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Motion to Suppress – Great Deference

By: Derek Hawkins//September 18, 2018//

Motion to Suppress – Great Deference

By: Derek Hawkins//September 18, 2018//

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7th Circuit Court of Appeals

Case Name: United States of America v. Mark Scott

Case No.: 17-1666

Officials: BAUER, EASTERBROOK, and KANNE, Circuit Judges

Focus: Motion to Suppress – Great Deference

Mark Scott, who pleaded guilty to possessing child pornography, reserved the right to appeal from the district court’s order denying his motion to suppress the evidence that police found at his home when they executed a search warrant. Officials in Wisconsin obtained the warrant, from a state judge, after arresting Scott for attempting to have sexual relations with a boy who Scott (age 58 at the time) believed was 14 years old. Actually the “boy” was an agent of the state’s Department of Justice, who had impersonated a teenager in response to an ad that Scott placed on Craigslist. Scott and “Kyle” (the officer’s alias) had an extensive electronic exchange. Scott sent Kyle both sexually explicit emails and sexually graphic photos; one was of a man, on a bedspread, with an object in his rectum. Scott asked Kyle to reciprocate with “a pic of you in your compression shorts, with a hardon if you can”.

The affidavit in support of the request for a search warrant told the state judge about the ad on Craigslist, the sexual photos and messages sent by computer, Scott’s request that Kyle send a picture of himself with an erection, Scott’s offer to “host” the sexual encounter, and assurance by an investigating agent that in his “training and experience” pedophiles collect child pornography. The state judge issued a warrant authorizing a search of Scott’s home, including his computers, for child pornography. Executing the warrant, officers found plenty. The federal district judge denied the motion to suppress, concluding that the warrant is supported by probable cause. He sentenced Scott to 178 months in prison, to go with an 11-year sentence imposed by a state judge.

Scott assumes that on appeal we will make an independent (de novo) assessment of probable cause, ignoring the state judge’s finding. We will not. The decision of the judge who issued the warrant receives “great deference”. See Illinois v. Gates, 462 U.S. 213, 236 (1983); United States v. McIntire, 516 F.3d 576, 577–79 (7th Cir. 2008). With the benefit of “great deference,” this warrant is valid.

Scott also contends that there is no reason to think that pedophiles create or acquire child pornography. Yet Scott asked Kyle to send a picture of himself with an erection. Scott insists that such a picture would have been child erotica (because he asked Kyle to wear compression shorts) rather than child pornography. Maybe so; the line between the two is hazy. But we have held that the collection of pictures focused on children’s genitalia supplies reason to believe that the collector had child pornography. United States v. Lowe, 516 F.3d 580, 586 (7th Cir. 2008). The state judge did not exceed the bounds of “great deference” in drawing the same inference.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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