Sex Crimes

Court: Porn found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

You have no right to privacy in your computer if you turn it over to Best Buy, Geek Squad, or any other computer repairman. As this article shows,

The case against oncologist Mark Rettenmaier attracted national attention because it revealed that technicians at the Geek Squad’s central repair facility in Kentucky had been paid by the FBI and would tip off the FBI field office in Louisville when they spotted possible child pornography on computers. Computers taken to Best Buy stores around the country for repair are all shipped to the Kentucky facility.

The case also revealed that the repairmen were financially incentivized to look for illegal material.

But Rettenmaier’s attorney, James D. Riddet, discovered that the FBI made payments to some of the technicians who tipped them off to pornography, often about $500, and considered them “confidential human sources” in internal records.

But what was found by GeekSquad repairmen was not even illegal per se, but it still lead to criminal prosecution:

On Rettenmaier’s computer, a technician found one photo of a naked girl, believed to be 9 years old, in the “unallocated space” on Rettenmaier’s hard drive. It did not show the girl’s genitalia or any sex act. Unallocated space is where deleted data resides on a computer until it is overwritten by other data. But it often does not have metadata, such as when it was created, accessed or deleted, and because it lacks that information, courts have ruled that photos found in unallocated space cannot be proved to be “possessed” by the computer’s owner without other evidence.

Nevertheless, the FBI used this on photo as basis to obtain a search warrant for every other devise in Rettenmaier’s possession and house. The case ultimately dismissed because the search warrant failed to explain the basis of the warrant.

The judge noted that Kayle also failed to state that the image was found in the unallocated space of Rettenmaier’s computer and that three separate searches of the hard drive were done to find the image. “This one image of child erotica,” Carney said, “is simply not sufficient to search Dr. Rettenmaier’s entire home, the place where the protective force of the Fourth Amendment is the most powerful.”

New Sex Offender Requirements in Alabama

American courts have approved the practice of ever-increasing the punishment for sex offenses. Seemingly in every session of the Legislature, some new restriction or requirement is lopped into an already substantial set of notifications, registration, residential and employment restrictions, and other scarlet letters. In its last session, the Alabama Legislature passed such an additional requirement: Ala. Code § 15-20A-17:
(b)(1) No adult sex offender, after having been convicted of a sex offense involving a minor, shall enter onto the property of a K-12 school while school is in session or attend any K-12 school activity unless the adult sex offender does all of the following: (a) Notifies the principal of the school, or his or her designee, before entering onto the property or attending the K-12 school activity. (b) Immediately reports to the principal of the school, or his or her designee, upon entering the property or arriving at the K-12 school activity. and (c) Complies with any procedures established by the school to monitor the whereabouts of the sex offender for the duration of his or her presence on the school property or attendance at the K-12 school activity. For a public K-12 school, the local school board shall adopt a policy to effectuate this section. . . .Any person who violates … subsection (b) shall be guilty of a Class C felony.
A “K-12 activity” is defined broadly:

For the purposes of this subsection, a K-12 school activity is an activity sponsored by a school in which students in grades K-12 are the primary intended participants or for whom students in grades K-12 are the primary intended audience including, but not limited to, school instructional time, after school care, after school tutoring, athletic events, field trips, school plays, or assemblies.
This law is quite unnecessary. Any school board could pass whatever restrictions or regulations for a sex offender entering school board property. They own the land and can trespass any person from the premises just as any other land owner.
As I recently encountered, the prosecution of this statute may be stalled because the local school board has yet to pass “policy to effectuate this section.” Accordingly, its very possible that the statute is not in effect unless the local school board as passed policy “to effectuate” the statute. The statute employees the “effectuates” language in fact twice within the statute.
One, this is a perfectly normal mode of operation. 
Second, the language is quite unambiguous. The term “effectuate” means “to make effective.” But if its not clear, then t

Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)

 

Man Wrongly Accused Of Rape by Police, Wants Apology

According to this article,

A man whose wedding was postponed because New York City police wrongly arrested him for rape says the ordeal has left him out of work and in legal debt up to his ears.

Cops were under pressure to collar the suspect or suspects behind a series of high-profile gropings and sex attacks that started in March in the area.

They thought Giraldo, a livery cab driver, was the perp terrorizing the neighborhood. He was spotted inside a Dunkin’ Donuts at 2:45 a.m. on June 4 — the same time that the rape victim was in the store, according to The Post.

The woman, 29, left the store after an alleged suggestive remark from Giraldo. Then, in her nearby apartment vestibule a man grabbed her by the neck, stripped off her clothing and raped her, NY1 says. Witnesses described seeing a car outside that police thought belonged to Giraldo.

Giraldo turned himself in when police released a surveillance photo of him, saying that he was the main suspect, TV station WPIX says.

He thought it would be a formality, because he had an alibi that he drove a passenger to John F. Kennedy Airport at the same time the attack occurred, The Daily News says.

But police interrogated him for hours, demanding that he confess. After standing in a series of lineups, cops said he would be arrested, The News reports.

Giraldo’s last hope for a speedy resolution were tests that could prove that his DNA didn’t match the samples recovered from the crime scene. Cops said it would take 72 hours to get the results.

But on June 8, the day Giraldo, a Colombian immigrant, was supposed to get married, he was arraigned in front of a judge on suspicion of rape.

Because he couldn’t afford the $100,000 bail, he was locked up on Rikers Island, the city’s jail. A judge released him without bail later, but he was transferred to an immigration detention center in New Jersey because he came to the United States on a tourist visa in 1999 and overstayed, The Brooklyn Ink says.

While Giraldo spent a month behind bars, the sexual deviant struck again, The Daily News reports.

When he was released from detention, he and his fiancee married in a civil ceremony.

On top of the criminal case against him, Giraldo had to worry about being deported.

The crucial evidence that would have cleared his name — the DNA test results — took months to complete. It was on Nov. 15 that prosecutors revealed they didn’t have a match from the genetic material and charges against Giraldo were dropped