Seattle: Possession of Child Pornography Case Thrown Out Due to Illegally Obtained Evidence (CA Penal Code 311.11)

Rabin Nabizadeh
September 15, 2014

Seattle resident (name withheld in order to protect the privacy) had already been sentenced to 18 years in state prison for his 2010 arrest for child pornography images found on his home computer (CA Penal Code 311.11)  Recently, a federal appeals court has overturned this decision, not because of witness tampering or incorrect jury instructions, because the information concerning hiscase had been obtained illegally.  It was, in fact, not local or federal law enforcement officials who caught jhim  Indeed, it was a Naval Criminal Investigative Service agent all the way in Georgia who searched, not only his computer, but many others in Washington State, in order to scan for images of child pornography.  Specifically, the computer program that was used found 2 photographs and one video on his computer.  The NCIS representative gave the information to the FBI, who then used a local search warrant to enter Dreyer’s home.  Dreyer was eventually brought up on federal charges as well, as the department of Homeland Security had also received the information from NCIS.

So, you may be thinking to yourself, “What’s the problem?  Someone caught him with these images, a legal warrant was obtained, he was arrested, and now sentenced.”  The issue is that the original NCIS sweep of computers in Washington State was entirely illegal.  Thus, the search warrant was also illegal.

But those military officials who were questioned about the legality of the search claimed that NCIS had the right to take a look at computers in Washington on the basis because they have the right to see what military personnel in the area are up to when it comes to child pornography.  The Ninth Circuit Court of Appeals determined that, because he was not a member of the military and because the search was not solely conducted on computers belonging to military personnel, it was thus illegal and the entire case must be thrown out.  Their decision was based on a rather old piece of legislation, dating from 1878, the Posse Comitatus Act.  This Act was passed into law to prevent the military from sticking its proverbial nose into non-military legal matters.  If the military and its long arms were able to reach into the homes and computers of civilian citizens and then to turn them in to local law enforcement agencies, then this would cause a great deal of trouble indeed.


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