Nebraska Supreme Court supresses CP evidence after law enforcement invented the probable cause

In State v. Sprunger, 283 Neb. 531 (2012), the Nebraska Supreme Court ordered suppression of evidence of child pornography obtained during an initial investigation for credit card fraud. The court found that law enforcement invented the child pornography suspicion themselves and committed "an obvious Fourth Amendment violation."

Law enforcement tracked unauthorized use of a debit card to Sprunger's IP address and went to his home for a knock-and-talk. They asked if they could search his computers, but he refused to consent, and they returned several months later with a warrant. Before they took his computers, he asked if he could delete some files, and the officers told him no. They asked if the computers contained child pornography, Sprunger denied that they did, and they told him he "that if there was no child pornography, ... [he] had nothing to worry about." Sprunger's lawyer contacted law enforcement a few days later asking "about the child pornography case the deputies were working on." Using Sprunger's request to delete files and the lawyer's call, a second warrant was obtained to search for child pornography. No evidence was recovered concerning the credit card crime, but child pornography was found. The trial judge found that no probable cause existed in the second search warrant, but that "the good faith exception saved the search."

The Nebraska Supreme Court also agreed that probable cause did not exist. Because the officers questioned Sprunger about child pornography and said he had nothing to worry about if child pornography was found, it was reasonable for his lawyer to have thought it was a child pornography investigation. That inquiry did not establish probable cause. Also, Sprunger's request to delete files does not raise enough suspicion to "amount to a fair probability that child pornography would be found."

With regard to good faith, the court found that the only evidence giving rise to probable cause for a search of child pornography "was of their own making," and the deputies should have been aware of such. "[A] reasonable officer would also know that telling a person that he had "nothing to worry about" if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography." As such, the search was "an obvious Fourth Amendment violation" and "to ignore such a blatant lack of probable cause would set a low bar for future police conduct."