Search and Seizure in Possession of Child Pornography Cases (cont’d)
Criminal defense lawyers defending a person accused of possession of child pornography must also look for search and seizure cases that were not predicated on exigent circumstances. Other than exigent circumstances, police may conduct a warrantless search under only a handful of limited scenarios.
For example, police are allowed to pat down a person for officer safety during encounters on the street. Police are also allowed to search a person incident to arrest to make sure they do not have any contraband or weapons and to inventory their belongings for storage at the jail. Following arrest, police are also allowed to inventory a vehicle prior to being towed, as would occur during an arrest made following a traffic stop.
If police discover that the defendant was in possession of child pornography under any one of these types of searches, the search would be considered lawful. Again, scope always remains an issue.
For example, if the police pat down a person for officer safety, they are not permitted to search that person’s phone or other hand-held device. Clearly, any electronic content stored in a phone is of no consequence when it comes to officer safety.
Whenever a criminal defense lawyer reviews a police search, he/she must always be cognizant of scope. If the police exceeded the scope of the permissible search and discovered the defendant was in possession of child pornography as a result, the part of the search that resulted in the discovery would be considered illegal.
When the police conduct an illegal search, any evidence seized as a result becomes inadmissible in court. This evidence is referred to as “fruit of the poisonous tree.”
However, to avoid having their evidence suppressed by a judge as “fruit of the poisonous tree,” law enforcement will usually apply for an obtain a search warrant in possession of child pornography cases.
Thus, the main issue turns on how the police came to be aware of the defendant. What caused the defendant to become a target of a criminal investigation for possession of child pornography? How did this person end up on law enforcement’s radar?
In my experience as a criminal defense lawyer, I can tell you that it happens in one of two ways. The first is due to a defendant’s participation in peer-to-peer file sharing services, such as LimeWire. For those who are unfamiliar with peer-to-peer file sharing, the service basically works as an internet connection where members are able to share their video libraries with other members for free.
Therefore, as a member, one is able to search for specific video types by using specific key words. For example, if one wanted to search for another user who might have a copy of The Godfather, a user would open up his/her LimeWire software and do a search for “godfather.” In the alternative, a user might do a search for “gangster movies” or “mafia films.”
Using your imagination, one can determine a number of different search terms someone might input to obtain pornography. In many cases, the search results will contain explicit names that indicate the video contains child pornography. In other cases, the video file may be intentionally mislabeled to disguise its true content.
Regardless, once a video is downloaded by a user, it then becomes available for sharing as part of that user’s library, unless this feature is disabled. This is how most peer-to-peer file sharing gets people in trouble.
Whether you intentionally downloaded a video containing child pornography or not, it will stat in your library until you delete it. Unless you disable sharing, it will also be available for download by any other user.