Eighth Circuit Court of Appeals affirms conviction for child pornography; defendant's claim that governments search of his computer that was hooked up peer to peer with other computers through Lime Wire program was not an illegal warrantless search. 083183P.pdf 08/14/2009 United States v. Harold Stults U.S. Court of Appeals Case No: 08-3183 District of Nebraska - Omaha [PUBLISHED] [Smith, Author, with Riley and Colloton, Circuit Judges] Criminal case - criminal law and sentencing. Users of peer-to-peer file sharing software like LimeWire do not have a reasonable expectation of privacy in files they make available to others using the software, and the warrantless search of defendant's computer through LimeWire did not violate his Fourth Amendment rights; affidavit the police used to obtain a warrant to search defendant's home and seize his computer established probable cause to believe child pornography would be found; defendant's prior conviction for attempted sexual assault on a child was sufficient to invoke the ten-year mandatory minimum sentence under 18 U.S.C. Sec. 2252(b)(2); under this court's precedents, the district court did not err in applying the five-level enhancement under Guidelines Sec. 2G2.2(b)(3)(B) as the government produced sufficient circumstantial evidence to meet its burden of proving defendant expected to receive child pornography when he used LimeWire; sentence was not unreasonable; special conditions of supervised release which controlled defendant's contact with children, access to pornography and use of the Internet and cameras were related to his offense and were reasonable measures to protect the public.

Nebraska Supreme Court affirms defendant's conviction for manufacturing a controlled substance, in this case home-grown marijuana. The Supreme Court rejects defendant's appeal that his marijuana growing qualified for the "personal use" exception in 28-401(14). Police officers' search warrant affidavit did not state stale information even though it restated informants' statements from one month earlier that the defendant was growing marijuana in his home. The court also refused to suppress defendant's incriminating statements he made after a Nebraska State Patrolman arrested the defendant at a gas station for driving on a suspended license as the police were starting to search his home. State v. Bossow, S-07-099, 274 Neb. 836 The Nebraska Supreme Court fires up the cloudy issue in 28-401(14) of how "personal use" differs from manufacturing a controlled substance. The Supreme Court finds the statute clearly included growing plants that produce controlled substances and personal use covered rolling the grass and toking up. "The plain meaning of the “personal use exception” is to avoid finding an individual liable for the felony of manufacturing a controlled substance when that individual is already in possession of the controlled substance and is simply making it ready for use, such as rolling marijuana into cigarettes for smoking or combining it with other ingredients for use." The Supreme Court also rejected the defendant's claim the information in the search warrant affidavit was stale because it contained the informants' statements that when they visited the defendant's home over one month prior marijuana was growing there. Since the growing cycle of the plant would cover that time period and the plants were not likely to disappear, the search warrant affidavit information was not stale. "Growing marijuana is not an isolated activity where the evidence supporting probable cause tends to disappear quickly.Rather, growing marijuana is a protracted process, for which there is a much greater probability that the evidence related to the crime would remain on the premises for some time. Asindicated in (State partolman's) affidavit, marijuana plants can take up to 22 weeks to mature and can grow in excess of 8 feet tall."