New Court Ruling Attempts to Limit Defense to Possession of Child Pornography

San Francisco Child Pornography Lawyer

IS CHILD PORNOGRAPHY IN YOUR COMPUTER CACHE OR TEMPORARY FILES CONSIDERED POSSESSION UNDER PC 311.11?

A violation of California Penal Code Section 311.11 is the misdemeanor of knowingly possessing or controlling child pornography in California.

This statute does not address viewing child pornography, but makes it illegal to knowingly possess any images of child pornography.

The Third Appellate District in California has recently addressed the issue of whether cache or temporary files with images of child pornography can be sufficient to constitute possession. This was done in the case of Tecklenburg v. Appellate Division; 2009 DJ DAR 377; DJ, 1/12/09. In California, temporary internet files or deleted hard drive files can lead to a finding that the defendant possessed child pornography images under PC 311.11.

The Ninth Circuit previously considered the issue of whether cache files with child pornography images were possession under the federal statute. (See United States v. Kuchinski (9^th Cir. 2006) 469 F.3d 853). The court determined that if a defendant does not know about the cache files and there is not other evidence of dominion and control over such images, then the defendant cannot be found guilty of possession. While some state courts have followed this rationale, the appellate court in the Tecklenburg case has now distinguished Penal Code section 311.11 from its federal counterpart.

The Third Appellate District in Tecklenburg explains that the plain language of Penal Code Section 311.11 "prohibits either possession or control of any child pornography." The court determined that while the federal statute prohibits the possession of "material containing images of child pornography", the California statute is broader and "makes it directly illegal to knowingly 'possess or control' any 'image' of child pornography."With this rationale, cache files can be used as evidence that a defendant knowingly viewed websites, navigated those websites, and possessed or controlled images of child pornography from those websites.

While under the federal statute and many state statutes, cache files cannot alone constitute dominion and control of child pornography material, this California court has determined cache files can be evidence of possession of child pornography images under Penal Code Section 311.11. Temporary internet files or deleted files on a hard drive containing pornographic images of children under the age of eighteen may provide a basis for possession of child pornography in California.

ContactThe Law Offices of Seth P. Chazin immediately at 1-800-242-1514 if you have any questions about any issue related to this.