Just added

First Circuit: District court erred when it denied motion to suppress where search warrant in child pornography case lacked probable cause

After the district court denied his motion to suppress, Mr. Sheehan pled guilty to sexual exploitation of children. Although the Court found that the officer’s seizure of a cell phone held by Mr. Sheehan’s wife did not exceed the scope of the warrant authorizing seizure of cell phones where the phone was not concealed and officers did not pat her down or rummage through her pockets to obtain it, the First Circuit reversed holding that the affidavit's description of “pictures consist[ing] of images of prepubescent penises that lacked pubic hair” failed to make the necessary showing of lewdness needed to establish probable cause where the affiant’s description did little more than signify that images contained child nudity, but provided no detail as to focus of images, how children were positioned in images, or whether images were sexually provocative in any other respect, and affidavit did not supply any additional details about alleged assault or the suspect’s pedophilic tendencies.

The Court further held that the details provided in the affidavit for search of the residence could not be incorporated into a second affidavit for search of the cell phone seized where the second affidavit did not directly refer to the first warrant, attach the first affidavit, or otherwise expressly direct the reader’s attention to purportedly incorporated materials. Finally, the Court held that the search did not fall within the scope of the good faith exception where the search warrant affidavit’s cursory description of images seen on the phone and the bare fact of Mr. Sheehan’s assault were so bereft of factual support that no reasonable officer would have thought the warrant valid, the officer herself was responsible for the warrant’s defects, the second affidavit did not incorporate the first affidavit, and the officer noted on the second warrant application that her previous application for seizure of the devices had not made out probable cause for the crime of child pornography. United States v Sheehan, CA 1, 06-08-23, WL 3876648.

Colorado: New trial required where defendant’s self-serving hearsay statement was admissible as an excited utterance

In this date rape case, Mr. Vanderpauye claimed consent and moved to admit his statement made to the complainant when she ended their interaction: “I thought you said I could do anything to you.” The district court determined that this hearsay statement by the accused was automatically inadmissible because it was self-serving. The Colorado Supreme Court reversed and ordered a new trial holding that, like any other hearsay statement, a defendant’s self-serving hearsay statement may be admissible if it satisfies a hearsay-rule exception. Mr. Vanderpauye’s statement immediately after the complainant woke up and accused him of rape, though self-serving, fell within the scope of the excited utterance exception in CRE 803(2). The Court further held that the statement was more probative than prejudicial and that the exclusion of the statement was not harmless error where any opportunity Mr. Vanderpauye may have had to persuasively contend that he later apologized either because he felt bad that the complainant was upset or because he realized there had been a misunderstanding all but evaporated when he was prohibited from introducing his earlier statement. Colorado v Vanderpauye, CO, 06-20-23, WL 4068534.