Sparks and Johnson v. U.S. – Cell Phone in Child Porn Case Fair Game, 11th Circuit Rules

In a split decision some speculate may find its way to the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit ruled two defendants in a Florida child pornography case had no standing to challenge the seizure of a cell phone that contained the images because, justices concluded, the phone was “abandoned.” officerholdingcellphone

Defendants in Sparks and Johnson v. U.S. had argued a 23-day delay between the time the phone was turned over to police and when the police obtained a search warrant rendered the subsequent search illegal. Not so, ruled the court, which concluded even a search of the non-password-protected phone by a store employee in the first three days before defendants abandoned the device wasn’t grounds to reverse defendants’ convictions, which resulted in 30- and 50-year sentences, respectively.

The ruling was accompanied by sharp dissent from Judge Beverly Martin, who asserts the majority made a ruling of fact on the abandonment issue. To do so was erroneous, Martin wrote, because the role of the appellate court is to review findings of fact for clear error. Criminal defense lawyers have weighed in to state the definition of “abandonment” has been stretched to the point where it may be widely interpreted. One opined the ruling was a means to justify an end in a case where the crimes were extremely disturbing.

As our Miami criminal defense attorneys would argue, the nature of a crime should not dictate the way in which judges approach their role.

Here, defendant couple were shopping at a local box chain store when one apparently lost a cell phone. The device was discovered by an employee of the store. Female defendant sent a text message to the phone, “urgently requesting” to have it returned. Employee called the number on the phone, and defendant made a “peculiar” request, asking that employee not turn the phone over to customer service, but instead to hold onto it for her until she could pick it up directly.

Employee made arrangements to give defendant back her phone, but checked the phone’s photos, apparently in an effort to see who she would be returning it to. However, when she accessed those images, she saw “pretty weird” pictures of a young girl, nude and placed in “questionable” poses.

She called her husband, who looked on as his wife looked through the images. Deciding the images were worthy of further search, the husband took the phone to turn over to police detectives. He scrolled through the phone as a trainee looked on. While they were looking, a text message popped up, indicating defendant needed the phone returned immediately. A detective then looked at the images while husband scrolled through, and confirmed they were child pornography. However, once it was learned the phone was actually found in another city, the detective contacted his counterpart at that agency and delivered it to them.

A detective with that department, who was assigned to the FBI’s innocent task force, received a call about the phone as she was about to board a plane to attend training in another city. She was the only detective assigned to the FBI task force. In her absence, the other three officers weren’t able to check the phone out of the evidence room. The detective had several other training sessions back-to-back, along with other pressing cases. When she finally returned from training, she prepared an application for a search warrant – nearly a month after the phone was found.

The owners of the phone had stopped trying to get it back three days after it had gone missing. They had purchased new phones and made no effort to recover the old one.

When the phone was searched, authorities discovered many images of child pornography and determined the phone belonged to male defendant.  In all, 1,322 sexually explicit images involving children and 45 sexually explicit videos were uncovered. A residential search warrant was obtained. There, officers discovered more than 500 sexually explicit pictures and 58 sexually explicit videos. Many of those involved a 4-year-old girl who was the daughter of the couple’s friend.

Defendants would later plead guilty to federal child pornography charges, but reserved the right to appeal, which they exercised before the Eleventh Circuit.

Although the images were undoubtedly troubling, the issue here was whether police improperly handled the phone as evidence and whether defendants made reasonable efforts to retrieve it. Defendants asserted violations of Fourth Amendment rights against unreasonable search and seizure. However, the appeals court noted you can’t assert Fourth Amendment rights to property you abandon.

Defense pointed to a 2009 ruling by the same appeals court in U.S. v. Mitchell, in which the court ruled a 21-day delay between the time a computer hard drive was seized and when a warrant was obtained was an unreasonable violation of the possessory rights of the defendant. In Martin’s dissent, she stated this was exactly the type of delay that should warrant a withdrawal of guilty pleas. They wouldn’t necessarily walk away, but they would likely be entitled to a trial or they could be allowed to plead guilty to lesser charges.

It’s unclear if the pair will appeal the ruling, but many speculate the case isn’t over.

Contact the Miami criminal defense lawyers at Jacobs Keeley at (305) 358-7991 for a free consultation on your pending criminal matter.

Additional Resources:

Court Rules Cell Phone Abandoned in Child Porn Case, Dec. 15, 2015, By Noreen Marcus, Daily Business Review

More Blog Entries:

Federal Dual and Successive Prosecution – “Petite Policy” – Growing Concern for Florida Defense Lawyers, Aug. 18, 2015, Miami Criminal Defense Attorney Blog