October 7, 2013 By Paul Wallin

How Getting Your Computer Fixed Can Lead to Your Arrest – PC 311.11

Possession of “child pornography” is a serious crime at both the state and federal level. You can be prosecuted by either the District Attorney of the county where the offense occurred or by the Attorney General of the United States, depending on how you are charged. Either way, if you authorize a private citizen access to your computer, you need to know that only law enforcement officers are bound by the rules of the Fourth Amendment constitutional protection against unreasonable searches and seizures. Private citizens may turn over evidence of criminal activity to the police or the FBI without violating your rights.

United States v. Tosti (2013)

California criminal defense lawyer
If you take your computer to be repaired and unlawful content is found on it, you can be arrested. Contact a California criminal defense lawyer if you think evidence being used against you was obtained illegally.

A recent case decided in the United States Ninth Circuit Court of Appeals demonstrates this situation regarding an elderly man from California who was convicted of possession of child pornography under federal law (18 U.S.C. § 2252(a)(4)(B).) In United States v. Tosti, 2013 U.S. App. LEXIS 20008 (9th Cir. 2013), Donald Tosti, a 76-year-old resident of San Rafael, Calif. had his conviction and sentence for possession of child pornography upheld and was sent to federal prison for eight years after FBI agents discovered a substantial amount of pornographic images of naked children with adult men in his computer.

In 2005, Tosti permitted a technician at a CompUSA store to have temporary custody over his computer while it was being serviced. The technician discovered several sub-folders containing graphic sexual images of children and adults, which prompted him to contact the FBI. Tosti was eventually arrested on Oct. 16, 2009. Four days later, Tosti’s estranged wife contacted FBI agents when she discovered documents and a computer in her husband’s office containing what was later determined to be child pornography. According to the FBI, there was no indication that Ms. Tosti’s access to her husband’s office was limited in anyway. Ms. Tosti also signed a “Consent to Search” form and the subsequent investigation resulted in further evidence of her husband’s crimes.

The defendant appealed from the District court’s denial of his multiple motions to suppress evidence under the Fourth Amendment protection against unreasonable searches and seizures. The 9th Circuit Court of Appeals rejected Tosti’s appeal on the grounds that the defendant voluntarily authorized both the CompUSA technician and his wife access to his computer, which eventually led to the FBI’s investigation. Because the Fourth Amendment only applies to unlawful search and seizure by government officials and does not extend to private citizens, the defendant had no reasonable expectation of privacy, especially after voluntarily permitting access to his computer and office.

Fourth Amendment Rights do not Extend to Private Citizens

In the Tosti case, the federal 9th Circuit Court of Appeal reasoned: “[t]he 2005 searches derived from [the technician’s] original private search of Tosti’s computer after Tosti voluntarily relinquished it to CompUSA. The Fourth Amendment’s proscriptions on searches and seizures are inapplicable to private action. See United States v. Jacobsen, 466 U.S. 109, 113-14 (1984). ‘Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now non-private information.’”

Therefore, if you allow someone who is not a law enforcement agent to access your residence, office, vehicle or any property under your control and he or she discovers evidence that you may have committed a crime, a private citizen may turn the evidence over to the authorities. Your Fourth Amendment rights will not apply and the evidence can be used to against you in a criminal proceeding.

Contact a California Criminal Defense Lawyer at Wallin & Klarich

If you or someone you love believes you have been subject to an unlawful search and seizure by law enforcement, you must speak to a Southern California criminal defense lawyer at Wallin & Klarich immediately. The attorneys at Wallin & Klarich have over 40 years of experience protecting our clients’ constitutional rights in criminal matters. If we determine that the evidence collected against you violated the Fourth Amendment, we will file a Motion to Suppress Evidence in court. If we are successful, that evidence must be ruled inadmissible by the judge. The charges against you may then be significantly reduced or dismissed altogether.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, the California criminal defense attorneys at Wallin & Klarich are available 24/7 to aggressively defend you and to help you win your case.

Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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