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High court OKs child-rape evidence

ALBUQUERQUE, N.M. — Christopher Gurule, who with his friend Linda Davis, is accused of child rape, child sexual exploitation and kidnapping, will get an evidentiary hearing, and go to trial, based on a New Mexico Supreme Court opinion filed Thursday.

Gurule and Davis were charged with criminal sexual penetration and conspiracy to commit sexual exploitation after law enforcement during a 2007 search found deleted images on a digital camera that appeared to show Gurule raping a 4-year-old girl.

The opinion sends the case back to the 2nd Judicial District, reversing Judge Charles Brown’s suppression of a digital camera seized during the 2007 search at an apartment complex at University and Indian School NE in Albuquerque.

Brown found the investigators had exceeded the boundaries set out by another judge who approved a search warrant, which had not specifically mentioned cameras. Besides suppressing the state’s use of the camera and deleted pictures found inside it, Brown also barred the prosecution from using statements of the child’s mother and another witness after concluding the state would never have obtained the statements absent the illegal search and seizure.

The suppression was upheld by the New Mexico Court of Appeals in 2011, but the Supreme Court agreed to review the intermediate court ruling.

The opinion by Chief Justice Petra Maes for a unanimous court finds that officers had probable cause to seize the digital camera and orders the District Court to conduct a hearing to decide whether statements by family members are admissible under the rules of evidence.

The images in the camera’s internal memory were accessible only via imaging software available to law enforcement agencies, although Internet Crimes Against Children Task Force investigator Lois Kinch testified at a hearing that with proper cables, the suspects could have transferred the images to the Internet.

Prosecutors argued that in Kinch’s affidavit in support of the search warrant, she said that, based on her knowledge, training and experience, online predators are very likely to possess images of child pornography – and that once a judge has determined a residence contains evidence of a crime, the officer can search every container where such an item might be found.

The defense had argued that officers were required to obtain an additional search warrant for the digital camera.

Under the facts of this case, Maes said, Kinch had determined that a computer at the Gurule/Davis apartment was being used to share images of child pornography, making it necessary to seize computers and photographic equipment.

Brown recused himself from the case in April.

Gurule, who was in prison serving a sentence on drug charges at the time of the Court of Appeals ruling, completed that sentence in March. His $100,000 cash-only bail was changed to $100,000 cash or surety with oversight by Pre-Trial Services. But when Pre-Trial Services ruled him ineligible, he was taken into custody by the Metropolitan Detention Center pending trial on the sex abuse/sexual exploitation case.

Davis was released on $20,000 bail in May 2011, according to the court docket.

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