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January 19, 2004  
XXXLaw Bulletin - Suppression Motion Granted in Mike Jones Case

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This Bulletin, our first in over one year, brings some some wonderful news in the Mike Jones Case and it reflects our first combined email Bulletin to the xxxlaw.net and adultinternetlaw.com subscriber lists. If you are new to our Bulletin list, Welcome. You can expect to receive about five Bulletins per year as legal news (mainly cases and statutes) become significant enough to share with you. We have never shared our list with anyone, and we never will. (Please see the bottom of this list for subscriber information.)

Mike Jones Decison

I am delighted to report that Circuit Court Judge Sharon Prather Friday afternoon granted our defense motion to suppress all evidence obtained and deriving from the search warrant executed against Mike Jones of L&M Enterprises (and founder of CD Babes) on October 28, 2000. As you probably know, Mike was indicted for obscenity and child pornography in 2001. Judge Prather found that the search warrant violated the First and Fourth Amendments because it authorized a "general search" for obscene and underage materials in the home and studio of Mike Jones, that it lacked particularity that might direct and limit the officers as to what they were to seize, that the search itself devolved into a constitutionally impermissible "general search" (in other words, a fishing expedition) and that it amounted to an improper prior restraint on speech without adequate judicial oversight. A copy of the victorious motion to suppress is available for download in Acrobat format on the front page of xxxlaw.net. Feel free to share it and post it on your sites.

She held that Mike's business was an active expressive enterprise publishing images, video, and web sites to the Internet, and so the scope and scale of the seizure impeded onging, presumtively protected expression in a manner that did violence to the Constitution. She found that the warrant and its execution amounted to an improper prior restraint of speech in progress. She cited Fort Wayne Books v. Indiana, Marcus v. Search Warrant, and the Illinois case of People v. Eagle Books in a decision that she read from the bench Friday afternoon in the Woodstock Courthouse. Warrants must constrain the officers by describing with particularlity what is to be seized, and it just is not good enough for constitutional purposes to direct an officer to seize "all obscene materials" as this warrant did. This is a significant victory for both the right to privacy and the right to free expression.

We have been involved with this case since the day that the Warrants were executed and the result today is the culmination of three years of work: Mike Jones and I were attending the AWE Show in Chicago on a Saturday afternoon in October, 2000, when he learned from a cell phone call that deputies were in his house and forcing entry into his studio to execute the warrant and that they were questioning his children about sexual matters. The scope of the intrusion was massive in both the home and in the studio. The officers seized adult tapes held for private purposes in two bedrooms, seized the computer that Mike's then- fourteen year old daughter used for schoolwork, almost all financial records, and every videotape, cdrom, floppy, peripheral and computer in sight. That night, Reed and I went to the studio with Mike and saw it virtually empty, except for some 3 x 5 photographs, a camera, a tripod, backdrops and furniture.

It was a long and arduous struggle for him to attempt to rebuild his business, especially because of the onus that attaches to anyone accused of crime involving images of children. It is important to note that no one ever claimed that Mike Jones ever took the pictures claimed to be child pornography which were the subject of five counts of the indictment. They were recovered by a forensic analyist from the deleted contents of an Internet Explorer cache file and all of the suspect images were thumbnails created and last accessed with minutes of each other several months before the warrant issued.

We go back to court in roughly thirty days for status to learn what the State's intentions are. The State can certify that its case is materially impeded because of the suppression and file an appeal to the Illinois Appellate Court, 2d District; It is at least theoretically possible for the State to proceed to trial on the Obscenity counts using images it obtained outside and independently of the search, from Mike's web site; and of course the State can dismiss the indictment. We expect the indictment to be dismissed. However, if it is not dismissed, we will aggressivley, zealously, and resolutely try this case to its conclusion - defending MIke Jones with all of the skill and experience at our disposal. We do not believe him to be guilty of any crime at all, and even had today's motion been denied, we believe the result of a trial would have been his acquittal on all of the counts.

It is important to acknowledge the significant, invaluable contributions made by Reed Lee of my office. Reed collaborated with me extensively in writing the motion to suppress, he participated fully (despite a fever on the first day of hearing) in the three days of hearing, including his examination of the forensic computer analyst from the Illinois Department of State Police, and Reed wrote the final, winning Brief.

Some of the important legal lessons about the operation of adult sites we've learned by first hand observation in this case:

1. The importance of keeping redundant off-premises 2257 records. That you should be prepared at all times for an inspection or warrant with accurate and up to date records. That all materials essential to the operation of your site must exist redundantly in another location because, without this practice, such a police operation may functionally shut you down.

2. The importance of keeping your business computers free of any browsing unrelated to the operation of your site, and securing it from others who might do so in your absence.

3. The importance of keeping business operations out of and away from your home.

It had been my hope to write a longer Bulletin, dealing with the Can Spam Act, with Celebrity Sites, and containing my predictions for 2004, but these will have to wait for the next Bulletin. I do expect to update xxxlaw.net shortly with new articles about those topics and others. Since the last Bulletin was sent out, a great many email address of people I've met at shows, conventions, and groups have become inactive. Please do let your associates know about our Bulletin and invite them to join our list, and freely forward it to others. Finally, do take a look at our new site, adultinternetlaw.com which contains some valuable articles written by some preeminent authorities on the law of the adult internet. (Well, actually it's not a new site, it's been around for some years, but it is a new site for us.) I am quite honored by Greg and Rich's decision to sell adultinternetlaw.com to this firm as they, themselves, left the practice of adult internet law.

All best wishes,

J. D. Obenberger and Associates - Attorneys and Counselors at Law - 3700 Three First National Plaza - 70 West Madison Street - Chicago, IL 60602

Office: 312.558.6420 Cell: 312.405.6420 Pager: 312.426.6420 Fax: 312.558.7773

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XXXLaw.net
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J. D. Obenberger and Associates

Suite 3700 Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602

Phone 312.558.6420
Fax 312.558.7773
Pager 312.426.6420





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