The Law Offices of Kathleen Colton, Ltd.
Criminal Defense / P.O. Box 1364 / St. Charles, IL 60174
JUDGE THROWS OUT PORN EVIDENCE
(South Elgin case at an end, judge says Internet photo of naked females cannot be
ruled child pornography)
Elgin Courier, August 17, 2000
By Marie-Anne Hogarth
Staff Writer
ST. CHARLES — Two years ago, a cop cruising the Internet in California entered a chat room and allegedly persuaded the owner of a South Elgin pizza restaurant to send him a photograph of two naked young females.
That photograph was enough to convince a South Elgin police detective, prosecutors and a judge that a search warrant was needed to retrieve more images from the home computer of Terrance McCarron, who owns a pizza chain outlet in the 1100 block of West Spring Street in South Elgin.
The search led to McCarron’s arrest and a 32-count indictment of child pornography against him, handed down by a Kane County grand jury.
Wednesday, 16th Circuit Judge James Doyle fell short of saying the arrest of McCarron, 32, never should have happened. But he left prosecutors with no choice but to withdraw the charges or appeal Doyle’s decision to a higher court.
Agreeing with defense attorney Kathleen Colton that the age of the girls or women can’t be determined from the photo and that their picture doesn’t constitute pornography. Doyle quashed the search warrant and suppressed all evidence collected by police from McCarron’s home.
“The idea of pornography in this country is very controversial,” Doyle said, adding that his decision was based on interpretation of the law, not his personal beliefs. “My wife and I have made a choice that we don’t have this. The only premium station we have on cable television is the Disney Channel. We don’t even go to the R rated movies. This courtroom has to deal with as much violence and sex as you can get in a lifetime.”
“This photo shows nudity. It is not a crime,” Doyle continued. ‘The court has said that nudity without lewdness does not constitute child pornography. ... You can’t just find some people and say. ‘Do you think this is lewd?’”
Proving lewdness would entail meeting specific criteria, including whether the focus of the photo was the genitals, whether the picture’s setting and subject’s pose were sexually suggestive, whether the person was naked or partially clothed, the subject’s coyness, or whether the image was intended to elicit a sexual response.
“These are women standing perhaps in a nudist colony. Who knows?” Colton said. “There is nothing sexual about this picture.”
Assistant State’s Attorney Anthony Abear argued that the photograph of the naked young females was lewd, that the picture was posed and that the women were touching each other. But Doyle rejected that argument. as well as Abear’s attempt to ask that a “good-faith exception” be made.
“I’m happy for my client. It’s been two years of having his name in the paper as a child pornographer,” Colton said, adding that McCarron had not ruled out filing a civil lawsuit. “... Based on this sort of alleged evidence. this should scare the hell out every citizen that uses the Internet.”
Earlier in the week, Ron Mount, a former South Elgin police officer, testified how police made jokes about evidence and passed around photos seized from McCarron’s computer. Mount said a detective showed him an adult video taken from McCarron’s home of McCarron and a woman.
South Elgin police officers at the Kane County Judicial Center had no comment Wednesday.
Joseph McMahon, felony division chief in the state attorney’s office, said the case would be reviewed before a decision on whether to file an appeal would be made.
