United States v. Walker, 2023 WL 3515110 (8th Cir. 2023)
Caution: Bizarreness ahead. Derrick Walker and Darren Heidinger were coworkers. Walker began a sexual relationship with Darren’s wife, Katie. Darren’s suspicions prompted him to look at his wife’s cellphone for evidence of a suspected affair. When Darren saw a video of Katie performing a sexual act on their infant child, he called the police. Darren showed the video to officers who viewed the video before arresting Katie. Katie told officers she sent Walker numerous photographs and videos of herself performing sex acts on children she babysat as well as her and Darren’s three young children. Katie claimed she abused the children to win Walker’s affection because she believed he was sexually attracted to young children. She told officers the sexual abuse “was all her idea.” She said Walker affectionately referred to her as a “loving pedo mom.”
Officers applied for a search warrant for Walker’s home and person. The caption of the warrant application listed only Walker’s residence “and any computer(s), cell phone(s), and electronic storage media found therein.” The body of the warrant application stated, “People often carry personal electronics on their person such as cell phones,” and expressly identified “the person of Derrick Stephen Walker” as a place to be searched. A judge issued two search warrants, one for Walker’s home and one for his person. When officers saw Walker at a restaurant, they seized and viewed images on his cellphone. After finding several images of children being sexually abused, they arrested him.
Following Walker’s arrest, Katie told officers Walker urged her to create the sexually explicit images and videos of her abusing her own children. She said her earlier claim of sole responsibility was a lie. A jury found Walker guilty of sexual exploitation of a child and receiving images depicting the sexual exploitation of a child. The trial court sentenced Walker to 45 years imprisonment. Walker appealed, claiming the trial court wrongly failed to suppress evidence obtained from a search of his cellphone, and complained the court should have allowed the jury to see a five-second video of a nude Darren (Katie’s husband) dancing and rubbing his genitals against Katie’s knee while one of their infant children sat under a blanket in her lap.
Walker claimed the search warrant for his person lacked probable cause because the application relied on information from Katie, who demonstrated she was not a reliable informant after admitting in her second interview that she had initially lied to the police about why she created the videos and images. Walker also claimed he should have received a Franks hearing. A defendant has a limited ability to challenge a warrant affidavit “where the defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included in the warrant affidavit” (Franks v. Delaware, 438 U.S. 154 (1978)). Omitted statements that cause a misrepresentation may also be raised in the defendant’s challenge to the affidavit. The defendant must show, by a preponderance of the evidence, that the false statement was essential to the finding of probable cause. Walker claimed that, had the application mentioned Katie lied, the judge would not have found probable cause to issue the warrant.
The takeaway for investigators is a reminder that the investigator’s job is to gather all available information, showing both guilt and innocence.
The court of appeals affirmed the trial court’s rulings. Foremost, the officers sought and obtained the search warrants following the first interview with Katie. Her later statement that she lied had not yet been made to officers. Therefore, there was no “misstatement” that misled the judge who issued the warrants.
The appellate court also agreed the video of Katie’s naked husband dancing and rubbing his genitals on her was not relevant. Federal Rules of Evidence define relevant evidence as evidence that “has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action” (Fed. R. Evid. 401). Even if evidence is relevant, it may be excluded “if its probative value is substantially outweighed by a danger of…unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The appellate court concluded, “We therefore agree with the court that the video had no more than a marginal relationship to the issue of Walker’s guilt while presenting a considerable risk of unfair prejudice.”
The takeaway for investigators (beyond the obvious: people do sick things) is a reminder that the investigator’s job is to gather all available information, both showing guilt and innocence, and to let the courts figure out what is and is not admissible. That’s what the investigators—to their credit—did in this case.