Photos found in Newport doctor’s home can’t be used during child porn trial, judge says

Hundreds of images that prosecutors describe as child pornography found in a Newport Beach doctor’s home will not be presented as evidence against him at trial, according to a federal judge’s ruling.

In his May 15 decision, U.S. District Judge Cormac Carney cited concerns about “false and misleading statements” an FBI agent made in an affidavit presented to obtain a search warrant for Dr. Mark Rettenmaier’s home.

Rettenmaier, a gynecological oncologist who practiced at Hoag Hospital in Newport Beach and lives in Laguna Hills, was indicted in 2014 on two felony counts of possession of child pornography.

Rettenmaier’s attorneys have asked Carney to throw out photographic evidence in the case, alleging that it was discovered through an improper search of the doctor’s home.

The issue centers on the description of what officials call “the Jenny image” that allegedly was found in unallocated space on Rettenmaier’s computer after he took it to Best Buy for repairs. The image is of a nude pre-pubescent girl on her hands and knees on a bed wearing a choker collar around her neck. In an affidavit, FBI agent Cynthia Kayle described it as child pornography.

However, Rettenmaier’s attorneys argued in a January hearing — and Carney ultimately agreed in his ruling — that the image was instead child erotica. For a photo to be considered child pornography under federal guidelines, it must depict sexual intercourse, lascivious exhibition of genitals, bestiality, masturbation or sadomasochistic abuse.

“However, the Jenny image, although distasteful and disturbing, was not child pornography,” Carney said, according to transcripts of last week’s hearing. “It was child erotica, the possession and viewing of which is not unlawful.”

Carney also noted that Kayle didn’t mention in her request for a warrant that the image on the doctor’s computer was found in unallocated space, an area where deleted files are kept, making it difficult to determine whether he was ever aware of it.

The photo alone was not sufficient to grant a search warrant for Rettenmaier’s home, Carney concluded, meaning that photographs officials have described as child pornography that allegedly were found on Rettenmaier’s iPhone, laptop and multiple hard drives inside his home cannot be presented during the trial.

Prosecutors allege the phone alone held more than 800 pictures of naked or partially nude girls.

U.S. Attorney Sandra Brown defended Kayle and the information she presented in the affidavit. Brown said she considers the Jenny image to be child pornography.

“She did the best she could,” Brown said of Kayle. “She provided an accurate description of one of the images. She also described other images that displayed the vaginas of young girls, and that was enough to provide probable cause.”

Carney disagreed.

“A person’s home is sacred to me,” he said. “And I’m not trying to get on my high horse, but, you know, close is not good enough for me when you’re asking to search someone’s home.”

Rettenmaier’s attorneys also have requested that photo evidence found on his computer hard drive be excluded because it was discovered by Best Buy Geek Squad technicians who the attorneys contend were improperly acting as paid FBI informants.

Carney said during last week’s hearing that he found no constitutional problem with any of the searches performed by Best Buy employees because Rettenmaier had no reasonable expectation of privacy after he authorized them to recover data on the hard drive.

“As a consequence, the government and its purported confidential human sources at Geek Squad City were free to conduct any search of the hard drive without a warrant and without violating Dr. Rettenmaier’s Fourth Amendment rights,” Carney said.

Rettenmaier’s case began in November 2011 when he took a computer hard drive to a Best Buy store in Chino for repairs.

The drive was shipped to the Geek Squad maintenance center in Kentucky, and in January 2012, Justin Meade, a supervisor at the center, contacted a local FBI office to say a technician had found something suspicious.

Meade showed FBI agent Tracey Riley thumbnail photos on Rettenmaier’s hard drive that the agent said she recognized as child pornography. Authorities said the first photo the agent saw was the Jenny image. Other photos were close-ups of pre-pubescent female genitals, according to testimony given during a January hearing.

Best Buy’s policy prohibits employees from accepting money from the FBI in exchange for information about customers. However, one FBI agent testified in January that he compensated Geek Squad technicians for the time they spent showing agents the photos at their facility.

Thom Mrozek, a spokesman for the U.S. attorney’s office, said Tuesday that prosecutors are continuing to assess Carney’s ruling and its effect on the case.

Rettenmaier’s trial is expected to begin in February.

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