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Despite Illegal Search Teacher Must Face Trial on Child Pornography Charges

October 29, 2012

Canada’s Supreme Court has ruled that a former teacher whose child pornography charges had been dismissed must now face a trial.

The decision is a prime example of the country’s reluctance to suppress evidence even after concluding that a police search was clearly unconstitutional.

Richard Cole, a former high school computer teacher, was found to be in possession of explicit images of a 10th grade female student on his work-issued computer. Once the photos were discovered, the principal ordered Cole to turn over the laptop.  School board officials then gave police the computer and other evidence, including a CD with copies of the images and screenshots of the pictures from Cole’s computer. Cole was dismissed from his teaching position.

Authorities, without applying for a search warrant, subsequently conducted a search of the computer and discovered Cole’s browsing history and other files with pornographic images. Based on the evidence obtained, Cole was charged with possession of child pornography and unauthorized computer use.

Prior to trial, the judge found that Cole had a reasonable expectation of privacy in the contents of his work computer. Thus, the police were not authorized to search the computer without a search warrant.

The Supreme Court declared that even though the police officers should have obtained a warrant to search the evidence, the evidence discovered was still admissible. The Court acknowledged that Cole’s constitutional rights had clearly been violated as a result of the search, but found that admitting the evidence “would not bring the administration of justice into disrepute and therefore the evidence should not be excluded.”

In contrast, Georgia’s exclusionary rule, codified in O.C.G.A. § 17-5-30, provides that “[a] defendant aggrieved by an unlawful search and seizure may move the court … to suppress as evidence anything so obtained” on the grounds that “[t]he search and seizure without a warrant was illegal.” Thus, had the same warrantless search been conducted in a Georgia child pornography case, the evidence would be excluded.

At this point, our exclusionary rule in Georgia still offers much greater protections to its citizens than most courts. For instance, the federal rules provide for a “good faith exception” that permits, in some circumstances, the admission of evidence seized with an invalid search warrant if the officers relied upon the warrant in good faith. In 2011, our exclusionary rule took a hit when the Georgia Supreme Court held in State v. Thackston that illegally seized evidence can still be admitted at a probation revocation hearing.  It is likely that our appellate courts will continue to chip away at it in the coming years.  As evidenced by the result in Cole’s child pornography case, a court’s interpretation of the exclusionary rule in a case involving a clearly unlawful search could mean the different between a dismissal and a conviction.

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