A Problem Paper on Police Searches and Child Pornography

Short Paper #2 Dr. Green’s home was searched by the police after a judge issued a valid warrant because he was suspected of stealing new university material. While the police conducted their search they found 200 sexually explicit videos and movies both in VHS/DVD and on his computer. Fifty of these movies contain child pornography. Dr. Green was arrested on the possession of obscene material and child pornography.

However he was never charged with possession of stolen items which suggests the items he was suspected of stealing were never found at Dr. Green home. The defense argues that Dr. Green is not guilty of the charges. The pornographic material found by the police is said to have contained child pornography. According to the Child pornography prevention act of 1996 (CCPA) child pornography can be defined as: any visual depiction, including any photograph, film, , video, picture, drawing or computer or computer-generated image or picture, which is produced by electronic, mechanical or other means, of sexually explicit conduct, where: (1) its production involved the use of a minor engaging in sexually explicit conduct, or; (2) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct; (3) such visual depiction has been created, adapted or modified to appear that an `identifiable minor’ is engaging in sexually explicit conduct; or (4) it is advertised, distributed, promoted or presented in such a manner as to convey the impression that it is a visual depiction of a minor engaging in sexually explicit conduct. (Akdeniz, 2001) In Osbone v. Ohio, the Ohio Supreme Court required that the defendant had to know that the images depicted children before being convicted of possession of child pornography. (Osborne v. Ohio, 1990, p. 103) If we closely look at the second point from the CCPA, it states “such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct”. ‘Appears to be” being the keyword, there is no evidence to suggest that Dr. Green had knowledge that the characters in the movies were minors. Furthermore, at first glance, by community standards, child pornography might be regarded as obscene material but to truly determine that, we apply the Three-Prong Miller Test. The Miller Test states that: “(1) Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest, (2) Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, (3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” (Miller v. California, 1973, p. 15) The material in question is considered obscene only if all three conditions are satisfied. Dr. Green teaches classes on human behavior at the university and it very plausible that Dr. Green uses this material for research with no evidence to suggest otherwise.

After all, sex is a basic human need and has a great influence on human behavior. The materials found have scientific value and therefore cannot be considered obscene. The defendant requests that the evidence gathered from Dr. Green’s hard drive be suppressed as it was unlawfully obtained.

The police had a legal warrant to search Dr. Green house for stolen material. Search warrants authorize law enforcement to search a specified place for evidence. Searching Dr. Green’s hard drive constitutes a breach of privacy. The fourth Amendment provides: “The right of the people to be secure in the persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but on probably cause, supported by the oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” (Ferrera and Reder et al., 2012, p. 365) There was no probable cause to search Dr. Green’s computer or hard drive as the stolen item in question is not of digital format, hence searching Dr. Green’s laptop is considered unconstitutional. In addition, Dr. Green viewed these materials in the privacy of his home which constitutes as his “Zone of Privacy” which is protected by the Bill of Rights.

Citing Stanley v. Georgia, the court held that “First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime and that the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.” (Stanley v. Georgia, 1969, p. 557) The defense rests its case. The Police argue that the search and seizure was constitutional because they had a warrant that gave them the right to enter Dr. Green’s apartment. Although the warrant permitted the police to gain access to Dr. Green’s apartment and search for the stolen material, the Plain View Doctrine permits law enforcement to seize any contraband in plain view even if those items are not mentioned in the warrant. The plain view doctrine states: “(1) the officer must already have lawful presence in an area protected by the 4th Amendment. In a house, that would mean that the officer must have entered with a warrant, exigency or consent. (2) The officer must observe an item in plain view. (3) The officer must immediately recognize the item as evidence or contraband without making a further intrusion.” (Horton v. California, 1990, p. 128) Using the Plain View Doctrine, the legal search warrant gave the police the right to enter Dr. Green’s apartment and while the officer was conducting his search, a plain view observation was made when the pornographic material was discovered. The officer recognized the material as obscene and considered it illegal using community standards. Under these conditions the officer had the right to seize the pornographic material and arrest Dr. Green for possession of obscene material.

Furthermore, the officer did not invade Dr. Green’s privacy as he was lawfully present in Dr. Green’s apartment. In Horton v. Californian he court held that “The prohibition against general searches and warrants is based on privacy concerns, which are not implicated when an officer with a lawful right of access to an item in plain view seizes it without a warrant”. (Horton v. California, 1990, p. 128) Dependence on privacy concerns is inapt because the officers already had a lawful right to be Dr. Green’s apartment. In conclusion, based on the facts and arguments made, I believe the defendant has a stronger case. Using the Miller Test the defendant was able to prove that the material was not obscene because it had scientific value. The test proves that the materials found in Dr. Green’s apartment are not obscene hence on this point alone, the prosecution has no case. Furthermore, In Stanley and Georgia the court held that the Firth and Fourth Amendments prohibits making mere obscene material a crime as long as it remained within the privacy of the defendant’s home. (Stanley v. Georgia, 1969, p. 557) In addition, in Osborne and Ohio, the Supreme Court required that the defendant had to have had knowledge that the images depicted children before being convicted of possession of child pornography. (Osborne v. Ohio, 1990, p. 103) There is no evidence to suggest that Dr. Green knew that the characters depicted in the films were children.

Besides, there manner in which the evidence was obtained can be questioned. Search warrants authorize law enforcement and limit the search to a specified place for evidence. The police argued that the evidence was legally gathered using the Plain View Doctrine. The third part of the Plain View Doctrine states “The officer must immediately recognize the item as evidence or contraband without making a further intrusion”. Without further inspection or intrusion, it is difficult to plainly look at DVDs/VHS and conclude that the material is contraband. The conspicuousness of these materials is not prominent as guns, drugs or any other obvious contraband. DVDs/VHS at first glance cannot be identified as contraband without further observation. I believe Dr. Green’s Fourth Amendment rights were violated. To sum it up, Dr. Green was not in possession of obscene material nor did he commit a crime and the nature of how the evidence was gotten can be questioned. At this juncture, I believe Dr. Green should be acquitted. Reference Akdeniz, Y. 2001. Regulation of Child Pornography on the Internet. [online] Available at: https://www.cyber-rights.org/reports/uscases.htm [Accessed: 26 Mar 2014]. “Arizona v. Hicks.” 480 321. 1987. Ferrera, Gerald, Margo Reder, Stephen Lichtenstein, Robert Bird, Jonathan Darrow, Jeffrey Aresty and Jacqueline Klosek.

CyberLaw Text & Cases. CyberLaw Text & Cases.

South-Western, 2012. “Horton v. California.” 496 128. 1990 “Miller v. California.” 413 15. 1973 “Osborne v. Ohio.” 495 103. 1990. “Stanley v. Georgia.” 394 557. 1969.

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