In United States v. Krupa the Ninth Circuit had to answer the question of what constitutes probable cause to search computers for child porn. Their answer is that it doesn’t take much. The facts of the case is that the mother of two young children got nervous when her kids were not on the scheduled train returning from a visit to their father who was a sergeant stationed at Edwards Air Force Base.

She called the military police. they went to the sergeant’s on base residence and found the kids under the supervision of a civilian, Peter Krupa. Her husband was in the Philippines, scheduled to return in nine days. ¹ They found the house in considerable disarray and they found thirteen computer towers in the house.

They requested and received permission to search the computers. The officer assigned to the job became ill after finding one picture that appeared to be a nude girl between 15 and 17, with the caption “www.nude-teens.com.” Before the officer got well Velasco and Krupa withdrew the consent.

The government then got a search warrant to complete the search of the computers. The Ninth Circuit upheld the search.

Previously the Ninth Circuit had ruled that one picture of a nude teenager was insufficient to find probable cause. After all many works of art show nude teenagers. ² Furthermore pictures of nudes can only be considered porn if they are lascivious and there was no evidence of that. None of the other “facts” are relevant since they do not make it more likely that a criminal act occurred.

Perhaps the conservative position is a reaction to the Supreme Court’s reversal of five consecutive Ninth Circuit opinions over the past month. Hopefully the case will be considered en banc and reversed. As the dissent points out the affidavit supporting the request for a search warrant was totally lacking any evidence of criminal behavior

Gary Cossey plead guilty in the Northern District Court for the State of New York to possession of child pornography. He was sentenced to 78 months and he was placed on supervised release for the rest of his life. At his sentencing hearing reports from two psychiatrists were introduced. They found him unlikely to reoffend. The judge said that he did not trust such evidence and that he expected that within fifty years a gene would be discovered that proved that the possession of child pornography was genetic and could not be changed. There was no evidence to back up this claim.

The Second Circuit Court of Appeals overturned the sentence and remanded the case. It took the unusual step or ordering that the sentencing be assigned to a different District Court judge.

Even though Cossey’s attorney did not object at the time of sentencing the appelate court found plain error in the fact that the sentence was based upon unsupported claims affecting Cossey’s substantial rights and it seriously affected the fairness, integrity, and public reputation of judicial proceedings.

Thanks to television and the movies the myths about the Miranda rights are infinite. If I had a dollar for every time a client told me that their case must be dismissed because they were not given their Miranda rights I’d be a very rich man.

Of course that is not true. The Miranda rights mean what they say “Everything you say may be used against you . . . But if they don’t plan to use any statement you make they don’t have to give you the Miranda rights.

Furthermore the Miranda rights only apply to statements made while you are in custody as a result of interrogation. Thus if your not in custody, i.e. if you are free to leave, or if you make the statement freely without being asked the statement can be used against you even if you are not given the Miranda rights. Statements made despite the lack of being given the Miranda rights can also be used in cross examination.

And I can assure you that any police officer with half of a brain can find some way to make it look like a statement is given either while the person is not in custody of not as a result of interrogation.

An example occurred in the prosecution of Michael Slaight for receiving pornography on his computer. But the Seventh Circuit, in a decision written by Judge Richard Posner, saw through it and reversed the conviction.

Through viewing internet cites used by viewers of child pornography state and federal agents found out that Slaight received child pornography in interstate commerce, a violation of Federal law. they had enough information to obtain a search warrant for his house and his computer. In fact they had enough information to arrest him but they didn’t because they wanted him to give a statement while he was out of custody.

They went to his house. When he didn’t answer the door, nine officers knocked it down. They ordered him to get dressed. They asked him to voluntarily come to the police station. Knowing that he didn’t have a car they offered to let him drive himself to the station. Once at the station, two officers interrogated him in a small room. Repeatedly, they told him he could leave at any time. but he would have had to trip over an officer to get out of the interrogation room and since they already had enough information to arrest him he did not believe they would let him go. At the end of the interrogation they read him his Miranda rights and arrested him.

In the end Judge Posner’s decision found that an average person in Slaight’s position would not feel free to leave due to the show of force at his home, the protracted questioning of him in the claustrophobic setting of the police station’s Lilliputian interview room, and the more than likelihood that he would be formally placed under arrest if he tried to leave because the government already had so much evidence against him.

The vast majority of people who come before our criminal courts at one point or another face sentencing. Either they plead guilty, often as part of a plea agreement or they are found guilty after trial. Particularly in the Federal Courts sentencing is a complicated and drawn out procedure. As a result many of the cases that are decided on appeal involve sentencing issues. As a general rule if one pleads guilty and admits the charged offense one cannot allege innocence on appeal. Thus the only issue on appeal in most cases where there is a guilty plea is the sentence imposed.

In United States v. Pape the Seventh Circuit Court of Appeals considered the correctness of a sentence in a child pornography case.

Jason Pape was an outstanding member of his community. He was a businessman and he was active in his church. He took excellent care of his children and of wife’s children she had by a prior marriage, one of whom was autistic. He had no criminal record.

There is no evidence that he mistreated his children or abused any children. But he was indicted after his daughter reported to her school that she had accidentally run across child pornography on Pape’s computer. He plead guilty and was sentenced to 90 months in prison and twenty year of supervised release. The sentence was below the advisory guideline range of 97 to 120 months.

Appellate consideration of a sentence involves two issues. The first question is whether the sentencing court followed the correct procedure and the second question is whether the sentence is reasonable or whether it is an abuse of discretion.

There was no question raised about the procedure followed by the sentencing judge. But Pape raised four issues on appeal regarding the reasonableness of the sentence. First he claimed that the court did not take sufficient consideration of his parenting responsibilities. While the court must consider non-frivolous issues raised by the defendant the weight to be given to each issue is up to the court. It is clear that the court considered his parenting responsibilities and while the court’s language is slightly ambiguous at times it clearly took the responsibilities into consideration.

Second, Pape argued that the court failed to consider sections of the Guidelines that authorize consideration of extraordinary childcare responsibilities but these sections do not apply to child pornography cases.

The third issue raised by Pape is that the sentencing court failed to consider his argument that the child pornography guidelines “do not reflect the result of careful study based in empirical analysis and national experience.” The Seventh Circuit found that by sentencing Paper after considering the Guideline the sentencing judge implicitly rejected the defendant’s argument.

Pape’s final argument was the vast difference between the various District Courts in Wisconsin. But since the sentence below Guidelines and Pape did not provide any explanation for the variation the Seventh Circuit found that the argument lacks substance. It affirmed the sentence.

The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally the exclusionary rule prevents the admission of seized evidence, the seizure of which does not comply with the Fourth Amendment. But the Supreme Court decided in Leon that evidence seized pursuant to a search warrant that failed to comply with the Fourth Amendment was admissible as long as the officers seizing the evidence acted in good faith.

In United States v. Henderson the Tenth Circuit upheld the admission of child pornography, though the search warrant for the computer failed to comply with the Fourth Amendment. The affidavit supporting the search warrant stated that Special Agent Robert Leazenby received information that a computer with a particular Internet Protocol located at the residence of Harold G. Henderson downloaded and shared two videos each of which had a secure hash algorithm (a digital fingerprint) value associated with child pornography. But the affidavit failed to mention how Leazenby found out this information. Therefore the information was not sufficiently valid to meet Fourth Amendment requirements. But in any case since Leazenby acted in good faith in serving the seach warrant in that the search warrant was not devoid of factual support for the finding of probable cause, the evidence was admissible.

Section 4248 of the Adam Walsh Child Protection and Safety Act of 2006 Congress authorized the Attorney General and the Director of the Bureau of Prisons or their designees to order the continued incarceration of individuals who they believe to be sexually dangerous beyond the completion of their prison terms and to petition the court to order indefinite incarceration.

The Supreme Court granted cert in United States v. Comstock to determine the constitutionality of the Federal Government holding prisoners after their prison term terminates. In Comstock the Fourth Circuit found the section to be beyond the limited powers granted to Congress by the Constitution. The Court determined that mental heath hospitalization has traditionally been a responsibility of the states.

The First Circuit Court of Appeals, on the other hand found the statute to be legal in United States v. Volungus Volungus was convicted of possession of child porn. He was sentenced to 53 months and released on supervised release. The court revoked his release and sentenced him to 23 months. Two weeks before his 23 months were to end the attorney general petitioned to have him civilly committed. The First Circuit reasoned that since possession of porn is illegal due to its transportation in interstate commerce civil commitments are constitutional under the necessary and proper clause. When the Fourth Circuit considered the necessary and proper clause it found that the issue was not the underlining charges but rather the prevention of of sex crimes and the prevention and prosecution of most sex crimes are not crimes resulting from interstate conference.

Section 4248 has several problems. First it allows one person, who is not a doctor, who is either a prosecutor or a warden to order the continued incarceration of an individual beyond the termination of his legal sentence. Second, it allows a judge, without a jury, but with certain procedural safeguards to order the indefinite commitment of the former prisoner. Third, it allows the commitment of anyone who is “sexually dangerous,” whether or not that person has committed a sexually violent crime. Fourth, it is doing all of this without constitutional authorization. What dictatorship is this?

Chad Allen Mutschelknaus lost his appeal in the Eighth Circuit Court of Appeals. He challenged the denial of his motion to suppress evidence after he was arrested for child pornography. He raised two issues on appeal. First, he claimed the affidavit supporting a search warrant for his girlfriend’s house was insufficient to show probable cause. Second, he challenged an order by the trial court giving the police 60 days to examine a computer seized during the search.

Police traced the sending of pornographic pictures to “Aronechee,” in Alaska. They obtained permission from “Aronechee” to use his online identity. They tracked a receiver’s Internet Protocol address to Mutschelknaus’ girlfriend. Then they emailed Mutschelknaus claiming to be “Aronechee.” As “Aronechee,” they told Mutschelknaus that “Aronechee” had lost all of his photographs and they asked Mutschelknaus to return copies to “Aronechee”. Mutschelknaus sent “Aronechee” the 236 pictures he had received in his last batch.

Mutschelknaus was arrested. He was charged with possession and distribution of child pornography. He entered a conditional plea to possession of child pornography, allowing him to challenge the search. He was sentenced to 63 months.

Immigration and Customs Enforcement Special Agent Arel filed an affidavit for a search warrant of Mutschelknaus’ girlfriend’s house in which he stated his experience with child pornography and described some of the pictures but he did not attached the pornography to the affidavit. He also asked that law enforcement be given 60 days to study the hard drive of the computer.

The appellate court found that the description of the pornography, in light of Arel’s expertise and training in the field, was sufficient for a finding of probable cause. Rule 41 of the Federal Rules of Criminal Procedure requires that the search warrant be served within ten days of the judge signing it. Mutschelknaus argued that giving law enforcement 60 days to examine the hard drive violated Rule 41. The U. S. Attorney argued that Rule 41 did not cover acts commited after the serving of the warrant. The appellate court found, that in any case, a violation of Rule 41 only results in suppression if the defendant show prejudice and none was shown.

In a series or regional meetings the United States Sentencing Commission has heard testimony that the Sentencing Guidelines for possession of child pornography are too high. According to an article in the National Law Journal, several judges testified at a Chicago meeting that guidelines for possession as contrasted to guideline for conveying or manufacturing child pornography are too high.

According to Chief Judge Gerald Rosen of the Eastern District of Michigan the guideline for the individual who receives a single video on-line may be greater than the guideline for the individual who repeatedly rapes a child over a period of time. Chief Judge Frank Easterbrook of the Seventh Circuit Court of Appeals pointed out that while a bank robber may get ten months a person charged with downloading child pornography may get 480 months.

The factors that judges must consider in sentencing an individual, for possession of pornography under the Sentencing Guidelines are part of the problem. For example the use of a computer to possess child pornography or the use of file sharing will significantly increase a sentence. Judge Rosen stated that the commission might consider volume of the pornographic material instead of the technology used to possess it.