Under Florida state law, possession of child pornography is a 3rd degree felony punishable by up to 5 years in prison for each photo in possession of the accused, and often times the prosecution will file a new count for each image that they find.
In Federal court, possession of child pornography carries a maximum prison sentence of 10 years in prison. The way the legislature has set up the sentencing guidelines, the average child pornography possession case always carries an "advisory" prison sentence. This means that Federal judges are told to consider the guidelines and use them as "advice" from the United States Sentencing Commission. Although these sentencing guidelines are not mandatory, it can be an uphill battle to persuade a Federal judge to sentence someone below these guidelines.
The potential penalties only get worse if the State or Federal government file charges involving transmission of child pornography or distribution of child pornography.
These Saint Lucie cases are not impossible to defend. The government has to get through a number of hurdles before they can prove a child pornography case beyond a reasonable doubt. First and foremost, they have to be able show that the search and seizure of the computer, disks, magazines, or images was legal and did not violate the 4th Amendment of the United States Constitution. The truth is that many law enforcement officers have no respect for the 4th Amendment and believe it only exists to protect the guilty. Sometimes law enforcement will use coercion to gain entry into someone's home or office. Sometimes law enforcement won't have enough evidence to get a lawful search warrant. There are a myriad of 4th Amendment issues that need to be researched and evaluated in every child pornography case. As a board certified criminal trial specialist, Brian Mallonee tirelessly reviews every 4th Amendment issue with a fine tooth comb on every case he defends.
The government also has to prove that the person they are accusing of possessing child pornography is also the person who was sitting at the keyboard when the images were downloaded and viewed. Hiring a criminal defense attorney who has successfully argued this defense in front of a jury can mean the difference between your freedom and two decades in prison.
The government must prove that the person accused of child pornography possession knew what was being downloaded. A number of questions have to be addressed, such as:
Is there any evidence of remote access? Did the images pop up accidentally? Were they pop up images? Was the computer hacked into? Was the computer used as a part of zombie network? Was there any IP spoofing? Is there any evidence of internet hijacking? Data carving? What keyword searches were employed? Is the date/time stamp accurate? Are the images really minors or could they be 18 years old?
These are just some of the many questions that the government is forced to answer in order to prove it's case beyond a reasonable doubt. As you can tell, there are numerous avenues that can be explored to successfully defend a child pornography case.
Mr. Mallonee defends child pornography cases out of his office in Fort Pierce, Florida. He represents people (Federal and State court) accused of crimes in all of the following counties: Saint Lucie (Fort Pierce, Port St. Lucie), Indian River (Vero Beach, Sebastian), Martin (Stuart, Palm City), Okeechobee, and Highlands (Sebring). If you or someone you care about wants to talk to a criminal attorney who has successfully defended these cases, don't hesitate to call Brian Mallonee at (772) 464-1991.
Brian Mallonee is a Criminal Defense Lawyer Serving St Lucie, Indian River, Martin, and Okeechobee Counties