Ninth Circuit Upholds Child Pornography Search Consented to By Defendant’s Wife – U.S. v. Tosti

October 7, 2013 by David S. Seltzer

I’ve posted recently about the importance of Fourth Amendment challenges in investigations of child pornography crimes. Because mere possession of the material is a crime, all the authorities have to do is find the material. This leaves defendants without a lot of options for a defense, unless they can find something wrong with the search that led to the discovery of the illegal images. Unfortunately for the defendant in U.S. v. Tosti, courts will generally agree that a search is legal if the police got consent from a member of the defendant’s household—including, in this case, an estranged wife. Donald Thomas Tosti was caught in possession of child pornography by computer repair people and then by his estranged wife, both of whom called the police. The Ninth Circuit upheld both searches as constitutional.

Tosti took his computer for repairs at a CompUSA store in 2005. There, a technician found pornographic images with children and called the police. On the basis of the computer images, the police got and executed a search warrant for Tosti’s home. For reasons not clear to the Ninth Circuit, however, nothing more on the case happened until 2009. At that time, Tosti asked his then-estranged wife Annette Tosti to look for some financial documents in their home office, and Annette Tosti found more child pornography. She turned that material and some hard drives over to the FBI, and signed a document attesting that she had full access to anything in the house. Tosti was charged with possession of child pornography and found guilty after a bench trial. He was ultimately sentenced to 96 months (eight years) in prison, a downward departure from his range (108-135 months), due in part to his age (76) and large number of health problems.

On appeal, Tosti argued first that the warrantless searches of the computer and his home were illegal. The Ninth disagreed. Because Tosti brought his computer to CompUSA and agreed that employees would be looking at its contents in order to repair it, the court said, he had waived any expectation of privacy that he might otherwise have had. As a result, the Ninth said, the police did not really “search” the computer; he had already agreed to give up his privacy. Tosti also argued that Annette Tosti had no actual or apparent authority to agree to the search of his home. The district court concluded that she had apparent authority, and the Ninth agreed. When more than one person has common authority over a property, the court said, either’s consent is adequate for a search. And the police found no reason to doubt that Annette had the authority, since there were no passwords or locks or other controls keeping her out of the office and computers. Finally, the Ninth rejected Tosti’s argument that his sentence was substantively unreasonable given his age and health; the court did consider those factors and gave him a below-Guidelines sentence.

It’s not clear whether Annette Tosti was the “then-estranged” wife because the couple has reconciled or because they have since divorced. Either way, this case serves as a reminder that marriage creates shared rights and responsibilities that can work out badly when the relationship turns sour and they’re still legally joined. If the couple is fighting, this power to consent could turn the police and the criminal justice system into a tool for revenge by giving one spouse the ability to have the other accused of a serious cyber crime. —which may be unrelated to the reason they’re fighting. Even simple child pornography possession is a serious crime; Tosti’s eight-year sentence is actually a slight downward departure from the 9-12 year sentence he might otherwise have served. With so much at stake, defendants should make sure the people they live with understand their feelings about police searches and consent.

If you’re accused of a serious cyber crime and you’d like to talk to an experienced cyber crime attorney about your rights and your options, don’t wait to call Seltzer Law, P.A., for a free consultation. You can reach us through our website or call toll-free, 24 hours a day, at 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Eleventh Circuit Dismisses Appeals as Untimely Filed Before Prior Appeal Resolved – U.S. v. Diveroli

Evidence From Search May Be Used Even If Search Was Illegal, Eleventh Rules – U.S. v. Bush

Eighth Circuit Rules Private ISP Was Not Acting as Government Agent – U.S. v. Stevenson