Illegal search and seizure of corporate asset

[harley06]

What is the name of your state? Florida

I am a mid-level manager with a Fortune 100 insurance company. I am entrusted with alot of corporate techology including software, laptops, zip drives etc. I had to sign corporate "inteletual property" statement when I hired on several years ago. My wife and I were at the end of our marriage and divorce (an ugly one) was eminant. In January 2006, after a huge fight, I left the house and ran some erands. My wife called my cell phone after a hour and a half or so and said "don't come home, I found a "zip drive" in your briefcase that had "child porn" on it and I've called the police". The report says the police arrived and took her statement, then they had her sign a consent form to search all my computers etc. They then accessed this zip drive remotely and viewed the images (note: today, nine months later my lawyer and I are still yet to see the actual evidence?). They then confiscated all my computers, my Palm Pilot and took the zip drive.

My question is this: The zip drive is sole property of my employer. It was in the company's laptop case (clearly marked as company property) and I had NO personal items in this case. Can the police search and seize this property ONLY with her consent and NO search warrant??

I have been arrested and charged with 3 felony counts of possession of child porn, even though the police's search of all my computers turned up NO evidence or connection to those images. It's my contention that my now astranged wife took the zip drive from my company brief case, downloaded the images from the internet and called the police in order to gain leverage in our upcoming divorce and custody battle over our 3 YO daugther. Obviously if she got me convicted of this crime, I'd have NO chance at custody of my child. She had motive, opportunity and ability to do this with ease. Amazingly, the police DID NOT take her computer ever or even look at it for evidence. She has since left the state and I am sure her computer is long since disappeared.

Again, I simply think the police should have been required to have a search warrant before accessing the zip drive owned by my employer.

Please Help!! My case has a hearing next week and I think this could help.

Thanks..."Wrongfully Acussed in Florida"

[xylene]

1) Ownership is not required for a possession charge.

2) Let your lawyer do his job. This will take time.

3) If your lawyer sucks, bring it up to him/her

[BelizeBreeze]

Originally Posted by harley06

What is the name of your state? Florida

I am a mid-level manager with a Fortune 100 insurance company. I am entrusted with alot of corporate techology including software, laptops, zip drives etc. I had to sign corporate "inteletual property" statement when I hired on several years ago. My wife and I were at the end of our marriage and divorce (an ugly one) was eminant. In January 2006, after a huge fight, I left the house and ran some erands. My wife called my cell phone after a hour and a half or so and said "don't come home, I found a "zip drive" in your briefcase that had "child porn" on it and I've called the police". The report says the police arrived and took her statement, then they had her sign a consent form to search all my computers etc. They then accessed this zip drive remotely and viewed the images (note: today, nine months later my lawyer and I are still yet to see the actual evidence?). They then confiscated all my computers, my Palm Pilot and took the zip drive.

My question is this: The zip drive is sole property of my employer. It was in the company's laptop case (clearly marked as company property) and I had NO personal items in this case. Can the police search and seize this property ONLY with her consent and NO search warrant??

Yes

I have been arrested and charged with 3 felony counts of possession of child porn, even though the police's search of all my computers turned up NO evidence or connection to those images. It's my contention that my now astranged wife took the zip drive from my company brief case, downloaded the images from the internet and called the police in order to gain leverage in our upcoming divorce and custody battle over our 3 YO daugther. Obviously if she got me convicted of this crime, I'd have NO chance at custody of my child. She had motive, opportunity and ability to do this with ease. Amazingly, the police DID NOT take her computer ever or even look at it for evidence. She has since left the state and I am sure her computer is long since disappeared.

Again, I simply think the police should have been required to have a search warrant before accessing the zip drive owned by my employer.

Please Help!! My case has a hearing next week and I think this could help.

Thanks..."Wrongfully Acussed in Florida"

your story doesn't ring true.

[Bretagne]

Assuming you are telling the whole truth here, be prepared to hire an expert.

Your attorney needs to find a good expert in the field of forensic computer science. It's going to cost you a lot--at least $5,000 and probably more.

All of the good forensic computer science experts practice privately. Which means that the state agency prosecuting you will likely need to outsource their own expert privately as well. Which means that you should make sure to hire an expert who has a lot of experience at trial and the best possible pedigree. Ask for a curriculum vitae from each expert you contact.

If your wife did, in fact, download this kiddy porn on your flash drive, your expert will figure it out and be able to prove it up.

If you can prove your innocence criminally, and even prove that your wife was the one who set you up and provided false info to the police, your custody battle will go swimmingly.

[BelizeBreeze]

Originally Posted by Bretagne

Assuming you are telling the whole truth here, be prepared to hire an expert.

Your attorney needs to find a good expert in the field of forensic computer science. It's going to cost you a lot--at least $5,000 and probably more.

All of the good forensic computer science experts practice privately. Which means that the state agency prosecuting you will likely need to outsource their own expert privately as well. Which means that you should make sure to hire an expert who has a lot of experience at trial and the best possible pedigree. Ask for a curriculum vitae from each expert you contact.

If your wife did, in fact, download this kiddy porn on your flash drive, your expert will figure it out and be able to prove it up.

If you can prove your innocence criminally, and even prove that your wife was the one who set you up and provided false info to the police, your custody battle will go swimmingly.

Read the post again. The ex wife is gone, her computer is gone, there is no legal basis to perform a forensic audit on her computer and even if successful in getting such, sufficient time has passed that even if the files were not deleted at the root level, they have more than likely been overwritten.

She had legal standing to consent to the search. The search revealed contraband on his computer or a computer in his care. There isn't much here to hang his hat on except maybe his attorney can provide a 'chain of custody' breech when the zip drive was not in his possession.

[Bretagne]

Well, the ex-wife isn't gone. She will have to testify at the trial. The computer isn't gone either, it's stored in evidence. His attorney can bring a motion in limine to allow his expert to analyze the computer, the flash drive, everything.

Then, assuming this guy is telling the truth, he can pinpoint via his cell phone record the time at which she called him when he wasn't at home.

A forensic expert can find out exactly what time the kiddy porn was downloaded. Nothing is ever lost on a computer unless the motherboard is taken out and burned.

[xylene]

Originally Posted by BelizeBreeze

Read the post again. The ex wife is gone, her computer is gone, there is no legal basis to perform a forensic audit on her computer and even if successful in getting such, sufficient time has passed that even if the files were not deleted at the root level, they have more than likely been overwritten.

She had legal standing to consent to the search. The search revealed contraband on his computer or a computer in his care. There isn't much here to hang his hat on except maybe his attorney can provide a 'chain of custody' breech when the zip drive was not in his possession.

While I agree with you completely, I didn't read anywhere in Bretagne's post anything about examining the wife's computer.

I am not a computer expert, and certainly not an an expert in computer forensics. I do know enough to feel confident to say that unless the wife was pretty good than all the traces needed would be found on the flash drive and / or the computer it was connected to.

I also know enough about paedophiles to think the OP's story has more holes than fine Lorraine Swiss.

[tranquility]

The first "search" is almost certainly good as the police didn't do the search, your wife did. The constitution does not protect against such things. There may be more of an issue regarding the search over all the other computer devices at the time. The validity of that search gets to consent. Can your wife consent to search these things?

The general rule is the police can rely on the consent if they reasonably believe the person had common authority over the item or place to be searched. We would only need to go there if the court found the bags with the computers in them were seperate from the house in some way. The wife would have acutal authority to consent to everywhere she had access to.

You will need a good attorney. If your wife had the right to consent, she had as much possession as you. If she did not have the right, she did not have possession, but the police could still reasonably believe she could consent and the search would be good.

The porn is probably getting in. Now you need to prove you did not have the intent to possess. If you were working on a co-worker's computer and didn't search all the drives that's one thing. If you can prove the zip with the porn on it was downloaded at your home IP address while you were at work, that could be something as well. I suspect that once the forensic computer guys get on to the disk and the IP logs, the person who tried to posess the porn will be found out.

You wife, you or the co-worker are the top suspects right now. If it's you, stop trying to come up with some excuse from people on the internet. If someone else, let your attorney handle it.

[harley06]

Thanks for everyone's input BUT everyone's missing the question. Here's some more direct details:
1) Police have already taken ALL my computers (3 different PC's), examined them and RETURNED them to me. Their reports state that NO evidence was found on them to connect the images to my computers.
2) They DID NOT take or at anytime inspect the computer (separate unit in her room) that my wife has.
3) In May, my wife left the state and moved to Indiana taking her computer with her. When I said it's "gone", she has it and has probably replaced the HD. She is very computer savy, I am average.

Now...the question is this. My lawyer believes (and is searching for case law to back up) that the police needed a separate warrant to access the zip drive at all. The zip drive is simply a remote "stick" you plug into the USB port and gives you extra storage for files. We use them for forms and programs to load on agents office computers in the field. It IS NOT part of the computer and is a separate "container". She believes they could look at the computers all day long with my wife's consent, but accessing the other "remote" drive took a warrant.

BTW...the person saying my story is "full of more holes than a piece of swiss cheese" doesn't know my wife (bi-polar psyco) or my story. I just gave you the basics, there are several years of other facts that back up what I am saying. I guess in today's media charged environment, people accussed are considered GUILTY until proven innocent. I am looking factual legal advice or opinion here, but your personal commentary...Thanks

[tranquility]

Why would the police think the wife had ostensible authority to consent to search a computer in the house and not a USB key? If the wife was not able to, in reality, consent to the search, the real question would be what the police believed.

You want the question to be, is it reasonable under the totality of the circumstances for the police to believe she had the ability to consent to the search of the zip drive?

That question is factual and the trier of fact would answer that. However, your problem is very different.

In January 2006, after a huge fight, I left the house and ran some erands. My wife called my cell phone after a hour and a half or so and said "don't come home, I found a "zip drive" in your briefcase that had "child porn" on it and I've called the police".

Here, the police did not use your wife as their agent, nor did they rely on her consent. the government had nothing to do with a search and they did not breach your reasonable expectation of privacy regarding the zip drive. Your wife did. The 4th amendment does not protect you against that. If the only evidence you are trying to keep out is that which is on the drive which your wife turned over to the police, you are SOL. I believe a legal maxim would be: C'est le crime qui fait la honte, et non pas vechafaud.

[CdwJava]

Originally Posted by tranquility

I believe a legal maxim would be: C'est le crime qui fait la honte, et non pas vechafaud.

This is what Babel Fish comes up with:

"It is the crime which makes shame, and not vechafaud"

For those of us who are French impaired (Spanish was much more practical when I was younger), what does "vechefaud" mean?

On a side note, I agree with your evaluation of the circumstances.

- Carl

[tranquility]

From the legal maxim portion at the back of Black's law dictionary:

"It is the crime that causes the shame, and not the scaffold."

While it isn't a perfect fit to the circumstances, I believe the force which the OP is trying to get the evidence out rather than in is instructive. When many have mentioned how he could prove it wasn't him who downloaded the child porn, he still keeps up with more facts trying to keep the evidence out. While it can be expensive to fight false charges and I can see how one would want to use anything to prevent it, something about the arguments he's making don't ring true. It is my opinion he should be ashamed of himself--even if his lawyer comes up with something to keep him out of prison.

[CdwJava]

Yep.

And your analysis of the search issues seems to be spot on from my perspective. Now, if the OP would let his attorney handle things.

- Carl