Polk County Man Arrested After Girlfriend’s Son Finds Child Pornography on iPod

September 28, 2009 by David S. Seltzer

At the beginning of the year, I wrote here about the ongoing debate over the legality of police searches of cell phones and other handheld devices. Last weekend, law enforcement in Winter Haven, a lakeside community near Tampa, made an arrest that could revive that debate. According to a Sept. 26 article in the News Chief of Winter Haven, Brian Jennings was arrested and charged with ten counts of sexual performance by a child after his girlfriend’s son brought Jennings’ iPod to school and discovered child pornography on it.

The unnamed boy did not have permission to take the iPod to school. According to the article, he was listening to music with the device when he found images on it, including adult and child pornography. Authorities believe at least 20 of the 974 images are child pornography. Another student told a teacher that the boy was showing the pornographic images to other students, leading school authorities to confiscate the iPod and call the Polk County Sheriff’s Office. After arresting Jennings, law enforcement returned to search his home and seize his computer.

Here in Florida, at least one federal court has already ruled that police officers may not search handheld devices after an arrest for something unrelated, although they may be able to do so during an arrest. In this case, that issue doesn’t matter because the iPod was found on a minor, and minor schoolchildren have fewer constitutional rights than adults. But as a Miami-Dade cybercrime criminal defense attorney, I am not at all sure that things would have been different if Jennings himself had been found in possession of the iPod. The Fourth Amendment is clear about search and seizure, but courts have been inconsistent about whether law enforcement needs a search warrant to search handheld devices like iPods and phones.

Nonetheless, as a Fort Lauderdale cyber crime criminal defense lawyer, I believe Jennings may have strong defenses open to him. The statute under which he’s charged makes a distinction between possession of material showing sexual performance by a child, a third-degree felony, and possession with intent to promote, which is a second-degree felony carrying double the potential prison time. The law says possession of three or more copies of a performance is evidence of intent to promote it -- but a smart Orlando cyber crime defense attorney can and should challenge that assumption. The statute forbidding simple possession also requires that the possession be “knowing,” meaning that there is no crime if the defendant didn’t know the material involved children -- which is possible if, say, he downloaded a bundled set of images.

The penalties Jennings faces are serious. If convicted on all charges, he faces more than two decades in prison. Furthermore, the charges are felonies, which means he would lose his rights to vote and own a firearm and may have trouble finding a job after prison. And of course, he would likely be required to register as a sex offender for the rest of his life, which limits where he may live and work and carries a heavy stigma. With this much at stake, I hope Jennings is given every chance to present evidence that might prove his innocence.