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Massachusetts Court Reverses Child Pornography Conviction

Harold Kaupp was convicted in Middlesex County of possession of child pornography in violation of Massachusetts General Laws Chapter 272 Section 29C.  That law makes it a crime for anyone to purchase or possess pornographic material depicting a child engaging in certain acts.  There are seven such forbidden acts defined by the law, specifically:

1.  Engaging in or simulating an act of sexual intercourse with a person or animal;

2.  Engaging in or simulating any act of sexual contact that involves a child’s sex organs and the mouth, anus or sex organs of another person or animal;

3.  Engaging in or simulating masturbation;

4.  Being portrayed either actually or by simulation in an act of lewd fondling, touching or caressing with another person or animal;

5.  Engaging in or simulating an act of excretion or urinating in a sexual context;

6.  Engaging in or simulating sadomasochistic abuse in a sexual context;

7.  Portrayed in a manner showing a lewd exhibition of the naked genitals. 

The punishment if convicted for this offense is a maximum 5 years in state prison.

Kaupp appealed the conviction claiming that law enforcement unlawfully searched and seized his computer and that the forbidden material should have been suppressed before trial.  The Massachusetts Supreme Judicial Court agreed with Kaupp, at least in part and held that the search warrant authorizing the search of his computer files was not supported by probable cause to believe that child pornography was no his computer. 

The following facts were adduced during a motion to suppress.   In May of 2002 a teacher at a Wakefield high school learned that an unauthorized computer was linked to the school’s network (Computer # 1).  Child porn was located on that computer.  It was later determined that the unauthorized computer was located in the electronics shop where the defendant was an instructor.  Police also observed a pirated movie on the computer.  Police then seized the computer and took it to the Wakefield Police Department.  On one of the school’s servers authorities saw a screen displaying the pirated movies located on the seized computer.  An unauthorized computer on the school’s network was the source of the pirated movies (Computer # 2, the defendant’s computer).  This computer was also seized and brought to the police station.  Up to this point the SJC found nothing improper about the seizure of the computers.  In other words, the police had the right to take the computers from the school to the station. 

After taking possession of the computers a Wakefield Police Officer applied for and obtained a search warrant permitting law enforcement to search the contents of the computers.  The trial judge found the supporting affidavit provided adequate probable cause and found the search lawful.  Kaupp disagreed and appealed the ruling.  The SJC held that there was no probable cause to issue a warrant to search for child pornography on Computer # 2 in that the affiant (officer who provided the affidavit in support of the search warrant) failed to state facts in his affidavit that would supporting such a finding.  The affidavit provided the following information:

The officer’s experience as a police officer and with materials that relate to computer crimes,

His specialized computer crime investigation training,

That some computer users hide stored material to conceal their activities and to prevent the collection of evidence against them,

That people with an interest in child porn retain the images and use multiple forms of equipment to store such material,

That based on the above he sought permission to search Computer # 2.

The affidavit also stated that Computer # 1 contained child porn and pirated movies,

That the pirated movies were seen on a server and that such pirated movies were identified as being on Computer # 2,

That the defendant could not guarantee that child pornography was not on his computer.

The affidavit concluded with the officer’s belief that Computer # 2 contained child pornographic materials. 

Search warrants in Massachusetts may issue only on a showing of probable cause.  Probable cause requires a substantial basis for concluding that the items sought relate to the criminal activity and that they reasonably may be expected to be located in the place to be searched at the time the warrant issues.  The SJC’s review of the affidavit in this case led it to hold that there was no probable cause to believe that child porn would be in the filed on Computer # 2.  Supporting that holding the Court stated that the fact that Computer # 1 and Computer # 2 both had identical pirated movies suggesting that they passed from one to the other along with the fact that child pornography was seen on Computer # 1 coupled with the defendant’s statement do not provide a substantial basis to believe that Computer # 2 contained child pornography.  The Court reasoned that sharing pirated movies does not lend an inference to sharing child pornography.  Nor do admissions that one has adult pornography on a computer suggest he has child porn on his computer.  Similarly, the statement that the defendant could not guarantee that child pornography was not on his computer does not give rise to the necessary substantial basis for concluding that such material was in his computer files.  


Our office handles all types of sex crimes including child pornography.  Every day people receive “spam” emails clogging their inbox.  These emails are often disguised as legitimate solicitations or advertisements.  Usually we immediately identify these emails as unwanted nonsense and discard them into the trash.  Sometimes however people inadvertently open the files only to learn that some malicious idiot has just sent them something distasteful, illegal or harmful to your computer.  I am not aware of anyone to whom this has not happened at least once.  Most people allow access to their computers either deliberately or carelessly.  People can access your computer after work hours without your consent.  Your kids and their friends might get on your computer and surf the web.  If somehow illegal pornographic material gets on your computer you can be charged with a crime.  This is where it is necessary for you to contact an experienced Massachusetts Sex Crimes Defense Lawyer.  Stephen Neyman has been defending people accused of crimes like this for his entire career as a defense attorney.  Our office can be reached 24 hours a day 7 days a week