I have a case where a civilian looks on someone else's ipad when the owner is out of the room Then the civilian sees the child pornographic pictures. She then reports them to the police.

Defense claims this is a violation by an unauthorized access to the D's computer. Anyone have any good trial briefs on the subject?

i think it mostly depends on what your cops did with the info. did they get a search warrant? if so, i think you're good.

no brief on the subject, but i can throw a good case your way:

Brackens v. State, 312 SW3d 831. Bad guy dropped his computer off at store for technician to fix. Tech finds CP. Tech calls cops. Good guys win.

Lots of good info and case citations within concerning private party searches.

Why did the person look on the iPad? Were they snooping, or did they have some reason to believe they were authorized to do so? Look at Knepp v State, No. 05-08-00002-CR, 2009 WL 638249. Some coworkers looked at the defendant's computer because of an unofficial company policy if you left your work station unlocked. D tried to claim unauthorized access, but the court found they had effective consent.

quote:

2009 WL 638249

OK,

these are good cases and will help me with another case we have..... the WL cite was awesome. Any other issues? I tried to "shoehorn" abandonment, but he was probably meaning to come back...will find out more when more facts come in.....

Until then, any ideas would be helpful.

Also- if the person's intent was to find evidence to turn over to law enforcement then it's not illegal, even if unauthorized. Jenschke v. State, 147 S.W.3d 398 (Crim. App. 2004)

If the civilian was not an agent of the government, it doesn't matter what his intent was.

Searches by Civilians

(Of course, pay attention to the federal case law only in that link.)

Except in Texas, we have to worry about 38.23 instead of just the Fourth Amendment, so civilian searches can be a problem.

Andrea is 100% correct. I recall a case in Dallas from about a decade ago in which a janitor saw child pornography on someone's work computer at a church and reported it to police, who seized it w/o a warrant. The evidence was suppressed under 38.23.

But you know who doesn't have that problem? The Feds. They took the case and got a conviction.

Sorry I don't remember the defendant's name, but it was years ago. I think he was a priest, but don't hold me to that.

379 S.W.3d 353

State v. Gregg Baird

Here's a case we had here in Brazos Co.

House sitter accessed homeowner's computer and saw child porn.

If I remember right, 80,000+ images.

Here's the case that the feds rescued for us (now, successfully registered as a sex offender for life):

BAGERT,FATHER MATTHEW ALLEN

Photo Reported
02/04/2014
SID 07454601
Risk Level NOT REPORTED
Ending Registration Date
(Projected) LIFETIME
Verification Requirement ANNUALLY
Sex Male
Race White
Ethnicity Non-Hispanic
Height 5'8"
Weight 180 lbs
Hair Color BROWN
Eye Color BROWN
Shoe Size 09.0
Shoe Width UNKNOWN
Name(s) BAGERT,FATHER MATTHEW ALLEN (PRIMARY)
BAGERT,MATTHEW
BAGERT,MATTHEW ALLEN
BAGERT,FATHER MATTHEW ALLEN