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Cellphone's improper seizure cost prosecution dearly in sex assault case

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Michael Dennis Burke (Police mug shot)

DOVER - The Rochester man who beat felonious sex assault charges against a 14-year-old Somersworth girl this week was able to do so because of missteps during the investigation, an assistant county attorney said on Thursday.

The trial against Michael Dennis Burke, 20, of 79 Maple St., Apt. #3, was supposed to start Wednesday, but prosecutors pulled back on the charges after a ruling was announced by Strafford Superior Court Judge Mark E. Howard that backed a defense motion that the cellphone video had not been properly acquired by the state and should be suppressed.

Assistant County Attorney Lauren Di Giovanni said on Thursday that cellphone video that allegedly depicted the underage female performing a sex act on Burke was suppressed because the investigating detective after hearing about a snapchat message on the suspect's phone got a search warrant instead of a seizure warrant.

Di Giovanni likened it to searching a car as opposed to seizing a car, which is vastly different.

When the detective seized the phone to look at the images, that seizure lacked due process, so all the evidence from the phone was tossed, meaning all three felony charges, including possession of child sex images, sex assault for engaging in fellatio and engaging in a pattern of sex assault all became vulnerable.

Burke still faces a second-degree assault charge for allegedly engaging in strangulation of the victim by "applying pressure to her throat, which caused her to experience impeded breathing" in the March 11, 2016, incident in Somersworth. Burke also faces two misdemeanors assault charges in the same Somersworth case.

In addition, he faces fresh domestic assault charges in a Rochester case after his arrest a week ago today.

The newest alleged assault took place last Friday at Burke's home address and alleges he hit the female victim in the face. A trial on Class A misdemeanor charges of domestic violence assault is set in Rochester District Court for April.

Meanwhile, Burke remains free on $10,000 cash bail.

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