9th Circuit panel: Gov can seize your pc based on one nude picture that "appears" to be a child

[usregimechange]

1. Having a photo that “appeared to be of 15 to 17 year old female with a web site label" containing the words "nude" and "teen" in the context of many adult pornography files.
2. Leaving your children with a person that has an unclean home.
3. Having a lot of computers.

=

Probable cause of the crime of possession of child pornography.

The warrant was upheld by the following Judges:

Callahan, Consuelo Maria
Nominated by George W. Bush on February 12, 2003

Wolle, Charles Robert
Nominated by Ronald Reagan on July 1, 1987

The one Democratic nominee on the panel couldn't believe it:

The majority seems to imagine “probable cause” as a cloud that follows certain people around, created by their idiosyncratic habits and irresponsible friends, and persisting even though the individuals are not suspected of any particular crime. This “probable cause” cloud, the majority imagines, is available for invocation by law enforcement to justify virtually any search. But, as the case law makes clear, probable cause does not exist in the air. And probable cause to think that someone is odd or a slob or that his friend is a negligent father does not justify seizing and searching his computers. -Berzon, Marsha Siegel (Nominated by William J. Clinton on January 26, 1999).

http://www.ca9.uscourts.gov/datastore/opinions/2011/02/07/09-10396.pdf

[DavidDvorkin]

1. I used to think that courts existed to protect our rights

That was back when I was young and naive.

[usregimechange]

3. Depends on who you get as judge.

[Bandit]

2. No more naked baby pictures..

You are a pervert if you take pictures of your baby getting it's first bath..USA...USA...USA

[usregimechange]

5. Yes, in this case there was no finding related to the content of the picture little alone the age

[ProgressiveProfessor]

4. Think its time to get rid of that dancing baby CGI clip

What is may be of more interest is if they can force you to turn over the keys to any encryption you may have.

That said, it is possible to effectively block that kind on nonsense on a technical level. The question becomes just how much inconvenience the user is willing to put up with. I walk a middle ground, but then again, I have the technical capacity well in excess of your average citizen.

[rustydog]

6. You better not watch AFV on your computer...How many

naked babies in bathtubs do they show each week?

[glinda]

7. Guess my "art-doll" repainter friends better cover them up.

[jp11]

8. In america the laws don't have to be clear, enforced or backed up when

suspicion is at work.

The explanation of how the warrant obtained after the fact was invalid and thus illegal yet was permitted is amazing in showing how the law wasn't followed or even honored in any way shape or form.

[muriel_volestrangler]

16. It wasn't obtained 'after the fact'; it was when the computer owner withdrew the permission

to search, that he had previously given. The magistrate (I think that was the term) signed the warrant, the search started up again, and then they found the 22 photos of child porn, some of which were of sexual activity (since that was what he was found guilty of possessing). The first 15-17 year old nude photo was found with the owner's permission.

[jp11]

22. The warrant was obtained after the fact of finding a single photo of questionable

content there were no other indicators to suspect child pornography existed before the search was requested or really even after the single photo was found because it wasn't followed up on.

Had there not been consent on the initial search the questionable photo which according the the document fit the 5th category of showing pubic areas of an alleged 15-17 year old which we only know because it was not described as fitting the other more serious and 'clearer' definitions of child pornography. No investigation was done to validate the information about the picture including the name/site link it was labled with was done as part of obtaining the warrant rather it was used as basis to obtain a warrant to continue searching for child pornography.

They suspected there was child pornography and instead of validating what they had found they allowed it to remain in question as they pursued further investigation of more alleged child pornography which is what it was at the time. I don't recall if the initial photo was proven to be child pornography or not but if it had been proven then there was all that was needed to legally obtain a warrant to continue the search if not there was no basis to grant the warrant.

The issue at hand isn't that child pornography was found it is that it was found by ignoring the law and personal rights/procedure.

[muriel_volestrangler]

23. A warrant doesn't need proof, just 'fair probability'

You claim that people's judgement that a girl in a picture is underage is not enough for 'fair probability', and that they should have found proof the girl was underage; I think that, since it appeared to come from 'nude teens dot com' (which makes an innocent explanation of the possession unlikely), and they judged her underage, that was enough. The majority of the judges agree that the law was followed, not ignored.

[usregimechange]

28. The majority of the Republican nominees on a 3 judge panel, and its possible to be 19

and be a teen. That being said once the warrant was obtained improperly, he turned out to be guilty. Both were improper so far as the law is concerned.

[muriel_volestrangler]

30. The judegment of the people involved was that she was 15 to 17

If they thought she looked 19, then there wouldn't have been a fair probability. I find that it's important to stick to what happened in this case, rather than considering different hypothetical situations.

Thus, your claim that the warrant was obtained improperly is just your own opinion. It is possible for a Republican judge to be correct, you realise.

[muriel_volestrangler]

9. #1 alone would be probable cause for me

To compare this to baby photos, as some have above, is silly. They do not get titled "nude teens", do they?

Hey, guess what, they did find child pornography. So the suspicion did turn out to be reasonable in this case.

[sufrommich]

10. I agree. nt

[usregimechange]

11. I agree that the comparison to innocent baby pictures is inaccurate but they did not find child porn

They found one picture among many adults that "appeared" to be 15-17yo.

[muriel_volestrangler]

13. No, they did find child porn - after they got the search warrant

Reynolds remained hospitalized until April 25, 2002. While
in the hospital he sought consent for “military search authority”
for the computers. The request was based on the photograph
and the fact that consent had been revoked. Reynolds
sought “authority to continue this search for any further items
of contraband.” On April 29, 2002, Colonel LaFave, the
appointed Primary Search Authority Military Magistrate,
signed the search warrant.1 Reynolds resumed his forensic
analysis of the computers, locating adult pornography and 22
images of child pornography.

The question in this case is whether the circumstances, of having found 1 photo which appeared to be under-age, and apparently from 'nude-teens', are probable cause for a search warrant. The majority judges say "probable cause means ‘fair probability, not certainty or even a pre-ponderance of the evidence.’ ”

[usregimechange]

14. Agreed, the question is, was there probable cause based on that 1 photo prior to the warrant?

and the other factors listed by the majority.

[muriel_volestrangler]

17. And I would say yes, that was a 'fair probability' (nt)

[usregimechange]

18. Wouldn't the picture need to be of an actual child?

Like if he would have clicked and saved a picture described as being of a person underage or of someone clearly underage...

[usregimechange]

19. Do you roll your own cigarettes? If so I think it appears to be a joint and can search your home.

Is that a reasonable seizure?

[usregimechange]

20. Well, after they searched your home they did find cannabis, that means it was reasonable

Does the law work like that?

[muriel_volestrangler]

21. If the contents of the roll-up looked like cannabis, it would be reasonable

The girl looked to be underage (I'm assuming the legal age for photos would be 18 in that place). She was described as a 'teen', which, although it could be an 18 or 19 year old (or the description could be lying, and she might have been in her twenties in reality), reinforces the 'fair probability' that the picture was illegal, and that there might be more.

In the case of a roll-up, the look would be enough for probable cause for a search, but I'd hope a conviction would need a test of the substance.

[usregimechange]

24. So the gov can arrest and search everyone smoking a roll up cig?

[derby378]

25. You do know it's possible to make joints that look like normal cigarettes, right?

That's tantamount to saying you can identify an illegal alien by the shoes on his feet.

[usregimechange]

26. Well arrest them randomly, some of them will be illegal

[derby378]

27. I'm gonna sit back and watch...

...while you try to get a court order for every cigarette in America.

Meanwhile, I side with the Constitution.

[muriel_volestrangler]

31. If they see that the contents look like cannabis, not like tobacco

The important thing to remember in this case is that they found, while they had permission to search from the man who was eventually convicted, a photo of a naked girl who appeared to be under age.

So, the equivalent in the metaphor would be
"Do you mind if we look at the contents of that tin on the dashboard of your car?"
"Go ahead"
"This looks like cannabis. I'm going to get a search warrant for your house"

If you make a joint that looks like a normal cigarette, then it wouldn't look like something illegal, and so it wouldn't be a good metaphor for when they found, by a legal process, a photo of a girl that looked illegal. "It's possible to make joints that look like normal cigarettes" is a red herring.

[Drale]

12. Ok really now

who saves porn to their computer? 99.9% of the internet is porn that doesn't have to be downloaded and saved.

[jberryhill]

33. It IS saved on your computer

If you think otherwise, you should learn how browsers work.

[RandomThoughts]

15. They tried that on me

4 people where I worked got fired. not me.


Then half a year or so after that when I defended concept of due process in a bar. They smeared me. Since then I have learned most of that is targeted justice, not justice, used for political or social control.

So burn them the fuck down :D


Blinded by the Light by Manfred Mann's Earth Band
http://www.youtube.com/watch?v=Eg8cDmi7-U8

Keyser Soze
http://www.liveleak.com/view?i=25b_1248534997


And you don't understand why the last thing he said changes the label he used

[usregimechange]

29. It will be interesting to see what rehearing en banc would produce

The 9th Circuit isn't likely to follow suit and a bet Justice Kennedy wouldn't either.

[Lance_Boyle]

32. Why is item #1 restricted to females? Is kiddie porn of boys OK to these 'judges?'

[NuclearDem]

34. Because the picture in question was of a female

[NuclearDem]

35. The dissenting judge had it right...

Admittedly, a civilian having fifteen computers in his military friend's home while he's watching the kids might be odd, but it wouldn't strike me as particularly suspicious.

If all the pictures he was charged on were similar to the one that caused the problem in the first place, the child porn charges are bogus. Shouldn't have even come to that anyway...there was ZERO probable cause for a search. Is he irresponsible? Maybe. Is he messy? Yes. Is the father a model parent? Probably not. Did he have pictures on his computer from a porn website? Yes.

I can't think of a reasonable person that would add all that up to child porn though.