also learned that a similar anonymous tip about another single image of suspected child pornography from the same computer had been lodged in August 2016.
Based on those things, the sheriff’s office got a warrant and D.G. was arrested, tried and convicted on child pornography charges.
Now, most people who are under investigation and/or pursued by the police have not dealt in suspected child pornography, but there is still a lot that anyone facing criminal charges can learn from D.G.’s case. Specifically, this case sheds useful light on what is required to establish the sort of probable cause the law requires in order for a search warrant to be valid. (If a court issues a search warrant in the absence of probable cause, then you can potentially get all of the evidence seized pursuant to that warrant excluded from your case.)
In D.G.’s case, his appellate counsel argued successfully that there was not sufficient probable cause for the issuance of a search warrant. The appeals court agreed, as there were actually multiple holes in the police’s presentation in support of a warrant.
For one thing, the 2016 image presumably was legal, as the Sarasota detectives who looked at it concluded that it depicted legal nudity, not child porn. That left only the 2017 image. In the police‘s affidavit that eventually yielded the warrant, there was no description whatsoever of the details of that image. (Peculiarly, the affidavit did contain a very detailed description of the 2016 non-pornographic image, but that did nothing to advance the police’s case that there was enough probable cause for a warrant.)
It takes more than just the police’s unsubstantiated opinions
The police also did not attach the 2017 image to the affidavit. The only support for the warrant requested was the officer’s blanket statement that he “viewed the photo and it was determined that it did in fact depict child pornography.”
That’s not enough. For an affidavit to demonstrate sufficient probable cause, it has to have more than just the police’s “conclusory statements,” which is what happened here. There has to be enough in the affidavit to allow the judge to make an independent verification that the police’s assertions are correct. In a case like this, that means there has to sufficient detail to allow the judge to determine independently that the image(s) at issue are “illegal child pornography, as opposed to lawful, nonobscene nudity.”
There’s also another way to attack your warrant. Even if the officer who completes the affidavit does include details, he also has to have sufficient training or experience for the court to rely upon him. In D.G.’s case, the affidavit never showed that the officer “had any training or expertise in identifying child pornography.” Specifically, the affidavit lacked proof that the officer was “trained, either in a classroom or on the job, to identify child pornography and distinguish it from legal images of simple nudity.” The absence of that training further established that the affidavit, as written, was not enough to establish probable cause, meaning a warrant never should have been issued.
As a result, the appeals court threw out all of the evidence seized pursuant to the search warrant and ordered a new trial.
Whether facing child pornography or other criminal charges, you’re entitled to a trial in which the only evidence you face is evidence that was obtained legally and constitutionally. If evidence was obtained as a result of a warrantless search or an invalid search warrant, you’re entitled to have that excluded. Doing that properly, though, often requires detailed knowledge of the law and criminal procedure. For that kind of knowledge and experience, rely on the skilled Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. Call us today at (727) 286-6141 to schedule your FREE initial consultation.