Access to evidence, legal advice appreciated

[Eleven]

I am NOT a lawyer. My understanding is that discovery only applies if you have been charged. If its an ongoing investigation, good luck. Either way this dude NEEDS a lawyer yesterday. No matter what (guilty/innocent/charges pressed/case dimssied) the ex WILL be using this against him for her sole custody claim. I guarantee it.

 

[Q_Sertorius]

I am NOT a lawyer. My understanding is that discovery only applies if you have been charged. If its an ongoing investigation, good luck. Either way this dude NEEDS a lawyer yesterday. No matter what (guilty/innocent/charges pressed/case dimssied) the ex WILL be using this against him for her sole custody claim. I guarantee it.

Yes, discovery doesn’t begin until after the suspect is charged. He doesn’t have a right to the evidence until then. And in some state systems, that can be fairly late in the process.

 

[thinhorn_AK]

I am NOT a lawyer.

once you become a WKR, you can pretend to be one though.

 

[Matt5266]

Correct I was stating as if he was charged.

 

[Burnsie]

First thing I thought of was the Ex could have made the accusation to the police, knowing that even being suspected and/or investigated for CP would trash his chances for custody of his child. Custody battles can get vicious.

 

[Q_Sertorius]

First thing I thought of was the Ex could have made the accusation to the police, knowing that even being suspected and/or investigated for CP would trash his chances for custody of his child. Custody battles can get vicious.

Yes, this is one definite possibility. Especially when people are going for sole custody. Trying to take a woman's kids away puts her in a totally irrational state (irrational even for a woman). Expecting a person to behave morally and honestly in that situation is like expecting a cornered rat to just lie down and die.

When I went through my divorce, I wasn't thinking of seeking sole custody, but my extended family wanted me to do that. So, I asked about it. My lawyer heard all the things I had to say about my ex- (none of them in the realm of child abuse, dangerous criminal behavior, or hard drug addiction). Then she calmly informed me that "hell hath no fury like a mother defending her young" and told me that even if everything I said was true, I shouldn't consider seeking sole custody. Because if I did, I would almost certainly get hit with false accusations of spousal abuse, marital rape, molesting my step daughters, etc. Even if I proved it was all a lie, the taint would linger around me forever. And that, unless it was truly a matter of getting my daughter out of the hands of an abuser, it wasn't worth the misery. So, we agreed to joint custody and I ended up caring for my daughter 80% of the time while her mother went off and did her own thing.

 

[intunegp]

I doubt they were "stock" photos, I guess they could be but if they are asking his wife about them, then there was probably a reason they were associated with the guy. I'm no expert but I've seen very similar situations play out. people claim innocence (obviously, its a vile crime that will and should ruin your life) there's going to be all sorts of stories, excuses, but eventually it comes out that the person was in fact involved in this sort of thing.

I just highly doubt that they got some random pics off the internet and showed them to the guys wife. There's a reason they had those pics. he'd wither downloaded them, shared them or worse...

I think the implication, since OP told us that the mother has family in law enforcement, is that the father is being setup by the mother and her family so that he has no chance of getting custody of the child.

If they asked the wife if the pictures were associated with him and she said "Oh God yes that's his little cousin/niece/nephew/neighbor's kid/etc." would they have let him out of jail with no charges? Based upon that it seems like the answer to whether the wife knew any of the people in the pictures was no.

Additionally, just because they showed the wife pictures of naked people doesn't mean those naked people were underage. Could have very well been some random porn off the internet with the claim that the person was younger than they actually are.

 

[Chris in TN]

Additionally, just because they showed the wife pictures of naked people doesn't mean those naked people were underage. Could have very well been some random porn off the internet with the claim that the person was younger than they actually are.

Given what has been told here thus far, the dad could be guilty of something, the mom could be guilty of something, both could be guilty of something, both could be innocent (at least of the matters at hand). This could go a lot of different ways. OP's friend needs a lawyer, yesterday, and OP himself needs to be prepared for this going ways he didn't expect.

 

[MNGrouser]

The jurisdiction matters but some over-arching principles to keep in mind. Cops need probable cause to arrest. You can be held on P.C. for a period of time before you need to either be seen by a judge or released. Prosecutors can, and do, over-rule cops' decisions. A police officer may believe he or she has enough to bring charges but the prosecutor can always trump them. The person whose job it is to prove the case beyond a reasonable doubt in court has the final say.

I agree with those who say it is unlikely that law enforcement got some random photos to try and bluff the fiancé. That would be a pretty ballsy move by the cops and I don't really see the opportunity for gain. Your friend should be entitled to a search warrant and inventory of what was seized. Search warrants do not issue but upon the showing of probable cause. Either they had something solid making them think your friend would be up to no good or they lied to a judge. I know a lot of cops, I know all cops are not created equally, but I know of no cops who would risk their career/livelihood/liberty to harass someone in a custody dispute.

There is lots more to this story than we know now nor likely ever will.

 

[glock233]

Get a lawyer with experience with these type of potential charges.

 

[thinhorn_AK]

I think the implication, since OP told us that the mother has family in law enforcement, is that the father is being setup by the mother and her family so that he has no chance of getting custody of the child.

If they asked the wife if the pictures were associated with him and she said "Oh God yes that's his little cousin/niece/nephew/neighbor's kid/etc." would they have let him out of jail with no charges? Based upon that it seems like the answer to whether the wife knew any of the people in the pictures was no.

Additionally, just because they showed the wife pictures of naked people doesn't mean those naked people were underage. Could have very well been some random porn off the internet with the claim that the person was younger than they actually are.

Ever watch "to catch a predator'. those guys are actively seeking out children when they are arrested, they are booked and let go until their trial. That show literally shows it.

I find it hard to believe the law enforcement agents involved here would be willing to be so blatantly crooked that they would detain somebody because their sister or whatever said something like that. seem like they would do an investigation and not pull the guy until there was proof. Maybe I'm giving law enforcement too much credibility but if that's what they did, they should all lose their jobs.

It just docent make sense that they would have some stock pictures on hand "just in case'.....

 

[intunegp]

Ever watch "to catch a predator'. those guys are actively seeking out children when they are arrested, they are booked and let go until their trial. That show literally shows it.

I find it hard to believe the law enforcement agents involved here would be willing to be so blatantly crooked that they would detain somebody because their sister or whatever said something like that. seem like they would do an investigation and not pull the guy until there was proof. Maybe I'm giving law enforcement too much credibility but if that's what they did, they should all lose their jobs.

It just docent make sense that they would have some stock pictures on hand "just in case'.....

Yeah, and based on what we have been told, the guy wasn't booked and let go, he was held in jail overnight then released with no charges.

I don't find much of anything hard to believe anymore. If a headline popped up tomorrow that said "Cops falsely arrest man on child abuse claims by baby-mama" would it really be so unbelievable? I feel like I see crazier stuff than that every day.

Again, "pictures on hand just in case" could be anything. Literally anyone in the world can have a naked woman on the screen of any phone in a matter of seconds. I don't know about you, but if you put a 16, 18, 21, and 25 year old woman in a lineup I couldn't confidently tell you which was which.

I don't have an opinion on this deal either way, I'm just throwing out possibilities.

 

[thinhorn_AK]

Yeah, and based on what we have been told, the guy wasn't booked and let go, he was held in jail overnight then released with no charges.

I don't find much of anything hard to believe anymore. If a headline popped up tomorrow that said "Cops falsely arrest man on child abuse claims by baby-mama" would it really be so unbelievable? I feel like I see crazier stuff than that every day.

Again, "pictures on hand just in case" could be anything. Literally anyone in the world can have a naked woman on the screen of any phone in a matter of seconds. I don't know about you, but if you put a 16, 18, 21, and 25 year old woman in a lineup I couldn't confidently tell you which was which.

I don't have an opinion on this deal either way, I'm just throwing out possibilities.

I get that, and I know there are crooked cops everywhere but to arrest somebody because a relative (of the cop) just said something would be pretty brazen, even for say a small town police chief. You are right that anybody can find photos at any time, but it would be really strange to pull up random photos and use them to question somebody. Id say its more likely they used IP addresses and stuff like to see exactly what somebody was looking at.

 

[CorbLand]

I would be talking to a lawyer even if it was only for reasons.

1. Pretty sure you always have the right to an attorney. If that was denied, there’s a lawsuit.
2. If the cop showed a random person CP, you may have a lawsuit against the agency for distribution.

Not a lawyer. Not even close but both of those seem odd to me.

 

[timberland]

I get that, and I know there are crooked cops everywhere but to arrest somebody because a relative (of the cop) just said something would be pretty brazen, even for say a small town police chief. You are right that anybody can find photos at any time, but it would be really strange to pull up random photos and use them to question somebody. Id say its more likely they used IP addresses and stuff like to see exactly what somebody was looking at.

So I am assuming they would have IP addresses that they have him connected to in some form or fashion, but not enough evidence to files charges. But he doesn't have access to any of that information, nor was he questioned, or allowed a lawyer. And who knows how long ago, as he has had other roommates, guests, etc. I would think the investigators would want to know who had access at specific times and locations??

 

[go_deep]

So I am assuming they would have IP addresses that they have him connected to in some form or fashion, but not enough evidence to files charges. But he doesn't have access to any of that information, nor was he questioned, or allowed a lawyer. And who knows how long ago, as he has had other roommates, guests, etc. I would think the investigators would want to know who had access at specific times and locations??

They track the MAC address, every device has a unique MAC address, every single device that is internet capable. You can take your smart phone to Africa, and they can track that device there if it's on the internet.

I do court ordered MAC address searches a handful of times a year.

 

[Jason Snyder]

Last week someone I am close to had the following happen:
Background is that he has joint custody with the mom, but they have never been married. He has a conviction from about 8 yrs ago, but has not had any issues, is off parole, and has been a great Dad. The mom has family in law enforcement has a personal friend that is an investigator. My friend and her don't get along, and both are trying to get sole custody.

Last week he was picked up by the local PD, they told him he was not arrested, but he was put in jail overnight, the jail roster said he was arrested for charges of child pornography.

Weird. If you are taken to jail you must be booked on formal charges, aka “arrested”. Based on the jail roster, it sounds like he was indeed arrested.

right after they picked him up, they entered his house (they had a search warrant) and confiscated all his electronics. This is based on a tip they received. His fiancé was called at work and told her she needed to get home ASAP, where she was interviewed by the PD, and was shown pictures, was asked if they knew anyone in the pictures, and stated that if there was enough evidence to make the "non-arrest" that there would be charges filed and he was looking at a significant prison sentence, and that the fiancé needed to get her affairs in order, was referred to a victims support, etc.
The next morning he was released after the DA and/or Prosecutor decided not to charge him.

The prosecutor can decline to charge the suspect following an arrest.

He asked multiple times for an attorney and was denied. All he was told is that its an ongoing investigation, and they would be in touch.

This is a civil rights violation. See Miranda v Arizona.

So now his life is in turmoil, public documents showing he was arrested for child porn, worried that he's going to lose the kids and his fiance, has no access to how or why this happened. One of the PD officers said that this has happened before (I suspect with chasing IP addresses, etc.)

He is contemplating pursuing legal action. Do you think he would have a case?

It would depend on if the officers made the arrest in good faith. If it was negligent and lacking in probable cause then yes. There is also the denial of counsel. There are a lot of what ifs here that can vary widely depending on specific circumstances and context.

what would you do? The whole deal sounds pretty fishy. This is in a small town, where everyone knows each other, too.

I would immediately retain an attorney and I would shut my mouth.

 

[Beaveralum]

Don’t take this the wrong way, but I highly doubt your buddy is telling you the full truth. Secondly he needs a lawyer immediately, weather he is guilty or innocent. Third, he may not get access to discovery but he could request a copy of the police reports as they are public record.

 

[thinhorn_AK]

At a minimum, I’d let that guy worry about his own lawyer and I’d distance myself from him.

 

[Jason Snyder]

If charges are filed, the defense will file a request for discovery after the initial arraignment hearing. The defendant will enter a plea at the arraignment hearing.

If the defendant pleads not guilty the discovery request is filed and the prosecutor must turn over all reports, statements, and any other evidence intended for use in the prosecution.

If no charges are filed the case reports would be available via FOIA/PDR records requests.