Probation Search - Seizure Justified?

[CdwJava]

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.

Plus, the transmission of the image over phone lines also could put it in to their arena ... however, they tend to only prosecute cases that extend across multiple jurisdictions.

- Carl

 

[ryanweston]

sorry

Carl,

I'm sorry for confusing the situation. When I referred to the search warrant, I meant to say my probation conditions. No warrant.

And as far as possession is concerned, I never denied having possession of the picture. They searched my hard drive and told me it was stored on my cache, so obviously I possessed it. Nor did I deny knowing the age of the person in the picture. I just denied knowing it was there, on my computer. The computer automatically saves pictures viewed on the net to your cache - I didn't even know I had a cache - and the statute forbids not possession, but knowing possession. So I really think that should have been raised as a possible defense.

I did ID myself to the social worker - I gave her my email so she could send me a picture of herself (which she did), and the FBI subpoenaed my email account and found me.

 

[CdwJava]

But, by your own admission, you did have possession. You had it, cut-and-pasted it, then passed it on. So at one time you had knowing possession. The fact that you were not aware of a cache on your computer isn't relevant unless they were not introducing passing the picture on as evidence.

Think of it as dope ... if you took some dope from person A and passed it off to person B, you can be charged with possession AND (possibly) sales or distibrution as appropriate.

As it stands now, it seems you are in a pickle. You have been convicted, may face jail time, and will have a hard time mounting a successful appeal at this late hour.

Hopefully you will learn from this.

- Carl

 

[ryanweston]

pickle

Carl,

Yep. A pickle is what I am in. But I still don't think that gives the police the right to deprive me of my constitutional rights beyond what the court has authorized.

Oh, the chat took place in December 1999, and the FBI knew about the chat in December 1999 (the social worker reported it immediately). They filed misdemeanor charges in June 2001. Am I mistaken, or isn't there a one-year SOL for filing misdemeanor charges?

They didn't base the charges on the transmission, but on my continued possession (because it remained on my computer, in my cache file). And indeed, while I did have knowing possession at the time I cut-and-pasted the picture in 1999, I don't think the "knowing possession" continued indefinitely under the circumstances.

 

[CdwJava]

The SOL depends on the specific charges. Kiddie porn and sex crimes have some different rules. Plus, if the crime was a wobbler (i.e. it can be either a misdemeanor or a felony), then the SOL is for a felony as I understand.

What are you on probation for? A similar offense?

As for the search, I don't know your specific conditions, but seizing an item as a result of specific and good information is not necessarily outside the legal realm. Depending on the specific knowledge, I would have obtained a warrant. But, that was something that should have been challenged at trial.

Not a whole lot that can be done about it now until sentencing.

- Carl

 

[ryanweston]

sorry again

Again, forgive me if I wasn't clear.

There was no other crime.

I was convicted in 2002 of one count of misdemeanor possession of child pornography. I was placed on three years probation, which will end in July.

I have never done anything else remotely illegal. I have never even gotten a speeding ticket.

There was no "specific and good information" about any violation of law that prompted the recent search. As a condition of my probation, I have search conditions which authorize the police to search my home without a warrant or reasonable cause. Based on those conditions, they just came there to conduct "a routine search" and told my wife they could come back if they wanted to.

My rights and privacy have been reduced as a result of this conviction. I accept that. But I don't accept, as the police seem to think, that I have no privacy rights at all. On the contrary, I take the rights which remain to me very seriously.

 

[CdwJava]

There was no "specific and good information" about any violation of law that prompted the recent search.

They don't need good cause under CA's probation conditions. Parole might, but probation does not.

As a condition of my probation, I have search conditions which authorize the police to search my home without a warrant or reasonable cause. Based on those conditions, they just came there to conduct "a routine search" and told my wife they could come back if they wanted to.

Yep. That's true.

But I don't accept, as the police seem to think, that I have no privacy rights at all. On the contrary, I take the rights which remain to me very seriously.

When did they say that? The police CAN return if they want to. There is NO law that says how often they can search, or even if there is a time frame between searches. If they came every day or even every week, an argument MIGHT be made that it is harassment. Otherwise, it is perfectly lawful under current law in CA.

As I said previously, we have the stiffest probation conditions in the country ... and that was from the USSC.

- Carl

 

[polev]

My rights and privacy have been reduced as a result of this conviction. I accept that. But I don't accept, as the police seem to think, that I have no privacy rights at all. On the contrary, I take the rights which remain to me very seriously.

I am sorry to learn you made a mistake that cost you dearly, yet I am elated to see law enforcement is aggressively fighting this type of crime.

I knew there was a reason I stay out of chatrooms.

 

[ryanweston]

me too

so am I. I would have been disappointed if they had not followed up on the social worker's report. but, I think the time and resources they devoted, and continue to devote, to my case - after it was clear that I was neither a collector of child pornography, nor a threat to children - is somewhat excessive. Our tax dollars could be better spent finding the people who make and distribute this filth.

 

[CdwJava]

so am I. I would have been disappointed if they had not followed up on the social worker's report. but, I think the time and resources they devoted, and continue to devote, to my case - after it was clear that I was neither a collector of child pornography, nor a threat to children - is somewhat excessive. Our tax dollars could be better spent finding the people who make and distribute this filth.

It is the people that pass this filth on that drive the industry. It is the economics of supply and demand. If people will not distribute it, then nobody will profit in its production.

And the resources devoted are preventative. YOU know if you are a threat to children or not - they don't. In the world of child victimization, preventative measures are much better than responsive ones.

- Carl

 

[ryanweston]

bless their hearts, really

Whatever.

Law enforcement has been hounding me and making my life, and the life of my family, as miserable as possible for more than four years, based on nothing more than this chat and the sending of this one picture. This is not the first time they've searched my house; it is the fourth. And, of course, they have never found anything remotely illegal. If they haven't figured out by now whether I am a threat or not, they are remarkably stupid.

I asked a question regarding whether the police infringed on my rights by seizing my computer. I still haven't gotten an answer, although I have discussed my case at far greater length than I had hoped.

I am not interested in further discussing the details of the underlying case, unless such a discussion would be helpful in answering my initial question. Nor am I interested in discussing the social philosophy of child pornography law and enforcement.

If anyone could answer my initial question - have my rights been infringed by the seizure of my computer - I would be grateful.

 

[Heather2]

I asked a question regarding whether the police infringed on my rights by seizing my computer. I still haven't gotten an answer, although I have discussed my case at far greater length than I had hoped.

I am not interested in further discussing the details of the underlying case, unless such a discussion would be helpful in answering my initial question. Nor am I interested in discussing the social philosophy of child pornography law and enforcement.

If anyone could answer my initial question - have my rights been infringed by the seizure of my computer - I would be grateful.

Hey Carl was helping you out, you should be thankful not rude.
Carl answered you just not with a direct yes or no. Please re-read his posts. The answer is no, your rights were not infringed by the seizure of your computer.

 

[ryanweston]

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

I reread Carl's posts, and I still don't feel as if I have a clear answer to my initial question. I know the issue is arguable; I wanted to know what the arguments are on both sides.

Although I think Carl and I got a little sidetracked from my initial question, I deeply appreciate his time and his insights. Thanks, Carl!

 

[CdwJava]

I reread Carl's posts, and I still don't feel as if I have a clear answer to my initial question. I know the issue is arguable; I wanted to know what the arguments are on both sides.

Although I think Carl and I got a little sidetracked from my initial question, I deeply appreciate his time and his insights. Thanks, Carl!

The answer is, "I don't know."

In fact, NOBODY can tell you. A determination on whether your rights were infringed or not is a legal determination to be made by a court. Any of us here can say whether we think it appears so or not, but none of us are privy to an iota of the factual information that exists in the matter. For the definitive answer you would need to secure the services of an attorney. However, based upon my experience in this area, I don't believe you will find any relief in the court.

However, had they found some new evidence and filed new charges against you, there might be a number of avenues that the evidence can be challenged ... but, with recent USSC case law, the chances are that such a challenge would fail.

California has very strict probation rules including a very sweeping "4th waiver" policy. If you feel that law enforcement is not performing their searches to further their legal responsibilities, then it's time to hire an attorney and return to court to seek an injunction or some form of direction from the court. if you have the money, THAT is the way to go. It's a long shot, but it IS possible.

- Carl