Friday, February 24, 2012

3rd Circuit affirms CP conviction, creates privacy rule, and makes it impossible to satisfy that rule

In United States v. Coates, 2012 U.S. App. LEXIS 3582 (3rd Cir. 2012), the Third Circuit affirmed a conviction for child pornography offenses. Coates had consented to the viewing of a text message on his phone, but the officer detoured through Coates's pictures, finding images of child pornography.

Coates had notified police that he was receiving text messages from a person threatening to kill his friend, and he took his phone to the local police station. An officer continued talking with Coates and apparently touching random buttons on the phone without looking at it. All of a sudden, he looked down and saw child pornography on the screen. Coates was charged and convicted on multiple child pornography counts.

According to the officer, he received the phone in a closed position, but Coates claimed it was open and displaying the text messages. An inmate testified that the officer had told him he "planned to 'beat it on a technicality'" because the surveillance video had inadvertently been lost.

On appeal, the appellate court found that Coates did not possess a legitimate expectation of privacy in his cell phone. For Coates to have maintained his privacy, he should have navigated to the message before handing his phone to the officer, or in the alternative, instructed the officer on how to navigate to the text message. What seems odd, however, is that the officer "testified that as Coates was sliding the phone through the slot, Coates told him that the message would be in his 'messages,' and that it 'should be the first message.'" I'm not sure how he could have explained it better. Thus, the court requires "instructions on how to manipulate [the phone]," but the officer testifying that such instructions were given is insufficient.

Of course, another issue is that text messages will not be found in the pictures folder, and thus consent to read the message properly restricted access. The court found that consent was given "to navigate his phone to reach the text message, which is precisely what Officer Persing did," but the images were "in plain view when he looked at the phone."

I understand the court's point - we don't want people producing child pornography of their children. But why do they create a rule providing for an expectation of privacy that is met by the facts of the case, and then deny that an expectation of privacy existed?


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