Christopher Decker, the attorney for Joshua Carrier, the former Colorado Springs Police officer charged with 11 counts of possession of child pornography and 189 counts of child molestation, is arguing the search warrant that led to his arrest on May 11 be chucked, or at least reviewed for its propriety.
That's because the warrant didn't comply with federal and state constitutional standards, according to a motion recently filed with the 4th Judicial District Court.
Police searched Carrier's home based on information provided by the Air Force Office of Special Investigations, which obtained information from other federal agencies engaged in a child porn investigation, for "transactions" of child porn purchases that happened "more than four years before," the motion states.
The motion also argues the e-mail address cited "was never linked to the defendant." Nor, it says, was an IP address cited by police linked to Carrier.
Moreover, Detective Adam Romine's affidavit fails to state what alleged was purchased on the two dates: Jan. 7, 2007, and Feb. 23, 2007.
"As such, it is completely speculative that what may have been purchased in that 2007 transaction," the motion says. Given that the website in question had various sections including news, photos and software, Decker argues, "It may have been news, software, photos or videos. There is NO EVIDENCE that any of the three examples provided in Detective Romine's affidavit ... were purchased in that transaction."
Decker's motion also notes that none of the "exploitive materials" alleged to have been purchased by Carrier in 2007 "were ever found during the search of his residence."
Romine also states in the affidavit that he checked police records and found that Carrier had never reported being a victim of credit card fraud or theft, nor did he report any suspicious incidents involving his name or e-mail address being used to purchase child porn.
"These statements are false and misleading," Decker writes. Carrier, indeed, had reported being a victim of unauthorized use of his credit card, according to Decker.
While Romine alleges he connected Carrier to the e-mail and IP address, those statements are "reckless" and "false," Decker says, apparently because both would have been maintained through Adelphi, and Comcast Cable told the detective they "do not have any customer records from the Adelphi-Comcast transition."
Further, there's no evidence either of the e-mail addresses police allege were involved in the purchases were issued to or used by Carrier, Decker says.
"In this case," he argues, "the problem is deliberate or reckless omissions which hid the truth from the magistrate, which means the affidavit should be amended to include the important, but omitted, information. Then the affidavit should be reevaluated to determine whether it would establish probable cause for the issuance of a warrant."
The bottom line is that Decker asks the judge to suppress the warrant, and any evidence collected as a result of it. If prosecutors lose the warrant, it's unclear whether they could proceed with a case against Carrier on the child porn allegations.
Carrier is due to stand trial on those charges Nov. 7. His preliminary hearing on the child molestation charges is Sept. 15. For Carrier to be held for trial, prosecutors must show that crimes probably occurred and that Carrier is responsible, viewing the evidence in a light most favorable to the prosecution.
Carrier, who resigned from the force June 30, is being held on $500,000 bond.