The government’s case against an alleged trafficker in child abuse images is on shaky ground after a California judge last week said that:
- An image found on his PC when it was in for repairs with Best Buy’s Geek Squad didn’t show a prepubescent girl’s genitals or that she was having sex. The image launched the case, a raid on his house in 2012, and the arrest of California gynecologist Mark Rettenmaier. Even though the still was taken from a well-known child abuse video, it doesn’t meet the legal definition of child porn, the judge said.
- FBI agents were disingenuous when they applied for a search warrant, leaving out a crucial detail of where Geek Squad employees had found the image that triggered the investigation.
According to OC Weekly, District Court Judge Cormac J Carney announced on May 15 that the FBI’s tainted search warrant required him to suppress alleged evidence collected during a raid on Rettenmaier’s house in 2012.
It all began in 2011, when Rettenmaier took his HP Pavilion computer to Best Buy for repair because it wouldn’t boot. When Geek Squad techs ran a search, they retrieved the deleted image of a young girl.
At issue is how the Geek Squad employees found that image. As the case has dragged on and documents have come to light, it turns out that the FBI has been in a relationship with Geek Squad workers that defense attorney James D Riddet has called “cozy” and “so extensive that it turns searches by Best Buy into government searches”.
In fact, unbeknownst to customers such as Rettenmaier, for years, the FBI has trained and paid Geek Squad employees to search for child abuse imagery on computer equipment. Those searches have been extensive: Geek Squad employees have gone so far as to search unallocated space on hard drives – ie, the place where forensics analysts use specialized software to find and retrieve deleted files.
Judge Carney last week called agents “dishonest” because when they were applying for a search warrant, they neglected to mention just where, exactly, on the PC that the image in question came from. In fact, it came from unallocated space: a problem for the prosecutors in their case against Rettenmaier.
As it is, a few weeks before Rettenmaier was arrested, federal judges had ruled in a separate case that child abuse images found in unallocated space couldn’t be used to win a possession conviction, since there’s almost no way to figure out who put them there, who viewed them, or when/why they were deleted.
Even a technical expert for the prosecutors conceded in court that dozens, if not hundreds or thousands, of sex images can be uploaded without the knowledge of those surfing the internet. Those images can be discovered only with special software, the expert said in a hearing with Judge Carney, according to OC Weekly.
In addition, whether or not Geek Squad City technicians acted as government agents by accepting FBI payments, regularly speaking with FBI agents (on a first-name basis) and referring cases to them, and working with them to create a program to search for abuse images, has been core to determining whether their searches are permissible as evidence.
That’s because government agents need to first get a warrant, based on probable cause, to search a computer. Otherwise, Fourth Amendment issues around search and seizure come into play, as does the question of privacy violation, potentially turning Geek Squad technicians’ scouring of computers into warrantless searches by law enforcement.
According to the court documents in USA v. Mark Rettenmaier, the FBI has been paying Best Buy supervisors for the work, and management has been fully aware of it. The bureau has also been guiding Geek Squad technicians as they develop a program to find abusive content.
Although Judge Carney’s ruling that evidence was inadmissible was a win for Rettenmaier’s defense lawyer, the judge didn’t go along with Riddet’s contention that his client had a legal expectation of privacy from Geek Squad employees searching his computer.
Judge Carney ruled that the Geek Squad search was legitimate since the defendant had signed a contract that contains a warning that illegal material will be reported. The doctor also verbally consented to an engineer checking his hard drive, The Register reports.
Riddet said his client would be contesting the legality of the search, but that it’s now up to prosecutors to decide whether the case will proceed. OC Weekly quotes him:
We’re going to have to wait until January or February 2018 to see what the government is going to do.