Home Search Warrants
Unfortunately, many homes have been violated by teams of law enforcement with search warrants which establish only that child pornographic material "might" be within a computer. Then, only after dissecting their computers for months in another location will the prosecution's expert determine whether a crime has been committed, and, if they were wrong, who apologizes for this grievous mistake?
As the law stands today, it's possible to have your home searched simply because law enforcement believes that child pornography would be found on a home computer. The implication is that, if child pornography is found on the computer, a crime must be in progress, and while that inference is fine in a drug case, images on computers are a different beast and thus "should" require more proof, the details of why this is the case are listed below.
Before issuing a search warrant, there are two necessary prongs to be satisfied in order for an issuing judge to satisfy his legal responsibility. The first prong is that a particular person must be shown to be committing a crime, the "commission element, and second, that evidence relevant to probable criminality is likely located at the place to be searched, the "nexus element." The affidavits used to support these warrants are not fully understood by the judges, and often fail to include relevant facts (commonly referred to as 'material omissions under the Franks case).
The problem of showing the 'commission element' was addressed by the court in United States v. Polizzi, 549 F.Supp.2d 308 (E.D.N.Y. 2008),
“Online child pornography (or any other electronic image) is typically received and viewed via e-mail, downloading, or file sharing, or viewed on an Internet website. Unwanted or unsolicited e-mails, popularly termed ‘spam’ are transmitted daily in the billions. See, United States v Kelley, 482 F.3d 1047 (9th Cir. 2007) Many carry commercial messages, are dubious or disguised in nature and origin, and contain pornographic images, including child pornography, or links to pornographic websites. In one study, ‘more than 40 percent of all pornographic spam either did not alert recipients to images contained in the message or contained false subject lines, thus ‘making it more likely that recipients would open the messages without knowing that pornographic images will appear.” Citing the United States Senate Committee on Commerce, Science, and Transportation, CAN-SPAM Act of 2003, S. Rep. No. 108-102 (2003, 2004 U.S.C.C.A.N. 2348, 2351)" Id.
This is a terribly worrisome statistic when it means innocent people's homes are being violated with search warrants that assume the mere presence of contraband means a crime is being committed. A citizen's home is his castle, meaning that it is his sanctuary where, apart from well defined exceptions, he should be left alone by the government, regardless of what he has inside his castle. The problem here is that search warrants are issued without any concern for whether or not a suspect intended to have and wanted access to these child porn images.
This concept was more eloquently explained in Richardson v State, 787 So 2d 906 (Fla. 2d DCA 2001),
"Americans have long subscribed to the English common law principle that one's home is one's castle, so that not even the sovereign or its soldiers may enter without the owner's permission. Entering one's home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus...William Pitt categorized a man's home as his castle. Paraphrasing one of his speeches in which he apostrophized his home, it was said in about this fashion; The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his men dare not cross the threshold without his permission. This sentiment has molded our concept of the home as one's castle as well as the law to protect it....Liberty without virtue is much like a spirited horse, apt to go berserk on slight provocation if not restrained by a severe bit."
SIDE NOTE: Beyond Home Search Warrants
It seems that there is no limit to the government's thirst for child porn convictions. And I'm going to tell you about a case that is simply unbelievable, but true. A high school boyfriend and girlfriend sent each other racy photos. The girl was 15 years old, the boy was 17 years old. The girl's mother discovered the video sent to her daughter by the boyfriend, and called the police. The police arrest the juvenile boy, and proceed to take naked photos of his private parts because the video mom discovered does not reveal any identifying information. Now, the problem with the naked photos of the arrested juvenile boy is, his private part is not erect. The video was of an erect penis. So.....the prosecutor and detective get a local judge to sign a warrant forcing the boy into a second photo session at a hospital, where the hospital would inject him with drugs that would force an erection. No, I am not making this up. I've written an article about this case, click here to read it. ["The Crusade against Child Pornography Marches On"]