The successful defense of these cases requires a close examination of the search warrant, the forensic evidence on the devices, and the unique characteristics of the client that could have contributed to the possession of the unlawful files.
Over the years, we’ve successfully defended many cases where our clients were charged in state or federal court with the possession or distribution of child pornography. We’ve won cases that seemed almost impossible to defend – involving cases with confessions or strong forensic evidence. We’ve won many others where there were issues with the forensic evidence or where we were able to prove that our client was innocent.
In this post, we will walk through our multi-tiered approach to these cases and how we’ve been able to be so successful.
Almost every single child pornography case begins with the seizure of our client’s computer devices or cell phones. So, the very first question that must be asked is whether that seizure was lawful. If it was not a lawful seizure, this could lead to the suppression of the evidence and the dismissal of the case.
So, regardless of whether our client is innocent, and regardless of whether the evidence appears overwhelming, our first investigative task is determining whether the police had the right to take our client’s devices in the first place.
In order for the police to seize and search computer devices or cell phones, they generally must obtain a search warrant. There are exceptions to this (e.g., exigent circumstances, border crossings, consent searches) but in most cases we are dealing with a situation where the police obtained a search warrant from a judge authorizing them to seize and search our client’s devices.
To determine whether the search warrant was lawfully issued, we must carefully examine the affidavit that the officer submitted when he or she requested the warrant. Sometimes, we can show that the facts stated in the affidavit simply do not establish probable cause. Other times, there are more technical defects in the affidavit, such as a failure to submit it to the proper Magistrate. There are also instances where we can show that the officer omitted critical information from the affidavit when the search warrant was obtained.
If we are successful in establishing that the search warrant was unlawfully issued, it can often lead to the suppression of the evidence and the dismissal of the case.
If we are unsuccessful in challenging the search of the devices, the next step is to examine the devices to determine whether the data establishes that our client was in knowing possession of child pornography.
There are cases where we’ve been able to prove that our client downloaded a file accidentally. We’ve also been able to use the forensic data to prove that someone other than our client was responsible for downloading the files in question.
To do this, we must have a good understanding of computer and cell phone forensics so that we will know what type of data to be looking for. Sometimes, we are looking at the files themselves, the folders they are in, the timeline of activity, internet search terms or url history. There are also cases where our examination is more technical and we need to examine a computer’s registry files, the device’s cache files, or the unallocated space.
Many times, especially when we are dealing with computers, we will retain a computer forensics expert to assist with the examination. However, basic knowledge of how these devices store evidence is essential so that we can guide the expert towards the forensic data that we are looking for.
We spend a lot of time with our clients searching for mitigating factors that could explain why our client would be in possession of these files. Many times, it can be the result of a pornography or internet addiction. These types of addictions are very common, especially with younger clients who grew up with cell phones.
In some cases, we’ve been able to show that a medical or mental health condition was a contributing factor. For instance, we had a client who contracted a very serious case of Lyme Disease that resulted in damage to his spinal cord and nervous system. Because of this, we were concerned that he could have also suffered injuries to his brain. This led us to an expert who was able to conclude that his infection likely altered his sexual interests causing him to develop an interest in child pornography that he had not had previously. This made sense since the client was in his 60’s and had reported that this interest had only developed a couple years after the Lyme Disease diagnosis.
To successfully defend these cases, we must understand how the police investigate them, how the forensic evidence can either prove or disprove the charges, and that there are causes that are out of our client’s control that can contribute to the commission of these crimes.
With this knowledge, we can win these cases regardless of how insurmountable the evidence may seem.
In Cruz v. State, the Georgia Court of Appeals affirmed the denial of a defendant’s motion to suppress finding that…December 16, 2022 Divided Georgia Supreme Court Finds that Defendant Consented to Search of his Computer
In Winslow v. State, the Georgia Supreme Court held 5-4 that the defendant initially consented to a search of his…November 14, 2022 Defendant Acquitted on 13 of 14 Counts in Child Pornography Case But Loses Appeal
Although the defendant was charged with being in possession of a computer containing multiple sexual images of minors, he was…