Falsehoods and Omissions in Search Warrant were Immaterial
US v. Freerksen, No. 11-6044 (10th Cir. 1/24/12) (unpublished): Defendant entered conditional plea to possession of child pornography. She challenged the search of the digital camera and computer seized from the home she shared with her husband and co-defendant, Dean Freerksen, in which digital pictures of the abuse of an 11-year-old victim were found.
She argued the warrant was defective in that: 1) it stated that the victim said she was raped by three males, but it did not state that she thought the males were juveniles; 2) she described the vibrator used on her as being white and six inches long, but did not include her statement to the detective that it was dark and she couldn't see what was being done to her; and 3) the warrant stated she said pictures were taken with a digital camera, but failed to state that this was a statement made by the victim to her mother, who then told the detective. The trial court concluded the falsehoods and omissions were immaterial and the search was valid. The COA agreed. The age of the males did not make any less likely there would be incriminating evidence; probable cause did not depend on the description of the vibrator; and the failure to state that the girl told her mother that the camera was used to take pictures did not undermine the probable cause to seize the camera because there was no claim that the girl did not make the statements to her mother. Judgement affirmed.
US v. Freerksen, III, No. 11-6059 (10th 1/24/12)(unpublished): Companion case to above. This defendant also raised additional challenges to the validity of the search. It did not violate the Fourth Amendment for the warrant to be issued by a magistrate who had previously prosecuted the defendant for sex offenses when he was a prosecutor. It was not unreasonable to sentence Mr. Freerksen more harshly than his wife (he got 50 years, while she got 10 as a result of a plea agreement). His other argument is improperly based on the wrong guideline; he was sentenced pursuant to the child exploitation guideline and not the one applying to simple possession of child porn. A couple of other issues are cursorily rejected
She argued the warrant was defective in that: 1) it stated that the victim said she was raped by three males, but it did not state that she thought the males were juveniles; 2) she described the vibrator used on her as being white and six inches long, but did not include her statement to the detective that it was dark and she couldn't see what was being done to her; and 3) the warrant stated she said pictures were taken with a digital camera, but failed to state that this was a statement made by the victim to her mother, who then told the detective. The trial court concluded the falsehoods and omissions were immaterial and the search was valid. The COA agreed. The age of the males did not make any less likely there would be incriminating evidence; probable cause did not depend on the description of the vibrator; and the failure to state that the girl told her mother that the camera was used to take pictures did not undermine the probable cause to seize the camera because there was no claim that the girl did not make the statements to her mother. Judgement affirmed.
US v. Freerksen, III, No. 11-6059 (10th 1/24/12)(unpublished): Companion case to above. This defendant also raised additional challenges to the validity of the search. It did not violate the Fourth Amendment for the warrant to be issued by a magistrate who had previously prosecuted the defendant for sex offenses when he was a prosecutor. It was not unreasonable to sentence Mr. Freerksen more harshly than his wife (he got 50 years, while she got 10 as a result of a plea agreement). His other argument is improperly based on the wrong guideline; he was sentenced pursuant to the child exploitation guideline and not the one applying to simple possession of child porn. A couple of other issues are cursorily rejected
posted by Anonymous at 9:47 AM
<< Home