Jose Lorenzo T.

Roman Professor Emerson Bañez

2011-40743|1-D Legal Bibliography
GOOD CASE LAW
Several cases in US jurisprudence have set standards with respect to certain levels of evidence in
order to convict an accused person of child pornography.

In one case1, the US government allowed the pretrial detention of an accused offender for
failure to rebut the presumption in favor of pretrial detention due to the strength of evidence against
her. Her conduct was deemed too dangerous for her to be managed by some supervisory program
since she was considered a grave public threat. Some excerpts from the case are as follows:

“In support of criminal complaint, government presented sufficient evidence to support

finding of probable cause that defendant committed crime of distribution of child
pornography; defendant provided undercover detective with information needed to
access her online account, which contained multiple videos and images of child
pornography, defendant instructed detective to view specific videos that she enjoyed,
and detective then accessed and viewed videos on his own computer and discussed their
content with defendant.”

With respect to the Probable Cause Standard: “A finding of probable cause requires
proof of ‘evidence sufficient to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused’s guilt.’ Coleman v.
Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973). ‘‘[A] showing of probable cause may stop
considerably short of proof beyond a reasonable doubt, and evidence that leaves some
doubt may yet demonstrate probable cause.’’ Id. It is a ‘‘fluid concept – turning on the
assessment of probabilities in particular factual contexts – not readily, or even usefully
reduced to a neat set of legal rules.”

“The weight of the government’s evidence against Defendant is very strong. Its case
against Defendant is supported by emails, text messages (which shows how defendant
represented herself as a twenty-year old male), the child pornography in Defendant’s
DropBox account, and Defendant’s own post-arrest statement confirming the
essential facts underlying the elements of the offense. Therefore, the Court finds that the
weight of the evidence favors detention.”

The court rendered its judgement as a result of the collaborative strength of the evidence, the
offender’s background, the proposed alternatives to pretrial detention, and the safety of the
community.

With respect to what would constitute items of child pornography, in a more recent case2 that was
remanded back to the trial court due to the lack of probable cause to issue a search warrant against
the offender (prior convictions of incest and child molestation did not establish probable cause
to search defendant’s home computer for child pornography), the court found that the images
unearthed from the defendant’s computer, although the subjects were nude or partially nude,
“lacked any traits that would make them sexually suggestive.”

1 US v. Wilson, 217 F.Supp.3d 165 (D.D.C. 2016)
2 US v Perkins, 850 F.3d 1109 (9th Cir. 2017)

Jose Lorenzo T. Roman Professor Emerson Bañez
2011-40743|1-D Legal Bibliography
The court applied the six-factor test to determine if the image is “lascivious.”

“(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic
area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a
place or pose generally associated with sexual activity; (3) whether the child is depicted
in an unnatural pose, or in inappropriate attire, considering the age of the child; (4)
whether the child is fully or partially clothed, or nude; (5) whether the visual depiction
suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether
the visual depiction is intended or designed to elicit a sexual response in the viewer.”

“The image appears to be a selfie, taken by the subject of herself, who is holding the
camera at an angle slightly above her head and shooting downwards. The image
captures the subject’s forehead down to her upper thigh. Because of the angle, her head
and torso predominate the image and cast a shadow on the genital area, which is pictured
in the far bottom right-hand corner. She is sitting down, although it is unclear on what.”

“Other than the fact that the subject is nude, the image lacks any traits that would
make it sexually suggestive. But ‘not all images of nude children are pornographic.’ The
subject is not posed in a sexual position with, for example, ‘her open legs in the
foreground.’ She is not pictured with any sexual items. She is sitting in an ‘ordinary
way for her age.’ Id. Indeed, if the subject were clothed, this would be a completely
unremarkable photo. Viewing the image as a whole, we conclude, under the Dost six-
factor test, that it does not depict the ‘lascivious exhibition of the genitals or pubic area.’”

SECONDARY SOURCES
In an article published by the University of Cincinnati Law Review3, it is said that the US Courts
have always held in contention the amount of evidence to establish the proper level of probable
cause and the Fourth amendment (constitutional prohibition against unreasonable searches and
seizures, and that “no warrants shall issue, but upon probable cause”). To be valid, “a warrant
application must demonstrate to believe that (1) a crime has been committed” (the
“commission” element), “and (2) enumerated evidence of the offense will be found at the
place to be searched.”

The author came to the conclusion contradicting the case above (US v. Perkins), in light of
United States v. Colbert, that “there exists at least a commonsense link between child
molestation and possession of. Moreover, recent studies now also illustrate a definitive
relationship between child molestation and a molester's collection of child pornography.
Accordingly, given this established relationship, evidence of child molestation
behavior should confer probable cause for a warrant to search for child
pornography.”

Another article published by the Military Law Review4 recognizes that today’s technological
complexities have permeated the child pornography sphere, making it more widespread and
easier to promulgate. Indeed, the article explains how the proliferation of online chat rooms,

3
Megan Westenberger, Student Author, Establishing the Nexus: The Definitive Relationship Within , 81 U. Cin. L. Rev. 337 (2012)
4
Major Jacob D. Bashore, Probable Cause in Child Pornography Cases: Does It Mean the Same Thing? 209 Mil. L. Rev. 1 (2011)
Jose Lorenzo T. Roman Professor Emerson Bañez
2011-40743|1-D Legal Bibliography
search engines, websites, and other online platforms have set the stage for child pornography
consumers (note that owning a computer isn’t a probable cause per se). Add these to the fact that
there involves a great degree of difficulty in absolutely deleting the files with them the potential
to have an infinite life span. As a conclusion, the author says that the investigator would have to
exercise utmost diligence in order to be able to determine probable cause for search and seizure
with respect to suspected offenders in order to uphold their constitutional rights.

STATUTES
18 U.S.C.A. § 2252A5 prescribes the punishments for possession of child pornography and
determines who shall be convicted under these punishments. The deliberations of the law
mentioned several pieces of evidence admissible to establish probable cause, and would thus
validate the constitutional mandate of search and seizures being done with due process. Examples
would be:

“Cropped and brightened photographic images of children were lascivious, in prosecution

for transporting child pornography; focal point of images was the genitalia of the
children, the children were partially clothed or nude, and, because images were cropped
and brightened from larger photographs that largely were innocuous, it could be reasonably
inferred that the act of image editing, combined with the peculiar composition of the
resultant images, demonstrated that images were designed or intended to elicit a sexual
response in the viewer.

“If an image of a minor displays the minor's naked genital area, there is to believe that
the image is lascivious, for purposes of a prosecution for possession of, unless there are
strong indicators that it is not lascivious.”

“Evidence of resident's membership in e-group associated with Internet site devoted to

generating, inventorying and exchanging supplied for issuance of search warrant for
residence.”

But remember, lest one forget, that evidence should always be obtained under the constitutional
mandates of procedural and substantive due process. As an example:

“Evidence seized from defendant’s computer was obtained as a result of police officers’
failure to administer Miranda warnings, and was thus inadmissible in prosecution on
federal pornography charges despite his consent to the search”

5
18 U.S. Code § 2252A – (Certain activities relating to material constituting or containing child pornography) 2012