The motion to throw out evidence in the case of a Mountain Home man facing 99 counts of possessing child pornography will not be ruled on until a supplemental hearing can be held.
Circuit Judge John Putman filed an order February 3 in which he said the court could not decide the major issue of contention in the case based only on arguments made at the initial suppression hearing in mid-July last year.
The issue to be decided is whether searches of information 35-year-old Steven Walski is alleged to have stored on his computer were legal or a violation of his rights.
If the court finds for the defense, it would likely mean that all subsequent warrants issued in the case were tainted and that evidence gathered using the warrants would not be admissible.
No date for the supplemental hearing has yet been set.
The 19-page motion filed by the defense asking for the evidence to be thrown out contends the information on the affidavit used to obtain the initial search warrant in Baxter County was deficient in several areas and, therefore, not valid.
There were several search warrants issued during the investigation that eventually implicated Walski and led to his arrest.
The team of defense lawyers claims that since the original warrant was not valid, any evidence gathered using warrants issued later in the investigation would be invalid as well.
The state contended warrants issued during the investigation of the case were valid and that evidence was gathered legally and asks the court to dismiss the defense’s motion to quash.
Sheridan attorney Jeremy Lowery appeared for Walski in the 2022 suppression hearing. He told the court, because the initial search was done by a corporate computer and without a warrant, “there was no human being” on the other side of the tip that eventually led to Walski’s arrest. Lowery said that meant there was no way for the defense to determine how the information was gathered or to determine if the person gathering the information was reliable.
The state contends the private company that first reported the suspect Child Sexual Abuse Material (CSAM), Synchronoss, uses an automated system set up to recognize suspected child porn, not a single individual.
When suspect material is detected, the company’s automated system reports the finding to the National Center for Missing and Exploited Children (NCMEC).
In answer to the defense’s contention that no one person is identified in the affidavit, the state points out, “A Synchronoss employee does not view the information or images before a cybertip is made – a computer does,” based on a system that utilizes “identifiers” to tag certain material as possible child pornography.
Once the suspect material is sent to NCMEC, it is then viewed for the purpose of establishing it contains CSAM material and a cybertip is generated and sent to local law enforcement.
When the cybertip in the Walski case was received from NCMEC, a Mountain Home Police Investigator did review files using a secure access system and confirmed they met the criteria for CSAM.
In addition, the defense contends there was no information contained in the affidavit to show whether or not the data was “stale.”
The state points to several factors that established that the information in the affidavit fell outside any definition of stale.
One factor is that Synchronoss detection system works “immediately” to identify material suspected of containing CSAM.
The state also points out that the affidavit contains the phrase, “there is now being concealed” evidence of distributing, possessing or viewing matter depicting sexually explicit conduct involving a child.
The word “now” is sufficient to indicate the information in the affidavit was current and not dated, the state contends.
In answering the defense’s motion to suppress evidence, the state says Walski, “agreed to the monitoring” of his stored material when he signed Synchronoss’ terms and conditions.”
In signing the agreement, Walski gave The private company permission to check accounts to ensure users were abiding by those terms and conditions and the company “did not need probable cause to conduct the initial search for Walski’s account.”
INVESTIGATION AND ARREST
Walski was arrested in early November 2021 following an investigation spanning several months.
The investigation was triggered by a tip from Synchronoss, a company that offers various services to providers such as Verizon and AT&T.
As is routine in these matters, the tip went to the National Center for Missing and Exploited Children and was passed on to law enforcement in Mountain Home.
According to the probable cause affidavit, the user, later identified as Walski, had violated the company’s terms and conditions by manipulating an image containing Child Sexual Abuse Material (CSAM).
During the investigation it was determined that several downloads of CSAM were allegedly made by and traced to Walski.
According to investigative reports, a large majority of the images depicted nude pre-pubescent females engaged in sexual contact with adults or who had been “sexually posed.”
WHAT HAVE COURTS SAID
This issue is a relatively new one and courts in the U.S. are grappling with a number of questions regarding the involvement of electronic tools, such as computers, in pornography cases particularly.
There have been rulings by a number of courts in different states on this issue.
Most have found that a “private search” for child pornography by corporate entities, such as AOL, Synchronoss and other providers, is not a violation of a persons fourth amendment rights.
As in the Baxter County case, the suspect material was identified by the use of electronic tools such as the Image Detection Filtering Process.
Once suspect material is identified, companies like Synchronoss are required by federal law to turn it over to the National Center for Missing and Exploited Children (NCMEC).
Courts have also fairly consistently held that providers such as Synchronoss and organizations like NCMEC are not police or agents of law enforcement and not required to have a warrant to check out suspect material being sent or received through their networks.
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