Arizona Court Sends Child Pornography Case With Allegedly Tainted Evidence Back to Court

May 23, 2011 by David S. Seltzer

I’ve written here recently about the issue of legal searches in child pornography possession cases. These defendants, like all defendants, have a Fourth Amendment right to be free of “unreasonable search and seizure.” That’s a vital issue when the charge is possession of child pornography, because the illegal materials can usually only be found with a search. When police officers overstep their rights, child pornography criminal defense lawyers like me can argue for the evidence to be thrown out. That was what happened to Arizona defendant David L. Greenberg, 43, when a trial court threw out the evidence against him. Last week, the Arizona Daily Sun reported May 20, an Arizona state appeals court reversed that decision, clearing the way for Greenberg to be tried after all.

Greenberg was originally arrested for secretly videotaping adult women as they undressed, then breaking into one of the women’s homes. After that arrest, police searched his home and found hundreds of instances of child pornography. He was indicted in 2009 on charges of sexual exploitation of a minor, surreptitious videotaping, voyeurism, drug charges, weapons charges and trespassing. However, the judge in Coconino County ruled that the evidence from the search of his home should not be admitted, because the facts alleged on the search warrant were “so facially deficient that the executing officer could not reasonably assume they were valid.” The Arizona Court of Appeals disagreed, finding that the facts clearly supported the probable cause needed for the warrant. The decision means the county is free to prosecute Greenberg again, but an attorney for Greenberg said he planned to appeal the ruling to the Arizona Supreme Court, which could delay any trial.

As a cyber crime criminal defense attorney, I’d be interested to see what the facts alleged on the warrant were, since it’s hard to judge which side has a better argument. However, decisions like this are generally worth keeping in mind because they show that defendants do have civil rights — even when they’re accused of something very serious or unpopular. The Constitution grants Americans the right to be secure in their homes unless the police have a good reason to think a search is necessary. A warrant is supposed to show that good reason. In this case, it’s possible that police had good reason to think Greenberg had something illegal in his home. It’s also possible that they didn’t, but decided that because Greenberg was accused of a sex-related crime, it was worth a “fishing trip” to see what else he might have. As a cyber crime criminal defense lawyer, I work hard to protect my clients from the latter type of search, which is overturned fairly often in court.

If you’re accused of child pornography possession or another very serious online crime, you should call the experienced attorneys at Seltzer Law, P.A., for help. Our lead attorney, David Seltzer, is a former cyber crime prosecutor from the Miami-Dade State’s Attorney’s office and has extensive experience with crimes involving technology and the Internet. 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 an email.