Crossville Chronicle, Crossville, TN

May 10, 2013

Computer search in child porn case upheld

By Michael R. Moser
Editor

CROSSVILLE — A charge against a Cumberland County man accused of sexual exploitation of a minor for allegedly possessing more than 100 images of child pornography on his computer appears headed for trial after the search of his computer was upheld Wednesday.

Gary Anthony Miller, 56, was indicted on the felony offense after being accused by an acquaintance of possessing nude images and videos of children.

Defense attorney Earl Patton sought to have evidence seized from a computer identified as belonging to Miller suppressed on the basis of errors in the handling of a search warrant, and in part, because of a clerical error involving when the search warrant was returned to the clerk's office.

Cumberland County Sheriff's Investigator Chad Norris testified that Teresa Dodson told him and Deputy Avery Aytes that she had borrowed Miller's computer to find a photo of a tattoo she wanted copied and while searching for the tattoo, stumbled onto images of what she described as nude children.

In September 2011, she brought the computer to the sheriff's office and based on what Dodson allegedly discovered, Norris obtained a search warrant from Judicial Commissioner Ronnie Marquess on Sept. 27. He then prepared the computer to be shipped to the Tennessee Bureau of Investigation's forensic lab for the search and returned the search warrant to Circuit Court Clerk Larry Sherrill's office.

Patton attacked the search warrant because there was a discrepancy between the date recorded by Marquess as to when the document was issued, and the date marked by a clerk in Sherrill's office. The warrant was dated Sept. 27, but the return to the clerk's office was dated Sept. 26.

Patton's theory is that Norris looked at what was on the computer before obtaining the search warrant, resulting in the disputed dates, a claim Norris denied. The investigator testified he never viewed what was on the computer, and simply forwarded to the TBI.

Clerk Kathy Karlsven was called and explained that she must have made a mistake on the date when logging in the return of the search warrant. "We have a very busy office, and we get interrupted constantly ... I believe I made a mistake."

Patton also attacked the validity of the search document because a copy was not given to Miller at the time of the search, as required under judiciary rules.

Norris testified that the reason he did not leave a copy of the search warrant with Miller was because Miller invoked his right to not talk to or assist investigators, and that he was simply respecting Miller's rights.

Patton also questioned if the search was legal because Norris was not present at the TBI lab when the computer was searched, and because it was never established that Dodson was a credible witness on which to base obtaining the search warrant.

Judge David Patterson found that there was probably cause to obtain the warrant based on Dodson's report of what she saw, and noted that search rules in pornography cases are different from rules in traditional searches.

"It is a concern that the defendant was not given a copy of the search warrant," Patterson said. "It is not fatal, but it is of concern. It is bad practice." The judge also concluded that the conflict in dates was a clerical error and nothing more, and has no impact on the standing of the search warrant.

In a related motion, Patton asked the judge to not allow the state to count duplicate photos as individual pieces of evidence. This is important to the defendant because state law applies more serious sentencing for possessing more than 100 images as opposed to possessing more than 50.

The state had filed notice it intended to introduce 112 images and four videos, but Patterson agreed with Patton that it would be unfair to the defendant to have multiple duplicate photos counted as one each.

Patterson agreed with Knight that Patton's argument that some of the photos should not be allowed into evidence because they did not show sexual activity, with the judge and the state saying what was sexual in nature should be up to the jury to decide.

Another motion hearing date was set for July 1, with trial set for July 24.