Defense motion denied in child pornography case

Posted: Friday, December 31, 2010

Richard Miller, a Kenai man charged with 100 counts of felony possession of "extremely graphic" child pornography, had his motion to suppress evidence seized as the result of three search warrants denied by Superior Court Judge Carl Bauman on Thursday. Bauman subsequently set Miller's trial date for the week of April 18, 2011.

The 67-year-old man's defense attorney Randall Cavanaugh claimed the Sept. 2007 search warrants obtained by Kenai police Lt. David Ross that led to the discovery of the child pornography on Miller's computer were obtained unfairly and that Ross failed to include exculpatory information in his application for the warrants.

Judge Bauman ultimately found that the defense failed to prove that the search warrants were based on intentional or reckless misstatements, and that the information Ross excluded would not have altered Magistrate Jerry Anderson's finding of probable cause and decision to issue the warrants.

Ross sought to obtain the warrants in 2007 after he interviewed A.A., a female minor who said she had discovered pictures of naked underage males on Miller's computer at his Soldotna business, Wheels 4 Less. She said these images included pictures of her underage brother, G.A., and that she believed Miller was exploiting these young males and wasn't a person her brother should be residing with.

At the time, G.A. was 15 and living with Miller, who was 64. G.A. did not pay rent, but was working for Miller. Miller also provided G.A. with a cell phone and paid the bills, gave G.A. gifts, and bought all of his groceries.

A.A. also told Ross that her brother informed her of an incident in 2006 where Miller offered G.A. $30 to pick raspberries in the nude with another naked underage boy. A.A. said her brother had told her "it was happening again," which she interpreted to mean inappropriate touching and molesting.

G.A. established in a 2007 interview that his relationship with Miller involved touching and kissing, and in a 2006 interview confirmed he and Miller had hot-tubbed naked on several occasions.

While G.A. also confirmed in the 2006 interview that the berry-picking incident had indeed occurred, he denied sexual touching by Miller at that time, a fact Ross included in the affidavit. He repeated this denial in 2007, and also claimed to be unaware of any nude photographs being taken of him.

In the motion to suppress filed by the defense, Cavanaugh included the statement, "Detective Ross withheld this information to mislead the magistrate," referring to the information procured during the 2007 interview regarding G.A.'s denial of sexual touching. Ross had filed the application for the search warrants hours before G.A.'s interview on Sept. 28, 2007, had ended.

"Lieutenant Ross didn't do anything inappropriate and did not intentionally mislead this court," District Attorney Lance Joanis said during the evidentiary hearing on Wednesday. "That's a major accusation leveled against a police officer so I'm asking the court to specifically find that there was no intentional misleading by Lieutenant Ross of the court."

Judge Bauman agreed with the prosecution and wrote in his ruling delivered Thursday that he found "the testimony of Officer Ross was credible, particularly including his testimony that he had no intent to mislead the Magistrate."

Bauman concluded that "the information in the new interview of G.A. was neither material nor exculpatory to a search warrant for child pornography, nor was lack of awareness of G.A. that he had been allegedly photographed in the nude."

"It would have bolstered probable cause to include this newer interview," Joanis speculated during his closing statement. "It wouldn't have somehow had the magistrate say, 'Oh, we don't have probable cause now.' That is not the effect that including this newer interview would have had."

While a large amount of child pornography was found on Miller's computer, pictures of G.A. specifically have yet to surface.

Karen Garcia can be reached at karen.garcia@peninsulaclarion.com.



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