Merely Viewing Child Pornography Online in Florida Can Lead to Possession Charge

January 11, 2010 by David S. Seltzer

As a Miami cybercrime criminal defense lawyer, I frequently defend people who are charge with possession of child pornography. In most cases, the evidence against my clients comes from images law enforcement found stored in special folders on their computers, or sometimes on other electronic devices or in their homes. However, every now and then, a defendant comes along who is accused of possessing images stored only in a “temp” or “cache” folder, where recently viewed files are stored until they are purged some time later. This is despite the fact that Florida and federal child pornography statutes require that the defendant “knowingly” possess the material. Can this type of unintentional “possession” be considered a crime?

On the federal level, the answer seems to be yes. At least three federal appeals courts have addressed the issue. In United States v. Romm, 455 F.3d 990 (9th Cir. 2006) and United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Ninth and Tenth Circuits both ruled that defendants’ knowledge that the temporary cache existed, and attempts to erase the temporary files, was enough to show “knowing” possession. The Eleventh Circuit, which does include Florida, has indicated that it agrees. In United States v. Kain, No. 08-3396 (11th Cir. 2009), the court arguably took it even further. It wrote, “A computer user who intentionally accesses child pornography images on a web site gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses’ those images, even if he later puts the magazine down without purchasing it.”

In Florida state courts, the answer may not be as clear. In a 2006 case, Strouse v. State WL 436028 (4th DCA, 2006), the Fourth District Court of Appeal found that merely viewing child pornography is not enough to establish knowing possession of the images, even if the images are cached in a temporary folder. However, it said, when defendants try to delete or manipulate the files, this can help prove knowing possession. After that ruling, the Florida Department of Law Enforcement cautioned its officers against basing an entire case on temporary files. However, officers finding temporary files are unlikely to stop looking for stronger evidence elsewhere on the computer.

This state of affairs creates a sticky situation for Floridians whose computers may have been used to view child pornography, or may have been compromised by a virus. Unfortunately, even though our legal system promises that every defendant is presumed innocent until proven guilty, the reality is that child pornography possession defendants need a good Fort Lauderdale child pornography criminal defense attorney, as quickly as possible. In Florida state courts, defendants may be able to challenge cases based only on the existence temporary files that the defendant has not tried to manipulate. But in federal courts, district judges following the Eleventh Circuit’s instruction would be forced to treat mere viewing of files as possession, even though the user may have arrived at the site by accident and left quickly. Fortunately, as an experienced West Palm Beach child pornography possession attorney I can often find other avenues of defense for clients.