How do you know that?

by Rick Wetzel on October 7, 2011

Thanks to a tip from burglars, a central California man has been arrested for possession of child pornography.  Two burglars broke into Kraig Stockard’s barn in Merced County and stole 50 CDs they thought were blank.  After placing the CDs in a computer the burglars discovered some of them contained images of child pornography.

Even though the CDs had been obtained in a burglary, the pair reported Stockard to the police.  Based on that information, a search warrant was obtained for Stockard’s home.  Upon execution, the authorities found thousands of images of child pornography stored at the home.  The evidence tended to show Stockard had been downloading the pornography from the internet for seven years.

Private Search

The Fourth Amendment protection against an unreasonable search and seizure does not extend to the actions of private individuals.  Thus, under the federal constitution, there would be no prohibition on the sheriff relying on the burglar’s information to obtain the search warrant for Stockard’s home.  An argument before a criminal appeals court based on the Fourth Amendment would be rejected.

The rule is different in Texas.  When a defendant challenges the admissibility of evidence under TEX. CRIM. PROC. CODE art. 38.23(a) on the ground it was wrongfully obtained by a private person in a private capacity, the defendant must establish that the private person obtained that evidence in violation of law. See Mayfield v. State, 124 S.W.3d 377, 378 (Tex. App. – Dallas 2003, pet. ref’d); Carroll v. State, 911 S.W.2d 210, 220 (Tex.App.-Austin 1995, no pet.).  Unquestionably, the burglars obtained the CDs in violation of the law and were the prosecution in Texas; the evidence would be suppressed in response to arguments by a Texas criminal appeals lawyer.

What’s next?

The two burglars who reported Stockard have not been arrested and burglary charges against them are currently under review by the prosecutor.  Stockard was released from custody upon posting bail.  He awaits trial.  In a final twist, it turns out Stockard reported the initial burglary of the barn to the authorities shortly after it occurred.  If he told the authorities what was taken, his search and seizure claim would be dead on arrival even before a Texas criminal appeals court.

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