Topeka detective, store manager differ on who powered phone as evidence challenged in child porn case
A background image of what appeared to be a naked, underage girl appeared onscreen July 1 after a Topeka Hy-Vee employee pressed the "unlock" button to try to identify the owner of a cellphone accidentally left at the store, a court document says.
Phone owner Gregory M. Seeley, 64, of Topeka, who faces federal charges for crimes that include possessing child pornography, claims Topeka police violated his constitutional rights by searching that cellphone without a warrant.
Nicholas David, an attorney representing Seeley, asked in a motion filed Dec. 15 that a federal judge consequently suppress all evidence police obtained as they searched that phone, then searched Seeley's home and pickup truck, and questioned Seeley.
The search was unreasonable because the image on Seeley's phone wasn't immediately apparent and was displayed only after a Topeka police detective manipulated it by pressing the "unlock" button, David's motion said.
Case involves contrasting stories
That motion said Seeley left his Motorola cellphone at a cashier's register July 1 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.
After then seeing a background image of what appeared to be a naked, underage girl, store employees called police and powered off the phone while leaving it in general manager Steve Colburn's office, David's motion said.
"Shortly thereafter, Seeley returned to the store multiple times looking for the phone, but he was told his phone was not there," it said.
Meanwhile, Topeka police Detective Justin Broxterman and another Topeka police officer responded to the store and met with Colburn in his office, David's motion said.
It said Colburn and Broxterman told contrasting stories of what happened next.
"According to Broxterman, Colburn retrieved the phone, powered it on and showed Broxterman its contents," the motion said. "However, according to Colburn, he did nothing more than hand Broxterman the phone while it was turned off. Colburn reported that Broxterman then turned the phone on and began searching the phone in Colburn’s presence before ultimately seizing the phone."
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.
'Fruits of the poisonous tree'
David's motion referred to a 2018 Kansas Court of Appeals ruling in the case of State v. Salazar, which it says set a precedent linked to the case against Seeley.
In the Salazar case, it said, the court granted the defendant's motion to suppress evidence seized from her cellphone after concluding an incriminating text message being used as evidence could appear on that screen only if someone pressed its "home" button.
"Seeley’s case has much in common with Salazar, as it was necessary to manipulate his phone by pressing a physical button to cause the background image to be displayed and Broxterman pushed that button," the motion said. "Under these facts, the court should not consider the image to be in plain view because the incriminating nature of the photo was not immediately apparent until Broxterman pressed the unlock button."
David's motion added that all evidence police seized after searching Seeley's phone "must also be suppressed as fruits of the poisonous tree."
Prosecutors may now submit a written response to David's assertions.
A federal judge will hear oral arguments and hold an evidentiary hearing in the case Jan. 27 in Topeka, court records show.
This article originally appeared on Topeka Capital-Journal: Child porn case defendant says Topeka police illegally searched phone
