By Matt Ward

Does child pornography have a shelf life?

On Monday morning, a District Court judge might provide an answer to that morbid question — sort of.

A 43-year-old man named Christopher Kinder was arrested in Pahrump on October 27, 2011 and was initially charged with 5,000 counts of possession of child pornography. That many images were stored on a computer in his house. He was booked into the county jail on $5 million bail at the time.

Today, he doesn’t face nearly as many criminal charges and is actually out of jail on $50,000 bond awaiting trial. His defense attorney, Harry Kuehn, a county public defender, is set to argue that the case against Kinder should be tossed out, that police illegally entered his client’s home and searched his computer, violating his constitutional rights in the process.

In a motion filed in District Court on Feb. 14, Kuehn lays down a thick argument for how police, acting on a tip from the FBI, failed to produce enough probable cause to get a warrant. The Pahrump Justice Court judge who granted the warrant, the motion states, shouldn’t have done it merely based on what the police had.

What did police have? They had the FBI tip, and nothing else. According to Kuehn’s narrative of the case, the FBI tipped off a local detective that Kinder had been the subject of a child porn investigation in California almost three years ago. Before federal agents could bust him in California, he disappeared.

Two years and 10 months later, Kinder’s application for a Nevada driver’s license revealed that he was living in the Pahrump Valley. Why the feds didn’t arrest Kinder, then, remains unclear. A call to an FBI spokesman in Las Vegas yielded no confirmation of any assistance with Nye County authorities on any child porn investigation.

Still, the local detective checked Kinder’s criminal history after receiving the tip and discovered that the man had a 1999 conviction in Middlesex County, New Jersey for lewdness observed by a child under 13, as well as child endangerment. This information in hand, the detective gets his warrant and the subsequent search yields the cache of porn.

Case closed? Not yet.

Kuehn says police failed to show that there was any “ongoing criminal activity” that merited a search of Kinder’s home in the first place. The evidence for probable cause was too thin, he says.

“The common public perception is with search warrants that the end justifies the means. Our Constitution absolutely repudiates that, in that if the state thinks that someone has evidence of a crime, or contraband, they have to follow the constitutional process to get access to it. My contention in my brief is that information that is almost three years old and stale, and without additional investigation and efforts, the entry into my client’s residence was illegal,” he said.

Evidence collected in the course of an illegal police search can’t be used in court, Kuehn argues.

Kuehn uses the word “succinct” to describe the response to his motion from the county district attorney’s office. The state’s motion was filed on Feb. 29. In it, Deputy District Attorney Michael Vieta-Kabell writes that the police did establish probable cause because it was so clear that 10 years after Kinder’s arrest in New Jersey, he was still suspected of being a child sex offender by the feds and therefore should be considered an on-going threat to the community.

“We know that the defendant’s problem with sex crimes against children is not a one-time issue,” the deputy district attorney writes in his motion. “Unlike drugs or money, which by nature must be disposed of to be enjoyed, child pornography is contraband that can be reused by the offender over and over again without being spent, spoiled or destroyed.”

Reached by phone on Thursday, Vieta-Kabell says he doesn’t fault Kuehn for trying to get the case tossed.

“I trust in the judge and I’m confident in going forward. It should be really fascinating. I don’t blame Harry one little bit for giving it a shot. I’m pretty confident on this one. I think the circumstances are such that the judge was absolutely correct in determining that there was probable cause to issue the warrant,” he said.

Vieta-Kabell agreed there were cases where evidence and information such as a tip to police can be too old to be used to prosecute someone. He says Kinder’s case is not an example of that.

“You can have different circumstances and different cases where something might be stale. Like you find out two years later that someone had robbed a liquor store, you might not expect to find any of the liquor left at their house,” he said. “They the judge look at it and say the guy’s got a prior, the FBI was looking at him in California, and all of a sudden he disappeared and popped back up. What kind of crime are we talking about here? We’re talking about one where you can expect there to be preserved evidence for years.

“It’s one of those things where it’s clear as crystal to me. If someone told me those conditions existed, I’d say yeah, he probably still has some of it. Hopefully, the judge will agree with me.”

This isn’t the only case regarding possible illegal police searches that a judge will hear on Monday.

Kuehn filed a motion in a separate case several weeks ago that questioned whether the sheriff’s office had ever correctly followed state guidelines when using telephonic search warrants to search people’s homes during criminal investigations. Telephonic warrants — at least as they are done in Nye County and apparently few other places in Nevada — are done when a police officer calls a judge outside of normal courtroom hours and records a request to search a property, describing in detail the reason for the request and the evidence sought. The typical request is later transcribed and a paper document is created where the judge checks for accuracy and then signs the warrant, sometimes as many as two weeks after the search. In regular search warrants, a copy of the warrant along with a list of the items taken is left with the target of the search. In telephonic search warrants — in Nye County anyway — nothing is left for the target save maybe a list of evidence seized.

The state contends in a motion filed March 12 that Kuehn’s arguments in the telephonic search warrant case, as in the Kinder case, are incorrect. Nonetheless, both cases could find their way to a higher court regardless of how the local court rules Monday.