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Guy Consents to Search of Car for Drugs, Cops Find Child Porn

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By William Peacock, Esq. on April 11, 2013 4:28 PM

Even as an experienced attorney (hah - I blog), once in a while, I run across a case synopsis and think - can they do that? This was one of those times.

Douglas Suing isn't suing. He's actually appealing, though many would say that a man convicted of manufacturing and possessing child porn isn't exactly appealing. (Sorry. I'll stop.)

The FBI had been keeping tabs on Suing for a while because someone, using his Internet Protocol (IP) address, was sharing child porn via a peer-to-peer network.

Now, an IP address alone doesn't prove that Suing was behind the porn. It merely pointed the FBI, with the help of the Internet service provider, to an address in Omaha, Nebraska. Unfortunately, even with nine months of surveillance, authorities were unable to tie Suing to the location.

Unrelated to this was a traffic incident in 2011. Suing was tailgating a semi tractor trailer in Arizona. A deputy pulled him over, intending to give him a warning ticket. Suing's nervousness made the officer suspicious, so the officer requested permission to search the vehicle. Suing agreed, and signed a consent form that included "luggage, containers, and contents of all."

The spare tire compartment was suspiciously inaccessible. Typically, this is because the compartment has been turned into a drug stash. A drug dog alerted officer on both the passenger side and a broken back seat. This lead to a deeper search at the Sheriff's office, where the officers stumbled upon an external hard drive.

From the officer's personal experience, these hard drives often contain drug ledgers, photos, and other incriminating evidence. What they found was incriminating, though it wasn't drugs - it was child porn. They immediately halted the search, obtained a new warrant to search for child porn, and found over 124,000 images and 1,400 videos.

Further investigation of the child pornography led the officers to discover that it had been produced with a Canon digital camera, much like the one they later found in his house. Suing pleaded guilty to all charges, contingent on the right to appeal a denial of a suppression motion.

Now, you might wonder, if Suing's consent to search the vehicle included the right to dig through his hard drive. He argued that such a search went beyond his consent. The government argues that not only did he consent to a search for "anything illegal," but the officer also stopped upon finding child porn and obtained a search warrant to search further.

Oddly enough, this isn't the first time this has happened. In Hudspeth, officers obtained consent during a drug investigation to search the defendant's computer. They found child porn, stopped, got a warrant, and then proceeded. The Eighth Circuit approved that procedure, and contrasted it with a Tenth Circuit case in which officers did not stop, and continued searching for five hours, after stumbling upon child porn. Since the Suing search followed the previously-approved pattern, the court refused to suppress the evidence.

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