In 2007, an Agent with the New Mexico (NM) ICAC task force began an investigation into the distribution of child pornography over a peer-to-peer network operating the gnutella open protocol. The Agent identified an IP address associated with a NM internet service provider (ISP). That IP address was shown as having 58 images available for sharing, which the Agent believed contained images of child pornography (based on file names). The Agent confirmed one of the images to be child pornography. After a subpoena, the ISP revealed that the IP address belonged to one of the co-defendants (Davis). The Agent applied for a search warrant, and the affidavit requested authorization to seize and view photograph[s], (including but not limited to negatives, still photos, video tapes, artists[’] drawings, slides, and any type of computer formatted photograph)depicting children in a sexually explicit manner, as well as computer hardware equipment, (including . . .digital cameras . . .). Upon execution of the search warrant, agents found, inter alia, a Sony Cybershot digital camera.
A search of the digital camera’s memory revealed images of the named defendant engaging in sexual acts with C.S., the co-defendant’s 4 year old granddaughter. Defendant’s objected to the search and seizure of the digital camera. The district court granted the motion finding the warrant did not include any language about the possible use of a digital camera. As a result, the evidence from the digital camera was excluded, as was the testimony of C.S.’s mother (she was only found from the digital camera search). Finally, defendant’s won on a motion to limit testimony of Robert, the co-defendant’s son. Robert would have testified that co-defendant told him that she had witnessed Gurulue watching child pornography. The district court reasoned this was a classic Crawford/Bruton problem since co-defendant would not be subject to cross-examination on the statement. The State filed an interlocutory appeal, and lost on all issues. NM Supreme Court granted cert.
The Affidavit: [B]efore a valid search warrant may issue, the affidavit must show: (1) that the items sought to be seized are evidence of a crime; and (2) that the criminal evidence sought is located at the place to be searched. This requires that the probable cause determination be based on more than a suspicion or possibility but less than a certainty of proof. In order for a search or seizure to be lawful there must be a sufficient nexus between (1) the criminal activity, and (2) the things to be seized, and (3) the place to be searched.
The Agent stated that, based on her experience, online child predators have a very likely probability of possessing images of child pornography in various forms, making it necessary to seize all computer devices, and photographic equipment to which the [subject of the investigation has] access. Based on this information, the Agent attested that she had probable cause to believe that evidence of the exploitation of children by means of the possession and attempted distribution of child pornography would be found at defendants’ address. Since the Agent had probable cause and was authorized by the warrant to search Defendants’ address for evidence related to possession and attempted distribution of child pornography, the Agent was permitted to search every container and location within Defendants’ home in which that evidence could be found. Judgment reversed. This by extension reversed the ruling which excluded the testimony of C.S.’s mother.
Crawford Issue: In Crawford, the United States Supreme Court explained that an accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The Court went on to define testimonial statements as solemn declaration[s] or affirmations made for the purpose of establishing or proving some fact. Post-Crawford cases addressing the issue regarding what constitutes a testimonial statement have focused on the declarant’s primary purpose in making the statement. Co-defendants’ statement to her son is more akin to the situation in which a person makes a casual remark to an acquaintance than to an individual who makes a formal statement to a government official as part of a police investigation. Therefore Crawford is not implicated.
Bruton Issue: In Bruton, the United States Supreme Court held that the admission of one defendant’s confession that implicated the co-defendant violated the co-defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. The Court explained that the introduction of the defendant’s confession, and the statements implicating the co-defendant, added substantial weight to the government’s case in a form that was not subject to cross-examination because the defendant did not take the stand. The central question is whether Bruton survives as a stand -alone objection under the Confrontation Clause for coconspirators, independent of Crawford analysis, or whether Crawford now modifies Bruton to the extent of applying only to testimonial statements by a coconspirator implicating another co-conspirator. If the latter, then Bruton would not apply to this nontestimonial statement for the very reason that Crawford does not apply. Recent federal cases addressing this question would appear to lend support to the latter view that Bruton must now be seen in light of Crawford. ([B]ecause Bruton is no more than a byproduct of the Confrontation Clause, the [United States Supreme] Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.);([T]he Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements.).
Reversed and remanded.