The top doc, the FBI, the Geek Squad informant – and the child porn pic that technically wasn't
Feds face potential legal nightmare ahead of trial
Lawyers for a California doctor accused of hoarding child sex abuse images are challenging the legitimacy of crucial evidence a PC repairman handed to the FBI.
While fixing top surgeon Mark Rettenmaier's HP Pavilion computer, a Best Buy technician found what was claimed to be an indecent photo of a child and passed it onto the Feds. Agents used this snap to obtain a search warrant from a magistrate to raid Rettenmaier's home, where they allegedly found a Mac, an iPhone and two hard drives storing images of underage sex.
But, and this is a big but, today it emerged that this vital image, found on Rettenmaier's hard drive by the Geek Squad staffer, which sparked the doctor's prosecution, is not strictly pornographic according to the law: it shows, according to prosecutors, "a fully nude, white, prepubescent female on her hands and knees on a bed, with a brown choker-type collar around her neck."
(An image or video has to feature intercourse, bestiality, masturbation, sadomasochistic abuse or lascivious exhibition of genitals to be pornographic.)
The shot is apparently a still from a known child porn video: it was recognized by agents, who believed Rettenmaier had more material stashed away. That's why the g-men convinced a judge to let them search the surgeon's home in Newport Beach, Orange County, back in 2012. Rettenmaier, 64, was indicted in 2014 on child porn charges and is facing trial.
He denies any wrongdoing.
On Wednesday this week, after years of legal wrangling over the case, FBI agent Tracey Riley told district court judge Cormac Carney that the image found by the PC tech "wasn't child pornography by itself," adding: "I think it's right on the edge." The Feds went ahead with the raid because the girl in the photo "is a known victim," the court heard.
James Riddet, Rettenmaier's attorney, hopes the technicality will allow him to suppress damning evidence collected from the surgeon's home, by arguing that the search warrant was invalid because the magistrate was tricked into believing the photo was indecent. This is on top of Riddet's earlier complaints that the doc's constitutional rights against warrantless searches were trampled on by the Feds by relying on a Geek Squad informant.
The case has triggered a huge debate about the legality of the FBI's use of PC repair technicians as paid informants. It also raised concerns that by encouraging techs to snitch on customers for $500 cash rewards, the US government is violating 4th Amendment rights on unwarranted search and seizure.
Both Best Buy and the FBI have disputed that they had a policy in place that effectively turns employees into paid informants. They said the techs only reported images they encountered during normal repair and were legally obligated to hand over evidence to law enforcement. In a statement this week, Best Buy explained:
Best Buy and Geek Squad have no relationship with the FBI. From time to time, our repair agents discover material that may be child pornography, and we have a legal and moral obligation to turn that material over to law enforcement. We are proud of our policy and share it with our customers before we begin any repair.
Any circumstances in which an employee received payment from the FBI is the result of extremely poor individual judgment, is not something we tolerate and is certainly not a part of our normal business behavior.
To be clear, our agents unintentionally find child pornography as they try to make the repairs the customer is paying for. They are not looking for it. Our policies prohibit agents from doing anything other than what is necessary to solve the customer’s problem so that we can maintain their privacy and keep up with the volume of repairs.
The gynecological oncologist's defense team had previously argued that because the image was pulled from unallocated space on Rettenmaier's hard drive, there is no way to prove intent to possess and view the image. Now they're driving home the point that while the still was from a known abuse video, the shot itself was not obscene enough to meet the definition of "child pornography."
Thus, they argue, the image should not have been enough on its own to justify a search warrant and the material agents gathered in the raid should be considered inadmissible. Prosecutors have disputed both arguments.
The case, unfolding at the Ronald Reagan Federal Courthouse in Santa Ana, remains locked at a pretrial stage. ®