How Do Police Investigate Child Pornography Cases?

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First and foremost, child pornography investigations almost always start online.  Remember the good ole’ days of Napster? Remember how it was taken down? Remember when Metallica and Dr. Dre sued Napster?

Well, Napster may be gone, but there are thousands of copycat websites out there – and they are still in business.  However, these sites not only provide users with bootleg copies of movies, software, music, and the like, but they are also home to some of the seediest, low down and dirty parts of the internet.  It is these dark neighborhoods where child pornography lives.

These Napster copycats are also places where pedophiles go to acquire and trade child pornography.  They do so by downloading file-sharing software and creating an anonymous account.

However, law enforcement is privy to these activities.  This is the part where the Internet Crimes Against Children task force comes into play… referred to in law enforcement and legal circles as “ICAC”.

Step One

To nab those who peddle in child pornography, ICAC will typically launch an investigation in one of two ways.  The first is to assume a known child pornographer’s profile.  This happens when someone is caught and ICAC gains access to their profile following a prosecution.  The second occurs when ICAC acts in an undercover capacity by assuming the identity of someone trying to obtain child pornography –  much like the DEA does with drugs.

Step Two

Regardless of the method used, the next step involves interacting with other child pornographers. Whether these are people who are downloading child pornography or sharing it from their own libraries, ICAC will identify which profiles are downloading known child pornography files.

But how do they know what files are child porn and what are not?

Good question – the answer lies in the pervasiveness of child pornography on the internet. I hate that my career has educated me about this topic to this level, but the reality is that there are literally thousands of child pornography files that circulate around and around the internet.  The same images and videos of the same exploited childen pop up all over the world.  There are so many of these same images and videos circulating, that ICAC is able to identify them by their file name or key words associated with their search.

Just how drug dealers and drug users have street names for certain types of drugs… molly, mary jane, X, H, smack, china white, snow, trees, etc… pedophiles have code and lingo that they use to identify certain types of child pornography.  ICAC takes advantage of these terms, lingos, and known file names to identify when a user downloads or shares child pornography.

Step Three

Once a profile has been identified as either downloading or sharing child pornography, ICAC will use commercially available software to identify the IP address of that user’s profile… and YES this is 100% legal and they lawfully do it in EVERY case.

Once an IP address has been identified, ICAC will issue a subpeona to the internet service provider who owns that IP to obtain account information.  This will include the name, address, phone number, and other information of the person or entity whose account was associated with that particular IP address on the specific date in question.

Step Four

 Once an suspect profile has been identified as downloading or sharing child pornography, an IP address has been ascertained, and customer biographical data obtained, the next step is to get a search warrant from a judge.  However, this is where a little more investigating is necessary.

The primary question that needs to be answered is whether or not the internet account holder is likely the same person who is downloading or sharing the child pornography.  In many cases, a mom or dad or roommate may be the account holder for a residence where many people use the same internet service.  There are other possibilities as well – maybe a pedophile is using a corporate internet account at work or maybe he is accessing a wifi network that isn’t password protected.  There are a few possibilities.

Before a search warrant is applied for, ICAC has to do a little homework.  They usually start with pulling driver license issue of the name on the account and cross referencing it with the address on the account.  Hopefully there is a match.  Next, they will run a criminal history… has this person been in trouble before, does he have a history of sex offenses, does he have a violent background, or is he a first time offender?

Depending on what comes back, ICAC has a few options.  The first is always surveillance – especially in the case of a single guy, living alone, whose driver license address and name match that on the internet service provider account.  ICAC puts “eyes on target” to confirm what they already suspect.

If they feel they have enough to go to a judge, ICAC will then apply for a search warrant.  In this application, ICAC will detail what they have done in their investigation and why they have probable cause to believe that there is contraband in the target location.  A judge will review the application and decide whether or not their suspicion is justified.  If the judge agrees that there is enough evidence to support a search, he/she will issue a search warrant for the target location.

In the alternative, if ICAC cannot develop enough evidence to get a search warrant, they may do a “knock and talk” to see if the residents at the target location will consent to a search without a warrant.  Unbelievably, people agree to this all the time.

Step Five

Regardless of whether they get a search warrant or obtain consent to search from a resident, the next step is to get their hands on all the electronic devices.  Especially in cases like Jared Fogle’s, where they are executing a search warrant, ICAC will show up with its digital forensics people.

These folks will use specialized electronic equipment to take a mirror image of electronic devices.  When that is not possible, law enforcement may seize any object they suspect may have evidence in it –  such as cd’s, sim cards, usb sticks, laptops, desktops, iPads, cell phones, whatever.  The name of the game is to collect evidence.

Step Six

 In this stage of an ICAC investigation, digital forensic experts will evaluate the seized items to determine if they have any child pornography on them. This will also include recovery of deleted items.  If child pornography is found, the next step is for prosecutors to start putting a case together.  This can include a single charge for every image or video or it can be one comprehensive charge that covers all.  Prosecutors will often times file enough charges to expose the defendant to a lifetime in prison, but hold back on ALL the charges to see if the suspect actually wants to go to trial or take a plea bargain.  If its trial, then the gloves come off and prosecutors go for the maximum number of convictions possible.

Filed Under: Sex

HIV+ Man Accused of Raping Miami Child

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Gamalier Lopez Vargas is accused of raping a child while knowing he was HIV positive.  It gets worse –  the child is a family member of his.  The case is presently assigned to the Honorable Christina Miranda in Miami, Florida.  Since this is a developing case, details are sketchy at this point.  However, there is one very important piece of information that is being publicized.  According to news reports, Lopez Vargas told detectives that the victim knew he was HIV positive.

As a criminal lawyer, this seemed like an odd comment to me.  It didn’t sit right.  Why make such a statement to investigators?  After all, isn’t it a tacit admission that he had sex with the minor AND that he knew he was infected when he did it?

So I did a little digging…

Pursuant to Florida Statute 775.0877, it is an affirmative defense to the crime of criminal transmission of HIV if the infected victim knew the offender was HIV positive.  For those who don’t know, an affirmative defense is like a justification for taking a certain action.  For example, in a murder case, an affirmative defense might be that a person acted in self-defense when they killed the supposed victim – and in this case, maybe the underage girl did know (whether this makes a difference in the case of minor is another discussion for another article).

HOWEVER, having litigated countless sex offender cases, let me tell you the real issue.  One of the primary commonalities that I find with sex offenders is the extreme amount of DENIAL that they live in.

The reality in their minds is very different from ours.  Gamalier Lopez Vargas #2There is always some twisted logic to their actions, to the justifications, to the whacked-out defense theories they come up, and the like.

Lawyers and other professionals who work with sex offenders know exactly what I am talking about.

 The Real Issue

So getting back to my point – of all the things to possibly say to police, why did Lopez Vargas say the girl knew he was infected with HIV?  The reason is based on an insight into the sex offender mind… when presented with the allegation that he had sex with a minor while being HIV+, his brain reacted to the HIV+ part.  This is because a real sex offender has that denial thing going on about the sex part.

They live in this bizarre duality.  On the one hand, they can live very normal lives, be educated, have jobs, and look normal.  They can be our school teachers, coaches, religious figures, police officers, bus drivers, doctors, uncles, whatever.  They wake up in the morning, shower, dress themselves and go to work at their 9-5 job.  They pay their bills, take vacations, and eat Thanksgiving turkey.

Except they have this compulsion.  This obsession.  This skewed, scary, and bizarre child-sex thing going on… and they can’t control it.  BUT –  to them its acceptable.  Its normal to them.  Its what they do –  even when its horrible, violent, and not consensual.

In their minds, there is an explanation that makes sense to them –  that of course leaves the rest of us puzzled and angry when we hear it… like Broward man who blamed Colombian culture when he got caught having sex with child prostitutes.

In this case, I strongly suspect Lopez Vargas made that comment because the sex was somehow justified in his mind.  It was the HIV+ transmission that he felt guilt about. Being HIV+ is a status that has nothing to do with his sexual preference for children.  He has no psychological thing going on with HIV.  In fact, he probably has normal reactions to that status.

But the fact that he tacitly admitted to raping the child in an effort to defend himself against an allegation that he criminally transmitted HIV tells me a lot about his character.

It also tells me a second thing:

He knew very clearly what he was doing was wrong.

I may be mistaken, but Lopez Vargas does not look like a legal scholar to me.  I don’t think he made law review at Harvard.  He also doesn’t look like a member of the Florida Legislature.  So it makes me wonder, in an effort to respond to the allegation of criminal HIV transmission, how did he know to answer that the girl knew of his status?

I don’t believe in coincidence and I don’t believe this guy knows anything about law.  Except he knows one thing:  the affirmative defense.

To know this, he had to self-educate about the law.  He had to inquire, either online or to someone else who knows.  Before committing this offense, he knew it would be a defense to claim that the victim knew his status.  That makes this crime even worse.

Prosecutors refer to such actions as “consciousness of guilt” and such evidence can be used at trial to get a conviction and during sentencing to get a hefty sentence.

In any event, this is a case we will be following as it develops through the courthouse.

The Constitution Promises Liberty to All Within Its Reach

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Let freedom ring! Today, America shined bright.  Today, America proclaimed to posterity, once again, why she is a morally great nation.  Today, pause, America created a more perfect union.

Justice Kennedy delivered the opinion of the Court in Obergefell v. Hodges.  He also delivered the final blow to one of the remaining Civil Rights battlegrounds in the Global war for human liberty – Gay Marriage Equality.

Whether you are gay, straight, not sure, or damning everyone to hell – equal protection under the law keeps you free. The very foundation of Western civilization depends on it.  This article explains why…

When we say we aren’t like other nations where people are burnt alive, decapitated, drowned in a cage, or flayed because they proclaim the wrong politics, say things that enlighten others against dogma, or make love to someone unapproved by clergy – we are able to do so because we have a vehicle in our legal code that delivers freedom like a gushing artery delivers blood and deflects oppression like a shield.

That vehicle is called Equal Protection. You can read it in the 14th Amendment to the United States Constitution.

Oh yes –  an “amendment.”  An add-on to the living legal code from a time when we as a nation realized we had to change something to straighten a crooked thing, right a wrong, moralize a corruption.

Understanding Today’s Ruling:  The Real Issues

Even though upholding the right to gay marriage may seem obvious to many or perplexing and incomprehensible to others – it pays to understand how the U.S. Supreme Court came to its conclusion… because it was not arbitrary or made up.

Today’s ruling addressed two basic questions:

  1. The first, presented by the cases from Michigan and Kentucky, is whether the 14th Amendment requires a state to license a marriage between two people of the same sex.
  2. The second, presented by cases from Ohio, Tennessee, and, Kentucky, is whether the 14th Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right.

Before I proceed with answers and explanations, I have questions of my own.  Why did James Obergefell have to hurt?  Why was he made to suffer and feel pain and indignity?  Why did the State of Ohio, full of “love thy neighbor” Christians, Sunday churchgoers, charitable contributors, and good Samaritans, have to cause this man sorrow within sorrow?

Don’t know what I’m talking about, do you?

The first case before the USSC was the matter concerning James Obergefell and his late husband, John Arthur. You see, John didn’t die from AIDS.  He didn’t die because a lightening bolt struck him down from the sky.  He died from amyotrophic lateral sclerosis, also known as ALS – the same disease that afflicts Stephen Hawking and caused a Facebook induced ice shortage last summer.White House Gay Marriage

Three weeks before John died, the couple took a medical flight to Maryland, where same-sex marriage was legal at the time.  John was so debilitated from ALS that they never even left the aircraft… the wedding ceremony was performed in the airplane as it literally sat parked on the Maryland tarmac.  The couple then returned to Ohio.

After John passed, the State of Ohio refused to name James as John’s surviving spouse on the death certificate – thus compelling them to remain strangers, even in death.  James described this as a pain that was “hurtful for the rest of time.”

Now you may think James was a bit of a drama queen from the comfort of your sofa, office, or wherever you are reading this and sipping a latte, but the man is entitled to his feelings, especially those caused by the State of Ohio following the death of his most beloved.

Rather than comforting the mourning, the State of Ohio shoved a stake in his heart and twisted it.  They kicked him hard when he was down, broken, and in wretched, incurable pain… moments where 10 Commandments style love thy neighbor compassion is supposed to kick in hardcore.

In my upbringing as a Jewish Man, the Torah teaches us to give love to people when they are down, to aid them when they hurt, and to see them through the mourning process with gentle, loving kindness.

If James had a vagina instead of penis that is exactly what would have happened.  But he does not.

Unfortunately for the State of Ohio, James is a man and he is endowed with the very rocks that they relied upon to kick him when he was down. But he didn’t stay down for long.  He stood up and fought back:  He sued the State of Ohio.

I admire James Obergefell. I respect a man who grabs the ankle of the foot on his neck, stands up, and pushes back.

So here we are:

  • Was it unconstitutional for Ohio to have a legal system where James and John were denied the ability to marry?
  • Was it unconstitutional for Ohio to deny recognition of James’ and John’s marriage in Maryland?

“Under the Due Process Clause of the 14th Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.  Most importantly, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

As a premise, it is extremely important to understand that we have a living legal system.  It is not written in stone to die an arcane and boring death.  Rather, our civilization is premised on concepts that have evolving applications as humans live on.  One such concept is liberty.  Another is self-determination.  A third is the concept of free choice.

“The generations that wrote and ratified the Bill of Rights and the 14h Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

“When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”  That claim originates in society:  In workplaces, in social clubs, on the streets, at cocktail parties, and ultimately – in our courthouses.

That principle applies here. “If rights were defined solely by those who exercised them in the past, then there would never be any progression in the law that coincides with society’s progression in wisdom and knowledge. For instance, slavery would never have been outlawed.  Women would have never been granted the right to vote. Handicapped persons would be left to fend for themselves – so what if they can’t wheel their annoying chair into a public bathroom.

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