United States v. Brooks (S.D. Ga. 2009)
There was a somewhat perplexing decision last Wednesday in a criminal copyright infringement prosecution, courtesy of the federal district court in Augusta, Georgia. Here comes the facts.
Cop received a tip from his narcotics division to be on the lookout for a Hummer, and to tail it for a traffic violation that would provide probable cause for a traffic stop. Cop encountered a Hummer that went into the middle lane to move around an accident and pulled it over. Cop ran a background check on the Defendant’s car tag, insurance, criminal background, and outstanding warrants, all of which came back clear. While the cop was writing the traffic ticket, a second cop pulled up with a narc dog. Narc dog alerts on the hummer after an open-air sniff search. Cop #2 searched the car and found marijuana “shake” (which apparently means, small pieces of pot) in the center console. Defendant wasn’t given a citation for the pot and it appears that it wasn’t taken into custody or tested (presumably because there wasn’t sufficient quantity).
What did the cops find? “[S]everal large boxes filled with DVDs that [Cop #2] described as ‘bootleg.’ Again, however, [Cop #2] did not have specific information about the DVDs, such as the number discovered, because he was not the person in charge of counting and/or cataloging the evidence collected.” Following the search of the Hummer, the Defendant was arrested and a search warrant for Defendant’s residence was obtained and executed.
The Defendant was charged with the criminal distribution and reproduction of copyrighted material. The Defendant filed a motion to suppress contending that the search of his car and house transgressed his Fourth Amendment rights. I’m not going to go into the Court’s analysis of the traffic stop. Can you pick out the fundamental problem with this case?
[Insert Jeopardy theme song.]
Mere possession of infringing DVDs isn’t illegal. You can drive around with a truck full of them. You just can’t reproduce or distribute ten or more infringing copies of a copyrighted work which have a total retail value of more than $1,000. If it wasn’t the marijuana, what in fact was the Defendant arrested for? And was there probable cause to search the defendants house based only on the possession of material he was legally allowed to carry?
Many, many questions. Very few answers.
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