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Subscribe to this list via RSS Blog posts tagged in Obscenity

Posted by on in Criminal Defense Blog

A man in Connecticut has been cleared to continue his suit for being arrested for his response to a ticket:  

U.S. District Judge Cathy Seibel in White Plains ruled last week that Willian Barboza's rights were violated when the Fairfield County, Connecticut, resident was arrested on an aggravated-harassment charge three years ago. The New York Civil Liberties Union publicized a transcript of the proceeding Tuesday.
Barboza protested his speeding ticket by writing three curse words on his payment form. He also replaced the village's name, Liberty, with "Tyranny."
The village, 100 miles northwest of New York City, refused to let him pay by mail after one of its clerks, who were all women, told a local judge his profane phrase, which referred to them as "bitches," upset and alarmed them, according to court records. The judge referred Barboza's speeding payment form to a prosecutor and ordered Barboza to appear in court.
When Barboza showed up, the local judge reprimanded him for his comments on the form and told him he would be arrested, Seibel said in her ruling. Barboza was handcuffed and taken away before his release on $200 bail.
Seibel said the arrest violated Barboza's First Amendment rights, and she noted the criminal charge eventually was dismissed on those grounds. She said Barboza's phrase was crude and offensive to some but "did not convey an imminent threat and was made in the context of complaining about government activity."

This is similar to the Amy Barnes case here in Cobb, where she was arrested for voicing her opinion and later received a hefty civil settlement.  What's different is that Mr. Barboza's statements were written and directed not at police but court personnel.  Nevertheless, no matter how crude his response, it is Constitutionally protected.  

But never forget one of the Steakley Golden Rules that just because something is Constitutional, that doesn't make it a good idea.  

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At least once per month I have to explain to someone that pregnant teens in Georgia can NOT get married without parental consent.  They seem shocked.  They cite all the other people who have told them otherwise.  Maybe they have a friend whose parents did or maybe an aunt or uncle who did.  So why can't they?

The answer is Lisa Lynette Clark, pictured above.  In 2005, Ms. Clark became pregnant at 37 by her 15-year-old boyfriend.  After becoming pregnant, she and the father of her child got married using the "pregnancy exception" in Georgia law which allowed pregnant teens (or teen parents) to get married without parental consent.  The mother of the 15-year-old was livid.  It made national news

It also got the attention of Georgia lawmakers.  House Bill 847 from 2006 removed the "pregnancy exception" from Georgia law that had allowed Clark and her teen lover to marry.  In other words, being pregnant or having a child no longer allows teens to marry without parental consent as it once did.

So, Georgia teens, maybe Mom & Dad got married this way, maybe your aunt and uncle did, maybe your older sibling or cousin got married this way before 2006.  But it can't be done now.  Parental consent is still required for a minor to marry, pregnant or not. 

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It hasn't taken one of Georgia's newest cities very long before they picked a fight with the Pink Pony strip club: 

As of January next year, any new or existing adult businesses cannot serve alcohol and have nude dancers. It's one or the other. But the Pink Pony is the only strip club in Brookhaven.

"We're the same as always. We have not stopped doing what we're doing," says longtime first amendment attorney Alan Begner. 

Begner filed a lawsuit on behalf of the Pink Pony against Brookhaven's new ordinances, which he says would drastically impact the club's estimated ten million dollars a year in earning.

Considering that the Pink Pony existed long before Brookhaven, my money is on Alan Begner and the Pony.  Besides, it would be ashamed if a storied institution like the Pink Pony was shut down just because the people who have been living near it for years or decades suddenly changed their mind.

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In the United States District Court for the Eastern District of Wisconsin, case 13-M-449, titled "In the Matter of the Decryption of Seized Data Storage System," the court has held that the owner of several hard drives seized by the FBI cannot be compelled to come to court and decrypt the drives for the FBI, because that would violate the Constitutional protection against self-incrimination. 

From the opinion:

On January 22, 2013, a warrant was issued allowing the FBI to enter and search Feldman’s residence, including electronic storage media, for evidence of child pornography. The warrant was executed two days later. 

During the search, Banner spoke briefly to Feldman before he invoked his right to counsel.  Specifically, Feldman stated that he had lived at his current residence for the past 15 years, and that he was the sole occupant of the residence.  Other evidence showed that Feldman is the only person paying taxes and receiving mail at his residence.  Feldman has a computer science degree from the University of Wisconsin–Madison.  He is a longtime employee of Rockwell Automation, currently holding the title of Senior Software Development Engineer.  In 2010, Feldman filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” 

Agents seized 16 storage devices during the search.  Five devices showed no traces of electronic data, and two devices were not encrypted.  The remaining nine devices contained data inaccessible due to encryption.  The encryption programs on the storage devices appeared to be the sort that would lock or damage data if too many incorrect password guesses were made. FBI analysts have spent over four months attempting to access the encrypted files without success. 

On one of the unencrypted devices, a Dell computer, FBI examiners found a peer-to-peer software program called “eMule.”  Within eMule, log files indicated that 1,009 files were received, distributed, or stored using eMule, with most of the files having titles mainly indicative of child pornography.  Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer—particularly, the “F,” “G,” and “I” drives.  The “I” drive corresponded to one of two encrypted devices.  The “F” and “G” drives might correspond to any of the other connected devices.  The Dell computer’s login screen showed only one username, “Jeff.”

So it seems pretty clear that this guy has been downloading some child porn and most likely storing it on encrypted external hard drives.  The FBI apparently gave up trying to break through the encryption themselves and went to the court to force Feldman to do it for them.  But doesn't that violate his right to remain silent?

Yes it does, said the court: 

[T]he government has shown that the encrypted devices contain data. In addition, during the search of the unencrypted Dell computer, the government found a peer-to-peer software program whose log files indicated that 1,009 files were received, distributed, or stored using the program, with most of the files having titles mainly indicative of child pornography. Examiners also found evidence that some of these files had been downloaded to various devices connected to the Dell computer, including one of two encrypted devices. In short, the government already knows the names of the files (which indicate child pornography) and their probable existence on the encrypted hard drives. Under these facts, “[t]he existence and location of the [files] are a foregone conclusion.”

Still, however, there is an issue of possession and authenticity. Feldman has a computer science degree, is a longtime employee of Rockwell Automation (currently, he holds the title of Senior Software Development Engineer), and filed as a co-inventor for a U.S. patent for a “system and method for interfacing with an enterprise resource planning system.” Accordingly, unlike in Subpoena Dated March 25, 2011, here, the government has shown that Feldman may very well be capable of accessing the encrypted portions of the hard drives.

But the following question remains: Is it reasonably clear, in the absence of compelled decryption,7 that Feldman actually has access to and control over the encrypted storage devices and, therefore, the files contained therein? To be sure, the storage devices were all found in Feldman’s residence, where he has admittedly lived alone for the past 15 years. In addition, the unencrypted Dell computer, which showed connections to the encrypted storage devices, has a login screen with only one username, “Jeff.” Nevertheless, unlike in Boucher and Fricosu [cases], here, Feldman has not admitted access and control.

This is a close call, but I conclude that Feldman’s act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with “reasonably particularity”—namely, that Feldman has personal access to and control over the encrypted storage devices. Accordingly, in my opinion, Fifth Amendment protection is available to Feldman. Stated another way, ordering Feldman to decrypt the storage devices would be in violation of his Fifth Amendment right against compelled self-incrimination.

So it seems that what really violates his Fifth Amendment protection is admitting that he can decrypt the drives, not necessarily the act of decrypting them.  If the officer had asked early on, "Can you decrypt these for us if you wanted to?" and Feldman had said yes, the case may have turned out differently.

From JSOnline:

FBI Special Agent Brett Banner suggested in an affidavit that the increasingly common use of encryption could become a real hardship for law enforcement if courts don't order suspects to decrypt possible evidence.

Well, yes, it could become a real hardship for law enforcement if citizens had a way to keep things private from the authorities.  That's the point, Agent Banner.  The point of the Constitution and the Bill of Rights is to protect citizens from government.  That means citizens don't always have to do what the government wants, no matter how much the government wants it.

Encryption is amazing stuff when used correctly.  I prefer TrueCrypt myself.  Use a strong key.

UPDATE:  TrueCrypt has fallen into disfavor since this blog post was published, although it still works for many functions.  Here are some alternatives to TrueCrypt:  https://www.comparitech.com/blog/information-security/truecrypt-is-discoutinued-try-these-free-alternatives/

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The Marietta Daily Journal is reporting that Georgia law enforcement executed a statewide roundup of online child pornography suspects: 

Cobb County Police were among almost 50 state agencies that came together Wednesday to show up at front doors with search warrants for 98 suspects accused of distributing child pornography over the Internet.

In Cobb alone, six warrants were issued and numerous computers were taken and submitted for forensic analysis, according to Officer Mike Bowman with Cobb Police.

“No physical arrests have been made at this time,” he said. “Charges may be forthcoming pending the completion of the computer analyses.”

As of 6:30 p.m. Wednesday, there have been 73 search warrants executed statewide and 41 arrests were made in connection with this continuing operation, according to John Bankhead with GBI.

I like these cases not because of the subject matter, but because of the technology. I would be just as interested in these cases if people were rounded up for downloading copyrighted song or movies, but those cases rarely get the attention of law enforcement. 

I used a computer hard drive graphic because that's what these cases will come down to.  The computers will be imaged and examined by bigger computers to see if there's anything on there that is illegal to possess.  After that, charges will be filed, people will be arrested, and the war will begin:

Considering the Peter Mallory just got sentenced to 1,000 years in south Georgia for child pornography, any person who had his computer seized in this raid should already be in a lawyer's office planning their defense.  These charges aren't to be taken lightly.

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Two teens were arrested in a Florida high school after one of them filmed the other having sex with another student:

Deputies say a 17-year-old boy had sex with a 15-year-old girl, reportedly on tables behind some book shelves.  They say the act was videotaped by a 15-year-old boy and shared via Bluetooth transmission with a female student.
 
The 17-year-old boy is now charged with lewd or lascivious battery. The student who videotaped the act is charged with transmission of pornography by electronic device.

The article doesn't say why the teen male was arrested but not the teen female.  It sounds like a consensual act, not battery.  Florida's age of consent for sex is 18, so both teens were below the age.

But what about the 15-year-old who recorded the act with his cell phone?  He recorded two people his own age (or older) having consensual intercourse, probably not realizing that he was producing "child pornography" because he doesn't consider them "children."  Then he transmitted it to another person which is an additional crime.  And the student that received it was then in possession of child pornography and may have shown the child pornography to others.

The crimes just keep adding up.  Do we really want to treat a teen recording other teens having consensual sex the same way we would treat a 60-year-old producing child porn in his basement?  Do we want to label these kids as "sex offenders" and put them on the Sex Offender Registry before they are even out of high school?

Georgia's House Bill 156 was signed in March and looks on its way to the Governor for signature into law.  Basically, it creates misdemeanor exceptions for teen "sexting" under certain circumstances.  This adds a little more common sense to the current Georgia law.   Note that it does NOT change federal law and does NOT apply to people 18 and above.  So while it is a welcome exception, it is still a narrow one. 

UPDATE:  http://reason.com/blog/2015/04/01/teens-charged-for-sex-tape-in-chicago

 

 

More:

Man Sentenced to 1,000 Years

You Are Probably A Child Pornographer

On Second Thought . . .

FBI Applicant Admits to Child Porn

Congress Enhances Child Pornography Sentences

 

Don't miss a single post! To be alerted when a new blog post appears (about every other day or so), click on "Subscribe to Blog" near the top of this page.

 

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This is interesting.  The 4th Circuit Court of Appeals has upheld a lower court's ruling that the police involved in a S.W.A.T. raid are not immune, meaning they can be sued personally.   Typically, when you try to sue an officer, you sue them as an officer of the police force, not as an individual person.  Individually, police officers are generally considered immune because of a doctrine called "qualified immunity."  If by slim chance you win your suit, it isn't the officer who pays you.  It's the city or county that has the police force.

Not so in this case: 

On May 31, 2007, Sam Bellotte printed some photographs from a memory card at a self-service station in a Winchester, Virginia Wal-Mart. When he went to pay for the prints, a clerk insisted on inspecting the photos. Mr. Bellotte admitted that some contained nudity and surrendered them, then made other purchases and left the store.

This isn't the first time I've pointed out that Wal-Mart will look at your photos and call the police on you.  I think it's pretty safe to say that people shouldn't take their photos to Wal-Mart.  

The Wal-Mart employees charged with discarding the photos noticed one depicting male genitalia seemingly next to a child's face. Concerned that the photograph was child pornography, the employees notified the Frederick County police.

Who empowered Wal-Mart to decide what is and isn't child pornography?

An investigation of the surveillance camera footage and credit card receipts showed that Mr. Bellotte, a resident of Jefferson County, West Virginia, had printed the photo in question. A Frederick County police officer placed the photo in a file container and notified the Jefferson County Sheriff's Department, which then took responsibility for the investigation. After reviewing the file, verifying Mr. Bellotte's address, and learning that both Mr. and Mrs. Bellotte held concealed carry permits, Detective Tracy Edwards sought a search warrant for the Bellotte residence. Around 9:00 that evening, the magistrate reviewed the application and signed the warrant.

I'm not sure how turning in "seeming child pornography" to Wal-Mart has anything to do with this guy's house. What is the evidence that the "seeming child pornograpny" was produced in the house or that there is any other such material in the house?

In order to execute the warrant, Detective Edwards sought and received approval from the ranking Jefferson County law enforcement officer for the assistance of the Jefferson County Special Operations Team ("SORT Team"). The SORT Team leaders decided that their involvement was justified due to the possibility of a violent reaction from Mr. Bellotte and the concealed carry permits held by both Mr. and Mrs. Bellotte. After the three SORT squads were assembled and briefed, they arrived at the Bellotte residence around 10:15 p.m.

Also, how does having a CC permit indicate that the person has a gun and that the gun is in the house and that the person with the gun in the house will use it against officers? It doesn't. This is just anti-gun-owner bias. Owning a gun and having a firearm in your home doesn't mean the 4th Amendment no longer applies to you.  Apparently in this jurisdiction, not only does exercising your 2nd Amendment rights sacrifice your 4th Amendment rights, but that determination is made by a "SORT Team leader."  

Did anyone consider just walking up to this door, knocking, and saying "Hi. We have a search warrant.  Step aside."  That's all they needed to do.

The three squads took positions around the house, wearing tactical vests and helmets and armed with flashlight-equipped .45 caliber Sig Sauer pistols and "hooligan" pry bars for a possible forced entry. Then, the Bellottes claim, the SORT squads opened the unlocked front and rear doors without knocking or announcing their presence. They immediately executed a dynamic entry—a technique that the SORT Team had recently been trained in—by which all squads simultaneously rushed into the home from multiple entry points. After the SORT squads were inside the house, they repeatedly identified themselves as law enforcement officers executing a search warrant.

It's not a violent raid, it's a "dynamic entry."  And cops don't throw people down.  They "assist them to the pavement."

The first member of the family to encounter the SORT Team was E.B., the Bellottes' teenage son. When the officers found him upstairs walking out of his bedroom and talking on a cell phone, they subdued and handcuffed him. E.B. asserts that the officers also poked a gun at the back of his head. In another bedroom, the team found C.B., the Bellottes' young daughter, and led her downstairs unhandcuffed.
 
When the SORT Team came to the parents' bedroom, Tametta Bellotte raced out of bed and ran screaming toward the closet. When she reached for a gun bag, the officers forced her to the ground and handcuffed her. Later, when the house was secured, the SORT Team allowed Mrs. Bellotte to get fully dressed under the supervision of a female officer. The search of the Bellotte residence concluded shortly before midnight.

And the child pornography?  None. 

Mr. Bellotte, it turns out, had spent that night in his hunting cabin in Hampshire County, West Virginia. The next morning, when his wife told him what happened, he went to see Detective Edwards at the Jefferson County Sheriff's Office. He gave a recorded statement and later produced a passport and birth certificate showing that the female in the photo was not a child, but in fact a 35-year-old woman who lived in the Philippines. Thus Mr. Bellotte did not in fact possess any child pornography, and no charges were ever filed against him.

Why did he have a photo of a 35-year-old woman from the Philippines?  It's irrelevant, because it isn't a crime and it certainly didn't justify a botched, no-knock raid of his home.  The danger that evidence will be suppressed doesn't discourage sloppy police work.  The danger of getting shot by a homeowner doesn't discourage sloppy police work.  But the danger that sloppy police work will lead to an officer getting sued personally may encourage officers to think twice before raiding someone's home with no reason.

Full story here.

 

 

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To follow up my previous post "You Are Probably A Child Pornographer", we have a young Arizona couple who made the increasingly-unwise mistake of taking their family photos to a Wal-Mart: 

In 2008, Lisa and Anthony "A.J." Demaree took their three young daughters on a trip to San Diego. They returned home to Arizona and brought photos of their then 5, 4 and 1 1/2 year old daughters to a local Walmart in Peoria to be developed.
 
. . . Walmart employees reported the Demarees to the Peoria Police Department on the suspicion that they had taken pornographic images of their children. The police, in turn, called in the Arizona Child Protective Services Agency, and the couple lost custody of their daughters for over a month.

Apparently the Demaree's had photographed their children during and immediately after their baths because they thought their children were being cute.

A Maricopa County Superior Court judge ruled that the photographs were not, in fact, pornographic, and a medical exam revealed no signs of sexual abuse. The girls were returned to their parents.

Good for you, Judge.  But was it really necessary for a medical exam to probe these little girls' nether regions? 

The couple's named went on a central registry of sex offenders, and "We've missed a year of our children's lives as far as memories go," Demaree told ABC News.

So, having done nothing wrong; having been convicted of no crime; these parents were nevertheless branded as "sex offenders" and separated from their children while strangers probed their daughters' vaginas.

In 2009, the couple sued the city of Peoria and the State Attorney General's office for defamation. They also sued Walmart for failing to tell them that they had an "unsuitable print policy" and could turn over photos to law enforcement without the customer's knowledge.
 
A federal judge in Phoenix sided with Walmart, ruling that employees in Arizona cannot be held liable for reporting suspected child pornography. The Demarees appealed to the 9th Circuit Court of Appeals, and on March 6 the court held a hearing before three judges. It's unknown when the appeals court will rule on the case against the city and Walmart.

So expect Wal-Mart to look at your family photos. 

Walmart did not respond to an interview request from ABC News. But, according to Courthouse News the company's lawyer, Lawrence Kasten, argued that under Arizona statute employees who report child abuse without malice are immune from prosecution. He added that there was no indication of malice in this case.

The problem isn't Wal-Mart. They are in a no-win situation because of "mandatory reporting" laws.  Most states have laws that not only encourage the reporting of suspicions of crimes against children but punish the failure to report it.  (Apparently, our governments do not believe that we citizens are moral enough to report such things voluntarily and thus must be threatened with punishment for failing to do so.)  Wal-Mart is trying to error on the side of caution by reporting anything that might remotely be criminal, lest their employees face criminal charges for not reporting it. In other words, the law has left no room for common sense.

The story is here.

So if you are a parent of anyone under 18, remember that Big Brother is watching.  Big Brother has also conscripted Wal-Mart, teachers, doctors, and anyone else they can to help keep an eye on you through "mandatory reporting" laws.  Do not photograph or video your children doing anything without appropriate clothing.  If you do have such videos or photographs, do not email or text them, or post them on the internet.  Keep them on an encrypted hard drive with a strong key.  And if anyone from the government asks for permission to search, the correct answer is "no." 

Protecting yourself from government stupidity begins with protecting yourself from the government.

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Much like the Jeff Foxworthy "You Might Be A Redneck If . . ." series, I wish someone would start a "You Might Be A Child Pornographer" series to demonstrate just how far and wide government powers go, to the point that it's difficult to avoid stepping over the line.

Do you have children? When they were young did they ever run around the house naked? Did you ever take a picture or video of it to show your spouse? If so, then you might be a child pornographer.

Judge Throws Out Case Against "Child Pornographer"

A judge sided with Todd Hoffner, head coach at Minnesota State-Mankato, by throwing out the child porn charges against him last Friday.

The judge said the cellphone video was nothing more than children playfully dancing naked after a bath.

"I'm just so thankful to be waking up from this nightmare," Hoffner said after the ruling, which came more than three months after the coach was escorted off a practice field and later arrested.

Now, Hoffner said, he wants to get back on the sideline. But it's unclear when that may happen.

The university said he would remain on leave until its own investigation was complete, and school spokesman Don Benson said he had no timetable as to when that might happen.

Hoffner was charged after a school employee found the video on his university-issued cellphone and notified authorities. Hoffner had taken his problematic phone to work to be checked out.

Hoffner testified earlier that his three young children asked him to videotape a skit they had concocted after taking a bubble bath.

A search of his home computer found no evidence of child porn, and social workers found no evidence that the couple's children had been abused.


Good job, judge. Now the citizens of that town need to make sure their DA doesn't get re-elected.
 
While this sounds like a happy ending, read between the lines.  This guy:
  1. was arrested
  2. was booked into jail for child pornography
  3. had his home searched
  4. had his computer searched
  5. had his friends interviewed
  6. was put on leave from his job
  7. had his children interviewed by social workers
  8. had to post bail
  9. probably couldn't be alone with his kids
  10. had to hire a lawyer

    Sounds like a "nightmare" indeed.

In Georgia, pretty much ANY picture of ANY naked child for ANY reason (other than medical) counts as child porn, and it does not matter that the person in the picture is the one doing the sending.  A teen who sends a single topless picture of herself to a boyfriend via internet or cell phone is committing a felony and can go to prison. People caught up in cases like this get branded "child pornographer" for life even if the charges are dismissed. Georgia's new "Restriction of Records" law (2013) may not help.

If you get caught up in a nightmare like this guy, call us. We can help.

- John

UPDATE:

For an excellent and quick read about the overcriminalization of, well, just about everything, check out Professor Glenn Reynold's "Ham Sandwich Nation: Due Process When Everything Is A Crime."

UPDATE AGAIN:  Welcome Instapundit readers!  Grab some coffee and stay a while...

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Posted by on in Criminal Defense Blog

A Troup County judge has sentenced Peter Mallory to serve 1,000 years in the Georgia Department of Corrections for having a bunch of dirty pictures on his work computer. 

Mallory was charged with 60 counts of sexual exploitation of children, invasion of privacy and tampering with evidence. Troup County Superior Court Judge Dennis Blackmon sentenced Mallory to 20 years on 50 of the counts and ordered him to serve a concurrent sentence of five years for each of the remaining 10 counts.

He is eligible for parole in . . . seven years.

O.C.G.A. § 42-9-45(b)

An . . .  inmate serving a felony sentence or felony sentences shall only be eligible for consideration for parole after the expiration of nine months of his or her sentence or one-third of the time of the sentences, whichever is greater. . .  inmates serving sentences aggregating 21 years or more shall become eligible for consideration for parole upon completion of the service of seven years.

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Apparently, some people don't understand the "Investigation" part of "Federal Bureau of INVESTIGATION." 

Meet Dominick Pelletier.  While being interviewed for a job with the FBI, he admitted that he had child pornography on his home computer.  Not only did he not get hired, he would up with 80 months to serve in a federal prison without parole.  The dry opening of the Court of Appeals opinion is priceless: 

Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.

This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI’s vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.

The lesson here is:  if you have child porn on your computer, don't tell anyone.  And especially don't tell the FBI.

-John

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