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Probation Search - Seizure Justified?

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ryanweston

Junior Member
What is the name of your state?What is the name of your state?California
I have been on probation for more than two years for possession of pornography because the police found a single picture in the temporary cache file of my computer that I had looked at once and didn't even know was there. Anyways, one of my probation conditions is that I, my house, my vehicle, and my computer can be searched at any time, with or without a warrant. So the police (ten of them - I must be a really dangerous individual) came to my house and searched the place. I was at work, but my wife and daughter were home. Then they left and took my computer with them. They brought it back later in the day, having searched the hard drive at the police station and determined that I didn't have anything illegal on it. What I don't understand is, since my probation conditions authorize them to search my house and computer, but make no mention of the right to seize anything, what gave them the right to take my computer and bring it to the police station? My probation officer told me that it was a routine search, that they didn't have any reason to think I had any pornography or was violating the law in any way, but that they had to take the computer to the police station because they had a fast computer there and could search it much faster at the station. I don't think their need for speed justifies the seizure. Is there another justification for the seizure that I don't understand? Oh, by the way, the computer was off the entire time it was at my house, so it's not as if they could have seen anything on the computer that made them suspicious.
 


CdwJava

Senior Member
ryanweston said:
Anyways, one of my probation conditions is that I, my house, my vehicle, and my computer can be searched at any time, with or without a warrant.
It's better than sitting in jail or prison, isn't it?


What I don't understand is, since my probation conditions authorize them to search my house and computer, but make no mention of the right to seize anything, what gave them the right to take my computer and bring it to the police station?
In general, when you have what are commonly known as "Fourth waiver" stipulations, your property is subject to search and seizure. They have the right to seize certain items depending on the specific conditions agreed to.

And given that computers can require specialized equipment to search, it is not unreasonable to seize it and run a check on it under a controlled situation. Also keep in mind that had you been charged with a drug crime, the probation officer could have directed you to come to their office to take a pee test for drugs or alcohol - a seizure far more limiting than the seizure of your computer.

But, if you want to make an issue out of it, I am sure that they can inconvenience you even more and bring stuff to your home as they cordon it off for a few hours.

Had any contraband been located, this might have been an issue you could raise. But, since it wasn't, you might have to pony up a lot of dough for an attorney to even consider raising the issue to a court.


I don't think their need for speed justifies the seizure.
They really don't need to justify it too much. Though, in all honesty, I haven't heard of actually seizing the computer of a probationer without specific search and seizure conditions. My gut is that it would be legally acceptable, but I can see where that might be arguable.


- Carl
 

MovinSouth

Junior Member
California has tougher laws than any place I know. Montana is not tough on law. In Montana they will throw out warrants, that are 3-5 years. I am just amazed at how tough California laws are.
 

CdwJava

Senior Member
MovinSouth said:
California has tougher laws than any place I know. Montana is not tough on law. In Montana they will throw out warrants, that are 3-5 years. I am just amazed at how tough California laws are.
The penalties seem to be very watered down to me ... but our probation conditions ARE the strictest and most restrictive in the nation.

- Carl
 

polev

Junior Member
ryanweston said:
I have been on probation for more than two years for possession of pornography because the police found a single picture in the temporary cache file of my computer that I had looked at once and didn't even know was there.
Can I ask a question or two?

Since when is pornography illegal? And why were the police searching your puter in the first place?
 

I AM ALWAYS LIABLE

Senior Member
polev said:
Can I ask a question or two?

Since when is pornography illegal? And why were the police searching your puter in the first place?

My response:

Adult Pornography is not illegal. However, our writer "watered down" his post by merely calling it pornography. He undoubtedly meant "Child Pornography", but was too embarrassed to use the "label".

IAAL
 

ryanweston

Junior Member
embarassment

That is correct. It was an image of child pornography, which I had viewed during an online sex chat with a person who turned out to be a child social worker whose goal it was to "set up" (her words) people and "turn them into the FBI." The case against me was very weak, because I clearly didn't know the picture was on my computer - it was stored in a cache file that I didn't know existed. However, I lost the case for the same reason I didn't make myself clear in my post. I was embarrassed, did not attend my own trial, and my incompetent lawyer lost what should have been an easy case.
 

CdwJava

Senior Member
It's kinda hard to blame a loss on an "incompetent" lawyer when you aren't even there to assist in your own defense.

Having investigated cases of this nature before in California, I am very skeptical that this went to trial based on one picture in a cache file somewhere on the computer. They had more evidence than that. I can't imagine a DA in California prosecuting on something that thin without more proof or a history of past, similar acts.

- Carl
 

ryanweston

Junior Member
Me neither

Believe it, Carl. No other acts. No other pictures.
My lawyer's only defense at trial :eek: was that they had to prove beyond a reasonable doubt that the person in the picture was under 18 - which
a) she obviously was, and
b) I had acknowledged that she obviously was in a taped interview with police.

My lawyer never even mentioned that knowledge (of the picture's existence on my computer) was a necessary element of the offense, and the prosecutor conveniently didn't mention it either. I didn't become aware of this until after the trial.

Oh, in answer to your earlier question, is it better than being in jail? Not really. I went to jail for a month, and it was a not unpleasant experience, although the food was pretty terrible. I had a very nice cellmate, got a lot of exercise, and read several books I've wanted to read for a while.

I'd go back to jail if it wouldn't mean losing my job, rather than have my family suffer the trauma of being made to watch while 10 cops tear the place apart.
 

CdwJava

Senior Member
What county did this happen in? I cannot imagine anyone going to court on such flimsy evidence alone.

So ... there was no testimony of conversation/chats? No testimony of requests for photos or acknowledging photos? No other allegations at all? This whole thing came about as the result of a call from a social worker who engaged you in a chat pretending to be a kid, sent you a picture that she somehow snuck onto your computer, and then managed to contact your local police agency?

It sounds a tad far-fetched to me. But, I suppose anything is possible.

- Carl
 

ryanweston

Junior Member
Indeed, the chat came into evidence, and it was certainly damaging, although it did not involve any discussion of child pornography, except for a single request for child pornography. Not my request - hers. By the way, she wasn't pretending to be a child, just an adult interested in child pornography. And when she asked for pornography, I foolishly went to another chat room where I knew people discussed taboo topics, found the picture in question, and cut-and-pasted it into the chat. I never saved the picture to my computer, and after I left the chat, I didn't really give it any more thought, until a year later, the FBI came to my house with a search warrant. When they asked me if I had child pornography, I said, of course not. Then they took my computer, searched it, and found this picture which had apparently been stored to my cache.

While this is all very interesting to discuss, I confess I do not see how it has much relevance to my initial question - can the police seize my computer if:
a) the search warrant specifically authorizes a search, but makes no mention of the right to seize anything, and
b) the police have no independent reason to suspect that I have anything illegal on the computer?

I am grateful for your attention to my situation.
 

ryanweston

Junior Member
police

BTW, the way it got into the hands of the local police agency was that the FBI rejected the case - apparently possession of child pornography isn't a federal crime unless there at least three pictures involved - and turned it over to local police, who did prosecute the matter.
 

CdwJava

Senior Member
ryanweston said:
BTW, the way it got into the hands of the local police agency was that the FBI rejected the case - apparently possession of child pornography isn't a federal crime unless there at least three pictures involved - and turned it over to local police, who did prosecute the matter.
Actually, it CAN be - they chose to pass it on.

- Carl
 

CdwJava

Senior Member
ryanweston said:
And when she asked for pornography, I foolishly went to another chat room where I knew people discussed taboo topics, found the picture in question, and cut-and-pasted it into the chat.
Aack! Okay, that's a LOT different than the inference made previously. It's not like it was snuck on to your hard drive - you had it there and passed it on. The fact that you did not save it to your drive is irrelevant. The cache has a "ghost" of the picture and is likely sufficient to prove the claim by the other party.


I never saved the picture to my computer, and after I left the chat, I didn't really give it any more thought,
Unfortunately, the crime was complete when you passed on the image ... an image which you admitted you KNEW was someone obviously under age.


Then they took my computer, searched it, and found this picture which had apparently been stored to my cache.
Virtually everything can be found on the average computer. There are ways to dump that stuff, but few people are truly aware of the proper ways to do it (thank goodness).


While this is all very interesting to discuss, I confess I do not see how it has much relevance to my initial question - can the police seize my computer if:
a) the search warrant specifically authorizes a search, but makes no mention of the right to seize anything, and
Wait ... I thought you said you were on probation? Now there is a search warrant involved?

Yes, the police may seize items that may contain contraband. And if they got a warrant based on this information, then they would have to be complete and total morons to have specifically excluded themselves from seizing the computer.

When a warrant permits officers to look for contraband, it's not saying that when they find it they stand mute and point at it for a photo opportunity - they can seize it. In this case, the evidence was likely on the computer. They seized the computer pursuant to a search warrant and then returned it.

Obviously I cannot review the warrant as I cannot see it. It may be flawed - the affidavit may be flawed ... your attorney can probably tell you if there is an avenue there.


b) the police have no independent reason to suspect that I have anything illegal on the computer?
They were told by someone that the picture was passed by you. The fact that they were able to identify you tells me that either you fully ID'd yourself to the social worker, OR, the FBI's technical wizards managed to track you down. Whatever they had was apparently sufficient to convince a judge that there was a good likelihood of contraband being found on your computer.

And if you don't have an attorney - get one.

- Carl
 

ryanweston

Junior Member
pass it on...

Carl,
You are absolutely correct. I just looked up the federal statute, and indeed the federal legislature passed a "Zero Tolerance" law in 1998 that made possession of even one picture of child pornography a federal crime.

I had been told that the federal statute required at least three pictures by - you guessed it - my lawyer. It wasn't the only thing he told me that I later discovered to be complete nonsense. :p
 

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