Judge rejects search objection; Child porn computer scan OK'd.

Byline: Gary V. Murray

WORCESTER - A Fitchburg man voluntarily consented to a search of his apartment last year that led to the seizure of his computer and possession of child pornography charges being lodged against him, a judge has ruled.

Christian M. Darby, 36, of 214 Water St., Apt. 1, was arrested Feb. 7, 2007, as a result of an investigation by state troopers assigned to the Massachusetts Internet Crimes Against Children Task Force into the availability of child pornographic images through a peer-to-peer online network. After identifying a computer in Fitchburg that had allegedly been used on Dec. 19, 2006, to offer to share images believed to be child pornography, investigators obtained a search warrant for an apartment in a multifamily dwelling at 214 Water St. in Fitchburg that was owned by Mr. Darby.

Mr. Darby also ran a pizza shop on the ground floor of the building. The business has since closed.

State police interviewed the occupants of the apartment for which they had the search warrant and found no evidence of child pornography after searching their computers on Feb, 7, 2007. The residents told police, however, that Mr. Darby, who lived in another apartment in the building, was allowed to access their network account from his computer through a wire running into the landlord's apartment.

Police said they questioned Mr. Darby and he consented to a search of his computer. That search led to the seizure of the computer, the issuance of another search warrant authorizing police to view its contents and the arrest of Mr. Darby, who is awaiting trial in Worcester Superior Court on two counts of possessing child pornography.

Through his lawyer, Leonard J. Staples, Mr. Darby filed a motion to suppress the evidence against him, claiming the search and seizure were illegal and that police used "deception and coercion" to get him to sign a consent form.

Assistant Attorney General Matthew J. Shea said in his written opposition to the motion that the warrantless search was lawful because Mr. Darby consented to it "freely and voluntarily."

In an affidavit accompanying the motion, Mr. Darby said he and his brother, Aaron, who lived with him at the time, initially told investigators they would not consent to a search of their apartment.

Mr. Darby alleged in the affidavit that police then advised him they had a warrant to search the premises and that it would be in his best interest to cooperate. Mr. Darby testified at a Feb. 6 hearing on the motion that he believed the troopers were investigating the possible theft of Internet services when he later signed the consent form.

Judge John S. McCann, who presided over the hearing, denied the motion in a March 4 ruling. The judge found that Mr. Darby's consent to search was "voluntary and freely given." Judge McCann further found that police did not mention the search warrant they had for the neighbor's apartment, that they told Mr. Darby their investigation related to child pornography and that the consent form signed by Mr. Darby "explicitly stated that the defendant had the `absolute right to refuse to give (his) consent.'"

Mr. Darby, who is free on $1,000 cash bail, has pleaded not guilty to the charges against him. His case has been continued to April 10.