Story last updated at 8:47 PM on Wednesday, February 28, 2007

Alaska Supreme Court admits child porn evidence



BY MICHAEL ARMSTRONG
STAFF WRITER

The Alaska Supreme Court last month reversed a lower court decision to suppress alleged child pornography seized from a Homer man’s computer. In a unanimous decision, the court granted an appeal by prosecutors and remanded the case back to Kenai Superior Court for further proceedings.

David Koen Sr., 35, was arrested in March 2004 on 30 felony counts of possession of child pornography. He was later charged with first- and second-degree sexual abuse of a minor.

Alaska State Troopers seized computers belonging to Koen at a Green Timbers Drive home after a friend of Koen said she saw child pornography on his computers. Trooper Ryan Browning filed an affidavit with Magistrate David Landry for a search warrant. Troopers got the warrant and took computers, videotapes, CDs and DVDs from the Green Timbers house. Under a warrant to examine the electronic media, a Homer Police officer trained in computer forensics looked at it and alleged he found hundreds of images of children in sexually explicit situations.

In pre-trial proceedings, Koen’s lawyer, Owen Sullivan, moved to suppress the evidence. Sullivan said Browning’s affidavit failed to show how the Green Timbers house was connected to the alleged crime, that is, that it was Koen’s home. Kenai Superior Court Judge Harold Brown granted the motion to suppress the evidence. The state appealed, and in a 2-1 decision in May 2005, the Alaska Court of Appeals upheld Brown’s decision. The state then appealed to the Supreme Court.

The court considered if Browning’s affidavit established probable cause despite its failure to specify the premises to be searched was Koen’s residence.

“Because we conclude that a common sense reading of the entire affidavit supports a reasonable inference that Koen resided at the listed address, we hold that the affidavit implicitly drew the connection required to establish probable cause,” the justices wrote.

“I’m pleased with the decision, and think that it emphasizes the importance of a common-sense reading of search warrant affidavits,” said Kenai District Attorney June Stein.

Koen’s lawyers had been waiving time on proceeding with the case while the appeals were pending. Stein said with the evidence readmitted she would proceed with prosecution on the child pornography and sexual abuse charges. Koen is being defended by the Alaska Public Defenders office. He is scheduled for a trial call this month, Stein said, but she expected the trial to be delayed while new lawyers get familiar with the case.

Kathleen Murphy and Quinlan Steiner, the lawyers with the public defender’s office representing Koen, did not return a phone call requesting comment.

Koen is in state custody at Wildwood Pretrial Facility in Kenai.

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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