September 16, 2005 4:00 AM PDT

Police blotter: Porn suspect claims rights breach

"Police blotter" is a weekly report on the intersection of technology and the law. This episode: A child porn suspect says authorities violated his constitutional rights.

What: A man facing a score of child pornography charges asked a federal court to throw out all evidence he claimed was seized illegally by government agents.

When: Decided July 20 by the U.S. District Court for the Northern District of Indiana, South Bend Division.

Outcome: The court turned down the man's motion to suppress the evidence.

What happened: The U.S. government on April 23, 2004, obtained a search warrant to investigate a suspicious fire and alleged copyright violations at a business owned by James Nichols, according to an opinion penned by Judge Robert Miller Jr. While reviewing seized CDs and DVDs for pirated movies, a secret service agent said he discovered numerous video files and images that "appeared to contain sexually explicit images of children," Miller wrote.

A little more than a month later, the agent secured a new warrant for a follow-up investigation related to sexual exploitation and child pornography. Then, on April 7, 2005, Nichols was issued an indictment: 16 counts of sexual exploitation of children, two counts of possession/receipt of child pornography and two counts possession with intent to sell child pornography.

Nichols filed a motion that the evidence of child pornography should not be allowed at his trial. He said that because those files did not relate to the government's original arson and copyright-infringement investigations, agents should never have been able to land the second warrant, thus violating his Fourth Amendment right to a valid search and seizure.

Nichols based his argument on proceedings in a 1999 case, United States v. Carey. In that case, the Tenth Circuit Court of Appeals ruled that a detective bearing a warrant tailored to scrutinizing computer files for drug trafficking activity was clearly violating the warrant's terms when he found child pornography and abandoned his original search to look specifically for pornography files. "These circumstances suggest (the detective) knew clearly he was acting without judicial authority," the appeals court wrote.

But the more recent case is different: Because the secret agent postponed his search until he obtained a proper warrant, Nichols' argument failed. Besides, Miller wrote, even the first search warrant allowed the government to seize and search for items it didn't name, so long as those items were in plain view of the officer, and their incriminating nature was "immediately apparent."

Quote from the district court's opinion: "Mr. Nichols hasn't argued that Agent Bush's examination of the seized items was unlawful or invalid. Mr. Nichols hasn't argued that the files containing pornography weren't in plain view or that there was other reason Agent Bush shouldn't have discovered them in his examination of the seized items. Nor has Mr. Nichols alleged or argued that the incriminating nature of the pornographic images wasn't 'immediately apparent' to Mr. Bush....Mr. Nichols hasn't carried his burden of demonstrating that his Fourth Amendment rights were violated."

 

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