Friday, March 11, 2011

Police Hold a Suspect While They Obtain A Warrant to Search for Child Pornography

A new decision, U.S. v. BLAUVELT discusses police efforts to obtain evidence of child pornography.
One interesting note:  one of the judges on the case was former Supreme Court Justice Sandra Day O’Connor.  

The defendant was convicted for the production and possession of child pornography. 

The case started when the police received the defendant emailed photos of his ex-girlfriend’s (GF1) 14 year old sister to another ex-girlfriend (GF2).  GF2 knew the defendant’s email password, and told GF1.  GF1 accessed the defendant’s email account and  found pictures of the 14 year old “in pornographic poses,” and also “apparently snorting cocaine with a minor male, T.J.” 

The images were reported to the police.  The police viewed printouts of the emails and also interviewed the minor girl and the minor boy depicted.  The children claimed that the photos were taken with the defendant’s cell phone, and that the defendant “had supplied them with cocaine, alcohol and psilocybin mushrooms.”

While a search warrant was being prepared, officers who were watching the home stopped the defendant “told him that he was not free to leave, that he was the subject of a criminal investigation, and that the police were in the process of applying for a search warrant for his house.”   The officers claimed this was necessary to prevent the destruction of evidence on a cell phone while a warrant was being obtained. 

A search warrant was obtained and incriminating evidence was found. 

The defendant challenged the warrant in part by arguing that “law enforcement officers did not independently verify that the cell phone and email accounts belonged to him.”  This argument was rejected.  The court believed it was sufficient for the officers to view the evidence and obtain statements from those who had accessed the email accounts. 

The most interesting argument raised by the defendant, I believe, is the legality of his detention prior to the police obtaining a warrant.  However, the court did not address this issue because the evidence obtained during this delay did not have a substantial impact of the trial, in part because “there was overwhelming evidence that [the defendant] possessed and produced child pornography.” 

In this case, keeping an eye on the defendant for a limited period of time while a warrant is obtained is likely justified once the defendant is aware of a criminal investigation.  Not only could evidence have been removed from a cell phone, but it appears that the email accounts could have been accessed through any Internet connection.  

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