Evidence in a typical Child Sexually Abusive Material (CSAM) case is often in a digital format and stored in laptop or other computer hard drives as well as computer digital storage devices. These materials are usually seized by law enforcement in searches conducted pursuant to a search warrant. Law enforcement can include local, state and federal authorities, including the FBI, the Customs Service and the U.S. Postal Inspection Service.

There are thousands of websites on the Internet involving pornography in general, as well as many that cater to illegal images of underage children involved in sexual activity. Many of these websites allow file sharing between members and are available by subscription only. Undercover (decoy) police officers frequently monitor any chat rooms for group subscribers, and they will subpoena the business records to obtain subscriber information, which often leads to information sufficient for the issuance of a search warrant.

The police should present a copy of a search warrant before commencing the search. A tabulation should be provided to the property owner after the search with a complete list of all property seized. If the police appear at your residence with a warrant, call Kronzek & Cronkright immediately.

If the police do not have a search warrant, they will ask the property owner to consent to a search. Many people consent to a search because they don’t know they have a right to refuse to let police search their property. Other people are intimidated by the police or do not believe there is illegal contraband present in the area to be searched. Still others will allow a search in response to a police officer statement to the effect of if you’ve done nothing illegal then you have nothing to hide. Most Michigan Criminal defense attorneys would tell you that if the police ask you to consent to a search you should politely say “no”. If you have clearly said “no” and the police continue to search, you should not attempt to interfere. Our attorneys can deal with the illegal search once criminal charges are brought.

It is important to note that a search which is illegal if conducted without a search warrant becomes lawful when the property owner gives consent to search. Remember: ILLEGAL SEARCH + CONSENT = LEGAL SEARCH. The best rule of thumb is to never consent to a proposed warrantless search of any of your property (such as your purse, wallet, clothing, cell phone, automobile, computer, residence or land), under any circumstances, without first consulting legal counsel. Remember: NO SEARCH WITHOUT WARRANT UNTIL FIRST CONSULTING WITH A LAWYER.

Before a search warrant can be issued, a neutral and detached magistrate must agree there is probable cause to believe (or, put another way, it is more likely than not) that evidence of a crime will be found at the location to be searched. Searches conducted without a warrant are considered on their face to be illegal, unless an exception to the warrant requirement applies. The most common exception to the requirement that a search or seizure be conducted pursuant to a search warrant is exigent circumstances.

A recognized exigent circumstance justifying a warrantless seizure of property suspected to contain CSAM is the need to prevent the evidence from being lost or destroyed. Therefore, if law enforcement gains entry to a person’s residence and at any point determines that any particular items likely contain evidence of Child Sexually Abusive Materials they may be justified in immediately seizing the property, without a search warrant.

If property is seized without a search warrant due to claimed exigent circumstances, such a seizure is an interference with the property owner’s possessory interests. If the police immediately search that property without first obtaining a warrant, then there are constitutional privacy interests that have likely been violated.

Once the determination is made by a neutral and detached magistrate that any particular computer is likely to contain evidence of digital CSAM imagery, the police will likely be justified in seizing any other computer or digital storage device in the same residence that could hold the same type of digital information. When police are lawfully searching for a particular item or type of items, they are allowed to search anywhere in the location authorized by the warrant where that item or type of items may be found.

For example, they could look in your barn for a stolen elephant but not the trunk of your automobile, because the former will not fit in the latter. Conversely, if they were seeking printed photographs they would be justified in going through files in file cabinets, as well as photo albums. When the object of a search is information in a digital format, any and all computer files can be searched because computer files can be labeled in an inaccurate or misleading manner so as to avoid detection.

Law enforcement may take pictures of the set-up of a computer system and any current screen activity. It is also common for police officers who are executing a search warrant and seizing various computers and related digital storage devices to question the property owners or anyone else present. Investigators may ask if the computer is password protected and, if so, what the password is. They will want to know who owns the computers and who had access to the computers. It is NEVER a good idea to answer ANY questions a police officer may ask under these circumstances.

Police questions can be answered at any time, if it is advantageous to do so. For this reason there is no need to answer questions immediately, despite the officer’s insistence. There is no reason to tell the officer a computer is password-protected or identify the password. The fact that a computer is password-protected may restrict other potential users. Remember that answers to certain questions can damage successful defenses to a criminal charge.

Of course is always a good idea to have back-up copies of any important documents on your computer. The absolute rule of thumb in this situation is simple- if the police officer wants to talk to you, he must talk to your lawyer first. Remember: TALK TO MY LAWYER IF YOU WANT TO TALK TO ME. If the police want to talk to you, insist on calling Kronzek & Cronkright and do not answer any questions until you speak to one of our criminal defense attorneys.