People v. Donath

827 N.E.2d 1001, 357 Ill. App. 3d 57, 293 Ill. Dec. 120, 2005 Ill. App. LEXIS 340
CourtAppellate Court of Illinois
DecidedApril 13, 2005
Docket1-04-0458
StatusPublished
Cited by25 cases

This text of 827 N.E.2d 1001 (People v. Donath) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Donath, 827 N.E.2d 1001, 357 Ill. App. 3d 57, 293 Ill. Dec. 120, 2005 Ill. App. LEXIS 340 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE KARNEZIS

delivered the opinion of the court:

Following a bench trial, defendant Howard Donath was convicted of six counts of Class X predatory criminal sexual assault (720 ILCS 5/12 — 14.1(a)(1) (West 2002)), six counts of Class 1 criminal sexual assault (720 ILCS 5/12 — 13(a)(2) (West 2002)), six counts of Class 1 child pornography (720 ILCS 5/11 — 20.1(a)(l)(ii), (a)(l)(iv), (a)(l)(vii) (West 2002)), eights counts of Class 2 aggravated criminal sexual abuse (720 ILCS 5/12 — 16(c)(l)(i) (West 2002)), and seven counts of Class 3 child pornography (720 ILCS 5/11 — 20.1(a)(6), (a)(1)(h), (a)(l)(iv), (a)(l)(vii) (West 2002)). Defendant was sentenced to a total of 100 years’ imprisonment. Defendant now appeals and argues: (1) the trial court erred in denying his motion to suppress evidence; and (2) his sentence is excessive. We affirm.

BACKGROUND

An application and affidavit for the search warrant in this case was filed on April 2, 2002, before a United States magistrate. In support of the search warrant, Special Agent (SA) Carl C. Hasler averred that he was assigned to the United States Customs Service (USCS) office and was the special agent in charge in Chicago (SAIC/Chicago). His affidavit was made in support of an application for a search warrant to search the premises located at 6614 Pinetree Street, Unit A, Hanover Park, Illinois, and any computer and computer media contained therein, for contraband and for evidence of the occupant’s possession of and/or distribution of child pornography. The affidavit was based on information he gained from his personal investigation, information he received from Senior Special Agent (SSA) Jarrod L. Winkel, special agents of the Customs Cybersmuggling Center (C3), as well as from conversations with other law enforcement personnel. He further stated that the affidavit set forth only those facts that he believed established probable cause to believe that there was evidence of violations of Title 18, section 2252, of the United States Code (18 U.S.C. § 2252 (2000)) located at this address.

SA Hasler set forth the following facts in the affidavit. According to SSA Schmitz of C3, the USCS attaché in Berlin, Germany, instituted Operation Kinderschutz in 1997 as a means of identifying and investigating individuals who send and receive child pornography over the Internet. As a primary part of the operation, the German National Police (BKA) received information from law enforcement and concerned citizens who observed child pornography distributed over the Internet. After receiving this information, the BKA officers review the e-mail’s “header,” including the sender’s name, the image file name, the date and time of the transmission and a computer name for the intended recipient. BKA officers also keep a copy of the transmission on electronic media or on print. BKA. forwards all transmissions that originate in the United States to C3.

BKA forwarded information to the Berlin attaché on November 4, 2001, that child pornography had been posted under a certain screen name. The “header” information was also provided. USCS then issued subpoenas to ascertain information regarding the computer that had uploaded those images. After receiving the Internet Protocol address for the computer, USCS issued a summons to the Internet provider seeking information about the subscriber. The Internet provider responded that the subscriber was Howard Donath. The information provided also listed a phone number and an address of 6614 Pinetree Street, Unit A, Hanover Park, Illinois, 60103. Authorities employed independent means to verify that defendant Donath did in fact live at that address.

On December 10, 2001, C3 requested evidence of the upload from BKA. C3 received the evidence on floppy disk on January 7, 2002. After reviewing the evidence, C3 found newsgroup messages containing child pornography images and forwarded this evidence on compact disk (CD) to the SAIC/Chicago on January 28, 2002.

SA Hasler averred that he personally reviewed the child pornography files uploaded on November 4, 2001, and that this upload contained 304 images of adolescent girls between the ages of 5 and 6. Seventy-three of those images showed a prepubescent girl touching her exposed genitalia, nine images depicted a prepubescent girl engaged in oral sex on an adult male, four of the images showed an adult pulling down the underpants of a prepubescent girl, one image was of a small object being placed into the vagina of a prepubescent girl and the remaining images were of naked prepubescent girls.

SA Hasler further averred that at the time of the investigation, USCS SSA Jarrod Winkel was assigned to the SAIC/Chicago. SSA Winkel had 18 years’ experience with computers, computer systems, and programming and was a certified computer forensic specialist and LAN administrator for SAIC/Chicago and had been trained to perform such duties at the Federal Law Enforcement Training Center. Based on SSA Winkel’s training and expertise, SA Hasler averred that computer technology has changed the production and distribution of child pornography. Computer development has significantly increased child pornographers’ abilities to produce, communicate, distribute and store child pornography. SA Hasler then went on to provide specific information regarding how advances in computer technology have aided child pornographers’ abilities to produce still and moving images, communicate globally, attach files, upload and download images, and transfer, edit and print images.

SA Hasler averred that a computer hard drive can store thousands of high resolution images. In addition to storing images of child pornography, computer hardware and software can store records, documents and materials, which includes information stored in any form, visual or aural, which may or may not be related to criminal activity. SA Hasler devoted two pages of the affidavit to detailing the search and seizure of a computer system. Much of this section focused on the difficulty in searching a computer at the place where it is recovered due to the need for an extensive search. Because computer evidence is very vulnerable to intentional or unintentional modification, a controlled environment is necessary to protect the integrity of the evidence contained therein. In addition, in order to fully retrieve data from a computer system, the entire computer system, including all storage devices, was needed. Many computer storage devices are small and may be located throughout the house.

Based on all of this information, SA Hasler averred that there was probable cause to believe that there was evidence, fruits and instrumentalities of trafficking, receipt and distribution of child pornography in violation of Title 18 of the United States Code located at defendant’s residence. Specifically, such evidence included:

“a.

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Cite This Page — Counsel Stack

Bluebook (online)
827 N.E.2d 1001, 357 Ill. App. 3d 57, 293 Ill. Dec. 120, 2005 Ill. App. LEXIS 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-donath-illappct-2005.