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Ferrick v. State

Court of Appeals of Alaska

September 18, 2009

John T. FERRICK, Appellant,
v.
STATE of Alaska, Appellee.

James W. McGowan, Sitka, for the Appellant.

Page 419

W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

John T. Ferrick appeals his conviction for possession of child pornography. He raises two main contentions.

First, Ferrick argues that the evidence against him was gathered illegally. The primary evidence against Ferrick consisted of some five dozen pornographic photographs found on a computer hard drive. These photographs were seized pursuant to a search warrant. Ferrick contends that this search warrant was not supported by probable cause, and thus the photographs seized pursuant to this warrant must be suppressed.

Ferrick's second contention is that Alaska's child pornography statute, AS 11.61.127(a), is unconstitutionally overbroad. In Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), the United States Supreme Court held that the provisions of the federal child pornography statute outlawing " virtual" child pornography (i.e., computer-generated pornographic images of simulated children) contravened the First Amendment's protection of speech, since these provisions did not involve the exploitation of real children. 535 U.S. at 249-258, 122 S.Ct. at 1401-06.

According to Ferrick, the Alaska statute that prohibits the possession of child pornography suffers from the same constitutional flaw as the federal statute that was challenged in Free Speech Coalition. In other words, Ferrick contends that the Alaska statute punishes the possession of " virtual" child pornography in addition to punishing the possession of pornography that was actually produced with real children.

(In his brief, Ferrick phrases this attack on the statute as an assertion that the statute is unconstitutionally " vague" . However, Ferrick does not argue that people of common intelligence would be unable to understand the statute, or that they would be " relegated to differing guesses about its meaning" . [1] Rather, Ferrick argues that the statute purports to criminalize conduct that is constitutionally protected. Thus, Ferrick is really claiming that the statute is overbroad. See Petersen v. State, 930 P.2d 414, 425 (Alaska App.1996).)

For the reasons explained here, we conclude that the search warrant in Ferrick's case was supported by probable cause, and thus the State lawfully obtained the pornographic photographs from the computer hard drive. We further conclude that Alaska's child pornography statute does not prohibit the possession of " virtual" child pornography, but rather is confined to the possession of pornography that was produced using real children. The statute therefore does not violate the First Amendment as construed in Free Speech Coalition.

Underlying facts

In the early morning hours of June 22, 2005, a security guard at Sheldon Jackson College in Sitka came across several images of naked children on one of the computers in the school's computer lab. The security guard reported his discovery to Sterling Barlow, the college's computer technician. Barlow then contacted Sitka Police Officer Roger Stevener.

Officer Stevener interviewed the security guard and, based on the results of that interview, Stevener applied for a warrant to search the computer's hard drive for evidence of the crime of possession of child pornography. Based on Stevener's testimony (which was essentially a recapitulation of the security guard's report), Sitka Magistrate Bruce Horton issued the requested search warrant.

Once the search warrant was issued, Stevener traveled to the Sheldon Jackson campus,

Page 420

seized the computer, and then brought it back to the police station, where it was stored until it could be examined by a police technician.

While Stevener was waiting for the computer's hard drive to be searched, Stevener interviewed Ferrick about his connection to the computer. Ferrick admitted that he had access to the computer, and he also admitted that he had downloaded and stored several pictures of under-age children in various sexual poses.

The search of the computer hard drive revealed sixty-three photographs of naked or partially dressed children (both male and ...


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