Judge allows cellphone evidence in child porn case

Timothy Ducharme

WOODSTOCK — Circuit Judge Dennis L. Hupp on Wednesday denied a defense motion to suppress evidence gained from a cellphone in the case against a former Marine accused of child sex crimes.

Timothy Ducharme, 22, is accused of having consensual sex with a 15-year-old girl, using technology to solicit a minor – via the website Plenty of Fish  – and possessing child pornography. Ducharme told the girl that he was stationed at Quantico, and he met with her at around 2 a.m. on April 17, 2016 at her grandparents’ home in Edinburg.

His attorney, Charles Ramsey, filed a motion in May to suppress evidence the prosecution acquired without a search warrant or Ducharme’s consent, adding that the defense “sees no legal justification for the Commonwealth to have gained this evidence.”

In Wednesday’s hearing, Ramsey reiterated his argument, adding that the prosecution could have simply obtained a search warrant

“Mr. Ducharme does have rights – they were violated in this case,” Ramsey argued. “I think [the prosecution] just cut corners here.”

Deputy Commonwealth’s Attorney Louis Campola simply said that his response to Ramsey’s motion – which included multiple pages of federal documentation – speaks for itself.

The cellphone evidence was obtained in April 2016 with an affidavit made by Gabriel Henson, a special agent of the Naval Criminal Investigative Service (NCIS) who, after interviewing the alleged victim in this case, found probable cause for the search of Ducharme’s person, residence and cellphone.

In the military, a search may be authorized by a military judge, a magistrate or, as in this case, a commander; there is a signed command authorization form within the documents that accompanied Campola’s response. Evidence obtained through these searches are admissible in a trial.

“Search and seizure of computer hardware and software both as an instrumentality of criminal activity and as storage devices for evidence thereof, is contemplated in, and permitted by…Rules of Military Evidence,” Henson wrote.

Hupp denied the defense’s motion, adding that it seems to him that when someone volunteers for the military, he or she is subject to military justice, which is in the nature of the service. Ramsey contended that he would agree with Hupp without reservation if they were in a military court rather than the circuit court.

A jury trial in this case is set for Nov. 29 in Shenandoah County Circuit Court. Ducharme remains out on bond in New Mexico, where he resides with his family.

COMMENTS