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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