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David Moraghan, of Torrington, Conn.’s Smith, Keefe, Moraghan & Waterfall, said that the court appears to have carved out a computer exception to the Fourth Amendment’s search and seizure prohibition. As members of the federal government last week raved about recent successes in putting child pornography subscribers behind bars, local prosecutors were strategizing on how to keep them there. Out of the 96 people arrested in the past few weeks as the result of a national effort to erode the market for child porn in an undercover sting known as “Operation Avalanche,” three Connecticut residents, including a teacher, are now facing prosecution. A state probation officer, Peter Roesing, was arrested as part of the same sting last September. Roesing was charged with 50 counts of possession, and three counts of importing child pornography after allegedly trying to purchase material concerning “preteen Lolitas.” According to court documents, Roesing allegedly had been a regular subscriber to a Texas-based child pornography Web site and was arrested when he contacted a “local provider” to purchase child pornography materials. Unfortunately for Roesing, the local provider turned out to be members of the Connecticut State Police Computer Crime Lab unit, who participated, along with other states, in the nationwide sting. The sting began shortly after May 1997, when the FBI designated agents to work in 56 field offices across the country as Crimes Against Children coordinators. According to Sgt. Andrew Russell, a member of the Connecticut State Police and an attorney, the sting first targeted a Texas Web site containing child pornography, which was seized along with a customer listing of e-mail addressees and credit card numbers used to purchase access to the site. After the site was shut down, the federal and local law enforcement agencies went after known subscribers in 30 states, including Connecticut. Two others have cases pending in the state as a result of the sting — Viktor Deak, a Hamden art teacher who is being prosecuted by the Ansonia/Milford Judicial District and auto mechanic Michael Buonocore of Meriden, who is being prosecuted by Senior Assistant State’s Attorney John Blawie. Blawie, who works on a statewide prosecution team, is also handling the Roesing case. Russell said the local arrests had some judges, prosecutors and other members of the legal community charting new legal territory. “It will be interesting to see how [they] handle these cases,” Russell said. Department of Public Safety Attorney Monique Mattei, said such cases present issues that have not been addressed yet in the local courts. For instance, computer crimes that have interstate nexuses and that involve obtaining evidence, especially through search warrants, from out-of-state jurisdictions — such as with America Online in Virginia or Microsoft in Washington — can prove tricky. On July 19, 2001, Superior Court Judge Alexandra DiPentima denied a motion to suppress evidence obtained in the search of Roesing’s home. His defense attorneys, David Moraghan and Joseph Keefe, both of Torrington’s Smith, Keefe, Moraghan & Waterfall, argued that the search warrant was insufficient on its face for lack of probable cause and was defective because it contained no allegations that Roesing downloaded or received child pornography. They also said the warrant was stale because several months had gone by between the time Roesing placed an order for access to the pornography and the time a warrant was signed for his arrest. In addition, they argued that the Connecticut Constitution provides greater protection of homes than the U.S. Constitution’s Fourth Amendment, an argument rejected by the judge. “It seems like the court carved out a computer exception to the Fourth Amendment,” Moraghan said. Moraghan said what hurt his client was that Roesing first placed an order for the “preteen Lolitas” but then tried to cancel it three days later, an act which DiPentima found was enough evidence of attempted possession. In her decision, DiPentima wrote the issue of probable cause as to the “location of the items sought ” was “ troubling to court.” DiPentima said the warrant contained no facts for the issuing judge to reasonably infer that the defendant downloaded or ordered any material from the seized Texas Web site and no facts that Roesing actually received child pornography from the Web site operated by the state police. Blawie argued there were sufficient facts to support a finding of probable cause for attempted possession of child porn. DiPentima agreed, writing that no evidence of downloading or actual receipt of pornography was necessary for a finding of probable cause for attempted possession. The defense attorneys have since filed a motion for reconsideration, to which Blawie has objected.

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