On April 2, 2015 Noel Campbell, a professor of economics in the College of Business, was arrested for possession of child pornography.
The child pornography in question was stored on Campbell’s university-issued desktop and was discovered after information technology (IT) employees performed routine upgrades on his desktop. When the IT department performs maintenance on a university computer, it creates an archive of the data contained in the computer.
IT official Candace Fisher discovered the child pornography on the flash drive containing the archive.
The morning prior to Campbell’s arrest, Fisher and her supervisor brought the flash drive to UCAPD.
Detective Preston Grumbles, “Seized the flash drive and confirmed that it was child pornography and it was in a folder labeled with other files that belong to Mr. Campbell,” according to the police report.
Detective Grumbles then contacted the IT department and received consent to search Campbell’s office computer.
When the police department went to Campbell’s office he was not present. The police seized the office computer and Lieutenant Jamie Booth transported the computer back to the IT department.
Detective Brian Williams arrived at the IT department and began a preview of the computer. During the preview, Lieutenant Booth observed suspected child pornography on the monitor.
Since Campbell was not in his office when police arrived to seize the computer, Detective Grumbles and Major John Merguie waited for him to return.
When Campbell returned, Detective Grumbles told him what had been found on his computer. Detective Grumbles requested that Campbell accompany him back to his office and seized Campbell’s personal laptop.
The prosecutor’s office charged Noel Campbell with 60 counts of violating Arkansas criminal code concerning the possession, distribution or viewing of child pornography, a Class C felony.
On April 10, Campbell agreed to not apply for a passport at his bail hearing. Campbell posted bail in an amount of $25,000 to secure his release from custody.
On April 23, Detective Williams informed Detective Grumbles, “That 756 new images of child pornography were detected during his forensic search,” according to the police report.
In light of this new evidence, the prosecutor’s office amended its felony information to include 310 counts of the felony.
When asked about why the prosecution chose not to charge Mr. Campbell with 816 counts, Deputy Prosecuting Attorney Jordan Crews responded that the charges reflect the case evidence.
“At some point in time you have to decide which ones you’re going to go forward on and how much evidence you’re going to put forward to meet all those counts,” said Crews. “There’s always a choice that the prosecution has to make as to how many charges to charge him with and how many to proceed on. If we charge him with 800 charges we have to show 800 images of child pornography to the jury.”
On May 27, the defense filed a motion to suppress evidence.
In court documents, the defense outlines an argument that the personal laptop seized on April 2 was taken without a warrant and does not fall under any exceptions that would allow seizure without a warrant.
On June 6 the prosecutor’s office argued in its response that the laptop was seized and searched lawfully. On Sep. 14 and Dec. 4 of 2015, the court had its first substantive hearings on this issue.
The court subpoenaed and heard testimony from police officers involved in the incident, the IT worker that first detected the child pornography and the IT worker that unlocked the desktop so that Detective Williams could preview the computer.
Since the court hearings, both sides have filed briefs regarding the defense’s motion to suppress evidence.
From the briefs it appears that each side is arguing as to whether the criminality of the personal laptop was immediately apparent. One of the exceptions to the fourth amendment that would allow a seizure of an item without a warrant is the plain view doctrine.
Both sides agree that the officers were in a lawful position and that the discovery was inadvertent. They disagree on whether the criminality of the personal laptop was immediately apparent.
The defense contends that, “There was nothing immediately apparent about the contraband nature of the laptop,” according to a brief filed by Campbell’s attorney Jeffery Rosenzweig. As outlined earlier in the brief, “Although the officers had some reason to think that the UCA desktop computer might have pornography, they knew that the laptop computer in the office was not the property of UCA.”
The defense goes on to say how Campbell did not consent or authorize the taking of the devices and he had not been arrested at that time.
“Although the status of the laptop – closed or open, screensaver or dark screen – was not recalled with specificity, there was no question that no pornography was evident on it,” said the defense’s brief.
This would violate the immediately apparent criterion of the plain view doctrine.
Rosenzweig said the laptop was illegally seized, that UCAPD did not have a warrant or probable cause to take it..
The state argued that the facts of this case are different than the one the defense references in its brief. The state chose to cite Texas v. Brown instead of Arizona v. Hicks.
The prosecution’s brief says the facts of the current case are close to Brown in that while, ”Detective Williams was looking for a UCA computer he also discovered another computer connected to the UCA network.” The prosecution said there was probably cause to believe that the laptop had child pornography on it.
The state also said that since the laptop was connected to the same network as the UCA desktop containing child pornography, there was a good chance it would be on other devices in close proximity.
The prosecution closes its brief by saying that the standards for the officer’s probable cause determination and the probable cause determination for the search warrant issued on the personal laptop were the same, save the confirmed knowledge, “That the UCA computer contained child pornography the day it was seized.”
The court is in the process of handing down a decision about the motion for suppression of evidence. This issue is expected to be discussed further at the next pretrial hearing, set for March 7 at 9 a.m. Judge Charles E. Clawson will preside.
This article originally appeared in the Feb. 3, 2016 print edition of The Echo.
image via arkansasmatters.com