Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley

September 13, 2011 by David S. Seltzer

As a Miami-Dade child pornography criminal defense attorney, I was interested to read an appeals court decision about suppressing a search of a defendant’s home. The search of Eric Wayne Kelley’s Arkansas home was found illegal by the Arkansas Supreme Court — but, applying federal law to a different criminal charge, the Eighth U.S. Circuit Court of Appeals found that the search evidence was admissible. In United States v. Kelley, the Eighth Circuit also found that Kelley’s 20-year prison sentence was not substantively unreasonable. Kelley was convicted in Arkansas state court of rape of a minor, only to have it reversed, and then convicted in federal court of possession of child pornography.

Kelley was living in Arkansas under an assumed name because he was wanted in Texas for sexual assault of a child. U.S. Marshals tipped off the local police to Kelley’s presence and said he was believed to be spending time with a boy. He was stopped outside his home by police; there was a boy in the car matching the description given by the Marshals. He admitted his identity and was arrested. At the police station, he repeatedly asked to call his sister about a prescription for his eyes; police had reason to believe he actually intended to tell the sister to remove evidence from his home. Meanwhile, the boy (with his mother present) told police Kelley had sexually abused him and taken photographs that were likely on Kelley’s computer. In response, officers sought and obtained a search warrant authorizing them to search for child pornography after midnight that day, because the pornography was in danger of removal.

Kelley was convicted in Arkansas state court of rape. However, the Arkansas Supreme Court reversed that conviction, ruling that the evidence must be excluded from consideration because it was illegally obtained using a warrant with no factual basis for a nighttime search. He was later retried and convicted on the same charge, and sentenced to 47 years in Arkansas state prison. Federal authorities then prosecuted Kelley for possession of child pornography. He appealed his conviction and 20-year prison sentence.

On appeal, the Eighth dismissed Kelley’s argument that the Arkansas Supreme Court’s ruling should serve to suppress the evidence in federal court as well. Under federal, not state, law, the Fourth Amendment controls whether the evidence should be suppressed, the court said. While nighttime searches were banned at our nation’s founding, current federal and Arkansas rules permit them when the requesting officers disclose their intent to search at night and give good cause. In this case, the court said, the officer requesting the warrant did exactly that. Thus, the motion to suppress the evidence was properly denied. The Eighth then turned to the issue of whether Kelley’s federal sentence was unreasonable. The judge departed upward from advisory guidelines to 240 months and ordered that this sentence run consecutively with the 47-year state sentence. Kelley argued that both the departure and the consecutive sentence were substantively unreasonable, noting that he would be 73 before eligible for parole from the state sentence. The Eighth disagreed, finding that the district court carefully considered the predatory nature of the crime, Kelley’s history of running from justice and the need to protect the public.

As a Fort Lauderdale cyber crime criminal defense lawyer, I am disappointed that the Eighth spent so little time on the issue of whether the sentence was unreasonable. Kelley’s age was not given, but even for a young adult of 20, a sentence of 67 years in prison means he has a good chance of dying in prison. The offenses in this case are serious, of course, but I cannot help but wonder whether the sentencing might not have been driven by a sense that Kelley nearly “got away with it” because his rape conviction was originally overturned. This could also have been the impetus behind the child pornography prosecution itself; the rape charge was the more serious charge and was brought well before the child porn charge. Popular sentiment is strongly against defendants like Kelley, and also drives the high mandatory minimum sentences for child pornography offenses. That’s why it pays to hire a south Florida child porn criminal defense attorney as soon as you even think you could be under investigation.

Founded by an experienced former cyber crime prosecutor, Seltzer Law, P.A., represents people around the United States who are facing charges of child pornography possession, soliciting a child online and more. With so much at stake, it’s vital to have someone on your side who understands the technology as well as the law. For a free case evaluation, send us an email or call 1-888-THE-DEFENSE.

Similar blog posts:

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

Montana Supreme Court Declines to Suppress Test Results From Intoxilyzer in DUI Case – State v. Johnston

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi