Oct 27, 2015 Virginia Court of Appeals affirms conviction for child pornography in the computer recycle bin
Too many people feel a false sense of anonymity on the Internet. However, each Internet address is connected to a unique Internet Protocol address that is clearly visible to a website owner when the IP address visits the website. Law enforcement easily can track down the Internet Service Provider connected to a particular IP address, and then easily can track down the subscriber to that IP address.
In Robert Kobman’s case, his wife spilled or reported informational beans to the police that led them to obtain a search warrant for child pornography at the family home. Kobman v. Virginia, ___ Va. App. ___ (Oct. 27, 2015). On the arrival of the police with the search warrant, Kobman spilled his own incriminatory beans, which together with the child pornography images found by police made his defense all the harder .
Kudos to the prosecution, although only on appeal, for conceding that the 45 of 54 convicted counts for child pornography images in unallocated computer space should be dismissed, for not presenting sufficient evidence of possession, which requires actual knowledge of the nature of the alleged unlawful images, as well as dominion and control over the child pornography — as are the elements for unlwful possession of any contraband — as a necessary condition for a conviction. Kudos also for the Virginia Court of Appeals’ endorsing that concession. However, let us pause for a second to recognize that each download of child pornography can lead to one felony count. Since most intended viewers of child pornography likely download more than just one image — just as, unfortunately, few people eat only one potato chip — viewers of child pornography face very severe sentencing risks.
The Court of Appeals affirmed Kobman’s conviction on the remaining nine convicted counts, for child pornography images in his computer’s recycle bin.
Had Kobman and his wife kept their mouths shut with the police, and had the police still found child pornography images, Kobman would have had stronger defenses for arguing that someone other than he may have had access to and used the computer, thus creating reasonable doubt whether he had accessed the images, and also for arguing that even if the images got onto his computer while he was using it, that may have been without his knowledge, for instance by visiting a webpage while seeking adult nude images, but resulting in multiple small images to choose from, with child pornography lower on the portion of the page that he may not have scrolled down to.
Silence remains golden when a police suspect.