Shea blogged last week about State v. Terrell, a case in which the defendant’s girlfriend saw on one of the defendant’s USB drives an “image of [the girlfriend’s] nine-year-old granddaughter sleeping without a shirt.” She called the police, and an officer found additional images of “partially or fully nude minors” on the drive. The officer sought and obtained a search warrant that led to the discovery of child pornography. Shea’s post, and the case itself, focused on the officer’s initial warrantless search and whether it was justified under the private search doctrine. But the court’s recitation of the facts reminded me of another common issue in child pornography cases: how much information about an image must an officer provide in order to establish probable cause that the image constitutes child pornography? Continue reading
Tag Archives: child pornography
Probable Cause and Child Pornography
Last week, a local news outlet reported that the 17-year-old quarterback of a Cumberland County high school was benched when school officials learned he was under investigation for allegedly sending “sexually explicit” photos of himself to his 16-year-old girlfriend. According to the report, officers took the teenager’s phone while investigating another incident and discovered photos of himself and his girlfriend on the phone. Now, both the teenager and his girlfriend are facing charges for “sexting” in what appears to have been a consensual exchange of nude photos between two teens in a dating relationship. Judging by the string of harsh comments to this report (which use various derogatory words to describe the charges), many people are outraged that such behavior, while improper, is a crime. Instead, they suggest that the behavior is a discipline issue that should be privately addressed by parents at home. In response to these concerns, this post examines the criminal laws in NC that possibly cover sexting and discusses their application to minors. Continue reading →
Last week, I blogged about the application of the private search doctrine in child pornography cases. I noted that one recent case began when a computer repair technician contacted police to report child pornography on a computer he was repairing. A story about the case stated that “North Carolina law requires computer technicians to report any such images found during the course of their work to local law enforcement or the National Center for Missing and Exploited Children.” I didn’t know that, so I did some research. Continue reading →
Many child pornography cases begin when someone with access to the defendant’s computer looks through it, finds child pornography, and contacts law enforcement. For example, the recent Raleigh case in which a “Santa for hire” was charged with possessing child pornography began when a computer repair technician contacted police. In this type of case, does the private party’s search of the defendant’s computer destroy the defendant’s privacy interest such that an officer may then search the computer without a search warrant? A recent federal case explores the issue. Continue reading →
Discovery in Child Pornography Cases
There’s a recurrent discovery issue in child pornography cases. Generally, it goes like this: the defendant is arrested and charged with a child pornography offense. The prosecution contends that the defendant’s computer contains images of child pornography. The defendant retains a computer expert to examine his computer, hoping to show that the images were downloaded inadvertently, or were downloaded by someone else. The expert requests a copy of the defendant’s hard drive so that the expert can analyze it. The prosecution refuses to provide a copy on the grounds that doing so would amount to distributing child pornography to the expert, so the defendant files a motion asking the court to order the prosecution to provide a copy of the hard drive.
In federal cases, there is a statute that guides the resolution of this issue. Under 18 U.S.C. § 3509(m), “a court shall deny . . . any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography . . . so long as the Government makes the property or material reasonably available to the defendant.” Evidence is “reasonably available” if “the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.” The statute has been upheld against a variety of constitutional challenges. United States v. Shrake, 515 F.3d 743 (7th Cir. 2008); United States v. Spivack, 528 F.Supp.2d 103 (E.D.N.Y. 2007) (collecting cases).
Litigation has focused on what constitutes an “ample opportunity” to review and analyze evidence. Among the leading opinions in this area is United States v. Flinn, 521 F.Supp.2d 1097 (E.D. Ca. 2007), which states:
An ample opportunity to forensically examine seized computer items means an examination whereby the government can supply reasonably up-to-date tools (hardware and software) and facilities such that a defendant can construct a reasonable, available forensic defense, if one is available at all, and whereby the analysis will not be impeached because it was not supported by the proper hardware or software. An ample opportunity will permit a defense expert to utilize his or her hardware or software. An ample opportunity also requires that the analysis be performed in a situation where attorney-client privilege and work product will not be easily, accidentally exposed to the government, and in a facility which is open to the defense at its request during normal working hours, and to the extent feasible, during non-working hours.
I am aware of only one published case in which a court has ruled that the government failed to give the defense team “ample opportunity” to analyze the defendant’s computer. In United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007), a defendant argued that he needed a team of experts to analyze video files on his computer to determine whether the files involved real children or virtual representations of children. The defendant’s experts testified that conducting the analysis at a federal facility would involve a week of moving fragile and expensive equipment and a cost of over half a million dollars. Based on the defendant’s showing and the specific facts of the case, the judge ordered that a copy of the defendant’s hard drive be given to the defense team, pursuant to a protective order. Aside from Knellinger, however, courts have generally denied defendants’ requests for copies of digital evidence in child pornography cases, finding that such evidence can be analyzed adequately in a government facility.
But that’s federal court. Section 3509(m) doesn’t apply to state cases: it refers to the Federal Rules of Criminal Procedure and describes the prosecution as the “Government.” State v. Allen, 2009 WL 348555 (Tenn. Ct. Crim. App. Feb. 12, 2007) (unpublished) (“Section 3509(m) does not apply to proceedings in Tennessee state courts.”) Nor is there any other specific statutory provision in North Carolina concerning how child pornography should be handled in discovery.
That leaves us back at square one. Under the general provisions of G.S. 15A-903, images or videos alleged to contain child pornography clearly count as “matter[s] or evidence obtained during the investigation” of the child pornography defendant, and so are presumptively available to be copied by the defense. Yet some prosecutors worry that copying such evidence violates state and federal child pornography laws. What to do?
I’ll start by suggesting that the concern about violating the law by distributing child pornography during discovery may be a bit overblown. By that reasoning, the prosecutor in every child pornography case violates the law by possessing the child pornography, and the prosecutor violates the law during every child pornography trial by distributing the child pornography to the court clerk, the judge, and the jurors. Likewise, the prosecutor in a drug case would be liable for possessing the drugs introduced as evidence, and for distributing the drugs to the clerk during the trial. I assume that there’s an implicit “official duty” exemption that would preclude prosecution in such circumstances, and I’m not aware of a single prosecution based on similar facts.
Nonetheless, I can understand a prosecutor not being enthusiastic about making additional copies of child pornography. (And frankly, if I were a defense lawyer, I wouldn’t be too excited to receive them. Consider United States v. Flynn, __ F.Supp.2d __, 2010 WL 1782157 (D.S.D. Apr. 28, 2010), where an attorney being prosecuted for possessing child pornography claims that he possessed the images in connection with his work.)
The solution, it seems to me, is to move for a protective order under G.S. 15A-908, which allows a court, upon a finding of “good cause,” to enter any appropriate order regarding discovery. Presumably, the court’s discretion includes the authority to enter an order along the lines of what section 3509(m) requires in federal court: that the defendant be given “ample opportunity” to inspect and analyze the digital evidence at a law enforcement facility, but not be given a copy, absent special circumstances that require the making of a copy in a particular case. Although I’m not aware of a North Carolina case on point, cases in other states have generally recognized some discretion to limit defense access to child pornography. Cf. State v. Brady, 894 N.E. 2d 671 (Ohio 2008) (proper to limit defense access to child pornography evidence to the state’s computer system); State v. Bowler, 772 N.W.2d 666 (Wisc. Ct. App. 2009) (court has the discretion to order copying or to forbid it). But cf. State v. Johnson, 2010 WL 1424369 (Ariz. Ct. App. Div.1 Apr. 8, 2010) (unpublished) (affirming dismissal of charges after defendant provided valid reasons for needing a copy of the digital evidence yet the agency with custody of the evidence refused to produce it). It may be useful to think of digital evidence of this type as analogous to controlled substances seized from the defendant — the defendant should be granted reasonable access to drug evidence for the purpose of analysis and testing, but need not be allowed to take the evidence off the premises of a law enforcement facility. As an aside, the SBI, and probably many other law enforcement agencies, have facilities designed for defendants to use to review digital evidence in privacy.
I’ll get to the topic of today’s post in just a moment, but first I wanted to note what I found to be a fascinating little tidbit about the Willingham case, which I’ve previously addressed here and here. It has to do with Willingham’s final words, and I promise that if you have the slightest interest in the case, you’ll be interested in this.
OK. On to today’s feature presentation. I got started thinking about whether child pornography offenders can be required to forfeit their homes because of this article from Kentucky. (Hat tip: Sentencing Law & Policy.) The short summary is that a federal criminal defendant who pled guilty to receiving child pornography was sentenced to 15.5 years in prison — and was required to forfeit his home, “because of the high volume of images and the length of time [he] used his home to download and view child pornography.”
I’ve blogged before about the controversy over child pornography sentencing. But the forfeiture question is a bird of a different feather. Would something like this be possible under North Carolina law?
The short answer is no. There are lots and lots of forfeiture provisions scattered among North Carolina’s criminal laws. Some are quite narrow, like the provisions for forfeiture of items used in and acquired as a result of wildlife and marine fisheries offenses, G.S. 113-137, and for forfeiture of motor vehicles involved in the disposal of more than 500 pounds of litter, G.S. 14-399(g).
Others are somewhat less narrow, insofar as they relate to very common offenses, but still remain tailored to a limited class of crimes. The provision for forfeiture of any vehicle used in a DWI after a DWI license revocation, G.S. 20-28.2 et seq., is of this type, as is the provision for forfeiture of property connected to violations of the controlled substances laws, G.S. 90-112 et seq.
Although the General Assembly presumably could have included a forfeiture provision in the child pornography laws, it didn’t. There’s no specific provision for, as an example, forfeiture of premises used for the possession of child pornography — or even of computers used to store it. See generally G.S. 14-190.13 et seq.
Thus, the question becomes whether our general forfeiture law could encompass premises used for the possession of child pornography. The general forfeiture statute is G.S. 14-2.3, and it provides that “any money or other property . . . acquired” by commission of a felony is subject to forfeiture, with a few narrow exceptions. But the home of a person who possesses child pornography is not acquired by the offense. It is arguably used to commit the offense, but our courts have held that to be distinct. See, e.g., State v. Triplett, 70 N.C. App. 341 (1984) (money used to commit a crime, but not obtained as a result of a crime, not subject to forfeiture).
A quick scan of the reported federal cases suggests that forfeiture is increasingly a part of federal child pornography cases. Forfeiture of the computers used to commit the crimes appears to be very common, and forfeiture of the defendant’s home is not unheard of. See, e.g., Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (discussing history of a case in which the government sought forfeiture of the defendant’s house, only to have the district court judge rule that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines); United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) (discussing whether a child pornography defendant should have been permitted to cross-examine a law-enforcement officer about his agency’s financial interest in forfeiting the defendant’s house). Anyone think that North Carolina should go down this road?
Update: The creator of the barrel monster has had his day in court, and appears to have received some sort of deferred prosecution, as reported here.
Original Post: My colleagues have contributed several great posts recently, and I have a couple more ready to go, but there have been several news stories over the past few days that I couldn’t resist highlighting.
First, as most of you know, the Administrative Office of the Courts is financially strapped. The News and Observer reports here that it is economizing on paperclips and such, reducing its expenditures on office supplies by over 75% in the last two months. Perhaps as a result, as reported here, the courts in Wake County are soliciting donations of office supplies from private law firms. The story concludes, “[n]o word on whether a bake sale could be next.” Wow!
Second, and on a cheerier note, the Washington Post reports here that violent crime rates are falling in major cities across America, debunking the popular view that a bad economy means an increase in crime. (Well, at least violent crime. The story doesn’t focus on property crimes, which seem like they might be more responsive to the economy.) Anyhow, apparently crime rates were low during the Great Depression. Anyone have any ideas about why?
Third, I posted here about the debate over child pornography sentencing. The public defender whose paper is at the center of the debate has written a reply to the Justice Department’s response. You can access the paper and the response through the original post, and you can read the reply here. You can read about another controversial child pornography sentence — for a former NPR reporter — here.
Fourth, the creator of the Barrel Monster– shown above — is due in Wake County court today. You can read about the case and the charges here. I hope I’m not diminishing the seriousness of the (alleged) offenses by saying how cool I think the Monster is and how much I’d like to have seen it in person.
Finally, there’s a new batch of Court of Appeals opinons out this morning. Jamie Markham is already working on a post about one of them, and I’ll try to highlight some of the others in the days to come. Stay tuned!
Child Pornography Sentencing
There’s a tremendous debate going on over child pornography sentencing in the federal courts. In a number of high-profile cases, judges have imposed sentences well below what the federal sentencing guidelines recommend. An Assistant Federal Public Defender published an influential paper arguing that the guidelines for such cases have been increased over time for reasons that are more political than criminological. The ABA Journal published a long article that was plainly sympathetic to the view that child pornography sentences are too long in many cases. The federal Department of Justice wrote a scathing response to the article, which will turn the stomach of anyone who reads it. The most influential sentencing expert in the country has focused on the issue. Although emphasizing federal practice, much of this material will be of interest to lawyers who practice in state court, as well.
After reading the above items, I looked back at North Carolina’s laws regarding child pornography. Broadly speaking, the law criminalizes production (first-degree sexual exploitation of a minor, G.S. 14-190.16), distribution (second-degree, G.S. 14-190.17), and possession (third-degree, G.S. 14-190.18) of such material. I’ll leave aside the production offense, since that’s by far the least often charged. The distribution offense is a Class E felony, while possession is a Class H. As far as I can tell, most child pornography defendants have no criminal record, meaning that presumptive sentence for distribution — typically, sharing images via internet — is in the two-year range, with probation available. The presumptive sentence for possession is in the 6 month range, with even unsupervised probation available. Compare that to the average sentence in a federal possession-or-distribution child pornography case, which is about eight years active, and rising, with many cases involving sentences of fifteen years or more.
It’s a tremendous disparity. Of course, that doesn’t mean that state law is too lenient, or that federal law is too harsh. It just shows that they’re very, very different. One consequence of that is that there’s a powerful incentive for forum-shopping by officers deciding where to take their cases, prosecutors deciding whether to seek federal adoption of a case, and defense lawyers.
All comments about child pornography sentencing are welcome, of course, but I’d be particularly interested to hear from folks who know how such cases are handled in other states, and from folks who know of cases in which the state/federal disparity was an issue — for example, where a defendant pled guilty in state court to avoid the possibility of federal prosecution.
Pedophilia and Probable Cause
I’m getting ready to teach a session at the Superior Court Judges’ Conference about searches of computers and other electronic devices, so I’ve been reading all the computer search cases I can get my hands on. Recently, I stumbled on United States v. Crespo-Rios, __ F. Supp. 2d __, 2009 WL 1595463 (D. Puerto Rico June 5, 2009), which I found pretty remarkable.
The defendant engaged in sexually explicit online chats with a police officer posing as a 12-year-old, and sent her “obscene material” via webcam. Based on that, a judge issued a search warrant authorizing a search of the defendant’s computers for “any and all chat logs, child pornography, child erotica, information pertaining to sexual interest in children, [and] images depicting sexual contact between adults and minors.” The police executed the warrant and found child pornography, leading to federal charges against the defendant.
The defendant moved to suppress, admitting that there was probable cause to search for evidence of solicitation of a minor and for evidence of distributing obscene materials to a minor, but arguing that there was no probable cause to search for child pornography, and that the warrant was therefore overbroad. The court agreed, finding no “nexus” between solicitation of a minor and the possession of child pornography. Furthermore, although the judge determined that the warrant would have been valid without the child pornography language, and that a search under such a warrant would still have revealed the child pornography, the court nonetheless declined to apply the inevitable discovery doctrine. And finally, the court ruled that warrant was so lacking in probable cause that the good faith exception that exists under federal law did not apply.
So let me see if I have this straight: a person who has a sexual interest in children; who is actively soliciting children for sex; who is doing so via computer; who has adult pornography on his computer; and who is distributing the adult pornography to children is not reasonably likely to have child pornography on his computer? The court relied heavily on United States v. Hodson, 543 F.3d 286 (6th Cir. 2006), a case that involved slightly less jaw-dropping facts but that still reached what, to my mind, is a difficult conclusion to swallow: that there is no “link” or “nexus” between a pedophile who solicits children via computer and the possession of child pornography on that computer.
Of course, the one doesn’t follow inevitably from the other, but probable cause doesn’t mean conclusive proof. It is supposed to be a “practical, common-sense” standard, designed to assess whether there is a “fair probability” that evidence of a crime will be present. Illinois v. Gates, 462 U.S. 213 (1983). And it strikes me as perfectly “common sense” to conclude that a person who is using a computer for one illegal sexual purpose might well be using it for another, closely-related illegal sexual purpose.
As always, I welcome comments and criticisms. But I also have a specific request today. As I’ve been preparing my presentation for the judges, one thing that has jumped out at me is how few appellate cases we have in North Carolina involving searches of computers and other electronic devices. I’d appreciate your thoughts on why that’s the case, and whether there is a similar paucity of such cases in the trial courts.
The News and Observer has had several interesting criminal justice articles over the past few days — including one about the great potted plant caper, available here: http://www.newsobserver.com/2932/story/1394388.html — but the one that struck me the most was this one, about “sexting”: http://www.newsobserver.com/1595/story/1393616.html.
Apparently, posting naked pictures of oneself on Myspace is soooooooo 2008. Kids who are really up-to-date simply snap pornographic pictures of themselves using their cell phones’ cameras, and then send the pictures out via text message, hence, “sexting.” (Former Detroit mayor Kwame Kilpatrick would be proud.) According to the article, sometimes “sexting” is meant to be flirtatious, and sometimes it is meant to harrass, but either way it is getting increasing attention from the police. One boy in Indiana has been charged with distributing obscenity for sending a photograph of his gentials to several female classmates, and another boy has been charged with a child pornography offense based on similar conduct. In Pennsylvania, three girls who sent racy pictures of themselves, and four boys who received them, were charged with child pornography offenses, though most have pled guilty to lesser charges. As you might imagine, there is a heated debate about whether criminal prosecutions are an appropriate response to “sexting,” with some arguing that a strong message needs to be sent to children, and others arguing that this type of conduct is best addressed by the kids, their parents, and perhaps their schools.
I am sure that if kids in Indiana and Pennsylvania are doing this, then kids in North Carolina are, too. Does anyone know of any cases like this? If so, what were the charges? There seem to be several possibilities, including dissemination of obscenity, G.S. 14-190.1, and preparation of obscene photographs, G.S. 14-190.5. Perhaps one could even charge first-degree sexual exploitation of a minor, G.S. 14-190.16, a Class C felony that takes place when one “[u]ses, employs, induces . . . or facilitates a minor to engage in . . . sexual activity for . . . the purpose of producing material that contains a visual representation depicting this activity.” “Sexual activity” includes the lascivious exhibition of genitals, so at least some “sexting” would be covered if the statute allows one to be prosecuted for “using” oneself to produce the prohibited material.
We live in a world where just about anything can be distributed to just about anyone instantaneously. This blog is one piece of that world, and “sexting” is another. Presumably, the criminal justice issues surrounding digital distribution will continue to get thornier, and more frequent, as the relentless march of technology continues.