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From Cell Phone Photography to Search Warrant

Wal-Mart usually isn't a place that most people would consider ideal for some photography practice. But for one man and his cell phone, it turned out to be a particularly bad idea. One leading indirectly to a felony conviction for sexual exploitation of a minor.

In the case of State v. Herrera, W2010-01826-CCA-R3-CD (Tenn.Crim.App. 7-5-2011), the Defendant pled guilty to sexual exploitation of a minor after a search warrant led to the discovery of alleged unlawful images in his home. The search warrant, which authorized a search for images in his home and all of his electronic media, originated from an allegation of unlawful photography and sexual battery of an adult female shopper at Wal-Mart.

In July 2009, the Defendant allegedly grabbed a woman's buttocks at Wal-Mart. Then in August 2009, at the same Wal-Mart, the Defendant allegedly attempted to take a cell phone photo up the skirt of the same woman as she was reaching down to grab a box. This time she reported both incidents. A security camera had captured the July incident and allegedly indicated that the Defendant may have been attempting to photograph the woman on that occasion also.

Wal-Mart was able to discover the Defendant's identity. A search warrant was obtained to look for images, digital or print, throughout the Defendant's home and electronic media. The basis of the search was to look for evidence of the unlawful photography of the woman from the August incident and sexual battery from the July incident. Unfortunately for the Defendant, the search turned up 715 digital photos which investigators alleged were child pornography.

The Defendant's lawyer correctly pointed out, in challenging the validity of the search warrant, that the facts relating to the unlawful photography allegation did not allege a crime under then existing Tennessee law. (T.C.A. 39-13-605 has since been amended in attempt to cover nonconsensual up-skirt photography in a public place). When the trial court ruled the evidence admissible, the Defendant entered a plea agreement and reserved a certified question of law challenging the warrant.

The certified question addressed the unlawful photography basis of the search warrant. However, the Court of Criminal Appeals found that the question was not dispositive of the case, since the search warrant was justified to search for photographic evidence to corroborate the July 2009 sexual battery allegation. According to the Court, a photo of the alleged victim, if discovered in the Defendant's possession, could have helped corroborate the sexual battery allegations.

For more information on criminal search warrants, contact Hindman & Associates.

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