Posted On: May 21, 2012

New Jersey Residents Do Not Give Up Their Expectation of Privacy When Hosting Large House Parties – Even When Violating Noise Ordinances

In New Jersey v. Kaltner, the Supreme Court of New Jersey held that a trial court correctly suppressed drug evidence found in a bedroom during a warrantless search of a residence by police officers who were responding to noise complaints.

On October 22, 2009, housemates of defendant Derek J. Kaltner hosted a party in the home they rented in Long Branch, New Jersey. Five Long Branch police officers in plain clothes responded to the home after receiving noise complaints. The officers canvassed the house, looking for its residents. An officer peered into Kaltner’s bedroom and saw pills, which he seized. The same officer also observed Kaltner's identification cards sitting on the table near the pills. One of the partygoers telephoned Kaltner, who was at his parent's home in Rochelle Park. Kaltner returned to the residence and was arrested and charged with possession of a controlled dangerous substance.

The trial court found that the officers were invited to enter - at least into the common area of the home. However, the trial judge suppressed the drug evidence after concluding that the officers unlawfully extended their search beyond entry into the first floor main living area. The judge explained that any number of methods could have been employed by the officers to locate a resident of the premises that would not have required invading the private areas of the home without a warrant. On appeal, the question was whether, after their legitimate entry, the community caretaking exception to the warrant requirement justified the officers' conduct in fanning out in search of those in control of the premises in an attempt to abate the noise nuisance.

The appellate court upheld the trial court, noting that the objective of noise abatement could have been achieved well short of the officers' full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers. The Supreme Court agreed, holding that because the police officers' warrantless search of the home after they were called to address a noise complaint was not objectively reasonable, the evidence obtained during the search was properly suppressed.

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Posted On: May 17, 2012

Child Pornography Legal To View Online In New York – Court Rules That Looking At Porn Doesn't Mean Possession

In The People v. James D. Kent, 2012 NY Slip Op 3572, the Court of Appeals of New York reversed Defendant Kent’s conviction for possession of child pornography as to counts relating to pornographic images he did not download or otherwise manipulate or control.

On May 26, 2005, defendant James D. Kent, a professor of public administration at a Dutchess County college, received a new office computer through a campus-wide technology upgrade. The files stored on the hard drive of the old computer were transferred to the new computer. On April 5, 2007, a student employee of the college's information technology (IT) department went to defendant's office in response to his complaints that his computer was malfunctioning. While running a virus scan of the computer's hard drive, the employee discovered a work folder containing numerous ".jpg" or picture files, displayed as "thumbnails," of scantily clad, prepubescent girls in provocative poses. When the virus scan failed to correct the computer's unresponsiveness, the employee removed defendant's hard drive and took it back to the IT office, where supervisors learned of the images. College administrators informed defendant that these images had been found on his computer, but defendant denied any knowledge of them.

Approximately two weeks later, the college submitted defendant's hard drive to the Town of Poughkeepsie Police Department with a "Consent to Search" form signed by a college administrator. Thereafter, an investigator in the computer forensic lab of the New York State Police conducted a forensic analysis of defendant's hard drive and found a variety of pornographic images and videos featuring children. But while many images/videos had been purposefully downloaded by defendant, others had been simply viewed and automatically “cached”, or stored to his hard drive with no action on his part.

After a bench trial, defendant was convicted of promoting a sexual performance by a child (Penal Law § 263.15) and possessing a sexual performance by a child (Penal Law § 263.16). He was sentenced to concurrent indeterminate prison terms of one to three years. He appealed; the Appellate Division of the Supreme Court (New York) affirmed. He sought further review.

The Court of Appeals of New York found that defendant was properly convicted of promotion and possession of a video and other images of child pornography recovered from his computer where the evidence established that he had downloaded and/or saved the video and the images prior to deleting them. However, as to images that were automatically cached, the Court ruled differently. It held that evidence of the existence of cached images of child pornography on a defendant's computer, without more, was insufficient to prove that the defendant procured or possessed them. As there was no evidence that defendant downloaded, saved, printed, or otherwise manipulated or controlled a Web page containing images of child pornography while it was on his screen, evidence that he had accessed a given child porn site was insufficient to convict him of promoting or possessing a sexual performance by a child. Defendant's conviction of promotion and possession was reversed as to the counts relating to images he had not downloaded or otherwise manipulated or controlled.

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