Ruling that the search warrant that led to the arrest of former UVA film studies professor Walter Korte was invalid—and that the two images used as the basis for the warrant in fact weren’t child pornography—Judge Cheryl Higgins nonetheless allowed the admission of the photos, citing a “good faith” exemption for police seeking warrants.
Korte, 73, was arrested August 2 and charged with two counts of child porn possession. He was held without bail until September 6.
The arrest followed a four-day police investigation after pornographic images were discovered in a dumpster on UVA Grounds behind Bryan Hall July 29, according to Korte’s motion to suppress.
The UVA officer, who found hundreds of pornographic images, came back on subsequent days and found three Time magazines with Korte’s address, as well as UVA letterhead with his name among the photos.
University police staked out the dumpster August 1 and captured Korte on video, according to the complaint.
In court February 8, Korte’s attorney Bonnie Lepold argued that the evidence obtained from the search warrant should be suppressed because the warrant for Korte’s Bryan Hall office and Fosters Branch Road home was obtained without probable cause.
Albemarle police Detective Mark Belew requested a search warrant August 2, and his affidavit cited UVA investigator George Vieira, who “determined two of the images were clearly of prepubescent males lewdly naked or involved in sexual acts,” says the motion.
The two images were not attached to the affidavit, and “nowhere on the affidavit did it state the images were of child pornography,” said Lepold. Without the images, the magistrate “might as well rubberstamp” search warrants, she added.
“Our position is the rest of the warrant is insufficient,” she said. “It talks about pornography and separately about juveniles, but says nothing about child pornography.”
Said Lepold, “There is no image that even comes close to involving a sex act. Near nudity is not sufficient under the law.”
And most of the images were adult porn, which, she pointed out, are legal.
To allow the warrant because Belew relied upon another officer’s characterization was “disingenuous and, quite frankly, frightening,” she said.
Higgins recessed for several hours to review the images, and said the search warrant was unsupported by probable cause, but denied the motion to suppress because of the “good faith” exception.
Legal expert David Heilberg says, “If the images are not child pornography, this sounds like an adjudication of innocence on those charges. This is better than getting the evidence suppressed for the defense.”
Commonwealth’s Attorney Robert Tracci said in an e-mail, “The possession of child pornography charges against Mr. Korte have not been nolle prossed.” He declined to say whether the prosecution has other evidence.
Korte led UVA’s film studies program since 1970, was an authority on Luchino Visconti films and the Italian cinema, and was a long-time adviser to the Virginia Film Festival. He resigned from the university November 1.
He is scheduled for trial May 19.