Philadelphia Criminal Defense Blog
PA Superior Court: Multiple Possession of Child Pornography Counts Do Not Combine for Purposes of Sentencing Enhancement
The Pennsylvania Superior Court has decided the case of Commonwealth v. Christman. holding that the trial court should not combine possession of child pornography charges to trigger the sentencing enhancement. As will be discussed in greater detail below, a defendant can be subjected to a sentencing enhancement if they are in possession of a certain number of child pornography images. This decision is significant because the Commonwealth will frequently charge a defendant with multiple charges of possessing child pornography (i.e. if a defendant is in possession of eleven videos, they will charge them with eleven counts). However, if the Commonwealth does do that, then they can no longer combine each count to trigger the sentencing enhancement.
Commonwealth v. Christman
On January 11, 2016, the defendant pleaded guilty to eleven counts of sexual abuse of children in Blair County, Pennsylvania. Specifically, the defendant admitted to possessing eleven videos depicting child pornography. It also appears that this was an open guilty plea, which means that the defendant and the prosecution did not negotiate a recommended sentence. The judge sentenced the defendant to an aggregate term of 36 to 72 months’ incarceration. The defendant received this sentence, in part, because the trial court applied the “Sexual Abuse of Children Enhancement” sentence that allows a court to increase the guidelines for a defendant when he or she is in possession of a specific amount of child pornography. Notably, the defendant did not file a post-sentence motion.
The defendant then filed a timely notice of appeal. His first appeal was denied by the Superior Court. The Superior Court’s logic was that his appeal was a challenge to the discretionary aspects of his sentence and because he failed to file a post-sentence motion he had waived the issue. Undeterred, the defendant then filed a timely petition under the Post-Conviction Relief Act (PCRA) alleging that his trial counsel was ineffective by not preserving his sentencing claim that the sentencing enhancement should not have applied. The court then appointed a new attorney for the defendant and after conducting an evidentiary hearing, the court granted his petition and reinstated his post-sentence motion and direct appeal rights.
The defendant then filed a nunc pro tunc post-sentence motion raising his challenge to the court’s application of the 18-month sentencing guideline enhancement. The trial court then denied that motion. The defendant then filed a nunc pro tunc notice of appeal. On appeal, he raised two issues: 1) whether the trial court abused its discretion in applying the sentencing enhancement to all eleven charges of sexual abuse of children and 2) whether the trial court erred as a matter of law by applying the sentencing enhancement to all eleven counts. The defendant specifically argued that the trial court improperly applied the sentencing enhancement because he was sentenced on eleven separate counts for possessing eleven separate videos and thus because these videos, by themselves, did not contain enough images to trigger the sentencing enhancement, the trial court should not have applied it to him.
What is the Sentencing Enhancement for Possessing Child Pornography?
204 Pa Code § 303.9 (I) lists the sentencing enhancements for a defendant who is convicted of possessing child pornography. Per § 303.9(I), a defendant’s guidelines can increase due to the number of images of child pornography the defendant possessed. For example, if a defendant was found to have more than 50 images, but less than 200, then six months are added to both the lower and upper limit of the standard range of one’s guidelines. If the offender is found to possess more than 200, but less than 500, twelve months are added to both the lower and upper limits. Finally, if a defendant is found to have more than 500 images of pornography, then eighteen months are added to both the lower and upper limits.
How Do Videos Impact the Sentencing Enhancements for Child Pornography?
204 Pa Code § 303.10 (e)(ii) provides guidance on this question. Though it can be done, it is typically difficult to determine how many images are in a video that contain child pornography. § 303.10 (e)(ii) states that a court “shall” consider that each video, video clip, or movie contains 50 images. It is worth noting that, per § 303.9 (I), 50 images would not be enough to trigger the sentencing enhancement.
The Superior Court’s Decision
The Superior Court agreed with the defendant and reversed his sentence. In making its decision, the Superior Court first analyzed the plain language of both § 303.9(I) and § 303.10 (e)(ii). In reading these statutes, the Superior Court found that the sentencing enhancement is only triggered when each violation meets the criteria. Thus, a court must examine each conviction to determine if it meets the requirement that offender possessed more than 50 images before the guideline enhancement may be applied.
In the instant case, the defendant pleaded guilty to eleven counts of child pornography. Because each count was possession of one video, and that video only counted as 50 images as provided by the statute, the trial court should not have applied the sentencing enhancement to any of the charges. Further, the Superior Court reminded the Commonwealth that they had made a strategic decision to charge the defendant with eleven separate counts of possessing child pornography. The Commonwealth could have elected to charge him with fewer counts, but with enough images to trigger the sentencing enhancement (i.e. made one charge possession of two videos). For whatever reason, the Commonwealth chose not to do this. Therefore, because of the trial court’s error in applying the sentencing enhancement, the defendant will get a new sentencing hearing.
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Third Circuit Applies Good Faith Exception to FBI Reliance on Jurisdictionally Defective Search Warrant in Child Porn Malware Case
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.
The Third Circuit has just decided the case of United States v. Werdene. In Werdene, the Third Circuit held that Federal Bureau of Investigation agents acted in good faith on a jurisdictionally defective search warrant which authorized them to install malware/tracking software on users outside of the district in which the warrant was issued as part of an investigation into child pornography. The facts of the case are notable because in this case, the Government seized a child pornography server and continued to operate it, thereby distributing child pornography as part of its attempt to identify the users of the server. Nonetheless, because agents believed they had obtained a valid search warrant, the Third Circuit held that the lower court properly declined to suppress the resulting evidence.
United States v. Werdene
The Werdene case began with an FBI investigation into a website called Playpen. Playpen was a forum on the dark web that was used to distribute child porn. Specifically, Playpen was on the Tor network. Users were able to conceal their actual IP addresses while accessing the network, making it difficult for law enforcement to track the users of the website even if law enforcement seized the site itself. Under normal circumstances, when law enforcement seizes a website, officers can obtain logs of the IP addresses which have accessed the site. They can then trace those IP addresses back to specific internet accounts and obtain search warrants for those users’ homes or businesses. The Tor network prevents the server that the user accesses from recording the user’s actual IP address, thereby making it difficult, if not impossible, for law enforcement to obtain a list of IP addresses that accessed the site even after they seize the server itself.
In 2014, the FBI learned that Playpen was actually being hosted on a computer in North Carolina. The FBI quickly arrested the owner of the site and also obtained a warrant to seize the server. The FBI then moved the server to a government facility in the Eastern District of Virginia and obtained a wiretap order to monitor the communications on the server. The FBI continued to operate the Playpen website and distribute child pornography in the hopes of developing a method to circumvent Tor and identify the users of the website.
In order to get around Tor's privacy protections, the FBI created a form of malware that would provide it with a user’s IP address when the user accessed the site. The FBI changed Playpen’s code so that when a user accessed the website, the user would automatically download software which would search the computer for its IP address and other identifying information and transmit that information to the FBI.
Prior to deploying this software, the FBI obtained a search warrant from a magistrate judge in the Eastern District of Virginia permitting it to deploy the malware on the computers that accessed the website. The order authorized the FBI to install the code on computers “wherever located.” Thus, this one warrant issued by a single Magistrate Judge in Virginia authorized the FBI to search computers across the world, most of which were located outside of that judicial district in Virginia.
The data from the malware eventually revealed that the defendant in the case had accessed the site and downloaded child pornography. The FBI obtained a search warrant for his home from a magistrate judge in the Eastern District of Pennsylvania, seized his computers, and found incriminating materials. Accordingly, federal prosecutors charged him with possession of child pornography in violation of 18 U.S.C. Sec. 2252(a)(4)(B).
Motion to Suppress
Werdene moved to suppress the evidence, arguing that FBI agents relied on an improperly issued search warrant because the warrant failed to comply with the jurisdictional requirements of then Rule 41(b) of the Federal Rules of Criminal Procedure. Rule 41(b) has since been amended to avoid the issues raised by this case. At the time, it gave a magistrate judge the power to “issue a warrant to search for and seize a person or property located within the district.” It also contained four exceptions, none of which authorized a magistrate judge to issue a search warrant for property outside of the judge’s district. Accordingly, the Third Circuit found that the search warrant was invalid because the magistrate judge did not have the authority under the rules to issue it. The court further concluded that the warrant was void ab initio, meaning it would be the same as if the Government had no warrant at all.
The Good Faith Exception to the Exclusionary Rule
Nonetheless, the Third Circuit refused to suppress the evidence. Instead, it found that the agents acted in good faith when they relied on the defective search warrant. The purpose of the exclusionary rule, which requires the suppression of some illegally seized evidence, is to deter illegal police conduct. Where suppression of the evidence would have no deterrent effect because police acted in good faith, federal courts will refuse to suppress the evidence.
Notably, Pennsylvania courts have repeatedly rejected this good faith exception and held that the Pennsylvania Constitution, unlike the United States Constitution, requires the suppression of illegally seized evidence even where the police acted in good faith. Here, the court found that the FBI believed they had a valid search warrant. Therefore, there would be no deterrent effect to be gained suppressing the evidence. The error was committed by the judge, not by the FBI. Accordingly, the court found that the good faith exception applied and refused to reverse the trial court’s decision.
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PA Superior Court: You Should Not Bring Your Computer In For Repair If It Has Child Porn On It
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.
Can Computer Repair Technicians Search A Computer For Child Porn?
The Pennsylvania Superior Court has decided the case of Commonwealth v. Shaffer. The Court held that police did not violate the Fourth Amendment by searching the defendant’s computer for child pornography where the child pornography was initially discovered by computer repair technicians at a local store. The Court relied on the doctrine of abandonment, finding that the defendant abandoned his reasonable expectation of privacy in the contents of his computer when he gave store employees permission to repair the computer.
Commonwealth v. Shaffer
In Shaffer, the defendant was convicted of possession of child pornography (18 Pa.C.S. Sec. 6312(d)) and Criminal Use of a Community Facility (18 Pa.C.S. Sec. 7512). The defendant’s troubles arose when he brought his computer to a store called CompuGig for repair. The defendant told the store employees that the computer’s internet had stopped working, the computer was displaying a lot of pop-ups, and that he thought it had spyware or a virus on it. He left it there for repair, and technicians eventually concluded that the hard drive was failing. The technicians obtained permission to replace the hard drive, and the defendant also authorized them to copy the contents of the old hard drive to a new drive if possible. During the course of attempting to copy the old drive, the technicians found child pornography on the computer. The technicians then called the police and showed the police what they had found. The police took possession of the computer, obtained a search warrant, and arrested the defendant.
The defendant moved to suppress the contents of the computer, arguing that the police violated his right to privacy in his computer when they looked at the contents of the computer prior to obtaining the search warrant. The trial court denied the motion to suppress, and the defendant was eventually convicted of the charges. The defendant appealed to the Superior Court and asked the Superior Court to review the denial of the motion to suppress.
The Appeal
The Superior Court upheld the trial court’s denial of the motion to suppress and found that the police acted lawfully in viewing the material on the computer. The Superior Court relied heavily on its prior decision in Commonwealth v. Sodomsky and found that the defendant effectively abandoned the computer when he brought it to the store and authorized strangers to work on it. The Court noted that the Fourth Amendment protects people, not places, and what a person knowingly exposes to the public loses its Fourth Amendment protection. Accordingly, when the defendant gave the store employees permission to work on his computer and copy files to a new drive, he lost any expectation of privacy that he would have had in the contents of the computer because he exposed them to the public. The Court further rejected the defendant’s argument that the store employees went beyond the scope of the job, finding that he was specifically told that the employees needed to transfer the data. Thus, the Court concluded that abandonment occurs when a person grants a thirty-party access to his computer’s contents.
The Superior Court applied a very broad version of the abandonment doctrine in this case, finding that the technicians had the right to view all of the files on the computer because the defendant had given them permission to copy the hard drive. However, it is possible that the outcome could differ in a case in which the defendant had expressly limited the portions of a hard drive which the technicians could access. Nonetheless, it is not advisable to bring a computer in for repair if it has evidence of a crime on it.
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Criminal Defense Attorneys Demetra P. Mehta, Esq. and Zak T. Goldstein, Esq.
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Foregone Conclusion Doctrine Allows Government to Make Criminal Defendant Disclose Computer Password
Can The Police Make You Turn Over Your Computer Password?
Note: this article refers to a Superior Court case which has been overruled by the Pennsylvania Supreme Court. Click here to learn more
The Pennsylvania Superior Court has just decided the case of Commonwealth v. Davis, holding that the trial court properly ordered the defendant in a child pornography possession case to provide police with his computer password. Although the Third Circuit previously allowed prosecutors to obtain a similar order in a federal prosecution, Pennsylvania courts had not yet addressed the issue. Under this decision, prosecutors may now compel a defendant to produce the password to a computer or cell phone if the prosecution can satisfy the “foregone conclusion doctrine.”
In Davis, the defendant was charged with possession of child pornography and related offenses. Officers testified that they were able to download child pornography from the defendant using the eMule peer-to-peer file sharing network. As the officers were downloading the materials, they were able to determine the IP address of the computer that was uploading it. The officers then traced the IP address to the defendant’s internet account and house. They obtained a search warrant and executed the warrant at the defendant’s home. During the search, they seized a desktop computer which was protected by a special encryption software. The officers were unable to access the computer due to the encryption, and the defendant refused to provide them with the password.
The defendant did, however, make a number of inculpatory statements. He confirmed that he lived alone and that the computer was his. He told police he had prior arrests for child pornography, and he told them that he did not understand why it was illegal. He also stated that he liked 10, 11, 12, and 13 year olds, and he told police that the password was sixty-four characters and that he would not turn it over because “We both know what’s on there. It’s only going to hurt me.” The defendant then told the agents that he could not remember the password and that although the drive was encrypted, the agents already knew what was on the hard drive.
After the defendant was charged with two counts of distribution of child pornography and the criminal use of a communication facility, the Commonwealth filed a motion to compel the defendant to produce the password to the computer. The trial court granted the motion, and the defendant filed an interlocutory appeal to the Superior Court. Although a defendant may not ordinarily appeal a ruling on a pre-trial motion, the Superior Court permitted the defendant to appeal in this case under a limited exception to that general rule.
The Foregone Conclusion Doctrine
The Superior Court reached the merits of the appeal and concluded that the trial court properly ordered the defendant to produce the password under the foregone conclusion doctrine. The foregone conclusion doctrine is a limited exception to the general Fifth Amendment protection against self-incrimination. Ordinarily, a court may not compel a defendant to testify or say something that could incriminate him or her. For the Fifth Amendment to apply, however, the communication must be testimonial, incriminating, and compelled. Under the foregone conclusion doctrine, however, the courts have ruled that requiring a defendant to produce a password under certain circumstances is not testimonial because the government already knows that the defendant has the password. Thus, if the prosecution can show that the following three factors are present, a defendant may be compelled to produce a passcode to a phone or computer. The factors are:
The Government has knowledge of the existence of the evidence demanded,
The defendant possessed or controlled the evidence, and
The evidence is authentic.
The Government also must be able to describe with reasonable particularity the documents or evidence it seeks to compel.
Here, the Superior Court found that the foregone conclusion doctrine applied because it would not be testimonial for the defendant to give up the password. The Court found the police testimony showed that based on the investigation and the statements of the defendant, the Commonwealth knew the passcode existed, that it was within the control of the defendant, and that it was authentic. Further, based on the defendant’s incriminating statements, it was very likely that the computer would contain illegal child pornography. Therefore, the Court ruled that the trial court properly ordered the defendant to produce the password.
Fifth Amendment Implications of the Foregone Conclusion Doctrine
Clearly, the foregone conclusion doctrine drastically reduces the protections provided by the Fifth Amendment. By making a relatively limited showing that the defendant probably knows the password and the computer probably has illegal contraband on it, the Commonwealth may now essentially force a defendant to confess in that the act of providing the password further establishes that the defendant owns the computer and its contents.
This case also shows the importance of exercising your Fifth Amendment rights immediately when the police first show up and start asking questions. If the defendant had not admitted ownership of the computer, told police that he knew the password, and implied that police were correct in their assumption that the computer contained child pornography, the government may not have been able to satisfy the requirements of the foregone conclusion doctrine. It is absolutely critical that any suspect in a crime speak with an experienced criminal defense attorney before talking to the police as it is often very difficult for prosecutors to prove these types of cases without a confession.
Award-Winning Philadelphia Criminal Defense Lawyers
Philadelphia Criminal Defense Lawyers
If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.