ST. LOUIS - A Springfield man is considering an appeal to the U.S. Supreme Court after a federal appeals court last week approved the seizure of his home computer in a search done without a warrant or his permission.
The court approved the search and seizure because the man's wife approved the confiscation of the computer as part of a child pornography investigation.
Roy J. Hudspeth, who entered a conditional guilty plea to possession of child pornography so he could appeal the search issue, faces up to five years in prison.
Hudspeth's attorney, Donald Cooley, said he has several months to study the issue before deciding whether to petition the Supreme Court for a hearing. In his opinion, the issue is simple.
"Party A cannot waive party B's right to refuse a search of his home," Cooley said.
In its 8-3 ruling, the 8th U.S. Circuit Court of Appeals in St. Louis drew a distinction between Hudspeth's case and a previous U.S. Supreme Court case that said police could not seize evidence without a warrant when a man standing outside his house denied permission to search the house, but his wife, standing next to him, gave permission.
The three 8th Circuit judges who disagreed with the majority said that it shouldn't matter that Hudspeth was at another location when he refused to consent to the search.
In its conclusion, the 8th Circuit majority cited the U.S. Supreme Court's previous ruling, which said the refusal to consent to a search was given by a "physically present" resident. The 8th Circuit also noted that police had already found evidence of child pornography at Hudspeth's office and had probable cause to believe they would also find it at his home.
"It seems inconceivable to me that a core value of the Fourth Amendment, the expectation of privacy in one's home, would be dependent upon a tape measure," Judge Michael J. Melloy wrote for the dissent. "I cannot believe the Supreme Court intended to make one's expectation of privacy dependent upon the happenstance of location."
"Neither [the majority or dissent] is a ridiculous position," said Stephen Easton, a law professor at the University of Missouri.
Easton said it's a long shot for any case to be taken by the U.S. Supreme Court, but he said the 8th Circuit ruling, coupled with a contrary ruling by a federal appeals circuit in a similar case, raises a "pretty important" search and seizure question.
"It would not shock me for the Supreme Court to take this case," he said. "It's one of those questions they're probably going to have to resolve at some point."
