The judge in the case against a former White County deputy accused of manufacturing and possessing child pornography is considering whether to exclude from the trial a recorded interview in which the suspect appears to confess to photographing sexually explicit images of an underage girl.
Christopher Thomas Davis, 32, of Dahlonega, pleaded not guilty in early October to counts of production and possession of child porn after he was arrested in August.
Davis' attorney, Tony Axam, has filed a motion to exclude all evidence from an interview Davis had with investigators directly before he was arrested on Aug. 25.
Axam argues his client was not properly notified of his rights before investigators interviewed him in the case, and felt under threat of his job to talk to them.
At a pretrial evidentiary hearing on Tuesday, prosecutors played the recording of that interview.
In the recording, Davis can be heard first denying that he photographed images of a 7-year-old girl that federal agents described as "sexually explicit." Later in the recording, Davis can be heard saying he did take the photographs but said they were not explicit and denied "manufacturing child pornography."
Axam tried to present a case to federal Judge Susan S. Cole that Davis, who was on duty at the time of his interview with federal agents and was called to them by his superiors, was not sufficiently informed of his rights.
Davis also took the stand and said he felt he either had to talk to federal agents or suffer professional "repercussions."
At Tuesday's hearing, Davis' former supervisors took the stand to recall the events leading up to the suspect's interview with federal investigators.
According to testimony, Davis had recently started his shift at the White County Courthouse when he was called off his post to see White County Sheriff's Office Chief Deputy Robert Ingram at headquarters. Ingram is second in command at the law enforcement agency, reporting only to the sheriff.
Chief Ingram testified that federal agents came to his office and were requesting to talk to Davis as part of an investigation.
When Davis arrived at headquarters, Ingram said he asked Davis to hand over his side arm before introducing him to federal agents.
In the recording played in Tuesday's hearing, Ingram told Davis, "I expect you to be completely open and truthful for them."
The interview with Davis was conducted in Ingram's office, though the chief was not present for the questioning.
Axam argues that Davis felt compelled to talk with federal investigators under threat of his job.
"At that point, he should have been told his Miranda rights," the defense attorney told The Times.
Axam also cited the Garrity warning, which is similar to Miranda rights for law enforcement officers. Often applied to internal criminal investigations, the warning cautions suspects of criminal liability for statements made in an investigation and also reminds them of their right to remain silent. The Garrity rule is supposed to avoid cases where law enforcement officers are forced to surrender their Fifth Amendment rights to avoid losing their job.
Davis said the request from his supervisor to turn over his weapon and to be "open and truthful" to investigators felt like an order.
Davis testified, "I took that to mean if I didn't speak to them, there would be (professional) repercussions."
When Axam asked Davis if he thought he had the right to remain silent without professional reprisal, Davis replied, "No sir, not in that situation."
Ingram said he also asked Davis to surrender his weapon as a "safety issue." Ingram also testified that when he told Davis to be truthful it was a "statement" and not a command. The chief also said that Davis would not necessarily have been fired for not speaking with federal investigators, but the matter could have been referred to internal investigation.
Prosecutor Jill Steinberg asked Davis and his superiors if Davis had not already learned Miranda rights in interviewing suspects.
Special Agent Dave Westall, of the U.S. Department of Homeland Security, testified that Davis was never forced to remain with investigators until he was arrested and read his rights.
Axam has also filed a motion to suppress evidence seized from his client's home during the execution of a search warrant by federal agents in August. Axam has claimed the government did not have probable cause to enter the home and seize evidence.
Davis' attorney withdrew a motion on Tuesday to also suppress evidence confiscated from Davis' car.
Investigators from the Child Exploitation Investigations Group tracked Davis after arresting Timothy McKeithan of Houston, Texas, on charges of possession of child pornography. McKeithan's girlfriend, Lisa Davis, the ex-wife of Christopher Davis, told investigators the images were produced by Christopher Davis and that he "had a large collection of pornography, which included sexually explicit material of underdeveloped females," according to an affidavit.
After leaving Christopher Davis in the fall of 2009, Lisa Davis said she took his hard drive, which contained photos of her, and asked McKeithan to delete those images. She then mailed the hard drive back to Christopher Davis.
Judge Cole's ruling on suppressing evidence is not expected to be announced for 60 days, said Axam.