Effective Defenses in Electronic Pornography Possession Cases

Since mobile technology continues advancing, the law in this area is constantly evolving. The latest decision in this area came from the normally conservative Fifth Court of Appeals. 2021’s United States v. Morton once again sharply limited officers’ ability to search cell phones for illegal pornography.

Furthermore, many people do not think there is a difference between possessing and viewing illegal pornography. Technically, that’s true. But many jurors do not see things that way.

So, if you were charged with possession of electronic pornography on a cell phone or computer, a Tampa pornography charges attorney has the tools needed to successfully resolve this charge. This resolution could be a case dismissal, a not guilty verdict at trial, or a plea to a lesser included offense.

Evidence Admissibility Issues

A cell phone is private property, just like a car or house. Courts have consistently held that smartphone owners have a reasonable expectation of privacy in everything past the home screen, especially since most phones are password or fingerprint-protected.

Therefore, if officers want to search your phone, they must generally have a search warrant based on probable cause. Furthermore, under Morton, the search warrant must specifically authorized officers to look for pictures or images. Officers must have probable cause to make this request.

Many of the normal search warrant exceptions do not apply to cell phone searches. Consent is probably the lone exception. Owners, or apparent owners, my consent to property searches. Officers cannot force owners to surrender passwords. Officers also cannot threaten to get warrants if owners do not consent. Arguably, consent is not voluntary in these situations.

The court supervision loophole sometimes applies. As a condition of probation or parole, some defendants give blanket authorization for officers to search their belongings. These broad clauses usually hold up in court.

Possessing v. Viewing

Between emails, text messages, social media conversations, and so on, most people receive hundreds or thousands of electronic messages a day. Many of these messages are unsolicited or unwanted. Many of these messages also contain pornographic images.

Technically, the crime of pornography possession is complete when the device receives the illegal image. Even if the defendant deletes it, a forensic computer scientists can rather easily find the deleted file. However, sometimes the image is a thumbnail or something almost invisible. Other times, as mentioned, the defendant did not want the image or even know it was sent.

The possessing vs. viewing distinction is an equitable defense. If there is evidence that the defendant did not want or view the image, there is a good chance an attorney can arrange a plea to a lesser included offense or otherwise reduce the penalty involved.

Reducing these penalties is often a priority. Pornography possession is usually a registration-level offense. These consequences are often far worse than the jail time or probation which accompanies the conviction.

Reach Out to a Savvy Attorney

Pornography possession cases are often difficult to prove in court. For a  free consultation with an experienced criminal defense lawyer in Tampa, contact the OA Law Firm. Convenient payment plans are available.

Resource:

ca5.uscourts.gov/opinions/pub/19/19-10842-CR0.pdf