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Eighth Cir. Upholds Night Search in Child Pornography Conviction

By Robyn Hagan Cain on September 20, 2011 | Last updated on March 21, 2019

Does darkness cast shadows of doubt on the legality of a search warrant?

Last week, the Eighth Circuit Court of Appeals rejected an Arkansas man's argument that a night search of his home was illegal.

Eric Wayne Kelley lost the appeal of his 20-year sentence in a child pornography possession conviction last week after the Eighth Circuit found that police followed proper procedures for acquiring and executing a night search of Kelley's home.

Kelley was living in Sherwood, Arkansas, when the Sherwood Police Department learned from the U.S. Marshals Service that Kelley was wanted in Texas for sexual assault of a child, and believed to be keeping the company of a young Middle Eastern boy.

Sherwood Police stopped Kelley for questioning as he drove away from his home with a boy matching the Marshals Service description. Though Kelley introduced the boy as his "nephew," and the boy initially claimed to be Kelley's "friend," the boy later told police that Kelley had sexually abused and taken nude photographs of him, which the boy believed were on a computer in Kelley's home.

A Sherwood police officer prepared and presented a warrant affidavit to a state court judge shortly after midnight, requesting that a night-time search for child pornography in Kelley's home be authorized because "the objects to be seized are in danger of imminent removal." The judge issued a warrant, stating it could be executed day or night.

Police executed the warrant at 2 a.m. that morning, seizing vast quantities of child pornography. Kelley moved to suppress the evidence seized in his home arguing, in part, that the warrant affidavit lacked proper justification to search at night.

At the suppression hearing, the police officer testified that he told the issuing judge under oath that Kelley had been demanding to call his sister from the police station, and, based on a prior experience, the officer was worried that electronic files and other forms of child pornography that were the object of the warrant search would be moved or destroyed.

The Eighth Circuit Court of Appeals noted that police must disclose intent to execute a night search to the issuing magistrate when applying for a warrant. An officer must have express authorization for a night-time search.

Here, the police officer presented the state court judge with probable cause to issue a warrant, and good cause to authorize an immediate, night-time search. The warrant expressly authorized execution at any time. Thus, both the warrant and its execution were reasonable under the Fourth Amendment.

Do you agree with the Eight Circuit's decision to uphold the night search of Eric Kelley's home?

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