Miami Shores Child Pornography Lawyer

Possession of child pornography

Child pornography is defined as a visual depiction that includes a minor engaging in sexual activity. An individual possesses an illegal item if he or she has the item in an area that is within his or her control. A defendant may be convicted under state or federal law if he or she has actual or constructive possession of one or more sexual depictions of a minor.

Actual possession is what most people think of when they imagine a possession charge. Examples of actual possession include:

• stashing a flash drive that contains illegal images directly onto your body
• storing a smartphone that has a sexual image of a minor stored on it in the defendant’s pocket or in another compartment in the defendant’s clothing
• carrying a bag that contains a laptop that has child pornography on its hard drive
• placing an external drive that contains child pornography on it directly under your seat while in your car

Constructive possession refers to items that are stored in areas that are within the defendant’s control even if they are not physically close to the defendant. Examples of constructive possession include:

• keeping a flash drive that contains child pornography in your assigned locker at work
• keeping a laptop that contains child pornography in your locked desk drawer at work
• storing an external drive that contains child pornography in your bedroom closet at home
• keeping a storage drive that contains child pornography in your personal lockbox at the bank

Prosecutors have more difficulty proving constructive possession when the illegal item is found in an area that is accessible by multiple people. For example, if the police found a phone that contains a sexual image of a minor in your unlocked mailbox at a home you share with two roommates, proving that you constructively possessed the images on the phone is much more difficult. Your Miami Shores child pornography lawyer will challenge constructive possession if you never truly possessed the illegal item.

Prosecutors charge one count of possession for every image the defendant is accused of having in his or her possession. If the defendant is convicted for possessing 800 sexual images of people who are younger than 18, the court may convict the defendant up to the maximum sentence of each of the 800 counts separately. Possession of child pornography is a third-degree felony offense, which carries a maximum sentence of five years in prison and a fine of up to $5,000. If a defendant is convicted for possessing 800 sexual images of minors, the defendant may be sentenced to up to 4,000 years in prison and ordered to pay a fine of up to $4,000,000.

PRESUMPTION OF THE INTENT TO PROMOTE CHILD PORNOGRAPHY

A unique feature in Florida’s child pornography possession law is the state’s ability to escalate a possession charge to promotion. If a defendant possesses three or more copies of a sexual depiction of a minor, a Florida court may presume the defendant’s intent was to promote child pornography.

Promotion of child pornography

Florida’s law that addresses the promotion of child pornography is written vaguely enough to allow prosecutors to bring a promotion charge against a defendant who possesses just one sexual depiction. An individual may be charged for promoting child pornography whether he or she sends one sexual image of a minor via email, posts a link to a website that contains multiple images of minors who are engaging in sexual activity, or transmits thousands of sexual images of minors through a peer-to-peer file sharing network. Promotion of child pornography is a second-degree felony offense. If convicted, the defendant may be sentenced to a maximum of 15 years in prison and ordered to pay a fine of up to $10,000.

Miami Shores chat room charges

It is not uncommon for federal, state and local law enforcement agencies to conduct online sting operations to monitor online spaces for child pornography-related activity. During a sting operation, law enforcement officers go undercover to pose as people who have an interest in child pornography. The undercover officer may pretend to be someone who is looking to buy child pornography, sell child pornography, or solicit other adults to get access to minors for the purpose of producing child pornography. Law enforcement agents also pretend to be vulnerable minors on the internet in chat rooms and other areas adults who are looking to prey on a minor may frequent. Some areas in which the police conduct child pornography sting operations include:

• online chat rooms
• Web forums
• message boards
• peer-to-peer file transfer sites
• social media groups
• online classified ads

Undercover law enforcement officers engage with people to gather information about people who have an interest in child pornography. They frequent areas in which there is suspected child pornography-related activity. The undercover agent may offer to make transactions or express a general interest in illegal materials that depict minors. They try to infiltrate communities that buy, sell, view, and produce child pornography to determine the different actors and their roles in the crime. Once the law enforcement agency has gathered enough evidence, the police will typically conduct one or more raids to seize additional evidence and make arrests to interview people the police suspect may be involved in criminal activity.

Even during sting operations, law enforcement agencies are required to follow certain rules. Police officers are prohibited from doing anything that may induce someone to engage in criminal activity. For example, an undercover law enforcement agent cannot send an unsolicited sexual photo of a minor to someone online and then arrest the person for possessing child pornography. Other ways law enforcement officers may erroneously induce people to commit crimes include:

• deceiving the other person by telling him or her that prohibited conduct is not illegal
• misrepresenting the age of an underage person who is in a sexual photo
• threatening someone to induce the person to engage in illegal activity
• using violence to get someone to engage in illegal activity

If you are facing a chat room charge after an undercover police officer induced you to engage in a crime, your Florida defense lawyer may be able to argue entrapment. Criminal courts may not convict a defendant if the court finds that law enforcement used entrapment to induce the person to behave illegally.

Use of a child in a sexual performance

Anyone who employs, authorizes, or induces anyone who is younger than 18 years old to engage in a sexual performance may be charged with Use of a Child in a Sexual Performance. Parents, guardians, and custodians may also be charged if they authorize or give permission for a child who is under their supervision to participate in a sexual performance. Florida courts do not require the guardian or custodian to be supervising the child in an official capacity. Therefore, people who have no familial or legal relation to the child may be convicted even if they are only temporarily supervising the child in an unofficial capacity.

Use of a child in a sexual performance is a second-degree felony. If convicted, the defendant may be sentenced to up to 15 years in state prison.

Transmission of materials harmful to a minor

Florida law also prohibits the act of using electronic means to send sexual materials to a minor. The state law against transmitting materials that are harmful to a minor does not list specific types of materials that are harmful to minors, but the statute is generally used in cases in which an adult sends sexual materials to someone who is under 18 years of age. According to the statute, materials that are harmful to minors depict nudity, sexual conduct, or sexual excitement, and the content of the material:

• primarily appeals to the prurient, shameful, or morbid interest
• is patently offensive
• is without literary, artistic, political, or scientific value

The statute refers to materials that are specifically sent to someone who is underage. A defendant who publicly posts materials that are harmful to minors in an area to which minors have access is unlikely to be convicted for transmitting the materials to a minor.

Mandatory minimum sentencing in Miami Shores child pornography cases

Many federal and state sex crimes have mandatory minimum sentences. For child pornography offenses, mandatory minimum sentencing guidelines call for a judge to automatically impose a minimum prison sentence if a defendant is convicted. There are certain situations in which a judge may be able to deviate from the mandatory minimum sentence. Your Miami Shores child pornography defense lawyer can help you understand whether mandatory minimum sentencing is applicable to your case and explore whether you may qualify for an exception.

Miami Shores child pornography defense attorney

You don’t have to fight a child pornography charge alone. Joffe Law is one of Florida’s leading child pornography defense law firms. We have decades of experience in standing up for the rights of the accused of Florida child pornography cases. If you have been contacted by federal, local, or state law enforcement regarding a child pornography case, we recommend consulting a Florida defense lawyer before having any communication with a law enforcement agency. Contact the dedicated team at Joffe Law to receive a case evaluation and to learn more about your legal options.