Judge throws out evidence in child pornography case
A New Kent circuit court judge has thrown out evidence seized by sheriff’s personnel in the case of a county man charged with 30 counts of child pornography possession.
Following a June 10 hearing, Judge Thomas B. Hoover agreed to a defense motion to suppress evidence, including computers, compact discs, VHS tapes, and film, confiscated by deputies during a Dec. 5, 2005 search of Michael J. Conyngham’s home.
Hoover agreed with an argument advanced by Conyngham’s attorney, Charles A. Gavin, that authorities lacked probable cause in executing a search warrant at the defendant’s home. The judge ruled authorities acted on insufficient information to connect the defendant with illegal activity.
A circuit court grand jury indicted Conyngham, 56, of 5501 Ridgewood Drive, in March on the 30 possession charges along with four counts of distributing child pornography. Delays in having 3,700 computer images analyzed accounted for the lengthy time span between the 2005 search and last March’s indictments.
The judge’s ruling last week, meanwhile, places the prosecution’s case on the possession counts in jeopardy.
Commonwealth’s Attorney Linwood Gregory said he plans to appeal the judge’s ruling to the Virginia Court of Appeals, a process that could take as long as three months. Last week’s outcome, however, has canceled a July 14 jury trial scheduled on all 34 charges.
“The four distribution counts are still on the table, but we’ll not go forward to trial until resolution of the appeal,” Gregory said last week, adding that Hoover’s ruling constitutes “a major setback” to the prosecution’s case.
In a brief filed in circuit court on May 9, Gavin noted that a New Kent Sheriff’s Office affidavit, requesting a local magistrate to issue the search warrant for his client’s home, contained false information. The affidavit listed Aug. 9, 2005 as the date a Bedford County police task force, which deals with crimes against children, received a “cyber-tip” from the National Center for Missing and Exploited Children that eventually led investigators to Conyngham.
Actually, the tip had been received two years earlier in 2003, but not acted on by the Bedford task force until August 2005 due to personnel shortages.
A Bedford investigator, who investigated the matter, traced the tip to a Yahoo! account that had been deactivated and had no recent activity. The investigator, however, found Conyngham’s name as the person to be billed for the expired account along with a Henrico County address. Acting on the unusual spelling of the defendant’s last name, the investigator found only one Michael Conyngham listed in the Richmond area and alerted the New Kent Sheriff’s Office.
Gavin argued that no evidence and no informants existed to link his client with child pornography possession. Yahoo! records only identified his client as the recipient for bills at a Henrico address, not New Kent, thus information passed on to the magistrate proved misleading, Gavin wrote.
The defense attorney also argued that delays in acting on the information tainted the search. Information serving as basis for the warrant was too old and “stale” to furnish “present” probable cause, he wrote. Also, he said, there was no evidence of ongoing criminal activity inside Conyngham’s house.
In a response filed on May 29, Gregory countered that the Bedford investigator’s report failed to mention the date the “cyber-tip” was received. He also argued that child pornographers have a history of hording and rarely discarding pornographic items, thus the date of the original tip was immaterial and would not alter facts.
New Kent detectives, Gregory wrote, had not misled the magistrate and had acted in “good faith” relying on the magistrate’s decision.
But Gavin argued that a “good faith exception” allowed by law did not apply since facts listed in the sheriff’s department affidavit were misrepresented and misled the magistrate.
Conyngham remains free on $50,000 bond pending resolution of the appeal and outcome of the four distribution charges.