Procedure for CP ev...
 
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Procedure for CP evidence?

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(@pa_cybercop)
Posts: 9
Active Member
 

Armresl,

You stated a number of times about private sector examiners being arrested for possession. Do you have any case citations where a non-LE examiner found contraband, immediately contacted LE, and was subsequently arrested for possession without any other contributing factors.

If so, I would really like to pull up the rulings.

Thanks,

Mike

 
Posted : 14/05/2007 12:03 pm
(@bithead)
Posts: 1206
Noble Member
 

What about States like Arkansas, Missouri, Oklahoma, South Carolina and South Dakota (proposed in Pennsylvania, Manitoba, Canada and other places) that require PC techs that find CP to report it. Are they then arrested for having CP after being required to report it? Seems counterintuitive.

 
Posted : 14/05/2007 5:09 pm
(@pa_cybercop)
Posts: 9
Active Member
 

What about States like Arkansas, Missouri, Oklahoma, South Carolina and South Dakota (proposed in Pennsylvania, Manitoba, Canada and other places) that require PC techs that find CP to report it. Are they then arrested for having CP after being required to report it? Seems counterintuitive.

Cant speak for the other states, but in Pennsylvania there is absolutly no way that the PC tech would be arrested just for finding and reporting it. With almost all crimes, the commonwealth must be able to show some form of culpability. In the case of possession of CP, the culpability requirements are that the subject, "knowlingly possesses or controls". For the creation of CP, it must be shown that the subject, "Causes or knowingly permits a child to engage in or simulate…". Just finding CP is not enough to charge the tech, and I can't imagine anyone, anywhere filing charges in such a situation even if it is legally possible in the relative jurisdiction.

ref Commonwealth v. Diodoro, 2006 Pa. Super. 308

EDIT
Just checked Indiana law as that was a state that was brought up earlier. As in PA, Indiana statute also requires culpability in charging possession.

IC 35-42-4-4
Child exploitation; possession of child pornography; violation classification; exemption; definitions
35-42-4-4 Sec. 4. (a) As used in this section
"Disseminate" means to transfer possession for free or for a consideration.
"Matter" has the same meaning as in IC 35-49-1-3.
"Performance" has the same meaning as in IC 35-49-1-7.
"Sexual conduct" means sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sado-masochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.
(b) A person who knowingly or intentionally
(1) manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age;
(2) disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age; or
(3) makes available to another person a computer, knowing that the computer's fixed drive or peripheral device contains matter that depicts or describes sexual conduct by a child less than eighteen (18) years of age;
commits child exploitation, a Class C felony.
© A person who knowingly or intentionally possesses
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
that depicts or describes sexual conduct by a child who is less than sixteen (16) years of age or appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political, or scientific value commits possession of child pornography, a Class D felony.
(d) Subsections (b) and © do not apply to a bona fide school, museum, or public library that qualifies for certain property tax exemptions under IC 6-1.1-10, or to an employee of such a school, museum, or public library acting within the scope of the employee's employment when the possession of the listed materials are for legitimate scientific or educational purposes.

Judging from the wording of the statute, I dont see how such a charge could go through. That would be the same thing as an excaped prisoner who is running from the police, enters your residence unannounced through an open door. Your in your living room watching the game and all of a sudden you have a guy dressed in bright orange, who you knowingly believe to be a felon, inside your home. The police come in and hook you up for harboring a fugitive… simply not going to happen.

But thats just my two cents

Mike

 
Posted : 15/05/2007 8:26 am
(@armresl)
Posts: 1011
Noble Member
 

Why would you look at state statutes and not Federal ones?

 
Posted : 15/05/2007 6:35 pm
(@pa_cybercop)
Posts: 9
Active Member
 

Why would you look at state statutes and not Federal ones?

Actually, I did. In addition to having culpability requirements, the Federal Code also specifically provides for a defense subsection which includes options to either destroy or report the info. But remember for Federal to be applicable, some portion of the crime must be proven to cross state lines, which is why most simple possession charges are handled at the State level.

© Affirmative Defense.— It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) (ed. <— possession section) that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

And I'll even go one better…
CRC Report to Congress on Child Pornography Constitutional Principles and Federal Statutes
http//www.firstamendmentcenter.org/pdf/CRS.childporn1.pdf (may want to skim past the freedom of speech stuff)

 
Posted : 15/05/2007 11:21 pm
bshavers
(@bshavers)
Posts: 210
Estimable Member
 

Perhaps the best way to deal with CP when you find it unexpectedly, is to call the local prosecuting authority now to get what they would like to see happen if/when it happens. Then write a policy to address it. Having the guidelines in writing from the prosecutor/DA's office would be very nice to show if anything happens and you have to answer to someone from the govt. It will also help when you talk to your client about it.

As for giving back the image/drives back to the client, I am fairly certain that delivering CP in a hand to hand transaction, or worse by mail, may cause you more problems than you would want.

From what I understand, if you find it during an exam, right after the customary "Oh, crap", here is what I suggest;
*Stop working on the image immediately!
*Call the client to inform that you will be calling the local PD and that you cannot send it back to them.
*Call the local PD to ask to pick up the image/hard drives
*If the image/drive came from another juridisction, call them too, they will be the investigative agency

It's now a criminal matter and forensics will be done for free on the CP! The client will have to deal with LE on their data, but not much else you can do. I'd also get permission or at least inform that anything I have that touched the CP will be wiped, including slack/free space.

The analogy I use for handling CP is that it is like holding onto cocaine. Just holding it or giving it to someone other than LE is a crime or felony possession or delivery…ouch. Also, you can consider that each person that views CP images, in effect, victimizes the children over and over again. If you find a batch of CP images or just one image, there is no need to keep looking for more. That is enough for you to say that is more than enough to see in my lifetime.

 
Posted : 08/06/2007 10:00 pm
(@wareagle)
Posts: 1
New Member
 

OK.. Here it is. In NJ under title 9 you have the responsibility to report this.
Do not transfer,
Look,
or copy this you will have a severe problem. Fed statue

I have investigated several hundred of these in my former life. You are messing with something you do not want to touch.

Remove the drive put in a protected non static package. seal sign and call LE. Trust me.

 
Posted : 26/07/2007 4:03 am
(@Anonymous)
Posts: 0
Guest
 

Since this Federal law became active, it has always freaked me out.

A person who knowingly or intentionally possesses

Right after the "oh crap", I would be knowingly possess CP.

I also thought that Federal laws always trumped state laws where there were discrepancies.

 
Posted : 26/07/2007 8:51 am
 kern
(@kern)
Posts: 67
Trusted Member
 

just a point to ponder

wouldn't the "call the client…." _before_ "call the police .." give a suspect time to destroy any further incriminating evidence before the PD get there ?

kern

 
Posted : 26/07/2007 1:09 pm
(@celeryman)
Posts: 13
Active Member
 

The federal laws don't necessarily "trump" anything. You can simply be prosecuted in both courts.

Bottom line on this there's no way you can keep your evidence and give just the images to law enforcement. Once that material is on the drive, the computer is then contraband. Don't even bother, just call the local authorities, which will then choose to either prosecute or hand it over to another prosecuting agency.

 
Posted : 04/03/2008 12:52 am
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