The Illinois approach to child pornography appears in 720 ILCS 5/11-20.1. According to the statute, child pornography is a sexually explicit “visual reproduction or depiction” involving children under 18 years old or the mentally disabled.
It is illegal to knowingly create, possess, or disseminate child pornography in Illinois. If the alleged offender knows or has reason to know that the materials involve a minor or mentally disabled individual, then child pornography charges can apply. The alleged offender must voluntarily create, possess, or disseminate the child pornography in question. The penalties for child pornography vary greatly depending on the specific circumstances of the crime. At a minimum, child pornography generally constitutes a Class 3 felony in Illinois.
One critical way of challenging the charge of child pornography is by challenging the search warrant that was initially issued.
Search and Seizure Under the Fourth Amendment
The Fourth Amendment to the U.S. Constitution grants protection against unreasonable search and seizure. In order to search a person’s dwelling or seize his or her property, the government must show probable cause. Stated otherwise, the government must provide evidence that indicates a reasonable likelihood of criminal activity. If the government meets this standard, then the search warrant is valid.
Search Warrants and the Exclusionary Rule
As the U.S. Supreme Court established in Mapp v. Ohio, the exclusionary rule restricts unlawfully obtained evidence from official use. If the search warrant lacked probable cause, thus constituting an unreasonable search or seizure, then the evidence collected is tossed out.
Challenging Staleness and False Statements in Child Pornography Cases
As the Seventh Circuit Court of Appeals determined in United States v. Seiver, a “staleness” challenge is not usually successful in child pornography cases. Items that can dissipate naturally or by consumption—such as illegal drugs—have a certain likelihood of disappearing or transferring possession. Therefore, the government must carry out its search shortly after issuance of the search warrant. Otherwise, the search warrant may become stale and probable cause disappears.
In terms of child pornography, however, the Seventh Circuit noted that digital files on a computer are designed for a long lifespan. The court admitted that there is a chance of the computer overwriting the data and destroying evidence. There is also a chance the computer is destroyed or transfers possession. The Seventh Circuit determined that a substantial amount of time must pass for staleness concerns to outweigh probable cause.
Challenging a Search Warrant for Misrepresentation
As the U.S. Supreme Court noted in Franks v. Delaware, flagrant misrepresentation of the truth can render a search warrant invalid. If probable cause was based on intentional or reckless lies, then the search may become unconstitutional.
At the initial level, a Franks challenge must demonstrate that probable cause was based inclusion of misrepresentation or exclusion of true and material facts. If the initial challenge is successful, then a court will exclude the misrepresentation or include the true and material facts. Then the court will reinterpret the legality of the search warrant by reexamining probable cause.
As applied to child pornography cases, the defendant would need to show that the search warrant was a flagrant misrepresentation of the truth. For example, consider a hypothetical where a perpetrator plants child pornography on a victim’s computer. Then the perpetrator notifies the authorities and lies about the source of the child pornography. A Franks challenge could allow the victim to challenge the constitutionality of the search warrant and potentially exclude all evidence obtained.
This occurred recently in a federal criminal case in the Ninth Circuit. Dr. Mark Rattenmaier took his broken computer to Best Buy and the technician noticed suspect images that were reported to the FBI. The FBI agent then asked for a search warrant to search Dr. Rattenmaier’s home. In federal court, a photo must depict intercourse, bestiality, sadomasochistic abuse, lascivious exhibition of genitals, or masturbation to be considered child pornography.
The agent in this case, indicated the picture found on Dr. Rattenmaier’s computer was child pornography when it was not. Rather it was “child erotica,” which is not illegal to view or possess. The search warrant also neglected to mention that the image was found in a deleted portion of the computer. Given the false and misleading statements in the search warrant, the judge suppressed everything found in the home pursuant to the warrant and the case was dismissed shortly thereafter.