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Saturday, October 31, 2009
911 Search Key To Child Porn Case
Copyright © 2009 Albuquerque Journal
By Scott Sandlin
Journal Staff Writer
A federal judge is wrestling with a legal question in a child pornography case where defense lawyers want the court to throw out videos, photos and tapes that show sex acts described as "extremely graphic and violent."
U.S. District Judge James O. Browning will decide whether law enforcement can legally search a home without a warrant on the basis of a 911 call with only static on the line, and then find a closed, unlocked door at the home from which the call comes.
The judge heard testimony this week from Bernalillo County sheriff's deputies and arguments from the U.S. Attorney's Office and defense lawyers in the case against Joseph Martinez, who is charged in federal court with production of child pornography, described in court documents as raping a boy over a 10-year period.
Martinez, 51, an official in the family business Accustripe until his arrest, is also accused in state District Court of 45 felony counts of having sex with a child. He is no longer associated with the company.
Browning said he would rule as soon as possible, and defense lawyers said they will file a separate motion in state court challenging the search.
Deputies were performing a protective sweep of the home and looking for a person in need of assistance when they spotted drugs, photos, kids' toys and electronic materials that one described to the dispatcher as "creepy, creepy, creepy stuff in here."
Martinez' lawyers contend the deputies violated Martinez' Fourth Amendment right against unlawful search and seizure — first by entering the home and then by conducting what the defense has characterized as a "comprehensive search rather than a brief sweep."
Federal prosecutors say the deputies were following established procedures when they approached the home and got no response from knocks and loud announcements, observed "disarray" through windows and decided to enter through an unlocked door on the second story of the 3,500-square-foot home.
Here's how it unfolded:
• A 911 call came in to the county about 2 p.m. April 14, but there was no one on the line, just static. The dispatcher called back but got only static again. She dispatched deputies to check out the residence where the call originated at 10 Dairy Lane in Tijeras.
• Officers found the gate closed but were able to enter the property. They walked the perimeter of the home knocking and announcing, and ultimately entered through an unlocked sliding glass door on a second-floor balcony. They went inside to make sure there was no one injured, unconscious or dead.
• While there, they noticed pornographic DVD cases in plain view and a camcorder on a tripod pointed toward a pool table, smelled marijuana, saw what looked like a quantity of marijuana in the microwave and a plate with a powdery substance that appeared to be cocaine.
• In an upstairs bedroom, they saw a stack of Polaroid pictures, including one of a sex act involving a teen under 18.
Deputies Rob Lind, now a sergeant, and Nathan Kmatz contacted supervisors afterward to report what they had seen, and provided information that a detective from the Special Victims Unit used to secure a state search warrant. Evidence seized included 10 videos and eight mini-tapes showing Martinez engaged in sex acts that prosecutors describe as "extremely graphic and violent in nature" and in which the child was given marijuana and alcohol in the course of the abuse.
Attorney Sam Bregman, who with Eric Loman and Brad Hall are representing Martinez, argued deputies saw and heard nothing irregular and had no right to enter the home. They had no information to suggest there was a person inside and should have been able to complete the sweep in a minute, Bregman said.
The defense contends that even if Browning finds that the deputies lawfully entered the residence, the subsequent search far exceeded a simple protective sweep.
But answering questions from Assistant U.S. Attorneys Charlyn Rees and Pres Torrez, Lind and Kmatz testified they observed a TV set and other items "stacked up" near the door, as if a burglary were in progress. They said they conducted the search — not for drugs or pornography, but for a person in need of aid — within about five minutes.
They said the fact the 911 call was an "open line," with no one speaking and nothing but static heard, was immaterial. All 911 calls, including those where the caller hangs up, are treated the same, they said.
There was no indication anyone actually made the call, and the deputies said so-called "static" calls are not infrequent.
Martinez remains in federal custody pending trial. He was released on a $225,000 bail on the state charges, only to be charged in federal court on separate charges related to the same search.
A federal magistrate denied bail, based on federal law that permits a defendant to be held without bail unless he can show he is neither a danger nor a flight risk. Browning upheld that order this week.
Federal authorities have also moved to seize the Tijeras property.
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