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Officer's Blunder Leads to Suppression of Evidence Seized in Child Pornography Case

By Deborah Elkins
December 15, 2008

The Court of Appeals upholds an order suppressing evidence resulting from a search of defendant’s residence where the search warrant was issued in 2005 based on a 2003 cybertip about downloading of child pornography; we disagree with the commonwealth’s argument that the good faith exception should apply in this case because the record does not support the trial court finding that the officers seeking the warrant acted in reckless disregard of the truth.

The trial court found that the detective, albeit unintentionally, misled the magistrate as to the material facts. The detective listed the wrong incident date and failed to tell the magistrate that his investigation led him to believe the images were uploaded from a location he believed to be defendant’s work address in Richmond. The evidence supports the trial court’s factual finding that the detective acted recklessly.

When the detective included the false date, he converted a tip that had, for whatever reason, sat uninvestigated for two years to a tip that was only four months old. That difference in time, in combination with the lack of any information in the affidavit or in the executing officers’ knowledge to explain why probable cause existed given the passage of time, was material to the magistrate’s evaluation of probable cause. Further, as the trial court emphasized, the correct incident date was clearly typed on the first and second pages of the Bedford incident report. Thus, the correct information was readily available to the detective.

The investigator’s use of two different dates in his report should have put the detective on notice that he needed to determine the correct date.

The officers also failed to disclose that there was no way to determine the location of the computer from which the images had been uploaded to the Yahoo group web site. The detective had no basis for alleging that contraband was located in defendant’s home other than his subject belief that defendant was uploading images from his work address and would also “upload them from home.”

While the good faith exception in U.S. v. Leon generally allows a police officer to rely on a probable cause determination made by a magistrate, good faith is not a magic lamp for police officers to rub whenever they find themselves in trouble. Here, the trial court determined that “sloppy” and reckless police work resulted in both a misstatement and an omission of material facts in the affidavit. It thus concluded that the magistrate was misled as to the existence of probable cause. We cannot say the trial court’s conclusion was plainly wrong or unsupported by the evidence.

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