Walter Francis Korte Jr.

Walter Francis Korte Jr.

Citing a 1984 Supreme Court case, an Albemarle County judge has ruled that the search warrant that instigated charges against a former University of Virginia associate professor is “not valid” but nonetheless admissible at trial.

Walter Francis Korte Jr., the 73-year-old former director of UVa’s Film Studies program, was arrested in August and charged with two counts of possessing child pornography. Korte’s arrest came days after investigators conducted a search of his Albemarle County home, as well as his Bryan Hall office on UVa Grounds.

Months before his scheduled trial date, Korte and his attorneys went before Judge Cheryl Higgins on Wednesday to request that evidence gleaned from the search warrant which led to his arrest be excluded from trial.

Korte’s attorneys contend that the magistrate who initially signed off on the warrant was not provided sufficient evidence to establish probable cause for the search.

While details were scarce, it was implied that authorities began seeking a warrant for the search after finding numerous images that had been disposed of in a public dumpster and somehow linked to Korte.

Two images found in that group were of juvenile boys. According to characterizations by Higgins, one was of a juvenile who was asleep and had his hands down his waist band, although his genitalia was not visible. The other was of another boy but, per Higgins, “it does not involve a sex act,” thus exempting it from the legal definition of child pornography.

Copies of the two images were not included in the evidence handed over to the magistrate for a warrant, Korte’s attorneys said, nor were any detailed descriptions.

A prosecutor agreed that forgetting to include the images was not in keeping with best practices but said that the detective seeking the warrant was not intending to mislead the magistrate by failing to provide copies or detailed descriptions of the images.

Higgins noted that the defendant could argue that the images used to attain the search warrant did not actually depict sexual acts or anything that might qualify as probable cause, and therefore the warrant was unduly signed off on.

After taking a couple of hours to review the images herself, Higgins ruled that the search warrant in the case was invalid because the images used to bolster it were not illicit — a conclusion that a magistrate may have drawn had the images been available.

That said, Higgins denied the motion to exclude evidence gained from the search due to the “Leon exception.”

The “Leon exception” comes from the 1984 Supreme Court case of the U.S. v. Leon, which decided that even if a search warrant is found to be invalid because of a lack of probable cause in attaining it, the evidence found in that search can still be upheld if the police performed the search while acting in “good faith.” In this instance, “good faith” implies the officers believed their actions were lawful.

Because the officers executing the search of Korte’s office and home were not doing so with “reckless disregard” for the law, Higgins asserted that the evidence taken during that search was admissible in court.

A trial in the matter is scheduled for May 19. Korte, who was instrumental in creating the Virginia Film Festival in 1988, retired from UVa on Nov. 1.

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Dean Seal is a reporter for The Daily Progress. Contact him at (434) 978-7268, dseal@dailyprogress.com or @JDeanSeal on Twitter.

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