Child porn image was in plain sight on cell phone handed to Topeka police officer, prosecutor says
A background image of a naked, underage girl was in plain sight July 1 on the screen of a cell phone a Topeka Hy-Vee manager handed to a Topeka police officer, a court document says.
That officer responded by putting the phone in "airplane" mode and not searching it, says the document filed last month by Sara L. Walton, assistant U.S. attorney for Kansans.
The officer's seizure of the phone was justified because the law allows the seizure of evidence that is in "plain view" of law enforcement officers, Walton said in response to a motion asking a federal judge to suppress evidence in a child pornography case against the phone's owner, Gregory Seeley, 64, of Topeka.
Seeley was charged in August in federal court with two counts of sexual exploitation of a child involving the possession of child pornography and one count of possession of a firearm by an unlawful user of a controlled substance, court records show.
Nicholas David, an attorney representing Seeley, asked in a motion filed Dec. 15 that a federal judge suppress all evidence police obtained as they searched that phone, then searched Seeley's home and pickup truck, and questioned Seeley.
David contended the search was unreasonable because the image on Seeley's phone wasn't immediately apparent and was displayed only after a Topeka police officer manipulated it by pressing the "unlock" button.
It said legal precedent indicates evidence seized from a cell phone can't be used if police lacked a search warrant and first needed to press a button to access its contents.
David added that all evidence police seized after searching Seeley's phone "must also be suppressed as fruits of the poisonous tree."
A federal judge initially was scheduled to hear oral arguments and hold an evidentiary hearing regarding the motion on Jan. 27. That hearing has since been postponed until Feb. 24.
Prosecutor: Officer acted reasonably
Seeley left his Motorola cellphone at a cashier's register after buying groceries at the Hy-Vee at 2951 S.W. Wanamaker Road, where an employee tried to obtain his contact information by pressing the phone's "unlock" button, according to David's motion.
After then seeing the phone's background image, store employees called police and powered off the phone while leaving it in general manager Steve Colbern's office, that motion said.
Justin Broxterman, a Topeka police officer serving with a federal task force, and another Topeka police officer came to the scene.
David's motion said: "According to Broxterman, Colbern retrieved the phone, powered it on and showed Broxterman its contents. However, according to Colbern, he did nothing more than hand Broxterman the phone while it was turned off. Colbern reported that Broxterman then turned the phone on and began searching the phone in Colbern’s presence before ultimately seizing the phone."
However, Walton said in her response filed Dec. 30 that when Colbern handed Broxterman the phone, the phone was unlocked and was displaying its home screen, with the girl's image being in plain view.
"TFO Broxterman noted the female clearly appeared under the age of 18 and the image constituted child sexual abuse material (CSAM), commonly referred to as child pornography," the response said.
Broxterman then took reasonable steps to prevent the destruction of the contents of Seeley's phone by placing it in "airplane" mode, Walton's response said.
Authorities seized 31 firearms
Law enforcement officers during a subsequent search of Seeley's Topeka home seized "31 firearms, narcotics and paraphernalia," according to Walton's response.
It said Seeley admitted he downloaded CSAM from the Internet and had begun viewing CSAM about two years earlier.
Seeley also acknowledged being a daily user of marijuana, the response said.
This article originally appeared on Topeka Capital-Journal: Prosecutor: Topeka child porn case defendant's rights weren't violated
