In a recent Massachusetts appellate case, the defendant appealed from a conviction for possessing child pornography. The case arose in 2009 when a State police sergeant used a peer-to-peer software client to investigate the use of a file-sharing network to possess and distribute child pornography. While connected, the sergeant saw that a computer in Massachusetts was sharing what he suspected were child pornography files.
The sergeant got a list of 7,237 files that the computer showed were available for sharing. Most of the file names included terms that the sergeant knew were associated with child pornography, and one included an attribute that provided a unique identifier for one that the sergeant had previously examined and believed contained child pornography.
The police subpoenaed the Internet service provider and found the street address associated with the IP address. A registry of motor vehicles records showed that the subscriber and defendant lived at the address. A warrant was obtained to search the premises for a computer that used LimeWire and for materials that were associated with possession of child pornography. The warrant was executed. The subscriber owned the house, and the defendant was the subscriber’s wife’s cousin, who lived in the attic.
The police arrested the defendant and read him his Miranda rights at the police barracks. He agreed to a recorded interview and was indicted for possessing child pornography. One count of possession related to what he stored on his computer, and the other had to do with digital video discs found during the search. He was found guilty on both counts.
The appellate court reviewed the case. The defendant argued that the trial counsel was ineffective because he hadn’t moved to suppress the fruits of the search in light of the fact that he’d used an unsecured wireless network to which anybody in the neighborhood could have been connected. For that reason, the IP address by itself didn’t create probable cause to believe he had the files at issue on his computer. He argued that his attorney should have asked for a hearing on whether the affiant had made a knowing and intentional false statement or a statement with reckless disregard for truth because the search warrant affidavit didn’t state the network was unsecured.
The appellate court explained that just because somebody else in the neighborhood might have used the connection that was associated with the defendant’s residence, this didn’t remove the probable cause finding. Instead, the home associated with the IP address was the likely place where evidence related to illegal activity associated with that address would be found. It also explained he wasn’t entitled to a hearing because (1) the WiFi connection’s unsecured nature didn’t matter to the probable cause analysis, and (2) he didn’t make a substantial preliminary showing that the affiant for the warrant recklessly disregarded truth by leaving out that information.
The defendant also argued that his attorney was ineffective in not moving to suppress his statements made to the police while the search warrant was being executed. He claimed he didn’t feel free to leave but was merely yielding to their authority. The judge had found that this wasn’t a custodial interrogation, so the police didn’t have to provide him with a Miranda warning.
The defendant also argued that his attorney was ineffective because he didn’t challenge the original investigation as an unconstitutional warrantless search of his computer. The appellate court explained that it was proper for the lower court to reject this argument, since those who share files on a peer-to-peer file-sharing network don’t have a reasonable expectation of privacy in those files. For these and other reasons, the lower court’s judgment was affirmed.
If you are charged with a sex offense in Massachusetts, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
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Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015
Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014