Defense says child-porn search tainted

ALBUQUERQUE (KRQE) - A prominent Albuquerque business owner accused of taping the rape of his underage employee is asking a judge to throw out any evidence deputies responding to an anonymous 911 call found at his home.

Joseph Martinez claims his Fourth Amendment search-and-seizure rights were violated when deputies entered his home because they had no reason to believe anyone needed help.

According to the Bernalillo County Sheriff's Department a dispatcher received a 911 call from Martinez's Tijeras home on April 14. However the dispatcher only heard static and the call hanging up.

"They tried to call it back," Det. Kyle Hartsock told KRQE News 13 in July. "No one answered."

The 911 system logged the address of the call, and deputies were sent to investigate. There was also no answer at the door, and that's when officers entered and searched the home.

"When we get there we got to find out if there is an emergency or not," Undersheriff Sal Baragiola told News 13 Thursday. "It's that simple."

While investigators said they didn't find anyone inside, they did report spotting drugs and dozens of pictures and movies alleged to be of Martinez performing sexual acts on a boy over the span of more than 10 years. The boy later worked for Martinez, a co-owner of Accustripe, a company that paints parking lots.

Now Martinez's attorney the search was illegal and that all evidence found in the home should be thrown out. The motion, filed in federal court, argues that investigators didn't do a brief sweep looking for an emergency and instead did a "detailed search."

Attorneys also argued deputies should have left after discovering no one was home.

Deputies were just doing their job, according to Baragiola.

"These are high-priority calls," he said. "Once they're in that residence if they discover illegal activity then they also have an obligation to investigate that crime."

Baragiola added that deputies did not need to do a detailed search because the evidence was all in plain view.

Deputies said they only spent five minutes searching the 4,000-square-foot home.

"This is something for the courts to decide," Baragiola said. "We always have responded to 911 disconnects and hang up calls."

"We'll continue to respond in the same manner, and as a result of that response lives will be saved."

No one has ever determined who made the 911 call from the Martinez home.

A hearing on the motion to suppress the evidence is scheduled for Thursday in federal court.

Martinez faces federal child-pornography charges over the videotapes. Charges related to the alleged sex acts with the boy are pending in state court.