A 50-year-old man will spend the next seven years in federal prison after he pleaded guilty to possession of child pornography.
Police began questioning the man after he tried to take a picture of a teenage girl as she worked at a restaurant. He gave investigators consent to search his phone, where they found multiple photos of fully clothed, prepubescent females and girls under the age of 12. The man then admitted there were some minors and “a little nudity” on his personal computer at his home and consented to a search of his devices.
With the assistance of FBI’s Computer Analysis Response Team and the National Center for Missing and Exploited Children, agents identified 16 videos and 87 images containing child sexual abuse material, mostly of minors under 12, all of which the man had deleted.
“A teenager reported that her privacy had been violated by a customer at her workplace. Her call resulted in a child predator being held accountable for possessing child sexual abuse material of young children,” said U.S. Attorney Peter D. Leary. “I want to thank this concerned citizen for speaking up, and I am grateful that the Lowndes County Sheriff’s Office, and the FBI, swiftly launched an investigation which held this predator accountable.”
Possession Crimes in Georgia
One of the most common charges in Cobb County criminal court is possession of illegal drugs, pornography, weapons, and other contraband. The Fourth Amendment requires police officers to obtain search warrants before they seize such evidence. But events happen so quickly in most possession cases that there’s no time to go prepare an affidavit, submit it to a judge, and obtain a warrant. Therefore, the Supreme Court has carved out several exceptions. Owner consent is probably the most common one.
Only a record owner, or an apparent owner, may give consent. An apparent owner is someone like a driver who doesn’t legally own the vehicle. Officers cannot keep asking vehicle, dwelling, or other occupants for consent until someone finally says yes.
Consent must be voluntary, affirmative, and specific. Frequently, officers coerce consent. The standard line is “If you don’t let me look at X (phone, car, backpack, or whatever), I’ll get a warrant.” The law is a little unclear in this area. Consent doesn’t have to be 100 percent voluntary, but at some point, officers cross a line.
Incidentally, this threat is often an empty threat. Many law enforcement departments work with on-call judges. So, the warrant process isn’t as cumbersome. In these situations, if officers had probable cause, they wouldn’t ask for consent.
Furthermore, there’s a difference between assent and consent. “I guess I don’t have a choice” is assent. “Yes” is consent.
Finally, consent must be specific. If officers ask to look around, that’s all they can do. Consent to search is consent to tear apart the house or car looking for contraband.
We should also address a very important question in this area. When police ask for consent to search, is it better to say yes or no? Many people think they should say yes, reasoning that they will probably go down anyway, and things will go better if they cooperate.
In the above story, if the man refused to consent to a search of his cell phone, officers might have had probable cause to get a warrant, but it’s a gray area. If a Marietta criminal defense lawyer convinces a judge to invalidate the warrant, the charges wouldn’t hold up in court. So, if you find yourself in that position, if you say nothing, you’ll probably get arrested, but not convicted.
Additionally, police officers don’t have the power to “go easy” on anyone. That’s an empty promise. They can make a recommendation, which a prosecutor, and later a judge, is free to ignore.
Placement on the Sex Offender List
Until the 1990s, only a few states maintained sex offender lists. Then, in 1994, Congress passed the Jacob Wetterling Act, which forced states to create sex offender registration lists. Initially, these lists forced all sex offenders to register for life, if they were convicted of sexual assault, public urination, or anything in between.
A few years later, many people began questioning this approach. Little, if any, evidence indicated that shaming offenders made people safer. Noted anthropology professor Roger Lancaster called these disproportionate restrictions ”tantamount to practices of banishment,” pointing out that many registries at the time included “adults who supplied pornography to teenage minors, young schoolteachers who foolishly fell in love with one of their students, men who urinated in public, or were caught having sex in remote areas of public parks after dark.”
In response to such criticisms, Georgia and most other states adopted a layered approach. In the Peach State, the registration levels are:
- Level One low risk of reoffense,
- Level Two high risk of reoffense, and
- Level Three SDPs (sexually dangerous predators).
Level One offenders must normally only register with local law enforcement agencies and update their address and other personal information annually. The Level Two list is public record, and people on the Level Three offenders are basically on lockdown.
A Marietta criminal defense lawyer can ask a judge to review the level designation process. This review often reduces a Two to a One. Before and after (e.g. I had a substance abuse problem and now I don’t) is usually the most effective reduction argument.
Removal from the Sex Offender List
The law in this area changed significantly in 2010. Currently, Level One offenders can apply for removal as soon as they serve their sentences. Level Two offenders must wait ten years. Minimum removal requirements include:
- No serious harm was caused during the initial offense,
- No other sexual offense convictions,
- The victim was not transported to another place during the offense,
- The victim was not physically restrained,
- No weapon was used during the crime, and
- No evidence that the offender had committed similar crimes.
Meeting the minimum requirements just gets an offender a hearing. At that hearing, a Marietta criminal defense lawyer must prove that removal is in the best interests of the defendant as well as the best interests of society.
Recent laws somewhat minimize the severe collateral consequences of sex crimes convictions. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. The sooner you reach out to us, the sooner we start fighting for you.