August 8, 2014

When Child Pornography is Not Child Pornography

There has been an increase in crackdowns on alleged child pornography, especially on the Internet. One must consider the ramifications of assigning the label “child pornography” to distasteful, yet perfectly legal, photos, films or digital renderings.

Earlier this year, the Huffington Post published a poll concerning 13 year old French model Thylane Loubry Blondeau. Blondeau was in the news not because of her young age, but because of a series of shoots she did in 2011 at the age of 10 for French Vogue. At the time of the original shoot, Fox News decried the shoot as just shy of child pornography, claiming the photo shoot could only appeal to pedophiles.

This example, however, offers us a better understanding of the thin line between art and exploitation. Miss Blondeau is a working model whose high-fashion shoots are deemed pornographic by some and artistic by others. The clothing store Abercrombie & Fitch has also been accused of producing racy catalogs as well, and was forced to pull its Christmas Field Guide because of its sexually explicit nature. Thus, we see an American company facing similar allegations in the court of public opinion; they, too, were never charged with any particular crime.

This suggests that there is no one set definition of child pornography in our culture, despite a very clear designation in our laws. In fact, both the Vogue shoot and the A&F catalogs easily fit at least some of the criteria set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) See also United States v. Knox, 32 F.3d 733 (3d Cir. 1994) for determining elements of child pornography:

• Whether the focal point of the visual depiction is on the child's genitalia or pubic area
• Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity
• Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child
• Whether the child is fully or partially clothed, or nude
• Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity
• Whether the visual depiction is intended or designed to elicit a sexual response in the viewer

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July 2, 2014

Supreme Court Says Phones Can’t Be Searched Without a Warrant

The Supreme Court of the United States unanimously ruled that the police need warrants to search the cell phones of people they arrest after having reviewed two separate cases. Traditionally, the courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence.

However, in the digital age, the court noted the vast amount of data contained on modern cellphones must be protected from routine inspection. Specifically, “Modern cellphones are not just another technological convenience.” The court went on to note that cell phones “could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” For that reason, the Chief Justice said the court would not allow police officers who make an arrest to routinely seize and inspect information contained in a suspect’s cellphone or smartphone.

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May 6, 2014

Supreme Court Limits Restitution Payments to Victims of Child Pornography

The Supreme Court on Wednesday rejected a plea to make it easier for victims of child pornography to collect money from people who view their images online, throwing out a nearly $3.4 million judgment in favor of a woman whose childhood rape has been widely seen on the Internet.

The case involved a woman known in court papers by the pseudonym "Amy." Her losses for psychological care, lost income and attorneys' fees have been pegged at nearly $3.4 million, based on the ongoing Internet trade and viewing of images of her being raped by her uncle when she was 8 and 9 years old.

The ruling steered a middle ground between the woman's call for full restitution and the defendant’s claim that there was no relationship between his conduct and the woman's losses, so that there should be no award of restitution. The case turned on the interpretation of the federal law granting restitution to victims of sex crimes, including child pornography.

Advocates for child pornography victims argued that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates said.

Still, Justice Kennedy said, “the victim should someday collect restitution for all her child pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances.”

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May 2, 2014

PA Supreme Court Rules That No Warrant Is Needed to Search Vehicles

The Pennsylvania Supreme Court has recently ruled that a search warrant is no longer needed when searching a vehicle, so long as probable cause exists. The Court determined that the Pennsylvania Constitution does not provide a greater protection than the Federal Constitution and effectively brings the Pennsylvania search and seizure law in alignment with Federal law.

The facts presented to the court arise from a motor vehicle stop in Philadelphia. The officers stopped the vehicle on a motor vehicle violation and on their approach to the vehicle, noticed a strong odor of marijuana emanating from the vehicle. When asked if there was anything in the vehicle that the police should know about, the operator admitted that there may be weed in the car. Based upon the strong odor of marijuana and the admission by the operator, the court determined that there was sufficient evidence to support a finding of probable cause.

Based on this ruling, the Court review reveals no compelling reason to interpret Article I, Section 8 of the Pennsylvania Constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. This is a direct departure from the current Pennsylvania law directing that warrants are needed for vehicle searches. Therefore, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. Now, the prerequisite for a warrantless search of a motor vehicle is probable cause to search.

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March 6, 2014

United States Supreme Court Rules No Warrant Needed To Enter Home

The Supreme Court recently ruled that police do not always need a warrant to search your property. As long as two occupants disagree about allowing officers to enter, and the resident who refuses access is then arrested, police may enter the residence.

This contradicts previous case law from 2006. Prior to this new decision, when there was a disagreement between two occupants about allowing officers to enter, the refusal by one party would have kept authorities from entering the home, without a search.

The majority of the Justices now say police need not take the time to get a magistrate’s approval before entering a home in such cases. The Majority opinion states, “We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” However, the dissenting Justices warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures.

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March 4, 2014

Pennsylvania Supreme Court Declines to Apply “Good Faith Exception”

The Supreme Court of Pennsylvania has issued an opinion declining to apply the “good faith exception” for an individual’s arrest. In March of 2010, a Pennsylvania State Trooper received radio communication that a vehicle was involved in a drug transaction, and then observed that the vehicle had a broken tail light. The Trooper initiated a traffic stop for the vehicle. The Trooper requested identification from the defendant, driver of the vehicle. After processing the defendant’s name through his patrol car computer, the Trooper received a “hit” message advising there was an active warrant. The Trooper placed the defendant under arrest and discovered drugs. Some time later, the Trooper determined that the warrant notification he relied upon when he arrested the defendant was no longer valid and should have been recalled since the warrant was already served about a week earlier. The defendant was still charged with possessing the drugs.

The Supreme Court ultimately held that as a fact, the Trooper had acted in good faith in arresting the defendant on the basis of what the Trooper believed was an active warrant, but the Court reasoned that there is no good faith exception to the exclusionary rule under the Pennsylvania Constitution. The court concluded that the physical evidence, as well as statements obtained later at the police barracks, were fruits of an illegal arrest based on an invalid warrant, and therefore must be suppressed.

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February 11, 2014

US Supreme Court Struggles with Child Pornography Restitution

Justices at the US Supreme Court on Wednesday grappled with the difficult question of whether a person convicted of downloading and possessing two computer images of child pornography can be forced to pay $3.4 million in restitution to the child-victim depicted in the two illicit images.

The justices are examining how judges are to award restitution payments to victims identified in confiscated images of child pornography. The restitution statute passed by Congress requires judges to order defendants to pay the full amount of the victim’s losses without regard to the proportion of harm they caused.

The case involves a Texas man, Doyle Randall Paroline, who pleaded guilty to possession of child pornography and was later presented with a restitution demand from a single child-victim for $3.4 million. Mr. Paroline was sentenced to two years in prison and 10 years of supervised release. Investigators examined Mr. Paroline’s computer and found 300 images of children engaged in various sexual acts. Two of the 300 photos involved a young girl referred to in court documents by the pseudonym “Amy.” Based on the two photos, Amy’s lawyer submitted a demand for full restitution of $3.4 million.

At issue is whether a person who is convicted of possessing child pornography (rather than producing it or distributing it) can be held responsible for the total amount of restitution sought by the child-victim identified in the illicit images even though the person did not cause all, or even most, of the victim’s injuries. That interpretation of the statute would ensure that child-victims receive restitution payments quickly and efficiently. But forcing someone to pay the full amount for a crime primarily committed by someone else raises basic issues of due process and fairness. The Justices are grappling with the notion that statute is designed for restitution and not fines. A final decision by the Court is expected by June.

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January 9, 2014

Pennsylvania Supreme Court Rejects Search of Automobile

The Supreme Court of Pennsylvania recently reviewed a case involving “live-stop” procedures. A police Corporal in Harrisburg, PA initiated a vehicle stop after the defendant was observed entering the flow of traffic without using a turn signal. The vehicle, driven by the defendant, pulled over and came to rest with the passenger side tires close to the curb so that the vehicle was not blocking traffic or causing a safety hazard. The defendant was found to be driving under a suspended license and without the required emissions sticker.

The defendant was placed under arrest and the Corporal initiated the inventory policy of the vehicle because the vehicle was to be towed under a “towing policy” of the police department. The defendant indicated that his friend drove a tow truck and could take possession of the vehicle. The Corporal eventually searched the trunk of the vehicle discovering two guns.

After review, the Supreme Court of Pennsylvania held that the Corporal had no basis to tow the defendant’s vehicle since it was not blocking traffic or creating a safety hazard. Therefore a search of the vehicle for inventory purposes was improper and the evidence of the weapons was to be suppressed.

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December 24, 2013

Pennsylvania seeks to Increase Penalties for Child Pornography Crimes

The Pennsylvania State Senate recently approved a bill to increase the degree of child pornography crimes. The bill was approved in response to the Jerry Sandusky and Catholic clergy molestation scandals that have occurred in Pennsylvania.

Under the new bill; producing, disseminating or viewing child pornography would be considered more serious crimes if the material depicts indecent contact with a child. This would make the production of child pornography as high as a first-degree felony on a second and any subsequent offense. Other related bills pending in the Legislature would increase the punishment for people found guilty of covering up child abuse and expand the list of people required to report a suspicion of child abuse.

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December 10, 2013

Social Media Ban for Paroled Sex-Offenders

A New Jersey court has recently ruled that paroled sex offenders can be barred from social media websites such as Facebook, LinkedIn and other online social networks. Two paroled sex-offenders challenged the restriction saying that the social networks were important ways to get news and find business opportunities.

The three-judge panel ruled that the offenders can be kept off the social networks as a condition of parole. The judges note, that social networks are an important facet of modern life but, there are good reasons to keep the parole restrictions in place, “The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussion on the Internet with children or strangers who might fall prey to their potential recidivist behavior.”

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October 25, 2013

United States Supreme Court Says GPS Tracking Requires a Warrant

Antoine Jones was being investigated by the FBI and a local police department for narcotics violations. During the course of the investigation, the FBI placed a global positioning device on Jones’s vehicle without a warrant. This device tracked his movements 24 hours a day for about four weeks. The government used the tracking information in the criminal trial against Jones to show his whereabouts and to show how Jones visited the “narcotics stash house” on multiple occasions.

After numerous arguments and appeals, the Supreme Court ultimately held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment. This police action violated Jones’s reasonable expectation of privacy. This violation precluded the government from introducing the tracking information at trial against Jones.

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October 11, 2013

Pennsylvania Court Rules No Notice Needed For Use of Blood Sample for Criminal Proceedings

During the evening of October 22, 2008, Daniel Roger Smith, consumed approximately eight beers while watching the Philadelphia Phillies defeat the Tampa Bay Rays in Game 1 of the World Series. He finished drinking at 11:00 or 11:30 that night and went to bed. He awoke the next morning and, apparently feeling no ill effects from his drinking the night before, drove himself to work. Around 11:00 a.m., during the course of his work errands, Daniel was involved in a serious motor vehicle accident.

Police arrived on the scene of the accident within a short period of time and requested a blood sample from Daniel to eliminate any possibility that alcohol or controlled substance was involved. The blood sample revealed that Daniel’s blood alcohol contact was above the legal limit and he was charged with criminal offenses relating to DUI. After a long court process, the Supreme Court of Pennsylvania ruled that the testing for an individuals blood for the presence of drugs or alcohol following a traffic accident is valid even if the police did not inform an individual that the results of the test may be used for criminal or prosecutorial purposes.

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