Posted On: March 31, 2011

Ninth Circuit: Deleted Computer File Not Enough For Child Porn Conviction

In the recently decided case, U.S. v. Flyer, No. 08-10580 (2-8-11), the Ninth Circuit Court of Appeals determined that deletion of an image alone is insufficient evidence to support a conviction for knowing possession of child pornography on or about a certain date under US federal law.

In an undercover operation, the FBI had downloaded various files containing child porn through a file-sharing program, which were traced back to the defendant’s IP address. A search of the defendant’s residence produced a computer, on which child pornography was found in the “unallocated space” on the defendant’s hard-drive. Files found in unallocated space are files which have been deleted, but which can be viewed or accessed with special software. Based upon the government’s finding of child pornography files in the “unallocated” space on the defendant’s hard-drive, he was charged with possession of child pornography and convicted at trial.

On appeal, the defendant argued that evidence presented at trial was insufficient to support his conviction. The Ninth Circuit agreed, reversing his conviction. The court explained that the government had presented no evidence that the defendant knew that the files existed on the unallocated space of his computer’s hard-drive, or that he had the special software required to see or access the files. The Court also noted that there was no evidence that the defendant had “accessed, enlarged, or manipulated any of the charged images”, and that “he made no admission that he had viewed the charged images on or near the time alleged in the indictment.” Thus, because the only evidence supporting the defendant’s conviction was the deletion of an image (leaving it in the “unallocated space”), the Court determined that the evidence failed to support a conviction for possession of child pornography.

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Posted On: March 28, 2011

Third Circuit Upholds Warrant in Child Pornography Case

The Third Circuit Court of Appeals recently found that a search warrant in a child pornography case was sufficient, even if not based on a detailed description of the computer hard drive being searched. In US v. Miknevich, 2011 US App. LEXIS 3824 (3d Cir. March 1, 2011), the Court considered whether the affidavit providing the basis for a search warrant in a child pornography case need to include copies of the items being searched for or a detailed description of these items.

Defendant Stephen Miknevich was charged with possession of child pornography in the United States District Court for the Middle District of Pennsylvania. At trial, he moved to exclude from evidence the images of child pornography found by police on his home computer by challenging the validity of the search warrant used by the police. The District Judge denied his motion, and Miknevich pled guilty, understanding that he could still challenge the legitimacy of the warrant before the Third Circuit Court of Appeals.

When reviewing the validity of a search warrant, an appellate court (such as the Third Circuit Court of Appeals) must determine whether the judge issuing the warrant had “probable cause” to believe that the defendant was guilty of a crime. A judge issuing a warrant may find “probable cause” when, viewing the totality of the circumstances, “there is fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). If a substantial basis exists to support the judge’s finding of probable cause, the appellate court must uphold the finding even if a different judge “might have found the affidavit insufficient to support a warrant.” US v. Conley, 4 F.3d 1200, 1205 (3d Cir. 1993).

Here, Miknevich argued that the warrant was invalid because the police affidavit that the issuing judge relied on did not include either a copy of the movie that the police expected to find on his computer, or a description of the movie’s content. Still, the Third Circuit found that the warrant was adequate, because it did contain the file name for the movie, which referred to explicit sexual acts being conducted by six and seven year old children. Although the Court recognized that file names do not always accurately describe file contents, they also noted that for a warrant, a judge need not be certain that the defendant was guilty of a crime, only that there was a substantial chance that he was. Based upon this standard, the Court held that the file name was enough, and that the warrant was valid.

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