NY Child Pornography Conviction Overturned Because of Flaws in Search Warrant

May 9, 2011 by David S. Seltzer

The issue of when police may search suspects and defendants is important to me as a cyber crime criminal defense attorney. Under the Fourth Amendment, evidence from unreasonable searches and seizures is often thrown out of court as “tainted” by the police’s violation of the defendant’s civil rights. Particularly in cases of child pornography possession, where prosecutors have to prove nothing but knowing possession, this can make the difference between conviction and no conviction. So I was very interested to read about a man from upstate New York whose conviction for possession of child pornography was thrown out because of major mistakes on a search warrant. As the Ithaca Journal reported May 5, John Gavazzi, 47, may not have to serve the remainder of his sentence or register as a sex offender now.

Gavazzi was arrested in 2009, when he lived in the Village of Greene in Chenango County. The New York State Police approached a judge in the village to get a search warrant that found child pornography images in Gavazzi’s possession, although no details were provided. Gavazzi pleaded guilty to possessing a sexual performance by a child and promoting a sexual performance by a child. He served 90 days in jail and was serving 10 years’ probation, plus sex offender registration, when the appellate division of the New York trial court unanimously overturned his conviction. The problem: the judge in the Village of Greene signed a search warrant from “Local Criminal Court, Town of Broome, Broome County.” (There are such a town and county in New York, but the town is not within Broome County or Chenango County.) The justices objected to the fact that this court did not exist, and said the judge’s signature was illegible and not backed by other identification. That invalidated the search warrant, they said, which made evidence collected under it inadmissible in court. Prosecutors may still retry Gavazzi without the evidence, a long shot, or appeal the ruling to the New York Court of Appeals.

As a cyber crime criminal defense lawyer, I’m pleased to see that this court was willing to uphold the rule of law and defendants’ rights, even when it might not be popular with the community. The mistakes on the warrant were described in the article as “technical errors,” but in fact, they’re important safeguards. Search warrants exist so police have to demonstrate a good reason to search citizens; judges are supposed to exercise independent third-party judgment about this. If this judge was so addled as to add, or fail to correct, the names of a county and town where he did not preside, who’s to say the rest of the warrant was given the scrutiny it deserved? Throwing out this kind of warrant gives police and prosecutors an incentive to be fair and aboveboard. As a child pornography possession defense attorney, I know defendants sometimes need all the help they can get defending themselves from police overreaching.

If you’re charged with child pornography possession or another serious online sex crime, you need the help of the experienced cyber crime attorneys at Seltzer Law, P.A. To set up a free, confidential consultation on your case, you can send us an email or call toll-free, 24 hours a day and 7 days a week, at 1-888-THE-DEFENSE (1-888-843-3333).