CA- Clovis police sued for keeping items from child porn search

3-2-2009 California:

Fresno man has not been charged since police seized computers in 2007.

It's been more than two years since Clovis police came to Chester Garber's north Fresno home in search of child pornography.

They ordered Garber and his sister-in-law into a room and proceeded to search the house. They left with several computers, as well as DVDs and videos.

To this day, Garber has been charged with nothing, but Clovis police remain in possession of some of the items taken in February 2007. Among them, Garber says, are computers with medical records from his wife's pediatric practice.

Garber, his wife, Dr. Emilia Ting, and her sister Betty Ting are now turning to the federal courts for help.

They have filed a civil lawsuit in U.S. District Court in Fresno against Clovis, two of its officers and its former police chief, alleging civil rights violations for searching the house without probable cause .and for unlawfully seizing medical records that contain private patient information, in violation of state and federal laws.

Fresno attorney Jacob Weisberg, who is representing Garber, his wife and sister-in-law, said Clovis police "screwed up" when they seized the computers without having a specially qualified person present as required by state law .when private patient records are involved.

And after two years, he said, it's apparent the photos that sparked the investigation in the first place don't constitute child pornography.

John Sims, a constitutional law professor at the University of the Pacific's McGeorge School of Law in Sacramento, questioned the length of time that police have held evidence without filing charges.

"If they take the computer, which I assume they had the proper basis for, can they keep it indefinitely without giving it back?" Sims asked. "That seems to me to be a problem. It seems to me they can't hang this guy up indefinitely."

Clovis City Attorney David Wolfe said he couldn't comment on pending litigation.

The matter already played out over several months in Fresno County Superior Court, where both sides battled with legal motions related to the case.

In October 2007, Judge Rosendo Peña denied a motion to return Garber's property and to throw out any evidence seized during the search of the home on the 8000 block of North Colfax Avenue after defense attorney Roger Nuttall, then representing Garber, argued the affidavit supporting the search warrant was flawed.

Those issues will likely again be argued, but now as part of a federal civil rights lawsuit in which Garber and the Tings seek compensatory and punitive damages. Also named as plaintiffs are companies owned by the three.

Weisberg said not having access to the records has hurt Emilia Ting's medical practice.

He also said parents of some of the children treated by Ting might look elsewhere for medical care because of the child pornography allegations hanging over her husband.

"It's scary stuff," Weisberg said.

The case dates to late 2006, when Garber -- who court papers say has a professional photography business -- gave a worker at the HomeTown Buffet on Shaw Avenue in Clovis a birthday present that included four DVDs. The girl had turned 18 a few months prior.

Clovis police said Garber was a regular at HomeTown Buffet and had allegedly made several comments to the girl that made her uncomfortable. In a court declaration, Garber denied that he had made statements such as "be careful, because [you] might be kidnapped and sold into Chinese slavery."

The girl took the DVDs home and found images such as nature pictures, but also several shots of girls allegedly younger than 18 in provocative poses and "in varying stages of dress or undress," according to court documents.

Abby Spencer, a member of the Clovis Police Department who is named in the lawsuit, said in an affidavit supporting a search of Garber's home that the images included "little girls that are obviously under the age of 18," others that "are possibly child erotica."

Of one photo, Spencer said: "I can say without a doubt that this image meets the definition of child pornography."

But no arrest was made, and soon both sides were fighting in court. After Peña's rulings, .Garber and the Tings filed a complaint with the federal government, alleging multiple violations of the Health Insurance Portability and Accountability Act. HIPAA, as it is also known, covers federal health-care privacy.

In court documents, Spencer said Nuttall told her she could review photographs on the seized computers, and she promised not to view any business records or patient files. .Clovis also argues that as a police agency, it is not bound by the privacy constraints of HIPAA.

Weisberg said Clovis police have handed the case over to the U.S. Attorney's Office.

Wolfe and Lauren Horwood, a spokeswoman for acting Eastern District U.S. Attorney Larry Brown, said they could not comment. ..News Source.. by John Ellis / The Fresno Bee