Stephen Deprospero is having to learn about the dangers of not leaving well enough alone the hard way. After having been linked to peer-to-peer downloads of child pornography, Deprospero’s home was searched, computer seized and, in an initial review, a single image of child pornography was identified. He accepted a plea for six months of jail time and probably counted himself lucky that no further searching had been done of his computer and video equipment. But then he had to ask for them to be returned. The prosecutor had investigators search the equipment to be sure that no contraband was returned to the defendant. The delayed search turned up a video depicting sexual abuse of a minor by what was later confirmed to be Deprospero based on a uniquely situated birthmark. He was tried and convicted on new charges and sentenced to 40 years in prison. Deprospero challenged that conviction arguing that the delayed search violated his Fourth Amendment rights.
A court for the New York State Appellate Division, 4th Department, recently issued an opinion rejecting Deprospero’s argument and holding that a delayed search of a computer after lawful search and seizure is allowed under the Fourth Amendment. The court relied on several factors to reach this decision. First, the seizure and initial search were conducted pursuant to a warrant issued based on probable cause. Second, the wording of the warrant appeared to allow the delay search. The court stated, “The search warrant directed the police to seize, inter alia, defendant’s computers, external drives, storage media, and cameras, and “authorize[d] the police agency to retain said property for the purpose of further analysis and examination.” There was no deadline in the warrant for completion of the forensic examination and analysis.” Third, the court also noted that the Fourth Amendment does not provide for a specific time limit in which a computer may undergo a government forensic examination after it has been seized pursuant to a search warrant,” and courts have only required that such a search happen within a reasonable period of time. Given that there was no bad faith and that there was an explanation for the lack of a full search prior to the plea agreement, the court found that the time frame was reasonable and that no new probable cause was required because defendant did not have a reasonable expectation of privacy in the equipment which was already in the government’s custody. The court also supported the Prosecutor’s view that the search of the equipment was required before return to the defendant, because it would have been a crime to turn over any contraband material to Deprospero.
The defendant plans to appeal. Given the demands on state computer forensic resources, this case is cautionary tale for defendants and prosecutors. In this case, the prosecutor was not aware that the full forensic search had not yet been completed and if they had, the prosecutor would have likely been able to charge Deprospero for the sexual abuse in the first trial and avoided the suppression motion based on the delayed search. Defendants should be mindful that once evidence is in the hands of the police it can be subjected to further search and likely will be if the government is given a good reason to do so. In this case, the defendant is going to have a long time to ponder whether he would have been better off if he simply bought a new computer and waited and hoped no reason ever surfaced for the government to search his equipment again rather than asking for its return.