Nebraska Supreme Court Reverses Child Pornography Conviction Because of Flaws With Warrant – State v. Sprunger

April 4, 2012 by David S. Seltzer

In my practice as a child pornography defense lawyer I hear, and read, about a lot of cases involving challenges to search warrants. These are attempts to get the evidence from a police search thrown out; throwing out this evidence generally destroys the case against the defendant because possession is such a simple crime. However, most of these challenges fail; courts generally uphold police actions and police judgment, and often they are not very sympathetic to the defendants to start with. So I was very interested to see a ruling that did throw out a search warrant out of the Nebraska Supreme Court. In State v. Sprunger, Benjamin Sprunger was convicted after trial of four counts of possessing child pornography, but said the evidence should not have been admitted because the warrant failed to establish probable cause.

Sprunger originally came to police attention because his IP address (the unique locator of his computer) had been used in suspected credit card fraud. After talking, Sprunger denied them a search without a warrant. When they returned with the warrant, Sprunger asked to delete some files first, but was denied. One deputy asked if there was child pornography on the computers, and after Sprunger said no, the deputy said there was nothing to worry about if Sprunger did not have child porn. A few days later, a lawyer for Sprunger called the police who took the computers and said Sprunger told him the computers had been taken to look for child pornography. Based on that statement and Sprunger’s request to delete files, the police obtained a second search warrant to look for child pornography. Ultimately, they found no evidence of the credit card fraud, but material they believed was child pornography. Sprunger moved at trial to suppress the second warrant, and while the court agreed there was no probable cause for that warrant, it found that the phone call from the attorney was enough to support a good-faith exception.

The Nebraska Supreme Court ultimately disagreed. It noted that the child pornography would not likely have been uncovered during the officers’ search for evidence of the credit card fraud, so their case depends entirely on the validity of their second search, for which the court said there was no probable cause. The deputy’s original statement about child porn was a reasonable basis for Sprunger’s and the attorney’s belief that Sprunger was under investigation for child porn, the court said. Furthermore, it said Sprunger could have requested a chance to delete files for any number of reasons, not just because the files were child porn or any other incriminating material. And a general search for evidence of any crime, without particularity, would be unconstitutional, it added. The good faith exception granted by the trial court also fails, the high court went on. The affidavit supporting the warrant was based on the same insufficient probable cause, it said. It said reasonable officer would or should have known that the only connection to child porn was created by the deputy’s comment, and thus they could not have relied on the warrant in good faith. Thus, it reversed and remanded the case.

As a cyber crime criminal defense attorney, I suspect this defendant succeeded where so many others failed because the evidence for the warrant really was extremely thin. Though official misconduct, such as racial profiling or allowing personal conflicts to affect police work, is one reason to throw out a search warrant, it’s not the only one. As this case shows, courts are willing to throw out a search warrant — and the illegally obtained fruit of the search — when the circumstances show no reasonable officer could believe there was evidence of a crime. In this case, as the high court observed, “the deputy had effectively planted the idea in Sprunger’s head,” and police knew or should have known that. As a child pornography criminal defense lawyer, I’m pleased that courts are willing to recognize this even when the alleged crime is child porn.

If you’re accused of a serious crime involving computers, technology or the Internet, don’t hesitate to call the cyber crime defense experts at Seltzer Law, P.A. You can reach us 24 hours a day and seven days a week at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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Seventh Circuit Rules Police May Use Cell Phones Without Warrant to Determine Numbers – U.S. v. Flores-Lopez

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Molestation Accusation Alone Cannot Support Search of Defendants Computer – Dougherty et al. v. City of Covina