Constructive possession in computer crime cases (2 of 2)

In our earlier post we introduced you to the concept of constructive possession as it applies to evidence in federal criminal trials. A suspect can be said to constructively possess an item when the suspect has exclusive control over the premises in which that item is found. So if a suspect owns a storage locker and is the only person who has access to the locker, the court will infer that the suspect is in constructive possession of the items within that locker.

The court will not infer constructive possession if other people also have access to the place where the item is found. This also applies to charges for computer crimes. If images or other files are found on a computer to which a number of people have access, the court will not infer constructive possession by any of those people without some other evidence to connect one of them to the file.

In a recent appeal, the U.S. Court of Appeals reversed a conviction for possession of child pornography. The court ruled that the prosecution had not provided sufficient evidence to allow the jury to find, beyond a reasonable doubt, that the suspect had constructive possession of the images found on the computer.

In this case, images were found on a computer in the suspect’s home, but several people had access to the computer. Among those that had access in addition to the suspect was the suspect’s father, who apparently had a reputation for viewing pornography. The father was terminally ill and passed away before the suspect was indicted.

In a criminal case, it is not enough to simply have found the ‘smoking gun.’ Even where narcotics, illegal pornography, or other contraband are found, the prosecution still has the burden of connecting that item to the suspect.

Source: United States Court of Appeals, Fifth Circuit, “United States v. Moreland” Dec. 14, 2012