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Judge Drops Child Porn Charges in Lebanon, Blames Improper Police Procedure

  • Jacob Seace

Valley News Staff Writer
Published: 8/31/2018 11:54:33 PM
Modified: 9/4/2018 8:59:37 AM

North Haverhill — Child pornography charges filed against an 18-year-old Lebanon man were dismissed this week after a judge ruled that city police had improperly seized his cellphone at Kilton Public Library in November and then conducted an “overbroad” search of that electronic device.

Jacob Seace no longer faces 22 felony counts of possessing child sexual abuse images and one felony count of distributing such images. He pleaded guilty in June to resisting arrest and obstructing government administration, both misdemeanor counts.

Sgt. Richard Norris and Detective Alan Lowe seized Seace’s cellphone inside the library on Nov. 7 in an incident that was captured on video by a bystander and prompted some complaints about police behavior.

Both state and federal constitutions prohibit such seizures without first obtaining a search warrant, though there are a few specific exceptions.

Prosecutors argued that the decision by Lebanon police to seize the phone without a warrant was proper because of “exigent circumstances” — Seace might otherwise have destroyed the evidence they expected to find on that phone.

That rationale was rejected by Grafton County Superior Court Judge Lawrence MacLeod in a 15-page order that cited previous court rulings that had determined that exigent circumstances don’t legitimize warrantless searches if the circumstances were created by the police themselves.

“The court concludes that the exigency relied on by the state was created solely by police conduct,” MacLeod wrote. “The police seized the defendant’s phone in violation of the defendant’s rights under (the New Hampshire Constitution), and, therefore, the evidence derived from that seizure is inadmissible.”

MacLeod said in his order that the officers had “ample opportunity” to obtain a warrant prior to confronting Seace at the library and had probable cause to do so because they had located sexually explicit images on the victim’s phone that had allegedly been sent by Seace before they confronted him in the library.

They had the victim’s phone, had seen Seace’s face in one of the photos and had spoken to the victim’s father, who identified Seace as the defendant.

Therefore, once the officers saw Seace in the library, “Lowe had probable cause to believe that the defendant was the person sending and receiving sexual images on Facebook Messenger with (the victim),” MacLeod wrote.

The officers didn’t first seek a warrant before going to the library because they thought they hadn’t established the probable cause necessary to persuade a judge to issue it, Lebanon Police Chief Richard Mello said in a telephone interview on Friday.

“That is a learning point for them. ... Obviously a warrant is the best course of action, but the officers didn’t think they had that level of probable cause,” Mello said.

Separately, but contained in the same order, MacLeod said the search warrant affidavit the officers filed after seizing the phone that gave them permission to examine it for criminal evidence was “overbroad.”

Warrants must describe the evidence an officer is searching for and show probable cause to believe the evidence may be found in a specific location.

“(The warrant) allowed for a search of virtually everything in the phone,” MacLeod wrote, adding that the officers found images in a different part of the phone than where they originally thought they’d find them.

“The evidence obtained from executing the warrant, therefore, must be suppressed,” he wrote.

MacLeod’s order prevented prosecutors from using any of the evidence they obtained from the seizure and search of the phone.

“It is difficult when you lose a motion to suppress in any case, but that is what the court is there for,” Assistant Grafton County Attorney Paul Fitzgerald said, declining further comment.

Seace’s public defender, Jeremiah Newhall, who filed the motions to suppress, declined to comment.

Seace’s case created a stir in the Upper Valley when a library patron filmed the arrest and posted it on social media.

Some observers said they believed the officers used unreasonable force when they took Seace into custody after he refused to give them his cellphone. Shortly after the incident, Mello said that his officers “acted extremely reasonable.”

At the time, Mello also said that the officers went there to talk to Seace about the investigation and didn’t intend to arrest him.

However, according to an affidavit in the case, Seace allegedly told the officers he sent illicit photos to a minor through Facebook Messenger on his old phone. (Messenger can be accessed from any device.) Seace said he threw his old phone away; he had a different phone on him that day.

Police asked to view it to “ensure there were no illegal images still on his device,” the affidavit states. Seace refused and tried to leave the conference room, so police took him into custody — in a way that raised alarm inside the library — and confiscated his phone.

The video shows Seace face down on the carpet kicking his feet and at times screaming while the officers hover over him.

Officers charged Seace with resisting arrest and obstructing government administration, counts to which he pleaded guilty. (Separately, Seace has two assault on a prisoner charges pending.)

In the interview on Friday, Mello said he feels the officers acted in good faith.

“In my opinion, they did nothing wrong. They worked with information they did have and they made a judgment call,” Mello said. “When we see orders from a judge, it’s not necessarily that someone did something wrong. ... They could have done something different.”

Mello said he and his officers didn’t think the warrant was overly broad but said the department will use the judge’s guidance when seeking future warrants. Warrants covering situations involving technology such as cellphones can be challenging to write, Mello acknowledged.

“Crafty” criminals have the ability to manipulate the technology and store images, for example, in a way that can prevent detection, Mello said.

“The judge is saying we could have done a better job in articulating in the warrant the need for the full cellphone search,” Mello said. “What we need to do is find a better way to be able to articulate those things within the warrant.”

He said he plans to have his officers collaborate with prosecutors to learn how they can better write the affidavits to avoid a similar situation in the future.

Mello said people shouldn’t misinterpret the significance of the ruling.

The mistake made in this case isn’t typical, he said.

“You aren’t seeing suppression cases coming out on a daily basis,” Mello said, noting that the department writes countless warrants a year and they aren’t routinely thrown out.

“I think our officers do the best they can to be as thorough as they can and to follow all of the procedures and the constitution, but unfortunately this is how the constitution works, and there will be occasions when this happens,” he said.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.



Mary Cain, a library patron, recorded this video at Kilton Public Library in West Lebanon, N.H., on Tuesday, Nov. 8, 2017, and posted it to YouTube. Continue reading after the video.


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