A fed­eral ap­peals

SEARCH IN ‘SEX­TING’ CASE AT IS­SUE De­tec­tive had war­rants to get gen­i­talia pho­tos

The Washington Post - - FRONT PAGE - BY TOM JACK­MAN

court ruled a de­tec­tive vi­o­lated a teen’s Fourth Amend­ment rights in a “sex­ting” case.

The teenage “sex­ting” case that at­tracted na­tional at­ten­tion in 2014 is now en­shrined in fed­eral case law.

A po­lice de­tec­tive who ob­tained two search war­rants to pho­to­graph a teenager’s gen­i­talia vi­o­lated the mi­nor’s Fourth Amend­ment right not to be un­rea­son­ably searched, a fed­eral ap­peals court has ruled, re­viv­ing a law­suit against the de­tec­tive that had been thrown out by a lower court. A dis­sent­ing judge wrote the rul­ing could cause po­lice to be less ag­gres­sive in their in­ves­ti­ga­tions.

The rul­ing by the U.S. Court of Ap­peals for the 4th Cir­cuit con­tin­ues the na­tion­ally renowned case of Trey Sims, who was 17 when po­lice in Manas­sas, Va., and pros­e­cu­tors in Prince Wil­liam County, Va., be­gan in­ves­ti­gat­ing him for sending a video of his gen­i­talia to his 15-year-old girl­friend by text mes­sage. Manas­sas City po­lice De­tec­tive David E. Ab­bott Jr., the lead in­ves­ti­ga­tor, said he was in­structed to ob­tain the war­rants by As­sis­tant Com­mon­wealth’s At­tor­ney Clai­borne Richard­son, and both were sued by Sims in fed­eral court last year.

Richard­son is still a prose­cu­tor in Prince Wil­liam County and cur­rently a can­di­date for a Vir­ginia cir­cuit court judge­ship. Ab­bott com­mit­ted sui­cide in De­cem­ber 2015 as po­lice at­tempted to ar­rest him on charges of mo­lest­ing two young boys. His es­tate

re­mains a de­fen­dant in the suit, while Richard­son was dis­missed from the suit by U.S. District Judge Claude M. Hil­ton in Alexan­dria, Va. Sims was not iden­ti­fied in ini­tial ar­ti­cles be­cause he was a ju­ve­nile but is be­ing iden­ti­fied now be­cause he is an adult and the plain­tiff in the law­suit.

The case sparked an up­roar af­ter The Wash­ing­ton Post re­ported Ab­bott and Richard­son had ob­tained two search war­rants, and Ab­bott al­ready had ex­e­cuted one of the war­rants, seek­ing pho­tos of Sims’s erect pe­nis, to com­pare with the video sent to his girl­friend.

The is­sue of how to han­dle “sex­ting,” par­tic­u­larly be­tween con­sent­ing teens, con­tin­ues to vex au­thor­i­ties, with some say­ing that it shouldn’t be treated as a crime — Sims was charged in ju­ve­nile court with the equiv­a­lent of a felony — and oth­ers say­ing full pros­e­cu­tion is needed to dis­cour­age it. A Prince Wil­liam ju­ve­nile court judge said there was enough ev­i­dence to con­vict Sims af­ter a trial in Au­gust 2014 but even­tu­ally dis­missed the case af­ter Sims com­pleted a year of pro­ba­tion.

New de­tails of the case emerged in Sims’s law­suit, though. Ac­cord­ing to the 4th Cir­cuit’s opin­ion, in serv­ing the first search war­rant, which sought “a pho­to­graph of the sus­pect’s erect pe­nis,” Ab­bott or­dered Sims to “ma­nip­u­late his pe­nis” to ob­tain an erec­tion, with two other uni­formed of­fi­cers present.

That failed, lead­ing Richard­son and Ab­bott to ob­tain a sec­ond search war­rant and threaten to take Sims to a hos­pi­tal “to give him an erec­tion-pro­duc­ing in­jec­tion,” the opin­ion writ­ten by Judge Bar­bara Mi­lano Keenan noted.

Ab­bott and Richard­son with­drew the sec­ond search war­rant af­ter a flood of pub­lic­ity about the case. The Manas­sas City po­lice is­sued a state­ment af­ter The Post’s first ar­ti­cle, say­ing it was “not the pol­icy of the Manas­sas City Po­lice or the Com­mon­wealth At­tor­ney’s Of­fice to au­tho­rize in­va­sive search pro­ce­dures of sus­pects in cases of this na­ture and no such pro­ce­dures have been con­ducted in this case.” But when it comes to defin­ing “in­va­sive,” the ap­peals court dis­agreed with the po­lice.

“We can­not per­ceive any cir­cum­stance,” Keenan wrote, “that would jus­tify a po­lice search re­quir­ing an in­di­vid­ual to mas­tur­bate in the pres­ence of oth­ers.” She said the pho­tos Ab­bott did take were not in­tro­duced into ev­i­dence, and the ju­ve­nile court judge found suf­fi­cient cause to find that Sims pos­sessed child pornog­ra­phy.

Richard­son and Ab­bott had ar­gued in district court that they were en­ti­tled to qual­i­fied im­mu­nity be­cause they were sim­ply do­ing their jobs as law en­force­ment agents, and Hil­ton agreed.

Hil­ton said Ab­bott was also im­mune if his con­duct did not “vi­o­late clearly es­tab­lished statu­tory or con­sti­tu­tional rights of which a rea­son­able per­son would have known.” Hil­ton wrote, “At the time of the in­ci­dent, it was not clearly es­tab­lished that De­tec­tive Ab­bott would vi­o­late [Sims’s] con­sti­tu­tional rights by seek­ing pho­to­graphs” of Sims.

The ap­peals court strongly dis­agreed. Keenan said prior case law “would have placed any rea­son­able of­fi­cer on no­tice that such po­lice ac­tion was un­law­ful. ... Ab­bott’s con­duct af­fronted the ba­sic pro­tec­tions of the Fourth Amend­ment, which at its core pro­tects per­sonal pri­vacy and dig­nity against un­jus­ti­fied in­tru­sion by gov­ern­men­tal ac­tors.”

The three-judge panel was not unan­i­mous. Keenan was joined by Judge Al­bert Diaz, but Judge Robert Bruce King is­sued a strong dis­sent. King said Ab­bott ob­tained and served the war­rant only af­ter con­sult­ing with his prose­cu­tor and hav­ing it ap­proved by a mag­is­trate. “Where a po­lice of­fi­cer has sought and ob­tained a search war­rant and acted within its scope,” King wrote, “the re­sult­ing search is pre­sump­tively rea­son­able.”

King said the rul­ing “could lead law of­fi­cers to sec­ond-guess court or­ders and avoid judg­ment calls in gray ar­eas.”

Ab­bott’s es­tate is de­fended in the case by at­tor­ney Ju­lia Jud­kins, who said Wed­nes­day she was still re­view­ing the rul­ing.

Sims, now 20, is rep­re­sented by Alexan­dria at­tor­ney Vic Glas­berg. He said the rul­ing did not cre­ate new law. “It is set­tled law,” Glas­berg said, “that the mere is­suance of a war­rant by a mag­is­trate — who in Vir­ginia need not even be a lawyer — does not im­mu­nize an of­fi­cer who re­quests or ex­e­cutes an un­rea­son­able war­rant. The is­sue was: Is it un­rea­son­able for po­lice of­fi­cers to force a mi­nor to take down his pants and ma­nip­u­late his pe­nis for a pho­to­graph. Most peo­ple agree it is. This is what the court held, and also that De­tec­tive Ab­bott should have known it.”

The is­sue of how to han­dle “sex­ting,” par­tic­u­larly be­tween con­sent­ing teens, con­tin­ues to vex au­thor­i­ties.

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