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Accused child rapist loses bid to suppress porn evidence

John Burbine (left) faces dozens of child sexual assault charges.

Charlie Mahoney for The Boston Globe/file

John Burbine (left) faces dozens of child sexual assault charges.

A Middlesex Superior Court judge has rejected a request to suppress child pornography evidence allegedly found in the possession of John Burbine, the Wakefield man facing dozens of child sexual assault charges.

Judge Bruce R. Henry denied motions to suppress filed by both Burbine and his wife, Marian, who faces charges that include reckless endangerment of a child and operating an unlicensed child care facility.

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In a decision issued last week, Henry found that the State Police, during an investigation into an allegedly unlicensed child care program the Burbines were operating, executed a search warrant in September 2012, seizing several laptops and hard drives at the Burbines’ Wakefield home.

Henry said a digital evidence investigator was looking at John Burbine’s laptop for “anything related to the business operated by the Burbines” when she allegedly came across two images she believed were child pornography.

When she saw them, she notified a sergeant, who told her to stop the preview. The sergeant then got another search warrant to search the seized computers for child pornography, and investigators allegedly found “extensive materials containing child pornography,” Henry wrote.

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In addition to child sexual assault charges, Burbine faces a number of child pornography charges.

The judge rejected a variety of defense arguments, including that the police did not have probable cause to search the home when they were investigating the Burbines’ business.

Noting that there was evidence that the Burbines communicated with parents using their personal computers and cellphones, the judge found “it was reasonable for the officers conducting the search to assume that business records . . . would be found on the defendant’s computers.”

The judge also rejected a defense argument that the search had been overbroad.

The defense contended that the images’ file names made it unreasonable to believe they might be relevant to the business. But Henry noted that the Supreme Judicial Court has authorized police to “undergo a cursory analysis” of computer files when searching the contents of a computer.

The judge cited a high court ruling that noted that “few people keep documents of their criminal transactions in a folder marked [crime] records” and “computer files can be misleadingly labeled, particularly if the owner of those files is trying to conceal illegal materials.”

Burbine is accused of raping and abusing 13 children in Middlesex County over two years beginning in August 2010. Prosecutors say most of the assaults occurred in the victims’ homes, which Burbine gained access to through his wife’s day care business. Burbine also faces two charges in Essex County.

Martin Finucane can be reached at mfinucane@
globe.com
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