NH Supreme Court rules that evidence of child pornography discovered after defendant abandoned his apartment is admissible
New Hampshire v. Howe, No. No. 2008-445 (N.H. Nov. 17, 2009)
NH Supreme Court rules that evidence of child pornography discovered after defendant abandoned his apartment is admissible.
Howe’s arrest and conviction on 6 counts of possession of child pornography stemmed from the discovery of pornographic material, including images of child pornography, by the renters of a room he had been asked to vacate due to his failure to pay rent. Howe had been given seven days to remove his belongings. Among the few items he left behind was a bureau containing a folder of CDs and printed images that included child pornography. When the renters discovered the pornography, they contacted the police who took the folder, interviewed Howe at the police station, and analyzed the computer at his current residence (the same computer he had been using while renting the afore-mentioned room). On appeal, Howe argued that the trial court erred in admitting evidence. The New Hampshire Sumpreme Court affirmed.
Howe argued that the CDs from the bureau folder, which contained videos of “children engaged in sexual activity,” were
obtained by an unreasonable search and seizure in violation of his right to privacy under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. Specifically, he argued that because he did not abandon his interest in the contents of the bureau, the police should have obtained a search warrant before viewing the contents of the CD.
The Court ruled, however, that “the defendant’s actions demonstrate a clear intent to abandon the bedroom, including the bureau and the CDs therein . . . We conclude that under the State Constitution, there was no protected privacy interest requiring the police to obtain a search warrant before viewing the videos on the CD because the defendant had abandoned it.”
Howe also argued, with regard to the evidence taken from the confiscated computer that (30 images of child pornography), under Evidence Rule Rule 404(b):
(1) the State failed to demonstrate that the evidence was admitted for a purpose other than character or propensity; (2) the State failed to show clear proof that the defendant was the person who downloaded the images on to the Greenlaws’ computer; and (3) the evidence was substantially more prejudicial than probative.
The court ruled that:
[1] The evidence found on the Greenlaws’ computer is probative of the defendant’s intent and knowledge because he sought out websites containing child pornography. These websites were accessed repeatedly during the time that the defendant stayed at the Turners’ apartment . . .
[2] To establish clear proof, the State presented the FTK report to demonstrate that any and all child pornography websites and images viewed, downloaded, and visited by users of the Greenlaws’ computer occurred only during the time that the defendant lived with the Turners . . .
[3] The evidence from the Greenlaws’ computer was not likely to have any greater emotional impact upon the jury than the charged images. Here, the images found on the Greenlaws’ computer were the same type of child pornography and child erotica as were found in the Turners’ apartment.
COMMENTS
