Judge Throws Out Child Porn Evidence—Accuses Sheriff of “Reckless” Mishandling

Questions about whether child porn files on a former scoutmaster's computer were temporary Internet files or files the user created deliberately led a Minnehaha County judge to throw out evidence obtained in a case here.

Judge Glen Severson ruled last week that the mere presence of temporary Internet files on former scoutmaster Charles Helland's office computer did not indicate that Helland knew he had child porn on the computer.

First Amendment attorney Lawrence G. Walters said there needs to be more clarity in law to cover this issue and to protect innocent bystanders who don't know they've had child porn slipped into their computers in similar fashion.

"I've had a number of nervous, sobbing individuals call my office asking what the law is on temp files," Walters tells AVNOnline.com. "There has been no clear law on the issue, other than the general requirement in every criminal case that the government can show guilty knowledge."

Severson also ruled that Sheriff's Deputy Marv Thorstenson, who wanted permission to search Helland's office at the Dunham Company, "recklessly misled and misstated" evidence used to justify the search, according to court documents and a published report.

Helland was arrested after a computer repair technician tipped authorities, who subsequently charged him with 20 counts of child porn after finding images of naked children on his office computer. But Severson ruled Thorstenson's affidavit didn't clarify whether the evidence on the computer amounted to temp files—which are created while viewing anything online, including pop-up ad windows. The judge also faulted the warrant for failing to explain the actual nature of the files.

Thorstenson told reporters he never suggested the evidence justifying the search was anything other than temp files.

"The judge thought I should've educated the court on temporary Internet files. I guess in the future I will," he said after the ruling. "I did what I thought was a good-faith thing. I could see where there was some confusion. But I did not recklessly mislead the court."

Chief deputy state's attorney Hope Okerlund Matchan told reporters the state would consider appealing to the South Dakota Supreme Court and added that Helland was being prosecuted not because of child porn on a temporary site but "for being in possession of tangible child pornography."

"Unless you can show [a user] knew what [he was] doing, in cases like this with images that may just appear without their knowledge, that would provide a defense in a criminal case and be difficult to prosecute unless the government had independent evidence that the individual knew," Walters says.

The Severson ruling came at a time when questions about requiring computer techs to report child porn are rising in several areas—and provoking questions as to whether they are really competent to do so.

Manitoba Province in Canada is pondering a law to require techs to report to police if they think they find child porn on computers they service, while Australia requires Internet service providers but not computer techs to report.

In the U.S., Illinois has a state law requiring such computer tech reporting, and several other states are said to be considering similar laws. Many American municipalities require photo shops but not computer techs to report suspected child porn.