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CHILD  PORNOGRAPHY                                                                        

U.S. v. Romm, 06 Daily Journal D.A.R. 9623

Child pornography deleted from defendant’s Internet cache were sufficient to support conviction for possessing and receiving images of child porn.

While in Las Vegas for a weeklong training conference, Romm used his laptop computer to view child pornography online.  He deleted most, but not all, of the images from the laptop’s Internet cache.  After flying to British Columbia on business, Romm was detained at customs after the Canadian Border Service discovered he had a criminal history.  They asked him to turn on his laptop and examined it.  After they saw some child porn images, he was denied entry.  The Canadian police notified American authorities, who were waiting for Romm when he deplaned in Seattle.  ICE agents told Romm they needed to conduct a forensic exam of his laptop.  He admitted he had “drifted” away from his therapy and had viewed some child porn but denied having any on his computer.  When informed ten images were found on the laptop during the exam, Romm admitted viewing and masturbating to them.  Romm was convicted of knowingly receiving and knowingly possessing child pornography.  He challenged the conviction, claiming the evidence should have been suppressed as the result of an unlawful border search and that he could not be found guilty of possessing or receiving child porn when he merely viewed it online and did not “download” it on his harddrive.

            The 9th Circuit affirmed.  For Fourth Amendment purposes, an international airport is the functional equivalent of a border.  Thus, passengers deplaning from an international flight are subject to routine border searches.  Romm’s argument that he was not subject to such a search because he was not admitted into Canada, and therefore never legally crossed the border, is without merit.  There is no authority for the proposition that a person who fails to obtain legal entry at his destination may merely re-enter the U.S.; to the contrary, he or she may be searched like any other border-crosser.  A defendant may be convicted of possessing child pornography only upon a showing he knew the computer disk contained an unlawful visual depiction.  Romm exercised control over the images while they were concurrently saved to the cache and displayed on the screen.  He could print, enlarge, copy, email, or delete the images by instructing his browser to do so.  He also described his activities to ICE as “saving” and “downloading” the images.  Sufficient evidence supported his conviction.

 

SEARCH  &  SEIZURE; Child Pornography                                          

U.S. v. Battershell, 06 Daily Journal D.A.R. 10532

Where search warrant to search computer for child pornography established probable cause, suppression motion was properly denied.

A police officer responded to a call from Battershell’s girlfriend and her sister claiming they had seen child pornography on his computer.  His report, which became part of the warrant affidavit, stated he saw images of a young female in a bathtub and another young female engaged in a sexual act with an adult male.  He also took digital photos of those images on the computer.  The police forensic examiner who was the affiant for the warrant did not include those photos with the warrant application.  A state judge signed the warrant and the subsequent searched revealed over 2,500 child porn images on the computer.  After Battershell’s suppression motion was denied, he pled guilty, was sentenced to three years, and appealed.  He claimed the affidavit lacked probable cause because there was no proof the alleged victims were actually minors.  The photos were not attached and there was no meaningful confirmation of the ages, such as a pediatrician’s analysis.

            The 9th Circuit affirmed.  To grant a search warrant for child pornography, the magistrate must believe the images likely to be found will reveal a minor in sexually explicit conduct.  While a medical confirmation of the subject’s age may establish probable cause absent an attached photograph, it is not necessary.  For purposes of a search warrant affidavit, the courts have accepted the conclusionary age estimates of regular citizens and other untrained lay witnesses without demanding a detailed explanation of how the witnesses reached that conclusion.  “Common sense suggests that most of the time one can tell the difference between a child and an adult.”  The magistrate’s properly applied, commonsense approach in light of the circumstances was sufficient to establish probable cause the person in the image was a child engaged in explicit sexual conduct with an adult.

 

U.S. v. Hill, 06 Daily Journal D.A.R. 10632

Affidavit to search computers for child pornography had adequate probable cause, was not overboard for failing to define a search methodology.  Off-site examination was legal.

A computer technician repairing Hill’s computer saw what she believed was child porn and called police who obtained a state search warrant.  The concerned citizen provided descriptions of two images that were used in the affidavit.  One was of an approximately 15-year-old female wearing only socks and a long blouse that was opened to reveal her breasts and pubic area.  The other showed two girls about 7-9 years of age wearing robes that were opened to reveal their breasts and pubic area.  Police found no computer during the search but seized computer storage media, such as floppy disks, CD-ROMs, and zip drives.  The media were examined at a police forensic lab and some of them were found to contain child porn.  Hill’s motion to suppress was denied and he pled guilty, reserving the right to challenge the search.  On appeal, he claimed the affidavit did not establish probable cause he was guilty of criminal activity, the warrant was overbroad in failing to define a search methodology and also because it allowed police to remove computers and storage media without first determining if they contained child pornography.

            The 9th Circuit affirmed.  Based on an independent review of the state judge’s finding of probable cause, the circuit judges were satisfied there was a fair probability the images were presented by the photographer to arouse or satisfy the sexual cravings of a voyeur.  Regarding Hill’s claim the search should have been limited to files that are more likely to be associated with child pornography, such as with a “.jpg” suffix, the court held such methodology would be unreasonable.  Forcing police to limit their searches to files the suspect has labeled a particular way would be like saying police may not seize a baggie of powdery white substance if it was labeled “flour.”  There is no way to know what a file contains without examining its contents.  Finally, the standard for Fourth Amendment tests is reasonableness.  Forcing police serving a warrant to bring with them equipment capable of reading computer storage media and an officer competent to operate it is not required.  Additionally, even if the media were first examined on-site for possible pornography there is the possibility it 1) might be damaged before being seized as evidence and more fully examined forensically, or 2) an equipment or power failure could lead to damage or accidental erasure.  Finally, searching the files could take a along time, so an on-site examination would make the search more intrusive.

SEARCH  &  SEIZURE – Protective Sweep                      

U.S. v. Paopao, 06 Daily Journal D.A.R. 13706

Seizure of handgun during protective sweep of gambling room did not violate defendant’s Fourth Amendment rights.

Police suspected Paopao and Matamua in a series of robberies at illegal gambling rooms.  Police went to one of the game rooms after getting a tip from a CI that a robbery was in progress.  Paopao came out carrying a tan bag, but went back in after he saw police.  An officer went to the doorway and peered in with one eye.  He saw Paopao take the bag off his shoulder, hesitate, then place the bag on the floor.  Paopao then came out of the game room and was arrested on an open warrant.  The officer called into the game room, announcing his presence and ordering anyone inside to come out.  Two women exited.  Officers then entered to conduct a protective sweep.  Based on the tip, they were concerned the other robber might be inside.  The gambling den consisted of three rooms and the sweep took less than a minute.  As they were leaving, an officer noticed a gap between a sofa and a wall and checked to make sure no one was behind the couch.  He saw the tan bag carried by Paopao, which was unzipped, and a handgun inside.  The bag was seized and found to also contain stolen jewels.  Among other crimes, Paopao was charged with being an ex-felon with a firearm.  He appealed the denial of his suppression motion.

            The 9th Circuit affirmed.  To claim the protection of the Fourth Amendment, a defendant must show that he personally had an expectation of privacy in the place searched and that his expectation was reasonable.  Paopao lacked such standing.  No one lived at the apartment which was used strictly as an illegal gambling room and there was no suggestion Paopao worked there or had any other possessory interest in the place.  Since he had no expectation of privacy, he cannot challenge the police entry.  Even if Paopao had standing, his challenge of the protective sweep is meritless.  Paopao argued that when an arrest is made outside a premises, the protective sweep permitted by the Supreme Court in Maryland v. Buie does not allow for a warrantless entry into the premises.  “An arrest that occurs just outside the home can pose an equally serious threat to arresting officers as one that occurs in the home.”  The whole basis of the Buie decision was officer safety.  The location of the arrest, inside or outside the premises, should only bear on the question of whether the officers had a justifiable concern for their safety.  At the time of Paopao’s arrest, one of his co-conspirators was still at large.  It is clear that when the officers in this case conducted their sweep, they were justified in believing at least one of the robbers could still have been in the apartment.  The Buie opinion emphasized that a protective sweep is a “cursory inspection of those spaces where a person may be found.”  The officer’s search behind the couch did not exceed the scope of a protective sweep.  The trial court was correct in denying the suppression motion.

 

Cite as: Santana v. State122  December 28, 2006

IN THE SUPREME COURT OF THE STATE OF NEVADA

            Appeal from a judgment of conviction, upon jury verdict, of 19 counts of coercion.  Eighth Judicial District Court, Clark County; Valorie Vega, Judge.

            Reversed and remanded.

 

Philip J. Kohn, Public Defender, and Kedric A. Bassett, Josie Tessie Bayudan, and Amy Dreifus Coffee, Deputy Public Defenders, Clark County, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Thomas M. Carroll, Deputy District Attorney, Clark County, for Respondent.

 

BEFORE THE COURT EN BANC.

 

OPINION

By the Court, HARDESTY, J.:

            Under Nevada’s coercion statute, NRS 207.190, commission of an act of coercion using physical force, or using an immediate threat of physical force, constitutes a felony.  Coercion committed without either of these components is a gross misdemeanor.  In this appeal, we consider which test should be applied to determine if a threat is immediate, future, or incapable of being performed.  To determine whether a defendant is criminally liable for a felony or for a gross misdemeanor under NRS 207.190, we conclude that the viewpoint of a reasonable person facing the same threat should be the focus of the inquiry.  In doing so, we extend our previous holding in Deshler v. State.[1]

            However, the jury instructions were erroneous because the district court did not instruct the jury to apply the reasonable person test.  This error was not harmless, and it is not clear beyond a reasonable doubt that the jury would have found Santana guilty of felony coercion had it received the proper instructions.  For these reasons, we reverse Santana’s convictions and remand for a new trial.  We also note that while the jury can and should consider the testimony of victims, the jury remains responsible for determining whether a threat is immediate, future, or incapable of being performed.

FACTS

            Appellant Vincent Mark Santana was incarcerated at the Clark County Detention Center during the summer of 2002.  While he was there, Santana placed random phone calls to several women and children in southern California.  Each phone call began with a recording, which explained that the call was a collect call from the Clark County Detention Center.  The recipient of the phone call was then invited to accept or decline the call.  Each victim in this case accepted.

            Once Santana heard the victim accept the call, he informed her that the recording was a joke and then initiated a friendly conversation.  Soon after, Santana told the victim that he was near her location, with a weapon, and that he would harm her if she did not participate in a sexual conversation with him. 

            An indictment was filed charging Santana with 19 counts of coercion under NRS 207.190.  Subsequently, a superseding indictment was filed to include all 19 counts of coercion as well as Santana’s prior felony convictions.[2]  Many of the victims in the present case testified during the jury trial, but some did not.

            Ultimately, the jury found Santana guilty on 19 counts of felony coercion.[3]  At sentencing, the district court considered Santana’s prior felony convictions and adjudicated Santana as a habitual criminal pursuant to NRS 207.010.  During sentencing, the State suggested that a sentence of life without the possibility of parole was appropriate for those counts where the victims testified, but that a sentence of life with the possibility of parole would be appropriate for those counts where the victims did not testify.  The district court sentenced Santana to a life sentence on each of the 19 counts.  The final sentence amounted to a total of 5 consecutive life terms in prison without the possibility of parole, while the remaining life terms were imposed to run concurrently.  Santana now appeals.

DISCUSSION

            We first decide which viewpoint should be examined when determining whether a defendant is liable for felony coercion under NRS 207.190.  Santana argues that an objective viewpoint should control, based on our decision in Deshler.  Because Santana was incarcerated when he made the phone calls and could not execute his threats, he argues that, under an objective standard, he could not have violated NRS 207.190.  According to Santana, this means that there is insufficient evidence to support his convictions for felony coercion.  We then determine that the jury instructions were erroneous because they did not require the jury to apply a reasonable person analysis, which resulted in non-harmless error.

Coercion

            The coercion statute, NRS 207.190(1), provides that it is unlawful for any person to attempt to intimidate another by threats of force or to threaten to use violence or inflict injury upon another with the intent to compel the other person to do or abstain from doing an act that the person has the right to do or abstain from doing.  The statute further provides that “[w]here physical force or the immediate threat of physical force is used,” the offense is a felony, but “[w]here no physical force or immediate threat of physical force is used,” the offense is a misdemeanor.[4]  Santana argues that, under Deshler, if a defendant lacks the present capacity or apparent ability to immediately execute his threats, then those threats are necessarily threats of future harm, not immediate harm.  Since Santana lacked the present ability to carry out his threats because he was incarcerated, he argues that they were threats of future harm and therefore not subject to the statute.  We disagree in part.

            In Deshler, police responded to a bar fight involving Deshler and several patrons who believed that he had stolen the wallet of a fellow patron.  Finding Deshler bloodied and perhaps injured, the police called for paramedics.  Deshler verbally abused and fought with the police both as they arrested him and afterwards.  He also violently resisted the paramedics when they tried to load him into the ambulance.[5]

            One of the officers, Deputy Crawford, helped the paramedics load Deshler into the ambulance and rode with Deshler to the hospital.[6]  Deshler repeatedly threatened Deputy Crawford and his family “in numerous and specific ways,” including threats of lethal harm.  As this occurred, Deshler was strapped to a gurney but attempting to free himself.  When Deshler broke free of the leg restraints, Deputy Crawford placed his knees on Deshler to control him.  Deputy Crawford maintained his position until the ambulance reached the hospital.  Deshler never completely broke free of the restraints.[7]

            Deshler was convicted of three felonies, including intimidation of a public officer based on his threats against Deputy Crawford.[8]  This court reversed that conviction.[9]  The statute in question in Deshler—NRS 199.300—is similar to NRS 207.190 in that the level of the offense depended on whether physical force or the immediate threat of such force was used.[10]  “All of Deshler’s threats, though severe and credible, were couched in future terms.”[11]  Likewise, the record did not reveal any use of physical force or any realistic immediate threat against Deputy Crawford.[12]  Moreover, the court in Deshler observed that Deputy Crawford was able to immobilize and control Deshler without fear of physical harm.  Consequently, Deshler did not have the “present capacity” or “apparent ability” to carry out his threats, which a reasonable person facing the same threat could determine, necessarily making Deshler’s comments threats of future and not immediate harm.[13]

            In addressing Deshler’s apparent ability to execute his threats against Deputy Crawford, this court did not expressly articulate which viewpoint should be used to determine liability for felony coercion.  However, the term “apparent ability” necessarily implicates the defendant’s ability to carry out his threats to the extent that the ability is apparent to some viewpoint.  NRS 207.190’s requirement of an “immediate threat of physical force” implicates the same viewpoint concern because it requires the trier of fact to determine the immediacy of the threat.  This, in turn, requires the jury to ascertain the viewpoint of one facing the same threat.  We therefore extend Deshler to conclude that in determining whether a defendant has made an immediate threat of physical force under NRS 207.190, the inquiry must focus on the viewpoint of a reasonable person.[14]  Depending on that viewpoint, an immediate threat of physical force may exist even where the defendant is not presently able to carry out the threat.  We add that while the jury can and should consider the testimony of victims, the jury remains responsible for determining whether the threat was immediate, future, or incapable of being performed.

Jury instructions

            The district court did not instruct the jury to apply the reasonable person test.  In fact, the jury was not instructed to analyze NRS 207.190 from any particular viewpoint.  The district court’s jury instructions instead echoed the language of NRS 207.190(2)(a)-(b): “[i]n deciding whether a person has committed the crime of Coercion, you must also necessarily decide the type of Coercion committed, to wit: (1) Coercion committed by the use of physical force; or (2) Coercion committed by the use of an immediate threat of physical force, or (3) Coercion committed without any physical force or the immediate threat of physical force.”

            This court reviews the “giving of erroneous jury instructions under a harmless error analysis.”[15]  An error is harmless if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”[16]

            The viewpoint by which the jury analyzes NRS 207.190 can determine whether the defendant is found guilty of a gross misdemeanor or a felony.  Under NRS 207.190, the immediacy of the threat distinguishes felony coercion from gross misdemeanor coercion.  Under a more objective standard, such as the reasonable person test, the jury could decide the immediacy of the threat based on how a reasonable person facing the same threat would perceive that threat.  Applying the reasonable person test, a defendant would face a uniform standard as the jury determines whether the defendant is guilty of a felony or a gross misdemeanor.  Under a subjective standard, however, the jury could decide the immediacy of the threat based on how the actual victims perceived the threat.  Using this standard, whether a defendant is found guilty of a felony or a gross misdemeanor will depend on the potentially varying perceptions of individual victims.  This creates a troublesome legal inconsistency that in turn could yield unfair results.

            The jury should have been instructed to apply a reasonable person analysis.  Since the district court did not give this instruction, the jury instructions were erroneous.  Because we do not know what the jury would have found in terms of the reasonable person test, it is not clear beyond a reasonable doubt that the jury would have found Santana guilty of felony coercion absent the error.  For these reasons, Santana’s convictions must be reversed and remanded for a new trial.

CONCLUSION

            We extend our holding in Deshler and conclude that in determining whether there has been an immediate threat of physical force under NRS 207.190, a reasonable person’s viewpoint should be the focus of the inquiry.  We also note that while the jury can and should consider the victims’ testimony, the jury remains responsible for determining whether the threat was immediate, future, or incapable of being performed.   Because the jury was not instructed to apply the reasonable person test in the present case, the jury instructions were erroneous and the error was not harmless.  Accordingly, we reverse Santana’s convictions and remand the case for a new trial consistent with this opinion.

BECKER, MAUPIN, GIBBONS, DOUGLAS and PARRAGUIRRE, JJ., concur.