The FBI special agent's search on the computer of former Whispering Palms School principal Thomas Weindl using an Internet surveillance software secretly installed on it was not the result of an intentional search and was therefore lawful, according to a federal prosecutor.
Assistant U.S. attorney Rami S. Badawy asserted that there is no evidence to support Weindl's claim that the FBI special agent's installation of the eBlaster monitoring amounted to a government search.
Badawy made the arguments in the U.S. government's opposition to Weindl's motion to suppress evidence.
Weindl, through his lawyer, is asserting that the search on his computer by the FBI agent was without a warrant and therefore all evidence obtained from this warrantless search must be barred at trial.
The defense counsel said the FBI agent strongly suspected Weindl of downloading the pornographic images referenced in the eBlaster report, yet did not advise him of his Miranda rights prior to questioning him.
In the U.S. government's opposition, Badawy said the agent downloaded the eBlaster software using his personal desktop computer at his home and also downloaded such software using his own personal Internet connection, and then installed it on the laptop computer specifically assigned to his adolescent son.
The prosecutor said the agent's receipt of the eBlaster emails detailing the defendant's criminal activity was the result of the accidental happenstance and not an intentional search.
As the Ninth Circuit has held, Badawy said, accidental discovery is not a search triggering Fourth Amendment concerns. He said exclusion of evidence in this case is not appropriate because there is no government conduct to deter.
As for defendant's statements, Badawy said that Weindl's statements were voluntary and, as such, are admissible.
He pointed out that there is no evidence that Weindl's statements were obtained as a result of any type of coercion or improper inducement.
Weindl is facing two counts of receipt of child pornography and two counts of access with intent to view child pornography. He pleaded not guilty.
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