Submitted by Mark Esposito, Guest Blogger
Two California teens tipped police off to a cache of child pornography allegedly owned by 54-year-old Kraig Stockard. Nothing too novel about that, except that the teens learned of the illicit material after burgling Stockard’s barn. Breaking into the Dehli, California property was easy enough and the pair thought they were taking 50 blank CDs as part of the loot. When they got home to divvy up the booty, they noticed about 30 of the CDs had pornographic images, many of them of children. The two thieves, age 19 and 15, contacted Merced County Sheriff”s deputies and fessed up.
Stockard was arrested after the deputies saw the images. A later search found six computers that are now being checked for more child exploitation. Stockard may have been downloading this filth since 2004.
The tip was not the only bizarre feature to this crime. Stockard, it seems, was outraged over the theft and reported the CDs as stolen to the Sheriff’s Office. “I’m kind of surprised that he wanted to draw attention to himself, knowing what was taken,” said deputy Tom McKenzie.
The two burglars have not been charged but the case has been referred to the Merced County DA. Not much expected to come out of it though.
“We did not actually go out and arrest the suspects for the burglary. They were obviously the lesser of two evils,” McKenzie added.
Anyone think these kids should get anything more than a stern warning?
Source: New York Post
~Mark Esposito, Guest Blogger
How about immunity in exchange for testimony?
“We plead accelerated rehabilitation.”
Tim….
As Gene has said…and said it well…I will add this….They committed a crime…pure and simple…they are not government agents….you have no remedy against them (the kids) except no prosecution or prosecution….They are pari delicto…By the possession of kiddie porn he has committed either state or federal crime(s) take your pick…
Bron has answered it as well…
The question then becomes whether the evidence obtained as a result of Jones’s unlawful citizen’s arrest must be suppressed. The Fourth Amendment to the United States Constitution provides the federal government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend. IV. The United States Supreme Court extended the constitutional protection against unreasonable searches and seizures to those involving state action. Elkins v. United States, 364 U.S. 206 (1960). The exclusionary rule, a sanction to enforce the protection of the Fourth Amendment, is applicable to state action through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961) (“[A]ll evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissible in a state court.”).
Fourth Amendment protection against unreasonable searches and seizures, however, applies only to governmental action and not to action by private citizens acting in a private capacity. Burdeau v. McDowell, 256 U.S. 465 (1921). In interpreting the Fourth Amendment, the United States Supreme Court has stated the Fourth Amendment’s “origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies . . . .” Id. at 475.
Accordingly, our Supreme Court has stated, “[t]he fourth amendment is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government and without the participation or knowledge of government officials.” State v. McSwain, 292 S.C. 206, 207, 355 S.E.2d 540, 541 (1987); see State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996) (The “fruit of the poisonous tree” doctrine holds that where evidence would not have come to light but for the illegal actions of the police, and the evidence has been obtained by the exploitation of the illegality, the evidence must be excluded.). Our Supreme Court has consistently followed this interpretation. See State v. Cooney, 320 S.C. 107, 463 S.E.2d 597 (1995) (The Fourth Amendment proscription against warrantless searches and seizures does not apply to searches or seizures by private individuals not acting as agents of the State.); State v. Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991) (The Fourth Amendment does not bar a search or seizure by a private party.); Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990) (The Fourth Amendment’s constitutional proscription against warrantless searches and seizures does not apply to searches by private individuals not acting as agents of the State.).
http://www.judicial.state.sc.us/opinions/HTMLfiles/COA/2982.htm
Tim in SF,
“It was not obtained in a lawful manner. It was not obtained via court ordered search. It was not obtained through a ‘probable cause’ search.”
You have in a way answered your own question.
The evidence is not the product of a tainted search by police.
Consider this alternative: the guy hires the boys to clean up his barn and in the course of that job, they find the discs and take them to give to police. Does that violate the 4th Amendment? No, even though technically what the boys did could still be considered theft as they were hired to clean up the barn, not take its contents. The 4th Amendment only applies to state searches and seizures. In this instance, it was private citizens. That they did so during the commission of an act illegal in itself is irrelevant. They are not state actors.
What if a person digging illegally (i.e. they had no clearance from utilities as required for where they were digging) found a body? Would that corpse be illegally obtained evidence even though the person who found it was engaged in a civil wrong? No. Would that evidence be illegal if the cops showed up sans warrant and just started digging on private property? Yes.
The entire difference hinges upon state actor versus non-state actor.
I see this as the beginning of a new rehabilitation program for juvenile delinquents.
Instead of spending unproductive and revenue-negative years in reform school, they can aid police who can not obtain, or are too lazy to obtain, proper search warrants. Anything valuable they find, the kids split 50/50 with the Men In Blue, (in accordance with local and State zero tolerance policy) so long as the search shows up anything incriminating against the perp. Which, of course, it will.
Win for the kids, win for the cops, win for the taxpayers.
What these two kids should probably get are summer jobs. Keep the busy and they have money to spend.
I thought evidence could only be supressed when the cops, or their agents obtained it illegally. The kids certainly weren’t on the property as agents for the cops.
Gene,
Yes, because I have worked a number of cases where diversion was done at my recommendation. The threat is the leverage to make it happen and complete the program. Otherwise the law can reel them in–same as if it were probation with an MOT (mandatory order for treatment). Just that diversion gets them some help and counseling and erases a potential criminal record. I don’t know the law where they are, but in our state, defendants only get one bite of the apple with diversion.
Anonymously wrote: “Wrong….There is NO RIGHT TO POSSESS Kiddie porn….its kind of a strict liability offense….”
I don’t understand your answer.
I wasn’t speaking to the right of the man to possess contraband. That obviously is illegal. I am speaking to the manner in which the cops acquired this evidence. It was not obtained in a lawful manner. It was not obtained via court ordered search. It was not obtained through a “probable cause” search.
I remember Nina Totenberg telling me about the Supreme Court upholding the defense’s right to suppress illegally-gotten evidence.
So, can someone please tell me how it is not a violation of the pervert’s fourth amendment’s rights?
If you are turning this over and around in your mind and are having trouble with the nasty kiddie porn aspect, replace “kiddie porn” with “marijuana.”
OS/raff/Blouise/AY,
You do all realize that compelling these two kids to enter diversion would entail at a minimum the threat of prosecution and a promise to forgo prosecution in lieu of their completing diversion or prosecution with a sentencing recommendation ?
I suspect that the story for these two and the DA isn’t over yet, but that it will include a solution much more like the former rather than the later.
Tim in S F,
I wondered the same thing … thanks AY for answering the question.
I’ve taken some time to think about this and I agree with OS and with raff who also agrees with OS.
In fact, I find it pretty amazing that these two kids were willing to put themselves in the line of fire in order to serve the greater good. That sort of “second thought” should be recognized. It’s almost as if they “rehabilitated” themselves. I would loved to have been a fly on the wall listening to the debate between them that led to the decision to “fess up”. I wonder if parents got involved at any point in the decision making process.
A a diversion program and counseling should be enough to handle the first thought which was theft.
Wrong….There is NO RIGHT TO POSSESS Kiddie porn….its kind of a strict liability offense….Now, why weren’t these kids prosecuted for Burglary… and the people that helped them use them if they knew they were stolen as an accessory after the fact….
Yikes!
I hate to play devil’s advocate, but even kiddie porn afficianados have fourth amendment rights. He didn’t wave them. The property was taken illegally.
Am I wrong?
Francis,
That is a sad story about your cat. Your care of him gave him those 3 good years.
I agree with OS that there is a chance that these two kids can be salvaged and jail time would just nail the coffin shut on their lives.
This reminds me of a weird event that happened in my neighborhood about 15 years ago. I adopted a cat from a purported pet rescue group. A few weeks later I learned that the operators had been arrested for animal cruelty. It turns out that they had brought some film to be developed to some local photo place. The film contained pictures of many dead cats posed in weird positions. The photo store called the cops. I never heard what happened to these people.
The cat I adopted was a sweety, but had horrible health problems including some sort of auto immune disease that dissolved his teeth! .I paid $750 to have all his teeth pulled and that was just the beginning. He died of diabetes in my arms. I will never know how old he was when I adopted him, but he had 3 good years with me before he died. He was such a mess but I still miss him. He was a very nice cat.
I represented a man once who thought up an almost perfect crime. Dressed as a woman, he acted as a prostitute and robbed the mail Johns who picked him up. They rarely reported the crimes and the few that did rarely showed for court. He was one of the few prostitutes I used to represent who wasn’t battling severe addiction issues, but seemed mentally unstable. I know, you’re shocked, right?
I am amazed…
As for the two kids in the story, I think they should be referred to mental health services for counseling. Their actions prove they do have some moral fiber and are salvageable. Jail time would probably do more harm than good, as far as rehabilitation is concerned.
If I were consulted on that case, I would advise the DA and the Court to put them in a diversion program and refer for counseling rather than jail time. These kids can be helped–it is obviously not too late.
Speaking of porn related burglaries, how about another oddball case. This teenage girl was so addicted to porn that she robbed her neighbor by crawling through the doggie door. She needed money to pay for the pornographic stuff she was buying. The neighbor noticed stuff missing so set up a security camera and caught her.
http://www.huffingtonpost.com/2011/10/07/amanda-rose-owens-_n_1000373.html#s381688&title=Albert_Tejeda
In the film version, “Burglary Porn,” the kids would go straight from now on.