The police in Tulsa, Oklahoma got a phone call from a lady who had stumbled upon child pornography on her live-in boyfriend’s computer.

Joseph Benoit, the owner of the child porn, contends that the evidence should have been suppressed due to a Fourth Amendment violation.

There are two problems with his argument. First, the Fourth Amendment doesn’t apply to private parties. His girlfriend and her buddy were the ones who searched the computer. The only time it applies to private parties is when the officer directs the private party’s conduct.

Here, the officer showed up and watched what was provided. He gave absolutely no instructions or guidance, nor did he take any action, until he observed what he was certain was child pornography.

Double Jeopardy & Lesser Included Offenses

Benoit also argued multiplicity, or to put it differently, that his convictions for receipt and for possession amounted to punishment for the same conduct.

In these types of Double Jeopardy cases, the Blockburger test applies: if “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

That doesn’t end the inquiry, however. Even in circuits that have joined the lesser-included logic, defendants have been convicted of receipt and possession. The question is, with a number of files, was he convicted of receiving some, and possessing others? If so, the multiple counts punish different behavior regarding different pornography.

Alas, it was not so here. Both counts of the indictment referred to the pornography collection as a whole - not as two separate collections. In the prosecutor’s opening and closing, he referred to the collections as one whole (“the first count is receiving … Count 2 is possessing that same child pornography that was downloaded and is possessed …”).

For prosecutors, that means in future cases, the route to the maximum punishment is to find a logical way to divide the entirety of the collection into multiple sub-bodies, such as filed downloaded on one day, and files downloaded on another, and maintain that division throughout the indictment and trial.

Related Resources:

  • United States v. Joseph Benoit (Tenth Circuit Court of Appeals)
  • Girlfriend Turns In Pedophile, Gives Texts, But No Probable Cause? (FindLaw’s Sixth Circuit Blog)
  • Child Porn Defendant Loses on ‘Viewed’ but not ‘Received’ Claim (FindLaw’s Tenth Circuit Blog)

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