BB&K Police Bulletin: Warrant to Search Electronic Records - Court Upholds Search of Computer and Storage Devices for Child Pornography

by Best Best & Krieger LLP
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Overview: The Ninth Circuit Court of Appeals recently found that probable cause supported a warrant authorizing the electronic search of computer equipment and digital storage devices belonging to a suspected child pornography collector. Washington police were advised that the suspect had uploaded a child pornography video through a decentralized peer-to-peer file-sharing network. Pursuant to the warrant, police seized multiple electronic media and data storage devices. The court rejected arguments that the warrant was “overbroad” or fatally lacking in protocols to prevent “over-seizure” of “intermingled” data. Key to the court’s analysis was evidence that the suspect took the “affirmative step” of uploading and sharing the video on a network designed for trading illicit files. This provided probable cause to believe that the suspect possessed and distributed other child pornography materials as well. The seized evidence stored in his computer and external memory devices was therefore admissible.

Training Points: The law on search warrants related to the electronic storage and dissemination of child pornography continues to evolve. A recent case found the law not clearly established such that the officer had qualified immunity from suit, while a more recent case found that the officers had acted in “good faith” reliance upon a similar warrant secured by an officer with similar qualifications. This case illustrates that the courts are becoming more familiar with the technology used to perpetrate child pornography crimes. As such, courts are beginning to recognize that officers need to have some flexibility in describing search locations and criteria for digital sources for these kinds of crimes.

Summary Analysis: In U.S. v. Schesso, German authorities linked Schesso’s internet protocol address to a child pornography video made available for download on eDonkey. Based on this evidence, Washington police obtained a warrant to search Schesso’s residence and seize any computer, electronic equipment or digital storage devices “capable of being used” for possession and dealing in child pornography. The search revealed a custom-built computer tower and external storage devices such as camera memory cards containing images and videos of child pornography. The district court suppressed the evidence, calling the warrant “deficient.” The Ninth Circuit disagreed, finding the warrant supported by probable cause. Prior cases set forth protocols to separate electronic data “not mentioned” in the warrant, but the advisory guidelines were not required or relevant here. As the affidavit explained, child pornography “collectors” often saved sexually-explicit images that they could then share on networks like eDonkey. This made all of Schesso’s electronic data “suspect.” Seizure of his entire computer system and digital storage devices was therefore justified. The resulting evidence should not have been suppressed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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