In November, Fletcher’s attorneys filed a motion to suppress statements Fletcher made to agents from the Federal Bureau of Investigation (FBI) during the FBI’s initial visit to Fletcher’s home in February, 2005, as well as a motion to suppress evidence collected by law enforcement agents during a subsequent search of her home conducted in August of that year.
This week, Conti denied the defense’s motion to suppress Fletcher’s statements, but continued the hearing on the evidence suppression motion, and gave the government time to consider whether it will introduce additional evidence in support of the search warrant executed in 2005.
According to Lawrence Walters, one of Fletcher’s attorneys, the search warrant obtained by the investigating agents was very broad, and there is a degree of mystery surrounding what all was contained in an exhibit supplied with the application for the warrant.
In assembling evidence in the case, one of the FBI agents downloaded stories from Fletcher’s website, which he then took to a magistrate judge as material in support of an application for a search warrant. The stories and other evidence were assembled in an exhibit marked “Exhibit A.” The problem confronting the court now, according to Walters, is that it is no longer clear precisely what information was contained in “Exhibit A.”
“The agent said that he believes all the stories [downloaded from Fletcher’s site] were contained in the exhibit, but he kept no list,” Walters said. “Even today, we don’t know what all was contained in the ‘Exhibit A’ file.”
Where that fact becomes significant, Walters said, is that under 1st Amendment law, warrants pertaining to alleged obscene materials are only valid if they identify the obscene materials specifically.
“The materials have to be identified by a title, description or some other specific identifier,” Walters said. “In a child porn case, because child porn is not protected by the 1st Amendment, it’s essentially fine to say ‘go seize anything that looks like child porn.’ But you can’t just say ‘seize all obscene materials,’ or ‘seize all pornographic materials,’ because that makes it too general a warrant. By failing to constrain the agents’ search to specific materials, they created an invalid warrant, in our view.”
Walters said that while denial of motions to suppress is “usually a forgone conclusion,” the facts of the situation at hand make the outcome of the court’s ruling more difficult to predict.
“This is an interesting circumstance, and it will be very interesting to see what the court decides,” Walters said. “We certainly feel that the warrant was overbroad, and went beyond what would normally be allowed [in an obscenity case].”
The court has set a deadline of February 12 for the government to decide whether to present additional evidence in support of its contention that the warrant did not violated the 1st and 4th Amendments, and to advise the court whether it wishes to continue the hearing on the defense motion to suppress, or proceed with the evidence already submitted.
