Articles Posted in Illegal Possession Of Child Pornography

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A Waltham police officer was arrested by FBI agents March 26 and faces federal child pornography charges. Federal prosecutors claim that the officer sent and received child pornography by way of a Yahoo! e-mail account. The officer told agents that he was conducting research to “identify perverts,” but the police department said that the officer was never assigned to such an investigation. Agents executed a warrant to search the officer’s home on March 25, at which point the officer allegedly admitted to sending and receiving the images. He faces a 5-year mandatory minimum and up to 20 years in prison.

An investigation in Australia allegedly led authorities to the officer. In February 2012, an Australian man was arrested on child pornography charges, and police obtained his e-mail records. The records indicated that 111 United States e-mail accounts had been in communication with the Australian suspect. FBI agents focused on two of the e-mail accounts, one allegedly used by the Waltham officer. Prosecutors allege that in one e-mail, the officer indicated that he touched a girl in inappropriate areas while “wrestling” her. In another e-mail, the officer allegedly wrote “Thank you! Thank you!” after receiving 25 pornographic images of children. The officer allegedly wrote “I admit it. I’m addicted,” after receiving additional images. In 2012, the officer allegedly wrote “I love the girls ages 7 to 11 or so…Just beautiful! I have no real legitamite [sic] collection organized. Only the few pics that other people have sent me. I am trying to build a library so I will have stuff when people ask.” In 2013, the officer allegedly sent four videos, described as “inappropriate” by local news, to two different e-mail addresses.

Here, there is no indication that the agents had a warrant to search the officer’s e-mails, and the e-mail search likely provided the basis for the warrant to search the home. Under federal law, the government needs a warrant before it can access e-mails if they have been in “electronic storage” for 180 days or less. If an e-mail is not in “electronic storage” or if an e-mail has been in storage for more than 180 days, the government only needs a subpoena. Whether this law is constitutional has been the subject of debate in the federal circuits for years, though the Supreme Court has yet to rule on it. This defendant might argue that the government accessed his e-mails in violation of the federal statute and/or the Fourth Amendment and that therefore, the warrant to search his home was invalid because observations resulting from an illegal search cannot support the issuance of a warrant.

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Melvin Ehrlich, a 52-year-old pediatric dentist, was arraigned in Framingham District Court Thursday on charges of illegal possession and distribution of child pornography. It is alleged that a technician discovered the pornography on Ehrlich’s computer in March and reported it to the police. The prosecutor claimed that Ehrlich had 29 images of nude and partially-nude children on a laptop used by the dentist, his 18-year-old son, and his wife. Ehrlich allegedly took the laptop to the technician because it had a computer virus. A doctor who shares an office building with Ehrlich told reporters that her granddaughter has been treated by Ehrlich for years and that the granddaughter never exhibited any indication that something might be wrong. Ehrlich’s pre-trial date is scheduled for January 11.

As a Massachusetts criminal defense attorney, the first thing I notice is that Ehrlich shared the computer with at least two other people. He did not have exclusive access to the computer, and it is unclear how the government came to target Ehrlich, and not his wife or teenage son, in the investigation as to who downloaded or distributed the alleged pornography. Another thing to note is that the government will have to prove that the alleged dissemination of the pornography was purposeful. Peer-to-peer file-sharing programs, such as Limewire, have made that much more difficult. Many users of such programs do not realize that by downloading a file, the user is also sharing the file in a universally accessible folder. File-sharing programs like Limewire have two functions. One is downloading files from other users. The other is making files on one’s own computer accessible to other users. Some of these programs automatically place any downloaded file in a “shared” folder. Often, users don’t fully understand these functions and inadvertently make their files available in the “shared” folder.

Finally, assuming that the police obtained a search warrant before conducting a search of Ehrlich’s laptop, there might be strong arguments for lack of probable cause or particularity if the images were described as they have been in news reports: images of “nude” and “partially nude” children. Not all images of children in states of nudity are pornographic. The First Amendment issues that arise in these types of cases are interesting. While child pornography is not protected by the First Amendment, the determination as to whether an image is child pornography necessarily involves a First Amendment ruling, and the presumption that an image is protected under the First Amendment applies with equal force when the police are seeking items believed to be child pornography. Therefore, according to the First Circuit at least, the determination as to whether there is probable cause for issuance of a search warrant requires “a look” at the images or a very detailed description of them. If the description in this case was simply “images of nude or partially-nude children,” then it probably would not be considered sufficiently detailed.