Most child pornography cases these days involve images allegedly on the defendant's computer. If those images are saved on your computer, convicting you can be fairly straightforward, although there are issues regarding temporary internet ("cache") files and even computers being hijacked by viruses. Often, though, the images are not saved on your computer; they exist only on "unallocated space" on your hard drive.
When you save a file on your hard drive, your operating system notes where on the drive it is stored, and "allocates" that space to that file, i.e. that space is reserved for that file, so that nothing else can be written on that section of the hard drive. When you delete the file, it does not disappear. Instead, the computer operating system converts the location on the hard drive to "unallocated space," meaning the space is available for storage of new files, and can be overwritten for that purpose. But the deleted file does not disappear until it is actually overwritten by a new file (and perhaps not even then, although that is another blog post). It takes special software, however, to see or access files on the hard drive's unallocated space.
So what happens when child pornography is found on your hard drive, but in "unallocated" space? It is not saved on your hard drive. Can you be convicted of possessing it? The Ninth Circuit federal court of appeals confronted that issue in the recent case of
United States v. Flyer.
An FBI agent trolled the internet and downloaded child pornography. These allegedly came from Flyer's IP address. A search of the residence produced a PC and other digital gear. Child pornography was found in the unallocated space of the PC, but not in the allocated space. Flyer was charged with possession of child pornography and convicted at trial.
"Possession" is defined as "exercising dominion and control" over the items in question. Flyer argued there was insufficient evidence to establish that he exercised "dominion and control" over the images recovered from the unallocated space on the hard drive. The Government countered that even if he did not possess the images when his computer was seized, he must have possessed them at some earlier time and deleted them. Flyer answered that even if he could said to have "possessed" the images before their deletion, no evidence indicated that the possession occurred during the time period charged in the indictment.
The Ninth Circuit Court of Appeals agreed: "We conclude that Flyer's conviction must be reversed . . . . The government concedes that it presented no evidence that Flyer knew of the presence of the files on the unallocated space of his Gateway computer's hard drive. The government also concedes it presented no evidence that Flyer had the forensic software required to see or access the files....[T]here is no evidence here that Flyer had accessed, enlarged, or manipulated any of the charged images, and he made no admission that he had viewed the charged images on or near the time alleged in the indictment." Emphasis added.
The Flyer rule, then, is simple and powerful: "deletion of an image alone [leaving the file in unallocated space] does not support a conviction for knowing possession of child pornography on or about a certain date within the meaning of § 2255(a)(4)(B)."
The highlighted language about admissions is important, because this is often how the Government sidesteps the issue. Most child pornography suspects--and most other suspects, for that matter--confess when questioned by authorities. When questioned by law enforcement, you are always better off if you request a Phoenix Criminal Defense Lawyer.
Flyer is a federal case. It is not controlling authority if your case is charged in state court. However, Arizona statutes define "possession" in a similar fashion, and the recent unpublished case of
State v. Higgins, 2011 WL 181221, seems to adopt the logic of the cases upon which
Flyer is based, although it was decided shortly before
See also State v. Jensen, 217 Ariz. 345, 173 P.3d 1046, 1051 (App.2008). There, the Court seemed sympathetic to the argument that the user knowingly possesses child pornography if the user is aware that "computer ... automatically download[ed] the images onto the hard drive", but not otherwise. In
Jensen, though, the Court didn't have to resolve the question, because the defendant was charged with "receiving" as well as "possessing" the images--and he had confessed to looking at the images when he accessed a child pornography website.
So if the facts are the same, it seems likely that Arizona courts would reach the same result.