Eye on Comics

Comics criticism and commentary from Don MacPherson

Comic Artist’s Motion to Suppress Denied in Child-Porn Case

Posted by Don MacPherson on June 3rd, 2012

Josue Rivera, 40, better known to the comics industry and readers as the artist Justiniano, has failed in his effort to have evidence in the child-pornography prosecution against him tossed out.

The Connecticut resident was arrested May 10, 2011, and charged with illegal possession of child pornography in the second degree. The charge arose as a result of a discovery on a thumb drive the artist allegedly provided to the staff of a funeral home that was handling his father’s funeral arrangements.

A search of court documents revealed Rivera’s defence filed a motion with a court to suppress the thumb drive evidence, arguing it was obtained by police by way of an illegal, warrantless search. Hearings on the motion were held Feb. 23 and March 8, and Superior Court of Connecticut Judge Robert Devlin denied the motion in a decision issued March 19. Devlin’s written decision sets out the facts of the case, revealing how the images of child pornography were discovered.

In his review of the facts of the case, Devlin notes it was Rivera’s sister, not Rivera, who brought a USB thumb drive to the funeral home. The purpose was to give the staff digital photos of the deceased to prepare a memorial slide show. Quoting from the decision:

On July 16, 2010, [the funeral home employee] inserted the thumb drive into a computer at the funeral home. A prompt appeared on the computer screen asking [he] what he wanted to do. [He] clicked on “View all files.” The computer then displayed all of the pictures stored in the thumb drive in a gallery format. Each photograph in the gallery was a so-called “thumbnail” that displayed a portion of the complete photograph. As [the employee] examined the photos, he saw some pictures of the deceased but also pictures that he believed were child pornography. More specifically, some pictures showed children performing sex acts on children and other pictures showed adults performing sex acts on children.

The employee brought the issue to the attention of his boss, who, after viewing the suspect files, directed the employee to contact police. The funeral home director estimates there were 10-12 images depicting child pornography. One of the files also appeared to be Photoshopped to incorporate a member of the defendant’s extended family, Devlin wrote in the decision.

A member of the Bridgeport Police Department responded to the funeral home the same day Rivera’s sister had dropped off the thumb drive, and the officer concluded, after a quick perusal of the contents, it contained child pornography.

Bridgeport Police Department Detective David DeFeo was assigned to investigate the case. On July 23, 2010, he put the thumb drive obtained by Officer Tesla into his computer but did not see any pictures that might be considered child pornography. On July 28, 2010, Detective DeFeo took the thumb drive to Detective Michael Chaves of the Monroe Police Department. Detective Chaves has specialized training in computer crimes investigation. Detective Chaves examined the thumb drive on his computer at the Monroe Police Department. His computer was equipped with so-called “Write Block” software that ensures that nothing is added or removed, and “e-case,” which is software that aids in the digital forensic examination. Detective Chaves opened the thumb drive and saw the gallery of pictures. He used no special strategies nor did he view anything that would not be visible on a normal Windows computer. Detective Chaves did a preview of the displayed photos to determine if any of them met the legal definition of child pornography. He determined that some, in fact, met that definition.

The images in question were located in a folder on the thumb drive designed as “.trashes,” which was described as the equivalent of a digital recycle bin one would find on a Windows computer desktop. A search warrant to authorize a more complete search of the USB drive was obtained, but it wasn’t issued until Aug. 16, 2010.

Nevertheless, Devlin ruled the search was valid, as the drive and the alleged offending material was brought to police’s attention by a third party.

The Supreme Court in Jacobsen noted that the protections of the Fourth amendment proscribe only government actions and are inapplicable to a search or seizure effected by a private individual … Applying the reasoning of Jacobsen to the present case, this court finds that the police conduct fit well within the private search exception to the warrant requirement. All of the parties who examined the photos on the defendant’s thumb drive — the funeral-home employees [and the police officers] -— looked at the identical set of pictures. This was not a situation where the private search was limited to one computer file or folder and the police examined the entire hard drive of the computer. The key point is that the police did not expand the private search. Moreover, even if during the police examination different or additional photos were enlarged as compared to those enlarged by the funeral-home employees, such action did not exceed the limits of the private search exception. Such selected enlargement of certain photos was reasonable and less intrusive than the warrantless field test upheld in Jacobsen.

It merits noting that the investigation was ongoing for almost a year before Rivera was arrested and charged.

Rivera — best known in the comics industry for his work on various DC super-hero titles, such as Beast Boy, Day of Vengeance, Countdown to Mystery and Doom Patrol — has pleaded not guilty to the Class-C felony charge and remains innocent until proven guilty. He was released from custody on a $100,000 bond.

Among the elements of the crime the prosecution will have to prove before a conviction could be secured would be the thumb drive was connected to Rivera somehow (either through ownership or some other means) and that he knew the offending images were on the thumb drive. The decision makes no mention of any statements the police obtained during the course of the investigation, but presumably, there would have to be some information possibly connecting the USB drive to the artist. As noted in the decision, it was the accused’s sister, not Rivera, who provided the funeral home with the drive.

Justiniano’s next court date is listed on the State of Connecticut judicial branch’s website as July 16. Though the site doesn’t list the purpose of that court date, given the timeframe and the fact a pre-trial suppression motion has already been heard and adjudicated, it’s likely the artist’s trial date.

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10 Responses to “Comic Artist’s Motion to Suppress Denied in Child-Porn Case”

  1. Comics A.M. | Judge refuses to suppress evidence in Justiniano case | Robot 6 @ Comic Book Resources – Covering Comic Book News and Entertainment Says:

    […] Legal | Don MacPherson, who covers the courts for his daily newspaper, updates the case of Josue Rivera, aka comic artist Justiniano, who pleaded not guilty in May 2011 to charges of possessing more than 100 photographs and videos containing child pornography. Rivera was arrested in Connecticut following a July 2010 incident in which police say he mistakenly gave a funeral home director a thumb drive containing 33 files classified as child pornography instead of the one containing photos of a deceased relative. Police later seized Rivera’s computer and found 153 files of suspected child pornography. A judge has denied a motion to suppress the thumb drive, which Rivera’s attorney had argued was obtained by police through an illegal, warrantless search. However, the judge ruled the search valid, as the material on the drive was brought to the attention of the police by a third party, the funeral home. MacPherson’s summary of court documents provides more details on the case. [Eye on Comics] […]

  2. mr. pants Says:

    I really feel sorry for Justiniano. Pedophilia is a mental illness that is sadly illegal. People only get help when its too late, and even then its not with proper counselors. If help was available to such poor souls, I’m sure they would not commit such crimes, be it looking at child pornography or something much worse. I had a family member in the same situation, and he was caught. He evidently tried countless times to get help on his own, but there were no counselors or psychologists willing or able to work with him. No support at all. They just became too strong, and he became too weak. Its very, very sad that there’s help in this country for every type of mental illness except for pedophilia. Some people truly can’t stand their thoughts, but they’re just too afraid to come forward.

  3. Don MacPherson Says:

    Mr. Pants wrote:
    I really feel sorry for Justiniano. Pedophilia is a mental illness that is sadly illegal. People only get help when its too late, and even then its not with proper counselors. If help was available to such poor souls, I’m sure they would not commit such crimes, be it looking at child pornography or something much worse.

    Reminder: Justiniano hasn’t been convicted of any crime and remains innocent. Furthermore, it’s premature to apply a pedophile label to the man based solely on allegations that have yet to be proven in court.

  4. Mr. Pants Says:

    True, and I apologize for the premature labeling. Its just something I’m passionate about.

  5. Sean Limbaugh Says:

    To the person who says paedophilia is mental illness and is “sadly” illegal that we should treat them with kid gloves, sorry, but that’s HOGWASH!!! If he’s found guilty he should punish to the full extent of the law. Lock him up and throw away the key along with all the other paedophiles. I’m sick of this BS liberal hippie crap way of thinking, it’s mental illness like some people consider being an alcoholic or drug addiction is an illness. Throw those paedophiles in jail and see how they like being vulnerable like their victims they preyed on. Oh, before anyone ask, if any of my family member is a paedophile, I will bring them to the police myself.

  6. Mr. Pants Says:

    People don’t choose what they consider attractive, but they choose what they consume. Your analogy doesn’t work.

    I’m not saying my cousin doesn’t belong in jail. It’s just that he needed help, but there wasn’t any. His desires caused him so much anguish that it affected his life for the worse. To me, that is a mental illness, and if there was support along the same lines of other mental problems, then I think there would be fewer victims.

  7. The Craw Says:

    Actually addiction in any form is a disease and you may be lucky and be addicted to Game of Thrones or you can be unlucky and be addicted to cigarettes. The reality is that while I agree pedophiles should be removed from society, prison isn’t the answer, they do need actual counseling. Just like you can’t help find big butts attractive neither can someone who finds something you morally disagree with. Also let’s not beat around the bush, that definition changes and don’t pretend that we have reached the pinnacle of superiority. In fifty years we will look back and meat eaters will be looked at as monsters. I’ve seen cases where people who have these urges have mutilated them selves to try to stop from feeling these things, not exactly the same as someone who murders with glee and thinks of it as a job. Also a massive difference between someone who produces the stuff and someone who consumes it. You can say that without demand there would be no need for production, but pedophilia isn’t a conscious decision where you one day sit down and say hey I think I want to engage in something illegal that will completely ostracize me from society. The throw away the key comment is cute but it neither solves nor in any way addresses the problem. Just because you foam at the mouth because of it and while we can appreciate your passion for protecting kids, all you really need to do is read. If you do even a little bit of reading then you would know that Pedophilia is a Psychiatric Disorder. This reasoning to treat mental disorders by simply locking people up is the reason we have over 2 million people in jail, most of who simply chose thew wrong time to be addicted to the wrong thing while society catches up with what drugs are ok and which ones are not for individuals to use as they see fit. I’m in no way advocating for this, but I know that there is no pedophilia gum, and believe it or not there are no pedophiles anonymous groups, all of them are filled with cops waiting to arrest you. If we really want to help the situation then let’s read and know what the problem is, instead of just pretending you’re morally superior and locking people up somehow fixes the problem.

    Also here is a question the CIA asks when they interview you for a job. Have you ever looked at child pornography? The reality is that if you look at any pornography and depending what state you’re in and what year it is, you probably have. So what do you do, you can’t be sure, you didn’t check the models consent forms, you just wanted to get off and now you have to tell the CIA that you’re not sure about that. Good luck getting a job as you’re sweating whether or not you’ve committed a crime without knowing it.

  8. Sean Limbaugh Says:

    To Mr. Pants, some people consider being alcoholic isn’t a choice, of course, those people are idiots, but as bad as being a boozer being a pedophile is much worse. But don’t worry about those pedophiles. They are going to get the help they need where they are going, to jail where they will get brutally sodomized. LOL.

    To The Craw, oh I do read, like A Song of Ice and Fire novels that Game of Thrones is based on or my favorite novel of all time, Atlas Shrugged. But your post is nowhere near as exciting as those novels, so sorry I can’t bring myself to read the entire post. But I will point out a few things you mention like that “morally superior” comment. I know you’re trying to condescending towards me, but thank you for that praise anyway. I think if people can’t be morally superior to pedophiles, us normals should jump off the bridge right now. If the CIA ask me that question, I would have no problem answering “no”, purely because I haven’t, case close. However, can’t say the same for pedophiles and even their sympathizer who usually are closeted pedophiles just managed to hold back their urges, but for how long? Anyway, sucks to be either one of them. “Meat eaters will be looked at as monsters”, I don’t know what hippie vegan community you grew up in, but in the US of A eating meat is as normal as not having sex with kids.

  9. Don MacPherson Says:

    Sean Limbaugh, or Rush Hannity, or whatever, I’ve let your last comment stand, because you’re treading ever so closely to having your comments deleted on this site… again. The comment was Craw is civil in tone while also taking a firm stance on some issues. I don’t agree with several of his points, just as I don’t agree with a number of yours.

    To be clear, though, I don’t think anyone commenting here as “sympathized” with pedophiles. And suggesting people who take a different view of the problem as yours are “closeted pedophiles” is rude and unnecessary.

    I also find it bizarre when people believe sex crimes are OK when they’re visited upon sexual offenders. Sex crimes are wrong no matter the context. Further victimization solves nothing. Western society has moved past vengeance (or should have by now, in any case).

    Feel free to respond to comments, but please adopt a civil tone or I’ll have no qualms with deleting it or possibly editing it for content.

  10. Sean Limbaugh Says:

    My name is Sean Limbaugh, I don’t know why people keep thinking it’s fake name. It’s just a coincidence that I got the same as my favorite radio personality. Sean is a common name, But people don’t refer me as Rush Connery.

    About The Craw’s comment, I can see why you thought it was in a civil tone, because it’s wasn’t directed at you, but I see it as condescending. Telling me I should read like I’m some illiterate flop. Why don’t Craw amped up the snobbishness and say I should go to college. Maybe if he mentioned to read Bill O’Reilly’s book, I wouldn’t take it as an offence. Anyway, his comments is no different than that guy, forgot his name, you got upset at for suggesting you giving low scores on comics for web views.

    My memory is fuzzy on why you deleted my comments the first time. I think it was when I was showing my American Patriotism a bit too much and I apologize for that. If that’s it, I can understand why you deleted it, as I wouldn’t want some guy bragging about how great Venezuela is while I’m browsing the Town Hall website. What I did was like the overachieving big brother gloating over his little brother.

    I strongly disagree with going easy on these pedophiles, I think it’s setting a dangerous precedent. Sooner or later rapists might be treated the same, where it’s not their fault that the only way they can get their rocks off is to violently force themselves on their victims, so we should handle them with kid gloves. I have read many news of pedophiles already going back to their old ways, even after getting psychiatric help. But I’m not going to argue any further, I mentioned what I need to mention.

    Anyway, I apologized to that “closeted pedophiles” comment, it was not necessarily towards to the commenters here, that’s why I typed “usually” not always, but still, yes I can see how it was rude. So my apologizes to Mr. Pants, yourself, it must be a shock to you that a conservative right-winger can be such a blowhard sometimes and to anyone who is offended at that comment. But I’m reserving my apologizes to The Craw, until I get an apology from Craw first.