HOLLIDAYSBURG - Blair County Judge Timothy M. Sullivan has refused to suppress evidence in a child pornography case in which the alleged perpetrator claimed his privacy rights were violated by America Online and police.
The suspect is Garry L. David, a 70-year-old Altoona resident who faces charges of possession of child pornography and displaying obscene/sexual materials.
David, the charges state, was the owner of an AOL account. On Feb. 21, 2010, he is alleged to have sent nine images containing child pornography to his account.
Unlike many cases in which police track the distribution of child pornography, AOL discovered the images and notified the National Center for Missing and Exploited Children.
That organization reported it to The Pennsylvania Internet Crimes Against Children Task Force, which obtained a court order asking Atlantic Broadband to reveal the AOL user.
By that point, five months after the images were discovered, the case was assigned to Trooper Kevin Garhart of the Pennsylvania State Police at Hollidaysburg.
He obtained a warrant to examine two computers taken from David's residence and discovered child pornography, according to the charges.
David, through his Altoona attorney R. Thomas Forr Jr., asked that the evidence gathered by Garhart be suppressed, which would mean they could not be used against him at trial.
A search can be challenged if there is a "legitimate expectation of privacy," Sullivan concluded.
The defense contended that the search of David's home and computer violated his rights under the Pennsylvania Constitution.
Also cited by the defense was an opinion by a 9th U.S. Circuit Court of Appeals judge that stated computers "are the most private spaces" and that privacy was important due to the "plethora of embarrassing and tragic secrets contained on one's computer."
Sullivan, in a nine-page opinion, found nothing wrong with the investigation and the way the evidence was collected.
He said that AOL has a legal duty to report child pornography to the National Center for Missing and Exploited Children.
That organization, he said, has a similar duty to pass along the information.
He found that the dissenting opinion by a 9th Circuit judge does not apply in Pennsylvania, and he upheld the search warrant obtained for David's computers by Garhart.
The defense complained that by the time Garhart got around to executing the search warrant, nine or 10 months had passed. The defense argued the alleged pornographic material by that point was "stale."
Sullivan said that during a hearing in the case, Garhart admitted the time lapse was longer than normal but he pointed out the trooper was a forensic examiner for computer crimes covering seven counties.
The judge stated, "staleness does not depend on the length of time between discovery of the crime and the issuance of the warrant."
He also ruled that the fact AOL cooperated with police in investigation of pornography does not make it an "instrument of the state."
"Finally, users who subscribe to AOL agree to the AOL terms of service, which indicates that subscribers agree to use AOL services in compliance with applicable laws and not participate in illegal activities," Sullivan stated.
David's next appearance in court will be on April 7 when he will be scheduled for trial.