| D. South Dakota |
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Reminder: These case digests are provided for informational purposes only, and do not constitute legal advice. Anyone conducting legal research on a particular topic or in a specific jurisdiction is advised to supplement these materials with their own efforts or those of a qualified attorney whom they have hired for that purpose.2010U.S. v. Houston, CR 10-40001 (S.D. 10-6-2010) — Defendant moved to suppress evidence seized pursuant to two search warrants. Primary basis for the search warrants was evidence that Defendant had molested his niece. Defendant argued that such evidence could not provide probable cause for the presence of child pornography on his computer. The Court noted that the Eighth Circuit has held that for the purposes of probable cause, there is an "intuitive relationship" between acts of child molestation and probable cause. United States v. Colbert, 605 F.3d 573 (8th Cir. 2010). Relying on its intuition (as well as outright speculation that Defendant might have photographed his niece), the Court concluded that there is a sufficient nexus between molestation and child pornography to support a finding of probable cause. For good measure, the Court also tossed in the Leon good faith exception. Defendant's motion to suppress was denied.U.S. v. Flynn, CR 10-40012 (D. S.D. 9-2-2010) — Defendant, an attorney, is charged with two counts of distributing and one count of possessing child pornography. He argues that the South Dakota child pornography statute creates an affirmative defense to the federal charges for a lawyer representing a client. Both defendant and the government requested a pre-trial evidentiary hearing to determine if a jury instruction on the affirmative defense should be given. The court noted that absent a stipulation to the relevant facts, there is no authority for such a pre-trial evidentiary hearing. At issue, the court said, is whether the federal statute in question is overbroad in its application to the given case. If defendant received child pornography solely for the purpose of providing legal services to a client, then an instruction would be given that such purpose is an affirmative defense to the possession of child pornography charges. But, the court added, such an instruction would not apply to the distribution charge, with the possible exception of distribution to a proposed expert witness. The court granted a request for additional briefing on the "lawyer's official duty" defense in light of the known facts of the case. U.S. v. Nelson, CR. 09-40130-01-KES (D. S.D. 7-12-2010) -- Defendant was charged with one count of possession of child pornography. Prior to trial, defendant move to suppress evidence seized during a search of his residence, and for a Franks hearing on the validity of the warrant, arguing that the Task Commander for the SD Internet Crimes Against Children Task Force had falsified evidence. The court conducted an extensive inquiry into the investigation, including detailed discussion of IP and MAC addresses, and concluded that the Task Commander's affidavit did not establish probable cause for the issuance of a warrant. The motion to suppress and for a Franks hearing was granted. |
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