Eighth Circuit Rules Search That Led to Child Porn Conviction Was Valid – U.S. v. Schwarte

July 25, 2011 by David S. Seltzer

Determining whether a search was legal is an important part of my work as a cyber crime criminal defense lawyer. If a search was invalid, all of the evidence it uncovered must be thrown out — and in some cases, that’s enough to derail the prosecution. For that reason, I scrutinize my clients’ cases closely when I believe police may have violated the Fourth Amendment. This kind of violation was alleged in United States v. Schwarte, which was recently decided by the Eighth U.S. Circuit Court of Appeals. Steven Jerome Schwarte of Iowa was convicted of possessing child pornography, receiving child pornography and attempted sexual exploitation of children. He argued unsuccessfully to the Eighth Circuit that evidence from a search of his home should have been suppressed at trial.

For three months in 2007, Schwarte chatted online regularly with an NCIS agent posing as a teenaged girl. Schwarte turned the conversation to sex, repeatedly asked the girl to send sexually explicit pictures or videos of herself and sometimes a friend, and offered sexually explicit pictures of himself. As the conversations progressed, NCIS notified the Postal Service, which asked for a warrant to search Schwarte’s home. The plan was to control a delivery of a package from the NCIS agent to anyone who was at home at Schwarte’s address. An adult niece of Schwarte’s answered the door but told the postal worker no one by that name lived there. Nonetheless, she accepted the package. Law enforcement arrived at the home shortly after and found Schwarte, who confessed after being Mirandized. At a later trial, he moved to suppress evidence from the search n the grounds that the search warrant was invalid. That motion was denied and he was later convicted and sentenced to more than 16 years in prison.

On appeal, Schwarte argued that the search warrant was not valid because its triggering event — the proper delivery of the package — never occurred. He argued that no one in the house accepted delivery of the package, because his niece had testified that she said he didn’t live there and attempted to give the package back while the postal worker walked away. This contradicted testimony from the postal worker, who said the niece accepted the package without incident. Nonetheless, the Eighth said, even the undisputed parts of the package delivery testimony show that the niece accepted the package, thus showing that the condition was triggered for the search. It also rejected arguments that Schwarte could not have knowingly received or possessed the child pornography because he was asleep, saying it was enough that he took steps to receive it. Thus, it affirmed Schwarte’s conviction and sentence.

As a child pornography criminal defense attorney, I rarely encounter cases where possession of child pornography is “constructive,” as it is here — meaning that the defendant is said to possess something even though he or she may not actually have it in a pocket or hand. For the most part, child porn is found on a computer or some storage medium. But no matter where the materials are stored, defendants should know their rights when dealing with law enforcement. Officers must have a warrant to search homes and must have a reasonable basis for that warrant. If there is a trigger, as in this case, the triggering condition must be met. If you believe officers have not met those conditions or overstepped their authority in another way, you should tell an experienced child porn defense lawyer as soon as possible, because evidence from that search can make or break the case.

If you’re facing criminal charges related to child porn or any other cyber crime, you should call the experienced cyber crime criminal defense law firm of Seltzer Law, P.A., right away. For a free, confidential case evaluation, call 1-888-THE-DEFENSE (1-888-843-3333) or send us a message through our website.

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