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December 12, 2013
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Jim Porter: Computer repair tech finds child porn

Seventy-six-year-old Donald Thomas Tosti took his computer to a CompUSA store for service. While working on the machine, employee Seiichi Suzuki discovered pornographic images of children in a sub-folder. He called the police.

Unfortunately for Tosti, there were folders and sub-folders filled with graphic images of naked children and adult men. I’ll leave it at that.

Two detectives arrived and went through the materials Suzuki had seen. They prepared an affidavit for a search warrant of Tosti’s computer, office and residence, which was issued by a Marin County judge.

Four years later Tosti was arrested. (There’s no explanation in the Opinion why nothing happened for four years.) Tosti was convicted of possession of child pornography and sentenced to eight years in prison and five years of supervised release plus $50,000 restitution.

At 76, that’s pretty close to a life sentence.

CHILD PORN

Tosti appealed the federal court conviction arguing Fourth Amendment illegal search and seizure. Even I could figure out he would lose.

Indeed, because Tosti had turned his computer over to CompUSA, and it had been reviewed by Suzuki, he had voluntarily surrendered his expectation of privacy.

The search by Suzuki, then the police was not a “search” under the Constitution. If the cops had explored additional computer contents not seen by Suzuki, that portion might have been illegal.

The lesson is clear. Do not take your computer in for repairs if there is something in there you don’t want others to see. And for the same reason, be careful what you throw out as trash. It will be seen by others.

SEARCH WARRANT

Tosti also appealed his conviction arguing the search of his home and home-office was unconstitutional. Not the warranted search, but a later search when officers returned to Tosti’s home, and his (later ex-) wife, ushered the officers in, even showing them pornography she had found in Tosti’s belongings.

Mrs. Tosti turned over Mr. Tosti’s Dell computer and of course you know what the police found.

CONSENT TO SEARCH LAW

Here’s the law on someone else consenting to search your space. “It is well established that a person with common authority over property (think Mrs. Tosti) can consent to a search of that property without the permission of the other persons with whom he shares that authority.” Roommates can allow officers to search, as can wives.

The lesson there: Be careful who you marry and who shares your apartment, especially the first.

SENTENCE TOO SEVERE

Tosti’s third argument before the Federal Court of Appeals was that eight years in prison was too long — as he had suffered four heart attacks, had an artery stint, suffers from diabetes, hypertension, heart disease, thyroid disease, kidney disease and was taking 22 medications daily. That’s more than I take.

Judges may reduce sentences for various reasons, including age and extraordinary physical impairment.

Not this trial judge. The Court of Appeals upheld the eight-year prison sentence as Tosti “pushed the aggravating circumstances to the limit.”

The sheer volume of the pornography he had collected was immense as was the sadistic nature of images, as the court wrote.

I don’t believe we’ll be seeing Tosti any day soon.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com.


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Tahoe Daily Tribune Updated Dec 12, 2013 05:53PM Published Dec 12, 2013 12:20PM Copyright 2013 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.