COA upholds suppression based on detective's misrepresentations in warrant affidavit

Kenneth B. Miller and Kevin P. Shepherd won in State v. Hodge, Case No. 102,542 (February 12, 2010) (unpublished), affirming Judge Schmidt’s suppression of evidence in a Shawnee County prosecution for sexual exploitation of a child and possession of child pornography.

In the district court, Detective Heather Stultz-Lindsay originally submitted an affidavit in support of a search warrant that that lead to the search of Hodge's apartment and a seizure of digital cameras, digital storage devices, computers, cell phones with digital camera capabilities, documents related to child pornography, and other related items. The search of Hodge's apartment yielded two laptop computers containing about 80 pornographic images of children.

The district court later found that the affidavit in support of the warrant contained several misleading statements and omissions of material facts. The court suppressed the seized evidence pursuant to Franks v. Delaware, 438 U.S. 154 (1978) (if a false statement was included in the affidavit supporting the search warrant either knowingly and intentionally or with reckless disregard for the truth, and if the false statement was necessary to the finding of probable cause, then the search warrant must be voided and the evidence obtained suppressed).

The COA affirmed the district court’s suppression of evidence:

We find substantial evidence in the record from the Franks hearing and from the affidavit itself to support the district court's findings of fact. To the extent the district court made negative findings on matters that were lacking from the affidavit, there is no evidence that the district court arbitrarily disregarded undisputed evidence, nor is there any evidence of extrinsic considerations such as bias, passion, or prejudice. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 928, 157 P.3d 1109 (2007).

Lindsay's affidavit was misleading. When the district court revised Lindsay's affidavit by adding necessary information that was missing from it and correcting misleading information in the affidavit, it concluded that the revised affidavit did not support a showing of probable cause. We agree. The district court did not err in this conclusion. The revised affidavit would not provide probable cause to believe that if Hodge had engaged in aggravated indecent liberties with a child, any evidence of this would be found on his computer.

The court also rejected the State’s argument that the good faith exception saved the search. The court found that there was support in the record for the district court to disbelieve the detective in this case.