Law Enforcement Possession and Distribution of Contraband:
In response to Eugene's post below, about law enforcement possession and distribution of contraband, this post from my now-abandoned solo blog might be helpful. (Unfortunately the comments there are down, but you can get the gist of them — and particularly Marty Lederman's answer — from the update.)

  Here's the key language from Nardone v. United States: according to Nardone, there is an "implied exclusion" for "public officers," "where a reading which would include such officers would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm." It's not really clear to me how this would apply to the McDade case, and I don't know if there are any later cases on how this applies (I haven't found any, but I didn't look very hard.)

  UDPATE: Corey Rayburn Yung has additional thoughts at the Sex Crimes blog.

Related Posts (on one page):

  1. Law Enforcement Possession and Distribution of Contraband:
  2. Releasing Copies of Evidence = Violation of Federal Child Porn Laws?
It's commonly understood that there is an exception to criminal statutes for law enforcements. In some places this is explicit, as in a Louisiana statute which allows as a defense to prosecution for criminal conduct when that "conduct is an apparently authorized and reasonable fulfillment of any duties of public office[.]"

Law enforcement possessing contraband for legitimate evidence-gathering and prosecution purposes is not a crime anyplace, nor is it a crime for judicial officials to possess such materials when introduced into evidence.

I am a skeptic about Genarlow Wilson, and am not willing to dismiss the alleged rape victim as a liar merely because of the acquittal, but this DA seems like an idiot. Handing child porn out to the press to prove you were right about Wilson does seem to violate the law . . .
7.12.2007 4:44pm
Evelyn Blaine (mail):
I seem to remember, very hazily, that Coke discusses this issue somewhere in the Institutes. I think that the case was something about whether the forest laws applied to one (not a permanent officer, IIRC, but part of a posse comitatus) who trespassed while attempting to serve a warrant. The upshot was more or less that ordinary criminal statutes do not apply to those doing the court's business absent specific words to the contrary.
7.12.2007 4:52pm
AntonK (mail):
McDade has been in trouble before:

Defendant McDade would tell a woman employee to walk down the hall so that he could watch her walk from behind. ... On occasion, he made comments about Plaintiff Lewis' legs and that her dress was a "turn-on." ... Defendant McDade also shot rubber bands at the breasts and buttocks of the female employees. ... Defendant McDade lifted the suit jacket of Plaintiff Gerstenberger and looked and pointed at her buttocks. ... On an occasion when a man was being prosecuted who had obtained a penile implant, Defendant McDade carried the implant around the office proclaiming he was larger than the implant

(See Lewis et. al. v. McDade, 54 F.Supp.2d 1332 (1999)).
7.12.2007 5:02pm
BruceM (mail) (www):
The law makes special exceptions for police officers chasing a suspect (with their flashing lights on), ditto for firetrucks responding to an emergency. So there is no "implied exception" it's a specific part of the statutes.

I don't think police should be able to violate the law to enforce the law, especially going after victimless crime. Cops shouldn't be allowed to possess and distribute controlled substances on the side of the street to catch anyone who accepts their offer. The law should apply to everyone. The whole "cops can do whatever they want in the course and scope of their law enforcement job" concept has always bothered me. I'm sure there are cops who, posing undercover in the mafia, have actually killed people before, performing the hit (of a bad guy of course!) to keep up the act, garner the trust of the mafia group he's infiltrated, and keep the act going long enough to nab the largest amount of suspects. Why should cops be allowed to commit murder? No, i don't have a cite to a case of that happening, but I'm sure it has, nor would I be the least bit surprised.
7.12.2007 7:06pm
I can't help thinking of the (possibly apocryphal) story that was told in the US Attorney's office where I used to work. It involved a DEA agent pulled over for speeding on his way to court. He volunteered that he had a package of drugs, explaining "It's evidence." The cop replied "It sure is."
7.12.2007 7:16pm
griftdrift (mail) (www):
I have a question which y'all might be to answer.

Do you know of any cases where child pornography was produced but all the participants were minors?

The theoretical question is posed because some are asking why Wilson wasn't charged with producing child pornography. The Georgia statute merely says "person" with no distinction for age. I can't find any other case where someone would have been prosecuted when everyone was under age.

7.13.2007 4:10pm
I'm not a lawyer, but I am extremely skeptical of McDade's "Open Records" defense.

What's to stop someone from filing requests for every bit of video/photo evidence in every child-porn prosecution in the state of Georgia?

If the DA legally had to provide it, the state of Georgia could very well become the country's largest distributor of child porn.
7.13.2007 10:26pm