Burnett v. State

The father of two boys, aged nine and 12, accused Jon Burnett (plaintiff) of filming the boys naked and engaged in sexually inappropriate conduct. Based on the father’s report, the police interviewed Burnett. After the interview, during which Burnett admitted to videotaping the boys but claimed he deleted the tapes, Burnett consented to police searching the room he rented at his parents’ house. During the search, police discovered a video camera with a tape containing the described recording of the two naked boys. The video camera and the videotape were both seized. Subsequently, police sought a warrant to search the entire residence, including a repeat search of Burnett’s room. In the search-warrant application, police included general statements of expertise and stated that individuals, like Burnett, who videotape children typically also possess and transmit child pornography. The warrant application did not contain any specific facts linking Burnett to child pornography. The trial court issued the warrant. During the warrant-authorized search, police seized Burnett’s computer and a series of diskettes. A forensic evaluation revealed the diskettes had previously contained images of child pornography but that those images had been deleted. The forensic evaluation could not determine when, or by whom, the images had been downloaded and deleted. Burnett was charged and convicted for possession of child pornography. Burnett appealed, arguing that (1) the search warrant was not based on probable cause; and (2) he had purchased the diskettes in an online auction and that the prior owner was the one who had downloaded and deleted the pornographic images.