To complete an investigation and, ultimately, file charges for child pornography, law enforcement will almost always attempt to seize and search the electronic devices they believe could contain illegal material. The way police gain access to these devices can be an important issue in child pornography cases (called Child Sexually Abusive Material in Michigan). There are three categories in which police can seize electronic devices to search for evidence of a crime: with consent, with a warrant, without a warrant or consent.
The easiest way for police to get access to phones and computers in a child pornography investigation is to get consent from the person they’re investigating. If police come to your home and ask to see your electronic devices without a warrant, you should respectfully decline and call the Michigan sex crimes lawyers at the Barone Defense Firm immediately.
BE AWARE…if police ask to search your home but don’t specifically ask to search your computers, and you consent to a search of your home, they can probably still search your computers too. The court in United States v. Al-Marri, 230 F. Supp.2d 535 (S.D. N.Y. 2002) allowed a search of a computer in which police simply asked to search the home.
Consent can become an issue still when police ask for it and give specifics, then go beyond those specifics. For example, what if police ask to look for a specific item, find that item, then continue to search and find other items with illegal images on them? This could be an issue to be challenged in court.
Some officers and detectives might provide written consent forms to memorialize your consent in writing and have you sign off on it. This can be either helpful or harmful to a case. If police go beyond the scope listed in the consent form, the search might be able to be challenged. However, if police stay within the scope of consent signed off on, consent to search probably won’t be an issue.
What if I share my computer with someone? Can they give consent?
The answer to this question is, unfortunately, it depends. For example, if you have a roommate and they have access to your computer, but you have password-protected files on the computer, their consent to search the computer probably does not extend to your password-protected files. However, if you share your computer with your spouse, your spouse’s consent to search your computer probably does extend to your password-protected files (and of course files that are not password-protected.
The safest way for police to search and seize devices for child pornography is to get a warrant signed by a judge. The warrant must be supported by probable cause that evidence of the crime they’re investigating will be present on the devices. The warrant also must not be overly broad and must have some specificity as to what is to be searched. If the warrant does not meet these standards, it can be challenged. If it is successfully challenged, then the evidence from the devices seized because of the search/warrant cannot be used in the case.
The warrant should also state that the particular person owns the device to be searched or state specific access authority the person has to the device to be searched.
Police can also, without consent or a warrant, search for and seize devices under certain exceptions. The most common exceptions in child pornography investigations are probably plain view and exigent circumstances. The plain view doctrine says that if police are searching for evidence described in a warrant and seize something that is not described in the warrant, it can still be used in the case if the police found it in plain view while searching for the other items. The plain view doctrine doesn’t just apply to stuff lying around a house while police are searching a home. It can also apply to files on a computer.
Another common warrant exception in child pornography cases can be exigent circumstances. This essentially mean emergency situations; situations in which evidence could be destroyed unless police act swiftly to seize something. For example, if police, without a warrant or consent, seize a cell phone that happens to have child pornography on it, the prosecutor may argue that the exigent circumstances exception should apply to allow the evidence into the case. A good Michigan sex crimes defense attorney should consider challenging this because an immediate harm to the public must be present for exigent circumstances to apply.
Although this post is not an exhaustive treatise on issues related to searches of electronic devices in child pornography cases, it highlights the very sensitive nature of these cases. Sensitive not just in the subject matter (child pornography), but sensitive also in that these cases require highly experienced counsel to identify consent and search issues. Once these issues are spotted, defense counsel must skillfully navigate pretrial negotiations and motions for the best possible outcome for their client. This is what the sex crimes defense attorneys at the Barone Defense Firm have been doing for decades in Michigan. If you’re facing these issues, we are here to help.