If the police tell you that they found child pornography on a cell phone, tablet, laptop, or other electronic device that you own, you must take the situation seriously. It won’t even take a conviction to put your name in the news. Unfortunately, just being charged will cause a media frenzy. The possession of child pornography is a felony, and you need an experienced attorney to help you understand your rights.
How does law enforcement trace child pornography back to a cell phone?
Typically, the police will be alerted to child pornography on a cell phone in one of three ways. Law enforcement will either:
- track an electronic transmission such as an email, a text, or a download,
- be alerted by a third party that child pornography is, or may be, on a cell phone, or
- find explicit images of minors on a cell phone as part of a search warrant.
The federal case United States v. Morton recently brought attention to child pornography and cell phones. In 2018, a 36-year-old man from Palo Pinto County was charged in federal court with using interstate commerce to receive images of a minor engaged in sexual activity. His cell phones were confiscated as part of a traffic stop, during which officers found drugs. In 2021, his conviction was appealed and vacated when the judge found that “the officers’ affidavits do not provide probable cause to search the photographs stored on the defendant’s cellphones.”
Are all nude photographs or videos of minors considered ‘child pornography’?
No, not necessarily. Texas Penal Code Section 43.26 defines child pornography as “visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct.”
According to Section 43.25, “sexual conduct” means “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.”
Can law enforcement confiscate or search my cell phone?
In order to take any of your possessions, the police must either have your consent or a valid search warrant. If the police want you to voluntarily hand over your phone without a search warrant, tell them, “No” and contact an attorney. Law enforcement is trying to build a case against you and you must act quickly to protect your legal rights.
If the police presented you with a search warrant and subsequently took your phone, you’ll also want to seek legal counsel right away. Law enforcement uses many tactics to get people to talk, but do not answer any of their questions. They may try to intimidate or scare you. Or, they’ll make it sound like you’ll benefit if you answer their questions, but you will not. “Anything you say can and will be used against you in the court of law,” is more than a catchy phrase from TV shows. It’s the reality of the legal system, so invoke your right to remain silent.
An individual took my phone and gave it to the police. What should I do?
No one has the right to take items of yours without your permission. Not a friend, a family member, or a “concerned citizen.” As mentioned above, even the police need your consent or a valid search warrant.
If an individual took your phone without your consent and handed it over to the police, it is wise to contact an attorney right away. You have a right to privacy, which has been violated. Also, the person who took your phone could be charged with theft or another crime. And lastly, when your phone was out of your control, it may have been tampered with. You’ll need an attorney to represent you through this complicated situation.
What if the cell phone belongs to a minor?
In Texas, it is illegal for anyone–even minors under the age of 18–to knowingly create, possess or distribute child pornography. Children and teenagers won’t face felony charges, but they could face misdemeanor charges under Section 43.261. Electronic Transmission Of Certain Visual Material Depicting Minor.
A minor may be exempt from charges under Section 43.261 under the following circumstances:
- They received unsolicited images from another minor and deleted those images “within a reasonable amount of time.”
- A minor may create and share intimate images with their spouse.
- Two minors who are in a close-in-age dating relationship of “not more than two years older or younger” may also create and share such images with each other.
A misdemeanor charge in juvenile court is nothing to brush off. Minors with a criminal record may face barriers when applying to jobs and post-secondary education institutions.
What’s at stake for adults who face child pornography charges?
If child pornography is found on your cell phone, you could face state or federal felony charges. The sentencing for a child pornography conviction is:
- Jail time and fines. State punishments are set forth under Chapter 12. Punishments. The federal sentences for child pornography are generally harsher.
- Having to register on both the National Sex Offender Public Website and the Texas Public Sex Offender Website. These databases include an offender’s photograph, place of residence, and information about the crime they were convicted of.
A conviction can make it difficult to get a job, as you could lose your professional licenses and be banned from working in certain industries. A conviction also has intangible consequences, such as a social stigma against crimes that involve children, alienation from family and friends, and being prohibited from contacting your minor children. And, many landlords will not rent to someone with a felony conviction.
Child Pornography Defense Attorney in Plano, TX
The court system takes child pornography charges seriously. This is not the time to choose a random criminal defense attorney out of the phone book. You need an aggressive attorney who has experience with these types of charges, someone who is competent to represent you, whether your case is heard in state court or federal court.
Attorney Kent Starr has handled tough child pornography cases just like yours. He is happy to sit down with you and go over the outcomes of these cases, which are all a matter of public record. And unlike other attorneys, he’s not afraid or hesitant to go to trial. Sometimes, putting the facts in front of a jury is exactly what your case needs. Mr. Starr will not merely accept the first plea deal that is offered to you, when it is not in your best interest. His past clients are overwhelmingly pleased with the outcomes of their cases. Just take a look at Attorney Kent Starr’s Google rating, 4.9/5.0 with 220+ reviews (as of June 2021).
In addition to being an experienced criminal defense attorney, Mr. Starr also has the advantage of being a bail bondsman. One call will get you out of jail and start your legal representation. To schedule your free consultation, call Starr Law, P.C. today at (214) 982-1408 or contact us online.
Related Articles
What is the Sentencing for a Child Pornography Conviction?
What Happens If You End Up on the Sex Offenders List in Texas?
Citizen’s Guide to U.S. Federal Law on Child Pornography
Sources
Texas Penal Code Section 43.25, Section 43.26, Section 43.261 , and Chapter 12. Punishments
