9th Circuit Deems Child Porn Search Appropriate

(CN) - Police appropriately executed a search that uncovered more than 4,000 images and videos of child pornography on a Washington man's computer and digital devices, the 9th Circuit ruled.

Joseph Schesso's trial in Tacoma District Court has been on hold pending Wednesday's ruling by the federal appeals court on whether investigators over-reached in their 2010 search of the Vancouver, Wash., resident's home computer system.

Schesso's alleged activities came to light in 2008, after German investigators connected his IP address to an 18-minute child pornography video posted on the file-sharing site eDonkey.

Some 18 months later, detectives with the Vancouver Police Department and an agent with Immigration and Customs Enforcement (ICE) searched Schesso's home and seized his computer and other digital equipment.

Schesso admitted his interest in child pornography and said his collection included about 10,000 images, but later moved to suppress his statements along with all of the evidence collected from the search, including "six deleted sexually explicit images of a young girl, later identified as Schesso's niece," according to the ruling.

Schesso argued that the warrant had gone "stale" by the time it was served, and that it was overbroad and lacked the "precautionary search protocols" suggested in a concurring opinion to the 9th Circuit's 2010 ruling related to the MLB steroid scandals, United States v. Comprehensive Drug Testing, Inc. (CDT III).

U.S. District Judge Robert Bryan agreed to suppress the evidence and the statements, and the government moved for a stay and took the issue to the 9th Circuit.

A three-judge appeals panel unanimously reversed on Wednesday, finding nothing wrong with warrant that authorized an extensive search of Schesso's computer and other digital devices.

"Because there was a fair probability that the eDonkey video as well as other evidence of possession of and dealing in child pornography would be found on Schesso's digital equipment, the warrant was not overbroad," wrote Judge M. Margaret McKeown for the panel. "The government was faced with the challenge of searching for digital data that was not limited to a specific, known file or set of files. The government had no way of knowing which or how many illicit files there might be or where they might be stored, or of describing the items to be seized in a more precise manner. These factors, along with the detailed explanation of the need for off-site analysis and recovery, justify the seizure and subsequent off-premises search of Schesso's entire computer system and associated digital storage devices."

The panel further concluded that the protocols laid in CDT III are guidelines rather than "constitutional requirements."

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