FL- Attorney: Dateline sex sting evidence obtained illegally

6-28-2008 Florida:

BUNNELL -- Evidence against a fired Alabama police officer arrested in the Dateline NBC sex sting in Flagler Beach should be thrown out because his privacy was violated for financial gain, his attorney argued in court Friday.

But Todd Spikes and others arrested in the sting were not entitled to privacy, Assistant State Attorney Jennifer Carlson countered Friday in Flagler circuit court.

"The defendants don't have any expectation of privacy when they are trolling for little children online and talking to them," Carlson said.

Spikes, 43, of DeFuniak Springs in North Florida was fired from his job as a Florala, Ala., police officer after he was arrested in December 2006 as part of a Dateline NBC "To Catch a Predator" sting. Police found handguns, an assault rifle and a shotgun -- all loaded -- in his sport utility vehicle. In court Friday with Spikes, was Daniel Kelly, who was 45 and from Clearwater when he was arrested during the sting.

In all, police arrested 21 men who had sexually explicit online chats with decoys posing as children and then drove to a house in Flagler Beach to meet the decoys, investigators said.

Spikes, sporting a blondish soul patch and mustache and wearing a blue blazer, sat in court Friday, sometimes leaning back in his seat as his attorney argued. Kelly, clean-shaven and wearing a tan suit, sat nearby, his hands sometimes clasped together or pressed against his face.

Spikes is charged with attempted lewd or lascivious battery, lewd or lascivious exhibition and computer pornography and child exploitation. Kelly is charged with attempted lewd or lascivious battery and computer pornography and child exploitation.

Besides arguing that evidence should be thrown out, Spikes' and Kelly's attorney, Patrick D. Hinchey, said the charges should be dropped because there was no actual child in the sex sting. The decoy investigators said Spikes and Kelly were chatting with was an adult over 18 years of age, the motion states. Hinchey wrote in the motion that there is nothing criminal about communicating with someone over 18.

Hinchey also argued that information such as the chat logs should be thrown out because they were obtained fraudulently and without a warrant.

He said the police worked through a third party, Perverted Justice, to get the evidence, and violated the Constitution's Fourth Amendment protection against unreasonable search and seizure. Perverted Justice is a controversial activist group.

"The procurement of information was through fraud with intent to use it for commercial purposes," Hinchey said. His motion states that third parties were paid more than $100,000 to provide electronic communication to NBC. That's a felony under Florida law, the motion states.

"I frankly don't know why we don't have criminal charges filed through the false procurement of this information," Hinchey said.

But Carlson argued that police joining forces with Perverted Justice and NBC did not constitute fraud against Spikes and Kelly.

"Law enforcement is not defrauding them," she said. "It's called an undercover investigation."

And the fact that there was no actual child did not matter, Carlson said.

Circuit Judge Kim C. Hammond said he would review the arguments and issue a ruling. ..News Source.. by FRANK FERNANDEZ, Staff Writer