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Nosey Neighbor's Concern Lands Child Porn Suspect in Jail

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By Robyn Hagan Cain on July 27, 2012 4:13 PM

One minute, Dan Smith is enjoying a naked nap on a hot, summer morning. The next, officers are searching his computers for child pornography. He says that cops shouldn't have been in his house. And those images they found? Fruit of the poisonous tree.

The Eleventh Circuit Court of Appeals disagreed, and ruled that the evidence was admissible.

So how did things go so wrong for Smith?

In October 2009, Sebastian, Florida police officers received an anonymous tip that an individual identified as 'Dan Smith," who worked at a particular pharmacy, had child pornography on a laptop computer. The case was referred to U.S. Immigration and Customs Enforcement (ICE), but the agency never found incriminating evidence. The next summer, an ICE/Florida police hybrid superforce went to Smith's home for a consensual "knock and talk." They knocked loud enough to wake the dead -- or at least Smith's neighbor -- but not the slumbering Smith.

The neighbor talked to the officers, expressed some concern that Smith was not answering the door, and requested that the officers check on him. The officers conferred and decided to conduct a "welfare check." After five or six minutes of knocking, they entered Smith's home through an unlocked screened-in porch. They found Smith lying naked on an inflatable mattress.

Conversations followed, both inside and outside the house.

ICE Agent Brian Ray lied and told Smith that they had detected child pornography being transmitted from his residence. He asked to see Smith's computers. Smith consented, and the officers found filenames indicative of child pornography. The cops asked to take a number of Smith's belongings to the police department for examination. Smith consented. The officers asked to question Smith at the police station. Smith consented. At the police station, Smith allegedly confessed

After he was indicted for receiving child pornography and attempting to distribute child pornography, filed a motion to suppress the evidence seized from his computers, alleging that the officers' initial warrantless entry into his house had violated the Fourth Amendment and that his confession and the evidence seized from his computers therefore were subject to suppression as fruit of the poisonous tree.

The Eleventh Circuit Court of Appeals reasoned that, even if the officers' entry was illegal, the officers did not exploit the circumstances of their entry to obtain the evidence later used to convict Smith. Here, "the record is devoid of any suggestion that the officers' conduct during this period interfered with his making a knowing, intelligent, and voluntary choice to [consent] in the absence of any coercion or threats from the police." According to the court, Smith's consent was both voluntary and sufficiently attenuated from the entry such that any potential taint would have fully dissipated.

The key here was the attenuation between the officers' entry and Smith's consent to the search. If your client has consented to a search in a similar situation, you might win a suppression motion by demonstrating that there wasn't sufficient time for the taint to fully dissipate.

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