Understanding Colorado Sexual Exploitation – Child Pornography Cases: The Search Warrant

Most issues regarding the execution of a search warrant in Colorado Sexual Exploitation Cases are addressed in what is known as a Motion to Suppress Evidence based on a violation of the client’s constitutional rights.

The Motion typically takes the form of a motion to suppress the items recovered in the search of the client’s home.

The Law in this area.

To establish probable cause in a search warrant, an affidavit (which is a police report sworn to by the police officer) in support of a search warrant must allege “facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.”

Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place). A “presumption of validity” attaches to the affidavit submitted in support of a search warrant. That means that the Judge reviewing the warrant can assume the facts stated in the warrant are true and valid.

However, when an affidavit is based on a tip from an informant, the Judge must take into account the totality of the circumstances, including the informant’s veracity, reliability, and basis of knowledge, and the level of independent police corroboration of the facts stated in the affidavit.

In reviewing the judges decision to issue a search warrant – to determine if it was validly issued, a higher court will ask whether facts set forth in the supporting affidavit provided the issuing magistrate with a “substantial basis” for concluding that probable cause existed.

Because the probable cause standard does not readily lend itself to “mathematical certainties,” a higher court will usually defer to the lower court’s probable-cause determination and give it great deference.”  That means – a higher court will not usually change a lower court’s decision to issue the warrant.

But sometimes an affidavit will contain only conclusory statements with no facts from which a lower court can independently determine probable cause,… in this case it is determined to be a deficient “bare bones” affidavit.

Sexual Exploitation Warrants:

Colorado does not require that images of child pornography be attached to the affidavit to establish probable cause.  Colorado follows the rule that the affidavit need only describe the sexually explicit photographs or materials and it be sufficiently particular.

The affidavit should establish that the investigating officer has seen the images and by examining these images, the officer is allowed – where there has been an anonymous tip – to use his experience to establish a finding of probable cause.

But even the investigating officer’s conclusion that the search would yield images constituting child pornography must be based on extensive experience and training involving Internet crimes against children.

The Colorado Court of Appeals has stated a preference that in child pornography cases, a warrant that specifically describes the content of the images would is the better practice but in assessing the totality of the circumstances, some description prevents the affidavit from being a  “bare bones” – and therefore – defective search warrant.

One More Thing…

It is important to note that Colorado’s sexual exploitation statute contemplates that each sexually exploitative image of a child constitutes a discrete act of victimization of the child. That means that where there are multiple and distinct images of children the sentences for felony sexual exploitation of a child may run consecutive to one another… thus doubling or tripling the length of the sentence.