Despite Evidence, Child Porn Charges Could Be Dropped

[Zed Snardbody]

Link

HONOLULU -- A man who set up an orphanage in Nepal and travels the world offering "drum therapy" is in prison in Hawaii, charged with making his own child pornography.

It may be a shocking case, but the charges could also be thrown out.

The case began at Hilo airport last year. Simon Jasper McCarty was in Hawaii to provide one of his drum-circle team-building seminars.

When TSA screeners removed his laptop from his checked suitcase, what looked to them like several photos of nude children fell out, officials said. They called Hilo police.

The 36-year-old British citizen was arrested immediately. The FBI later found child porn stills images and videos on his laptop, including about 60 prosecutors said were self-produced, showing McCarty with three different pre-pubescent boys.
On McCarty's MySpace page, he posted videos of the Pegasus Children's Project he founded in Nepal. There is a photo of him surrounded by orphans. Court documents do not say whether orphans were used for pornography.

McCarty is also the founder and chief facilitator of a company called Talking Drums, which provides consciousness and team-building corporate seminars using drums and other percussion instruments. He was in Hawaii for a seminar at Mokuleia.
Despite the apparently strong evidence, the entire case against McCarty is in jeopardy because the TSA screeners are not supposed to actively look for criminal evidence other than weapons or bombs. In McCarty's case, the screener admitted going beyond that by reading some of the material in an envelop in McCarty's luggage before calling superiors.

In a hearing, Judge Michael Seabright said, "It's unclear to me if she saw nude pictures before or after she exceeded the scope of that search."

"This is a hard case. You're not dealing with like a gun or drugs, something that's immediately recognizable… my inclination is to suppress this case," Seabright said.

If the judge finds the TSA search was illegal, that means all the evidence, including the videos of McCarty having sex with boys would be thrown out and could not be used against him.

The judge indicated that his ruling could come out in the next few days.

This has been an ongoing issue with our agency since the beginning. ATSA the authorization act for the TSA limits us to searches for weapons, incendiaries and explosives. We find a lot of shit though in the course of our work though that goes beyond those 3 categories. Locally we just intercepted over a million dollars in cash.

The problem we run into like in the article, is the agency encourages its officers to go above and beyond the SOP if they suspect something. Being a rat bastard, and being a rat bastard that wants to bring down a plane have a lot of tells and what not in common. So while the guys in Washington are pushing a workforce to think critically and to be aware of this stuff and report it, they're still giving squat for training in the area and not giving us a bit of authority for it. Right or wrong, there are now a lot of cases like this. People who feel they're being detained when they're not, evidence of some criminal acts being uncovered but being suppressed as evidence.

What I'm concerned with more than anything since I'm on the job, is that one of these days its going to be my ass or one of my officers who ends up with a civil suit pointed at us after a case gets thrown out. Right now TSA has squat for protections for its officers and is fond of throwing them under the bus to save their own hide.

[General Zod]

Couldn't this sort of thing be solved by having a real cop on-duty in the airport itself? You'd think regulations for this sort of thing would already be in place; then again the TSA hasn't exactly been a beacon of competency and efficiency.

[Ryan Thunder]

If the judge finds the TSA search was illegal, that means all the evidence, including the videos of McCarty having sex with boys would be thrown out and could not be used against him.

So the evidence is clear and incontrovertible, but we can have it thrown out because of how we acquired it...

Nah. Can the judge tell them to go fuck themselves without lube?

[Zed Snardbody]

Local police ussualy are on duty right at the checkpoint or atleast in the airport. The issue stems from the nature and condition of discovery of the potential evidence.

As for competence this goes back to the agency it self. They can't decide what the fuck they want the field officers to do. First their was no training other than how to operate an exray and perform basic functions. Then it was train them to think on their feet. Then it was we must have consitency. Now its done a full swing back to the sop is your guide go above and beyond if you feel the need. The officers have that have stayed through all this just want to keep their heads down now. Morale is in the shitter nationwide because of bullshit like this from headquarters.

[Covenant]

They need to expand TSA's search rights to those of a private security firm on private property, allowing you to bypass all those personal property things and then let a cop be on hand in order to be present during such search. If you pull out something unusual then he can take some action. TSA shouldn't have to arrest people themselves, and shouldn't be given the blame for any variety of arrest taking place.

[Master of Ossus]

An airport is not a private space. Whatever constitutional protections we normally extend on the gathering and acquisitio of evidence shouldn't be extended into public areas like that, particularly because of the known dangers that privacy in airports causes to the public.

[General Zod]

An airport is not a private space. Whatever constitutional protections we normally extend on the gathering and acquisitio of evidence shouldn't be extended into public areas like that, particularly because of the known dangers that privacy in airports causes to the public.

Couldn't you just treat this like a citizen's arrest anyway? Kiddy porn is a felony in most places (especially the self made variety), so it seems to fit neatly under the guidelines for such things.

[Sea Skimmer]

Couldn't you just treat this like a citizen's arrest anyway? Kiddy porn is a felony in most places (especially the self made variety), so it seems to fit neatly under the guidelines for such things.

That doesn’t work when the TSA employee works for the government and already has certain legal powers to search. Those powers also come with restrictions, and damn well better if we want the forth amendment to mean anything. It has already been severely undermined with judges actually declaring that police can get a warrant after conducting certain searches for no other reason then so they don’t have to wake up a judge at night!

If a random person saw the pictures fall out while the guy was walking along, picked one up and then made a citizens arrest you wouldn’t have this problem in this case.

[General Zod]

That doesn’t work when the TSA employee works for the government and already has certain legal powers to search. Those powers also come with restrictions, and damn well better if we want the forth amendment to mean anything. It has already been severely undermined with judges actually declaring that police can get a warrant after conducting certain searches for no other reason then so they don’t have to wake up a judge at night!

If a random person saw the pictures fall out while the guy was walking along, picked one up and then made a citizens arrest you wouldn’t have this problem in this case.

Frankly if something's so poorly secured that it's just going to "fall out" you'd think the douchebag with the kiddy porn wouldn't have a snowball's defense in hell, 4th amendment or not. At that point they're not even really searching; he may as well just be waving it around in public and shouting "I'm a pedophile".

[Master of Ossus]

That doesn’t work when the TSA employee works for the government and already has certain legal powers to search. Those powers also come with restrictions, and damn well better if we want the forth amendment to mean anything. It has already been severely undermined with judges actually declaring that police can get a warrant after conducting certain searches for no other reason then so they don’t have to wake up a judge at night!

But why should someone have the same degree of constitutional protection against searches and seizure when they're in an airport as they do when they're in their home or some other obviously private space? An airport is a necessarily public venue, and people should not expect the same degree of privacy in one that they have the right to expect in other contexts.

[Sea Skimmer]

But why should someone have the same degree of constitutional protection against searches and seizure when they're in an airport as they do when they're in their home or some other obviously private space? An airport is a necessarily public venue, and people should not expect the same degree of privacy in one that they have the right to expect in other contexts.

Travel is a necessary part of modern life. You have those same legal protections against unreasonable search and seizure while you travel by car across 100% public highways, why should you not get them in an airport which may well be privately owned with only security contracted out to the government? If the TSA employees are only supposed to search for specific things then that’s all they get to do, plain and simple. You probably could change the law in a constitutionally acceptable way to alter that, but that is clearly not the case right now, and you can’t change the law after the fact and still convict someone. That is a even more fundamental part of our legal system having any transparency and accountability at all.

[General Zod]

Travel is a necessary part of modern life. You have those same legal protections against unreasonable search and seizure while you travel by car across 100% public highways, why should you not get them in an airport which may well be privately owned with only security contracted out to the government? If the TSA employees are only supposed to search for specific things then that’s all they get to do, plain and simple. You probably could change the law in a constitutionally acceptable way to alter that, but that is clearly not the case right now, and you can’t change the law after the fact and still convict someone. That is a even more fundamental part of our legal system having any transparency and accountability at all.

Explain how clearly illegal items falling out of someone bag constitutes unreasonable search.

[Sea Skimmer]

Maybe you should read the original article. It isn’t clear that the items really did just fall out, and the screener admitted to searching further on his own initiative. You know when the police do a search of property they have to get a warrant which specifically describes what they are searching for. They don’t get blank checks to find contraband at will. If they find stuff outside the scope of that warrant the evidence can and often is thrown out if it wasn’t reasonable to have found it while looking for what they were supposed to be. In this case the TSA basically has a open warrant to find explosives and weapons. They went past that, so the grounds are thrown into question as to when that occurred. If this was clear cut like you are trying to make it out to be the judge would have made a ruling that day and been done with it.

I got no sympathy for this guy, but the convict at all costs attitude has been running rampant in the US for far too long. I very much do believe we have to accept the guilty will get away sometimes in ordered to uphold coherent standards, and any other standard is in fact no standard at all. It will be interesting to see what the ruling on this ends up being, and I’m sure it will be based on far more information then is being included.

[Master of Ossus]

Travel is a necessary part of modern life. You have those same legal protections against unreasonable search and seizure while you travel by car across 100% public highways, why should you not get them in an airport which may well be privately owned with only security contracted out to the government? If the TSA employees are only supposed to search for specific things then that’s all they get to do, plain and simple. You probably could change the law in a constitutionally acceptable way to alter that, but that is clearly not the case right now, and you can’t change the law after the fact and still convict someone. That is a even more fundamental part of our legal system having any transparency and accountability at all.

My understanding of the law, in this area, is that the scope of the search is at issue; TSA people are allowed to arrest people if they find contraband, but they're supposed to look specifically only for bombs and similar material. In this case, the "search" consisted purely of thumbing through an envelope, which doesn't even strike me as being a search in general and certainly falls within TSA's mandate. I believe that the fact that no explosive materials were actually found should be irrelevant, since opening an envelope that someone's carrying and looking at its contents should clearly fall within TSA's mandate.

[Sea Skimmer]

It might fall within the TSAs mandate, but then the TSA is also required to be consistent and non-profiling. That means they are supposed to conduct the exact same kind of search to every single person or else follow an established pattern like every third person gets extra checks. If they aren’t going into every envelope everyone has then you’ve still got a legal loophole for this guy to jump through to having the evidence dismissed. But the exact sequence of events is what will determine this and it has not been provided.

Unfortunate in this case maybe, but then anyone that stupid in the first place will probably be caught latter anyway. That’s how the system is supposed to work. You can bet the FBI wont just forget about him.

[Broomstick]

I believe that the fact that no explosive materials were actually found should be irrelevant, since opening an envelope that someone's carrying and looking at its contents should clearly fall within TSA's mandate.

Why?

If there is reason to believe there are weapons or explosives in an envelope then yes, but if not, no. Why? Because the TSA is only mandated to look for threats to aviation, not to paw through your diary, legal papers, love letters, or unpublished novel.

The Census has a similar problem, in that employees are only permitted to collect specific information. Thus, if a Census worker comes across people making meth during the course of doing Census work said worker is not to report the activity to the police... only to a supervisor. It's a mine field for the field workers at times.

[Master of Ossus]

Why?

If there is reason to believe there are weapons or explosives in an envelope then yes, but if not, no. Why? Because the TSA is only mandated to look for threats to aviation, not to paw through your diary, legal papers, love letters, or unpublished novel.

So? There are threats to aviation that can fit in an envelope, so searching envelopes is within TSA's scope. They don't need specific information suggesting that every gym bag has explosives to put it through an x-ray.

The Census has a similar problem, in that employees are only permitted to collect specific information. Thus, if a Census worker comes across people making meth during the course of doing Census work said worker is not to report the activity to the police... only to a supervisor. It's a mine field for the field workers at times.

The Census is not a law enforcement agency like the TSA is. TSA has lawful authority to arrest people, even if they don't pose a threat to aviation safety, if they're found to engage in illegal conduct.

[Master of Ossus]

It might fall within the TSAs mandate, but then the TSA is also required to be consistent and non-profiling. That means they are supposed to conduct the exact same kind of search to every single person or else follow an established pattern like every third person gets extra checks. If they aren’t going into every envelope everyone has then you’ve still got a legal loophole for this guy to jump through to having the evidence dismissed. But the exact sequence of events is what will determine this and it has not been provided.

Well, first of all, I don't think that TSA is (or should be) non-profiling. But just because they don't search every envelope doesn't mean that evidence discovered in searching envelopes should be dismissed.

[Zed Snardbody]

Sorry I'm on duty at the moment so I have to be brief ill post a little more this evening when I get home.

Transportation Security Officers are classed as 1802 which is a regulatory and compliance rating. We do not have arrest powers. Our inspectors can only even issue civil fines. The only TSA agents that have arrest powers are Federal Air Marshals and the local Assistant Federal Security Directors for Law Enforcement. In plane english unless we have a fam in transit there is only one TSA agent with arrest powers at an airport, the AFSDLE. We rely greatly on the local LEO's.

[aerius]

Here in Canada Customs, we can oppress you and search the shit out of you and your bags because you "look funny", and anything we find can and will be used against you in a court of law. We have full arrest & detention powers for customs & immigrations violations as well as criminal code violations. But that would never fly in the US because it would be unconstitutional and repressing your freedoms or some other shit like that, plus there'd be enough TSA workers abusing it to hell so there'd be fucking lawsuits everywhere.

I've talked to some of my US counterparts at the airport and they express the same concerns as Zed, their system is a patchwork job of rules & standards and so are their employees. The training is spotty at best, some people get a half-decent program and with a few years of experience they can pick up the rest and do a decent job, others are more or less tossed right into the deep end. We agree that the US system needs some serious help & reform, but the political will isn't there to do it and likely won't be until they get enough high profile fuck ups.

[Master of Ossus]

Well, I stand corrected, and that is incredibly stupid. Congress needs to fix that.

[Alyeska]

Here in Canada Customs, we can oppress you and search the shit out of you and your bags because you "look funny", and anything we find can and will be used against you in a court of law. We have full arrest & detention powers for customs & immigrations violations as well as criminal code violations. But that would never fly in the US because it would be unconstitutional and repressing your freedoms or some other shit like that, plus there'd be enough TSA workers abusing it to hell so there'd be fucking lawsuits everywhere.

I've talked to some of my US counterparts at the airport and they express the same concerns as Zed, their system is a patchwork job of rules & standards and so are their employees. The training is spotty at best, some people get a half-decent program and with a few years of experience they can pick up the rest and do a decent job, others are more or less tossed right into the deep end. We agree that the US system needs some serious help & reform, but the political will isn't there to do it and likely won't be until they get enough high profile fuck ups.

US Customs is an entirely different animal than TSA. US Customs have very broad search powers. TSA does not.

[aerius]

That's what's so stupid with the US system, you have Customs, the TSA, local law enforcement and god knows who else taking care of border security and they all have their own individual rules & jurisdiction. There's just far too many ways for the system to screw up.

[Alyeska]

That's what's so stupid with the US system, you have Customs, the TSA, local law enforcement and god knows who else taking care of border security and they all have their own individual rules & jurisdiction. There's just far too many ways for the system to screw up.

Different jobs, different things to protect. Customs, self explanatory. TSA is there specifically for the security of the airplane or something transportation related. Still trying to figure out why TSA handled security at an Obama rally before the presidential election... Local law enforcement has general jurisdiction over all law enforcement within their vicinity.

And none of them are border security. That is Border Patrol. Customs is just who handles immigration and border traffic inspection. You could make an argument to combine Customs and Border Patrol. But they will always be distinct and separate from local law enforcement and TSA. TSA is strictly transportation security. They will never have the same mandate as Customs and they operate in all airports, unlike Customs.

[Broomstick]

Why?

If there is reason to believe there are weapons or explosives in an envelope then yes, but if not, no. Why? Because the TSA is only mandated to look for threats to aviation, not to paw through your diary, legal papers, love letters, or unpublished novel.

So? There are threats to aviation that can fit in an envelope,

Like what?

so searching envelopes is within TSA's scope. They don't need specific information suggesting that every gym bag has explosives to put it through an x-ray.

There is a huge difference between a gym bag and an envelope, starting with the volume of stuff that is can contain. A lumpy, bulky envelope might be suspicious, but a flat one not so much.

I am not privy to all possible threats to aviation, but I have considerable trouble imagining what the average envelope could contain that could bring down an airplane, unless you're talking about something lumpy/bumpy/otherwise anomalous.