Commonwealth v. Kaupp

899 N.E.2d 809, 453 Mass. 102, 2009 Mass. LEXIS 14
Massachusetts Supreme Judicial Court·Decided January 16, 2009·Published·Cited by 38 cases

Opinion

Spina, J.

The defendant was convicted of possession of child pornography in violation of G. L. c. 272, § 29C. On appeal he asserts error in the denial of his motion to suppress child pornography found on his computer because (1) the warrantless seizure of his computer was unlawful; (2) the affidavit in support of the search warrant did not furnish probable cause to believe that his computer contained child pornography; and (3) the search of his computer over a period of months was unreasonable and in violation of G. L. c. 276, § 3A. We granted the defendant’s application for direct appellate review. Because we conclude that the search warrant authorizing the search of the defendant’s private files was not supported by probable cause that they contained child pornography, we vacate the order denying his motion to suppress and reverse the judgments of conviction.12

1. Warrantless seizure. We summarize the findings of the motion judge, supplemented by uncontested testimony from the motion hearing.

On May 21, 2002, James Smyth (James), a teacher and the technology director at the Northeast Metropolitan Vocational High School (high school) in Wakefield, was informed that an unauthorized computer named Joester7437 (Joester) was connected to the high school’s network. James directed Holly Shep-ardson (Shepardson), a network specialist at the high school, to investigate Joester’s contents and physical location on the high school’s premises. From her computer, Shepardson accessed Joester’s open share on the high school’s network.3 There, Shep-ardson found hacking tools, games, and pirated movies, and [104] reported the same to James, prompting him to report the breach to a school administrator. Shepardson continued to examine Joester’s open share and found a file titled “15 and 9 year old naked girls” that depicted pornographic images of two females, one of whom appeared to be in her late teens and another who appeared to be between nine and twelve years old. While James was apprising vice-principal Theodore Nickole of the breach, Shepardson informed them of the pornography she had found in Joester’s open share. James subsequently accessed Joester’s open share and observed a pornographic image of a girl around ten years old. Officer Matthew Maglio, an officer assigned to the high school, also was present. After learning that child pornography had been found on Joester’s open share, Officer Maglio contacted the Wakefield police department for assistance.

Shepardson then reported Joester’s presence on the network to Timothy Smyth (Timothy), James’s son and the high school’s network manager. While trying to ascertain Joester’s physical location within the high school, Timothy detected what appeared to be five unauthorized computers on the school’s network.* 4 Within one hour, Timothy told James that he was “fairly certain” that the unauthorized computers were located in the electronics shop where the defendant was an instructor.

On the advice of James and before the police arrived, vice-principals Nickole and Angela Antonelli went to the electronics shop and asked the students and the defendant to go to the library. Sometime thereafter, Officer Maglio and Detective Lawrence James, a member of the Medford police department’s computer crime unit, arrived at the electronics shop. Detective James spoke with James and Timothy as to what they had observed in Joester’s open share. With the permission of Vice Principal Antonelli and James, Detective James, using his own notebook computer, accessed the school’s network and opened Joester’s open share. He found, inter alla, several movies, including “Spiderman.” Detective James concluded that the copy of “Spiderman” was un[105] authorized, as the movie had been released in theaters only recently. Detective James also found a motion picture file titled, “Beautiful Lolita Sandra Masturbates,” showing what appeared to be a young girl masturbating. With Timothy’s assistance, Detective James subsequently located the Joester computer in the electronics shop and turned it off. The Joester computer, which was later determined to belong to a student, was seized and transported to the Wakefield police department.

While searching for unauthorized computers in the electronics shop, Timothy came across a school-owned server named Night-crawler in the defendant’s office, which was adjacent to the electronics shop.5 Nightcrawler’s screen displayed an open share containing the titles of several movies, including “Spiderman,” “Top Gun,” and “A Knight’s Tale.” The source of the open share was Sinister, another unauthorized computer logged onto the high school’s network. Timothy did not see any pornographic materials in Sinister’s open share. Sinister was also found in the defendant’s office. However, Timothy could not log onto Sinister as it was password protected.

Detective James, having been apprised of Timothy’s observations of pirated movies on Sinister’s open share, seized Sinister, which belonged to the defendant, on probable cause to believe that it contained child pornography and copyrighted intellectual property. Detective James did not look at the contents of Sinister’s open share prior to securing it.

In reviewing a motion to suppress, we accord substantial deference to the motion judge’s subsidiary findings and will not disturb them absent clear error. Commonwealth v. Jones, 375 Mass. 349, 354 (1978). Our review of the application of constitutional principles to those facts, however, is plenary. Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986).

Free access — add to your briefcase to read the full text and ask questions with AI

Commonwealth v. Kaupp, 899 N.E.2d 809, 453 Mass. 102, 2009 Mass. LEXIS 14 (Mass. 2009).

899 N.E.2d 809 (Commonwealth v. Kaupp) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Commonwealth v. Solis; Commonwealth v. Diaz
Massachusetts Supreme Judicial Court, 2026
Commonwealth v. Carlos Lacen-Santiago.
Massachusetts Appeals Court, 2026
Commonwealth v. Michael Diaz
Massachusetts Appeals Court, 2025
COMMONWEALTH v. S. JOHN CAREY
Massachusetts Superior Court, 2025
State of Iowa v. Thomas Dean Jesse
Court of Appeals of Iowa, 2025
Commonwealth v. Janvier
Massachusetts Appeals Court, 2024
Commonwealth v. Cedric D. Williams.
Massachusetts Appeals Court, 2024
Commonwealth v. Tremblay
107 N.E.3d 1121 (Massachusetts Supreme Judicial Court, 2018)
Commonwealth v. Cruzado
103 N.E.3d 732 (Massachusetts Supreme Judicial Court, 2018)
Commonwealth v. Wangnoon
102 N.E.3d 1031 (Massachusetts Appeals Court, 2018)
Commonwealth v. Holley
Massachusetts Supreme Judicial Court, 2017
Commonwealth v. Molina
71 N.E.3d 117 (Massachusetts Supreme Judicial Court, 2017)
Commonwealth v. Martinez
71 N.E.3d 105 (Massachusetts Supreme Judicial Court, 2017)
Commonwealth v. Cawthron
90 Mass. App. Ct. 828 (Massachusetts Appeals Court, 2017)
Commonwealth v. Sanders
90 Mass. App. Ct. 660 (Massachusetts Appeals Court, 2016)
Commonwealth v. White
59 N.E.3d 369 (Massachusetts Supreme Judicial Court, 2016)
Commonwealth v. Balboni
89 Mass. App. Ct. 651 (Massachusetts Appeals Court, 2016)
Commonwealth v. Broom
52 N.E.3d 81 (Massachusetts Supreme Judicial Court, 2016)
Commonwealth v. Dorelas
43 N.E.3d 306 (Massachusetts Supreme Judicial Court, 2016)
Commonwealth v. Augustine
35 N.E.3d 688 (Massachusetts Supreme Judicial Court, 2015)