Florida Court Reverses Child Pornography Conviction Due to Stale Search Warrant

In a significant decision that underscores the importance of constitutional protections and strict adherence to statutory requirements, the Florida Second District Court of Appeal recently reversed the conviction of James T. Moschella for possession of child pornography. The case, Moschella v. State, No. 2D2023-0044 (Fla. 2d DCA Apr. 9, 2025), highlights critical issues related to search warrants, suppression of evidence, and due process in Florida criminal courts.

Case Background

James T. Moschella entered a no contest plea to charges of possessing child pornography but expressly reserved the right to appeal the denial of his motions to suppress evidence. The State stipulated that the motions were dispositive, meaning if Moschella prevailed on appeal, the charges would have to be dismissed.

At the heart of the appeal was the execution of a search warrant that authorized a forensic examination of Moschella’s electronic devices, including mobile phones, a tablet, and a laptop. Although the warrant was issued on July 27, 2020, law enforcement did not execute it until sometime in September—well outside the ten-day execution window mandated by Florida law.

The Law on Search Warrants in Florida

Section 933.05, Florida Statutes (2020), requires that a search warrant be returned within ten days of its issuance. This rule has been a fixture of Florida law for over a century, emphasizing the legislature’s clear intent to limit the duration of a search warrant’s validity to protect citizens’ privacy rights.

Importantly, the Florida courts have consistently held that a warrant executed beyond this ten-day period is considered “stale,” and any search conducted under it is invalid. In Spera v. State, 467 So. 2d 329 (Fla. 2d DCA 1985), the court made clear that the ten-day requirement is firm and does not hinge on whether the defendant suffered actual prejudice from the delay.

The Appellate Court’s Decision

In reversing Moschella’s conviction, the Second District Court of Appeal reaffirmed that the plain language of Section 933.05 must be enforced as written. The trial court had rejected Moschella’s suppression argument, finding that he was not prejudiced by the delay. However, the appellate court made it clear that no showing of prejudice is required.

Citing Spera, the court explained that the legislature, not the courts, determined that ten days is a reasonable time for warrant execution. Courts are not permitted to graft a “prejudice” requirement onto the statute’s straightforward language.

Because the State had stipulated that suppression of the electronic evidence was dispositive, the Second District reversed Moschella’s judgment and sentence and remanded the case with instructions to dismiss the charges.

Key Takeaways for Criminal Defense in Florida

The Moschella case is a powerful reminder of several critical points in Florida criminal law:

• Strict Compliance Matters: When it comes to executing search warrants, strict compliance with statutory deadlines is not optional. Law enforcement agencies must act within the required timeframe or risk invalidating critical evidence.
• Prejudice is Irrelevant: Defendants do not have to prove that they were harmed by the State’s delay in executing a warrant. The mere fact that the warrant was stale is enough to suppress the evidence.
• Dispositive Stipulations are Binding: Where the State stipulates that a suppression motion is dispositive, a successful appeal on that ground results in dismissal of the charges, not simply a new trial.
• Experienced Criminal Defense Matters: Protecting constitutional rights requires an attorney who understands the nuances of Florida search and seizure law and who is willing to challenge unlawful searches aggressively.

Why Legal Expertise is Critical in Child Pornography and Digital Evidence Cases

Digital evidence cases—especially those involving serious charges like possession of child pornography—often hinge on complex technical issues and strict procedural rules. Errors by law enforcement, such as failing to execute a warrant within the proper timeframe, can mean the difference between conviction and dismissal. But identifying and successfully arguing these errors requires deep knowledge of both the law and the technology involved.

If you or someone you love is facing criminal charges involving electronic evidence, it is essential to have a defense attorney who is meticulous, aggressive, and highly experienced in constitutional law challenges.

Contact an Experienced Florida Criminal Defense Attorney

At The Brancato Law Firm, P.A., we understand that your freedom depends on holding the government to its obligations under the law. Attorney Rocky Brancato brings over 25 years of criminal trial experience, including specialized experience in defending against charges involving digital evidence and constitutional violations. Before you hire a sex offense attorney, read Rocky’s Book, How to Choose a Major Crimes Attorney – or Any Criminal Defense Attorney for That Matter, available for purchase on Amazon or for free download on our site.

If you are facing serious criminal charges in Tampa, Hillsborough County, Pinellas County, Polk County, or the surrounding areas, contact us today at 813-727-7159 for a confidential consultation.