By Jacob Fischler
Last month, McAllen police arrested a man on child pornography charges after they found nude photos of girls who appeared to be younger than 15. But how they found the photos might be unconstitutional, if a state appeals court ruling is adopted statewide.
- What the officer did was a violation of his fourth amendment rights.
A police officer asked to look through photos on the phone of _____, 57, after someone complained that he was taking photos of a woman’s breasts at McAllen’s downtown bus station, police records state. When the officer browsed the photos, he found other pictures of a woman’s buttocks in tight jeans – obtained without the woman’s permission – and the pictures of the naked girl posing provocatively, according to the report.
Police arrested _____ on suspicion of child pornography and violating Texas’s improper photography statute.
That photography law was struck down Aug. 30 in the state’s Fourth Court of Appeals on the grounds that it violated the First Amendment’s protection of freedom of speech. The ruling leaves the law unenforceable in parts of the state, including Starr and Zapata counties, while it remains on the books in other parts, including Hidalgo and Cameron Counties – at least while an appeal is pending.
Cliff Herberg, the first assistant district attorney for Bexar County, said his office is appealing to the Texas Court of Criminal Appeals – the highest criminal court in the state – the ruling in which the statute was found unconstitutional.
“We think it’s an important statute in the fight against crime,” he said by phone this past week.
To make his case, he noted that the possible child pornography on _____’s phone never would have been found if not for the improper photography law. He added that photographing children is often an early step in a child predator developing fantasies and then acting on them.
“We’re intercepting these pedophiles before they get to the children,” he said. “This is really an important statute.”
- It's a violation of their rights and illegal search and seizure!
But Justice Marialyn Barnard, in her opinion for the Fourth Court, found the law was so vague that it trampled First Amendment rights.
The statute “is void on its face because the statute is overbroad, reaching a substantial amount of constitutionally protected conduct,” Barnard wrote.
Reached by phone, Barnard said per the state judicial code of conduct, she does not comment beyond what she wrote in the opinion.
Three other state appellate courts have upheld the law, according to a news release from Bexar County District Attorney Susan Reed.
Until the issue is resolved by the State Court of Criminal Appeals, the defendant in the Bexar County case was released on bond, while _____ still awaits prosecution.
“We’re not just going to dismiss it because someone ruled it unconstitutional,” Hidalgo County District Attorney Rene Guerra said in a phone interview last month. “Until it’s settled by one of those two courts (the Texas Court of Criminal Appeals or the U.S. Supreme Court), we’re going to continue.”