FLU AND CORONAVIRUS UPDATE - Click Here To Read

CHILD PORN ON YOUR PHONE IS UNLAWFUL; CHILD PORN ON YOUR PHONE WHEN YOU’RE ON PAROLE FOR A SEX OFFENSE IS UNLAWFUL (and stupid).

The PA Superior Court has decided the case of Commonwealth v. Sperber, No. 707 WDA 2016 (December 12, 2017), holding that parole agents had reasonable suspicion to conduct the warrantless search of Sperber’s person, car and smart phone and images of minor females found on Sperber’s smartphone would, therefore, not be suppressed.

Spearer was being supervised on parole for a previous sex offense and, as part of his parole conditions, expressly consented to parole staff having access to (and search) any computer or multimedia device in his possession, including cell phones and all programs and records maintained on any such devices. Additionally, he was prohibited from possessing a cell phone with internet capabilities.

During this time, Sperber’s parole agent received information from the Pennsylvania State Police Megan’s Law Division (the Division) that it had received an anonymous tip that Sperber had access to social networking sites on a smart phone. This tip was corroborated by information received from members of Sperber’s sex offender group who said he was in possession of a smart phone.

The parole agent was familiar with Sperber’s past history of viewing child pornography. He spoke with Sperber and obtained consent to search his vehicle where the agent located a smart phone. Although the phone was password-protected, Sperber provided the password upon request. Upon gaining access to the phone, the agent located images of minor females on the phone.

Sperber was arrested and charged with eleven counts of possession of child pornography and criminal use of a communication facility. He filed a motion to suppress in the instant case claiming that his initial detention and the subsequent search of his person, vehicle, and smart phone were illegal because the parole agents did not have reasonable suspicion to believe that they would discover evidence of a parole violation in his prior case. Sperber also argued that he never consented to the search of his vehicle or smart phone and that any alleged consent was the product of an unlawful investigatory detention.

Sperber’s Motion to Suppress the images found on his phone was denied. He was thereafter found guilty of counts 2-12 (count 1 was withdrawn) and sentenced on the pornography charges to five consecutive 5-10 year terms of incarceration, for an aggregate sentence of 25-50 years’ imprisonment. No further penalty was imposed on the communication charge.

Sperber appealed the trial court’s decision not to suppress the evidence found on his phone.

In analyzing the method used to obtain the incriminating information in this case, the Superior Court first noted that individuals under parole supervision have limited search and seizure rights and that parolees agree to warrantless searches based only on reasonable suspicion.

Further, the Superior Court noted that State parole agents are statutorily permitted to perform a personal search of an offender or his or her personal property if there is reasonable suspicion to believe “that the offender possesses contraband or other evidence of violations of conditions of supervision” or “that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.”

Accordingly, under the totality of the circumstances present in this case, the Superior Court concluded that  the parole agents had reasonable suspicion to conduct the warrantless search of Sperber’s person, car and smart phone.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/Opinion%20%20Affirmed%20%2010335125230585982.pdf?cb=1

 

DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Case summaries are primarily excerpted directly from the decisions authored by the Courts. The decisions are cited and linked and the reader is encouraged to read the entire decision. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon Winters Soto-Ortiz Law Firm attorney. Before making any decision or taking any action, you should always consult with a McMahon Winters Soto-Ortiz Law Firm attorney.