What is the test for possession of child pornography?

Even in the most obvious cases of property that it is illegal to possess, the government must prove certain elements before possession is deemed unlawful. For example, Deep Sea concedes that certain types of pornography are "generally understood by the public to be illegal to possess." We assume that Deep Sea includes child pornography within this category. However, 18 U.S.C. 2252 makes possession of child pornography unlawful only if the depiction is of an actual minor, and the pornography was transported or shipped in interstate or foreign commerce. Id. 2252(a)(1); cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding that ban on virtual child pornography was unconstitutionally overbroad because it proscribed speech that was neither child pornography nor obscene).

Although we decline to specifically determine which items are contraband and which items are illegal to possess because of extrinsic circumstances, it is sufficient to determine that "property that it is illegal to possess" includes items that may be legally possessed in some circumstances but that become illegal to possess in others. For example, liquor or cigarettes that generally may be legally possessed by consumers may become illegal to possess if they fail to bear the appropriate tax stamps. See, e.g., United States v. Baker, 63 F.3d 1478, 1487 (9th Cir.1995) ("[u]nder Washington law, mere possession of unstamped cigarettes, even by an Indian, is prohibited if the cigarettes are not preapproved for tax exemption").