Florida Sex Crimes: Possession of Child Pornography

It is against state and federal law to possess any image or video of a child engaged in a sexual act. It is even a crime to simply view child pornography. Having a file on your computer or phone or sharing such an image constitutes a serious sex crime in the state of Florida. Such crimes fall under Florida Statute s. 827.071. The pertinent part of the statute reads as follows:

  • A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance; Violations of this section is a second degree felony and punishable by up to 15 years in prison.
  • A person guilty of possessing with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child is facing 15 years in Florida State Prison.
  • A person guilty of knowingly possessing, controlling, or intentionally viewing a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child is facing 5 years in Florida State Prison for a single image.

 

While possession of child pornography has been a crime for many years, it is now a much larger target of criminal investigations because of the advent of computers and electronic files. 

How do the Police know someone has child pornography?

Police purposefully target individuals through the dissemination of certain known child pornographic files. Law enforcement have software that alerts when certain files are shared and viewed. They are able to determine the IP address of the individual. They can then go to the address associated with the IP address and attempt to get consent to perform a search or obtain a search warrant from a judge based on probable cause. 

First, never consent to a search. If the police have a valid reason for searching your property, they’ll get a warrant. If they have a warrant, be sure to pay attention to the scope of the warrant—meaning where and what can they search. 

The police have plenty of “tricks” they’ve learned in the line of duty to help ensure they can close a case. One way they do this with child pornography cases is to wait until an individual comes home and is alone before serving the warrant. That way they can claim that the individual was in exclusive possession of the computer or phone they are seizing since they are the only ones home. If other people are at home when the warrant is served, they would not be able to prove exclusive possession by their suspect unless they get some independent evidence of dominion and control. Such evidence is usually a statement by the suspect that he or she is the only one who uses the particular device they are referring to. 

If the police begin questioning you, with or without a warrant, know that you do not have to answer. It is often in your best interest to not answer. 

What Is a Defense to a Child Pornography Case?

It is possible to put up an effective defense to a child pornography case—even if police have seized digital devices. 

“Lack of possession and knowledge” means there is no intent on the part of the accused in order to prove the charge. For this defense to be used, the suspect cannot have claimed ownership of the pornography in question. Police cannot prove who downloaded and viewed any particular file if they only have the device. 

As with all criminal investigations by law enforcement, it is crucial that you do not speak to law enforcement and that you hire the best lawyer you can to deal with the police. Practically every time I have had a client charged with possession of child pornography it’s because they made a statement to the police that they were the only ones who use the particular device where the files were downloaded.

At Mike G Law, we have been able to defeat child pornography charges for our clients when we have prevented the admission of inculpatory statements to prove knowledge and intent.

How Can You Get Evidence Thrown Out?

When people think of evidence, they usually think of some physical evidence like a gun or photograph. However, a statement made is evidence as well, and it is probably the most common form of evidence used against people. An out of court statement is not usually admissible, but it can be admitted if it is an exception to the hearsay rule, such as an admission. When a suspect makes a statement, the court may admit it. Therefore, a police officer can come into court and tell the judge and jury what the defendant told them. 

A Motion to Suppress is a pretrial motion where a criminal defense lawyer is asking the court to exclude certain evidence, including statements, because it would be illegal or unfair to admit them.

For example, at Mike G Law, we have successfully argued that certain evidence should be excluded because the police violated the law. If the police knock on a door and then barge in uninvited and immediately start questioning an individual about a criminal matter and the person confesses or otherwise gives them information to charge him with a crime, a court can be asked to throw the statement and evidence out. At Mike G Law, we stay on top of all search and seizure and other relevant case law in order to be able to identify opportunities to defend our clients and punish the police for violating their rights.