Motion to Reconsider – Child Pornography


COMES NOW the Defendant, by and through his undersigned counsel, and, hereby requests this Honorable Court reconsider the Court’s August 30 Order Denying Defendant’s Motion to Suppress Evidence (“Order”), and grant said Motion to Suppress, and in support thereof, hereby states as follows:

A. Time Line of Events

1. At page 2 of the Order, the Court recites the key components of the chronology leading up to the search of the Client’s home. In summary, the following dates are operative:
a. May 22 – A Company notified the National Center for Missing and Exploited Children (“NCMEC”) of an alleged upload of child pornography images on May 21. That event was 17 months before the October 25 home search warrant was issued. A Company provided the IP address, which New Jersey Det. B. searched and found was owned by a company operating out of Orange Park (later determined to be the employer for the Client).
b. August 17 – A subpoena was issued by New Jersey Detective B. to a Company for subscriber and billing information for the IP address provided by a Company. That subpoena revealed an address registered to K. W., at a home located at Orange Park, Florida. Thus, the home was known to law enforcement 14 months prior to the home search.
c. September 29 – Det. B. issued a subpoena to the Company, to determine the names of any employees who resided at the home. As noted, that subpoena revealed that the Client resided at that home address. Thus the name of the Client as a resident of the home address was known to law enforcement 13 months before the home search.
d. October 14 – Det. B. contacted FDLE in Jacksonville, and provided them all this information. The matter was assigned to Agent T. Thus, this information was in the hands of FDLE one year prior to the home search.
e. July 28 – Judge W. issued a search warrant to the Company, at the request of Agent T., to provide updated information regarding the email address used to upload the alleged child porn on May 21.
f. August 17 – Agent T. received a response from the Company that the email account in question was closed on May 21 – 17 months prior to the home search. Moreover, Agent T. acquired this knowledge two months prior to the home search.
g. October 25 – Agent T. applied for a search warrant (from a different Clay County Judge) for the search of the home, and did so without revealing that the prior July 28 Clay County search warrant, issued to the Company, had revealed that there was no evidence of any continued uploading or distribution of child pornography, and, further, failed to reveal that the account itself had been closed on May 21. The search warrant was served two days later, which, as noted, was 17 months after the alleged uploading of child pornography.

B. Child Pornography – Single Incident Staleness Analysis

2. The Client urged the Court to conclude that, with regard to a warrant to search for child pornography, where the Affidavit only recited a single incident, from 17 months ago, involving an email address that was only open for 2 days, and closed on May 21, the same day of the alleged transmission of pornography – such Affidavit was stale (separate, and apart from the staleness relevant to whether or not the pornography was located at that search location).
3. In analyzing staleness, as it applies to whether or not the child pornography evidence itself was stale, the Court stated as follows:
Information is not stale if “there is sufficient basis to believe, based on a continuing pattern or other good reason, that the items to be seized are still on the premises.” Id. at 9 (emphasis added).

Order at 4.

4. However, thereafter, the Order never identified any “continuing pattern” or any “other good reason” to vitiate the traditional use by the court’s of “30 days as a [rule of thumb]” to gauge staleness. Order at 4. Respectfully, the Order could not identify any such evidence, for reason there were absolutely no additional events to establish a “continuing pattern or other good reason” for conducting the search – 17 months after the Company’s report of the upload of child pornography.
5. In the Client’s Motion to Suppress (see Memorandum of Law, Part D, at pages 16-24, and his Post Suppression Hearing Memorandum of Law (at Part D, pages 8-9), the Client pointed out the case law that requires the very “continuing pattern,” this Court (Order at 4) noted was required. However, respectfully, notwithstanding this Court’s own pronouncement of that requirement to defeat a staleness argument, as well as the ample case law cited to the Court, the Order identifies no continuing pattern – nor could it – because there was none.
6. The Order relied on State v. Sabourin, 39 So. 3d 376 (Fla. 1st DCA 2010). The Client’s Motion to Suppress Evidence, at Part D.1., pages 16-17, explained how Sabourin did not apply. That analysis bears repeating. In our Motion, we distinguish Sabourin, noting that the facts therein were entirely different than this case. Those unique facts in Sabourin (which do not exist here) permitted that court to determine the probable cause was not stale. Those facts involved the following key factors:
a. Sabourin was viewed as a “collector” of child pornography, due to the fact he was a manufacturer of child porn (that is, he took photographs of the child’s “buttocks and vaginal area”), and was engaged in “on-going criminal activity.” Sabourin at 379, 381 and 383. There was (and cannot be) any claim the Client ever took photographs, or was a “collector,” or was a manufacturer.
b. “The Defendant took pornographic photos” of a seven-year-old girl. Sabourin at 378. Thus, as noted, he was a manufacturer of child porn. Conversely, with the Client, Agent T. had no evidence of the Client ever being “involved in the manufacturing of any child pornography” (Depo at 7:9-12), or that the Client did “ever take a photograph or videotaped any child involved in some type of improper child pornography.” Depo at 7:13-16.
c. “The events described did not occur in the distant past.” Sabourin at 383. Conversely, with the Client, the single email event did occur in the “distant past.”
d. “On-going criminal activity (the six-year-old attempted to reassure the seven-year-old by saying, ‘It’s ok, he takes pictures of me like that all the time.’).” Thus, Sabourin was involved in multiple acts of manufacturing child pornography, over an extensive period. Conversely, with the Client, there was no probable cause of any “on-going criminal activity.” Rather, there was but a single email, downloaded 17 months earlier.
7. For these reasons, clearly, the holding in Sabourin has no application to Mr. Stuart.
8. The Order (at 5) also relies on State v. Felix, 942 So. 2d 5 (Fla. 5th DCA 2006). However, again, Felix provides no authority to support the lawfulness of the search in this case, as established in our Motion to Suppress Evidence, at Part D.3., pages 18-19. Importantly, the time delay in Felix was five and half months. Here, it is 17 months – which is three times the delay in the Felix case. Moreover, the cases cited in Felix did not involve any cases where the delay was longer than 10 months, and most of the cases cited were approximately six months old (one third the delay in this case). Here, although the Court asserts that “collectors tend to retain the images for long durations of time” (Order at 5 – emphasis added), not only is there no evidence that the Client was a “collector” (indeed, the evidence is to the contrary – and involves only a single upload from an email address that was closed down the exact same day), but, the “long duration” staleness time frame condoned by Felix was only five and a half months – not 17 months.
9. The Court also cited United States v. Prideaux-Wentz, 543 F.3d 954, 956 (7th Cir. 2008). Order at 5-6. The Order distinguished Prideaux-Wentz and applied Felix. Order at 6. However, for the reasons noted in ¶8 above, Felix does not provide authority to support the stale search in this case. Our Motion to Suppress Evidence, at Part D.8., pages 21-22, explained how Prideaux-Wentz supports suppression. Of course, as the Order at 3 noted, when analyzing staleness, the “continuing pattern” is crucial. However, the conduct here was neither “continuing,” nor did it involve a “pattern.” Similarly, Prideaux-Wentz noted that the “Passage of time is less critical when the affidavit refers to facts that indicate ongoing continuous criminal activity.” Id. at 963 (emphasis added). Here, there is absolutely no “ongoing continuous criminal activity.” Indeed, to the contrary, as noted, the Affidavit asserted a single download 17 months earlier. Moreover, the evidence in the possession of Special Agent T. (but concealed from the Court) was that the email account was actually closed – 17 months earlier. That closure represents the antithesis of the “continuing pattern” this Court found essential to defeat staleness.
10. In distinguishing Prideaux-Wentz, the Order states that the “supporting affidavit outlines a sequence of events establishing probable cause” (emphasis added), and then recites the chronology of the investigation, set forth in ¶1 above. Respectfully, that certainly is a “sequence of events” – but only a “sequence” relevant to the investigation – not facts that would establish probable cause and establish the absence of staleness. Indeed, as the Order notes, the only “event” involving child pornography was the May 21 uploading of alleged child pornography – a single event that occurred 17 months earlier. Thus, all the other investigatory events recited at page 6 of the Order are certainly in a “pattern” of investigation, but not a “pattern” of child pornography. In short, the Affidavit failed to establish any “sequence of events” – let alone the “continuing pattern” required by this Court. Order at 3.
11. The Order relies on the fact that the Affidavit “provided a specific time in which the incident occurred and identified the particular IP address,” concluding that fact was one “further distinguishing this case from the case in Prideaux-Wentz.” Order at 6. However, respectfully, that observation misses the point. Yes, the Affidavit did identify a “specific time in which the incident occurred” – but that isolated incident was 17 months earlier – thus utterly failing to establish the “ongoing continuous criminal activity” required by Prideaux-Wentz, and all relevant case law, as well as this Court’s own “continuing pattern” requirement. Order at 4.
12. The Order then states as follows:
Based on the facts contained within the affidavit underlying the search warrant, the Court finds it was reasonable to believe that even after fifteen months, Defendant would still be in possession of the uploaded images.

Order at 6 (emphasis added).

13. Although concluding that the “facts contained within the affidavit” proved the Client would “still be in possession of the uploaded images” – the Order recites no such facts – for reason no such facts are recited in the Affidavit at all. Moreover, this observation which, respectfully, is factually incorrect, also overlooks the proposition that Agent T. intentionally omitted from his house search affidavit the facts that the email account in question had been closed – 17 months earlier.
14. The Court also cited U.S. v. Lemon, 590 F.3d 612 (8th Cir. 2010), in support of denial of suppression. Order at 6. However, the facts in Lemon are inapposite and do not support denial of the Client’s suppression motion, for a variety of reasons, including the following:
a. Lemon was engaged in “continuing” conduct – including exchanging child pornography on at least four occasions. Lemon at 614. Here, there was but a single download, 17 months earlier, and no “exchanging” of child pornography, like collectors do.
b. Lemon’s IP address and screen name had been used a mere two months prior to the search. Lemon at 615. Here, the most recent (and only) use was 17 months earlier – some 8.5 times the delay in the search in Lemon.
c. Lemon’s “behavior [was] indicative of a preferential collector.” Lemon at 614. Case law allows more staleness leeway for collectors. No facts in the Affidavit established the Client to be a collector.
15. In short, the conduct in Lemon involved the “continuing pattern” of conduct that this Court concluded was necessary to defeat the defense assertion that a 17 month old “fact” was stale. No such allegations apply to the Client, and hence the Lemon case does not apply to save a very stale Affidavit – especially where the affiant conceded he needed to update his probable cause.
16. The Order also relied on U.S. v. Morales-Aldahondo, 524 F.3d 115 (1st Cir. 2008), for the proposition that a “three-year lapse between Defendant’s purchase of child pornography and warrant application did not render information stale.” Order at 6. However, again, the facts in Morales-Aldahondo are entirely inapposite to those before the Court with regard the application for the search in this case. Those key differences include the following factors:
a. The child pornography in question had been downloaded from two different child pornography sites, “both of which served as gateways to various forms of child pornography, and to individuals seeking physical contact with minors.” Morales-Aldahondo at 117. The owners and operators of that site were “convicted of multiple child pornography offenses and sentenced to lengthy prison terms.” Id. Here, there is no evidence in the affidavit whatsoever about the source of the May 21 uploading – let alone that it came from some huge commercial site that was a “gateway” to child pornography.
b. The investigation of the site operators lead to a “list of subscribers who had accessed child pornography.” Id. The investigation then focused on the “five individuals with the largest volume of purchases.” Id. Here, of course, there is no evidence of a purchase whatsoever – let alone that the single download was among the “largest volume of purchases” from some “gateway” commercial child pornography sites.
c. Because of this large volume of purchases, defendant’s brother (E. M. A.) was correctly characterized as a collector of child pornography, such that the affiant could fairly represent that, because he was a collector, he was a person who would “value their collections to such an extent that they keep the images for ‘a period of time, usually for years.’” Id. at 118. Here, no evidence in the Affidavit even remotely suggested the Client was a “collector.”
d. During the search of E.’s home, which he shared with the defendant, the officers seized defendant J. M. A.’s computer, where they found more than 100 images and approximately 18 movie clips – after which he was indicted. However, the key question with regard to staleness was whether or not the search – seeking evidence with regard to his brother – was valid. For the reasons noted above, the Court concluded the information was not stale.
e. Again, here, none of the factors in Morales-Aldahondo are applicable to the Client, who had but a single download, 17 months prior to the search, from a site that was not identified at all – let alone as a “gateway” site, or let alone that the Client was a person downloading the “largest volume of purchases” from that site, or that the Client was a “collector.”
17. In short, respectfully, none of the facts set forth in the Client’s home search affidavit established the “continuing pattern or other good reason” to defeat staleness.
18. Moreover, respectfully, the Order incorrectly seeks to defend a stale Affidavit, which Agent T. himself admitted was stale.

C. Staleness – Probable Cause Stale to Believe The Client Still Lived at the Premises to be Searched

19. This matter was briefed in the Client’s Post Suppression Hearing Memorandum of Law, at Part B, pages 2-7, which is incorporated herein by reference.
20. Citing Sabourin (Order at 7), the Court noted that the Affidavit “is not required to provide direct proof that the objects of the search are located in the place to be searched.” However, in applying that principle, one has to examine the facts in the Sabourin case. In Sabourin, probable existed that the defendant took compromising pictures of young ladies with their underwear off – but he took those pictures with a camera while they were in his car, whereas the search affidavit sought permission to search Sabourin’s residence. Thus, the only question in Sabourin was whether or not the photographs he took with the camera, in his car, could reasonably be found in his own residence. The court concluded that such photographs, and the camera, would likely be stored in his residence. Moreover, the affidavit established probable cause that this really was the Sabourin residence – facts that are entirely missing from the Affidavit in the Client’s case.
21. In dismissing the defense claim that the Affidavit, in order to correctly establish probable cause for the search, had to establish that the alleged downloader of child pornography lived at the location where the search was to be conducted (17 months later), the Order stated as follows:

Defendant’s allegation that Agent T. failed to provide additional information in his affidavit, that Defendant resided at the search location during the incident or fifteen months after the incident, requires the magistrate to review the probable cause in the search warrant at a higher level, rather than simply determining whether there is a fair probability that the items sought to be seized will be found at the particular location identified in the warrant.

Order at 7 (emphasis added).

22. Respectfully, the defense is not suggesting some “higher level” analysis of the mandatory nexus element. Rather, the Client only seeks application of the bedrock constitutional nexus element, which mandates that an affidavit must establish probable cause that the items to be searched are located at the location of the search. That is the fundamental “nexus element” noted by this Court as a fundamental requirement for establishing probable cause for a search. Order at 3. Indeed, because the nexus element is a fundamental prerequisite for a search (in addition to the “commission element”), every affidavit must establish probable cause that the items to be searched will be located at the premises to be searched.
23. During the suppression hearing, Agent T. readily conceded (as he and every affiant must) that the only reason he believed the items to be seized (that is, the child pornography and computer) would be found at the home is because he believed the Client lived there. He further readily conceded that, if the Client did not live there, or had moved to another address, he would not have sought a search warrant for the home. However, nowhere in his Affidavit did Agent T. identify any non-stale probable cause that the Client lived at the home.
24. In defense of Agent T.’s failure to establish probable cause that the Client lived at the residence – either at the time of the May 21 child pornography uploading, or at the time of the service of the search warrant, the Court noted that Agent T.:
provided information that a subpoena record from the Company, Defendant’s place of employment, indicated that Defendant resided at the search location since May.

Order at 7 (emphases added).

25. Respectfully, that subpoena revealed that, as of September 29 – the Client lived there. That is all that it revealed. It did not reveal that he lived there on May 21 (the date of the uploading of child pornography), and certainly did not reveal that he lived there as of the time of the October 25 search warrant affidavit. In short, the subpoena established that the Client lived there at a single moment in time – 13 months earlier than the search. Respectfully, there was absolutely no proof that the Client still lived there – 13 months later.
26. Acknowledging that the “affidavit did not provide additional information verifying Defendant’s continued occupancy” of the search premises (13 months later), the Court nevertheless concluded that:
it is reasonable that the magistrate, using common sense and totality of circumstances, determined that there was fair probability that Defendant still resided at the location identified in the warrant.

Order at 7 (emphasis added).

27. Respectfully, the issuing magistrate is required to use the facts recited within the four corners of the Affidavit. Speculation and conjecture are not permitted. Moreover, we have mobile society. There was nothing in the “totality of circumstances” recited in the Affidavit that would allow an issuing magistrate to use “common sense” to conclude that the Client still lived there 13 months later. Indeed, as noted, there was no “totality of circumstances” regarding either the probable cause for the child pornography or that the Client still lived at that residence. Rather, the only circumstance recited was that the Client lived there 13 months earlier.
28. The Fourth Amendment does not allow law enforcement officers to disregard the fundamental nexus element of a warrant, or permit issuing magistrates to make guesses or speculate about whether or not the person alleged to possess the contraband still resides at the address of the search. That is particularly so when verification of an address was such a simple task for Agent T. What law enforcement officer cannot check a Florida driver’s license – that requires a mere push of a button or two on their computers. The Fourth Amendment is not designed to protect officers who abrogate the probable cause requirements. Indeed, it is a sacred amendment designed to protect the citizens by imposing prophylactic action to sanction to officers who execute affidavits that fail to establish probable cause. That purpose is all the more appropriate when the officer has abrogated one of the two key probable cause elements – the nexus element. Reviewing courts cannot permit affiants to do so, or else the Fourth Amendment will be meaningless.
29. While overlooking the Affidavit’s utter failure to establish the nexus element (other than 13 months prior to the search), the Court cited Sabourin for the proposition that “collectors will want to secure them [the contraband] in places like a private residence.” Order at 7. However, as noted, unlike Sabourin, nothing in the T. Affidavit establishes the Client to be a “collector.” He was not. As noted, this was a single upload on a single occasion 17 months earlier – from an email address that was terminated that very day. Thus, the Sabourin language is inapplicable to the Client.
30. Moreover, the absent nexus element is precisely the point. Agent T. testified that the only reason he believed he had probable cause to search the home was his belief that the Client lived there. Yet, he provided no probable cause that the Client lived there, either at the time of the May 21 uploading, or (and most importantly) at the time of the search. That glaring failure to establish the nexus element cannot properly be overlooked by the Court.
31. The Court then concluded that “this is not a type of crime, in which it is common for Defendant to move often from one place to another.” Order at 8. Respectfully, counsel is aware of no authority for that proposition. Indeed, counsel would presume that the inference is precisely the opposite. A person committing a child pornography crime on the internet would more likely want to move to different residence, to avoid apprehension. Moreover, there is nothing in Agent T.’s affidavit to support any finding that the Client (or any other alleged possessor of child pornography) does not move. Lastly, this conclusion is particularly inappropriate in this case, since the home was not even owned by the Client. He was living there with his fiancé.
32. The Order also concluded that, because the “address obtained was provided by Defendant’s employer,” that “also suggests stability.” Again, Agent T. made no such representations in his Affidavit. Indeed, the information obtained from the employer was 13 months earlier. Nor was there any evidence the Client was still employed by that employer – 13 months later. Nor was there any evidence that the Client had any employment history with the Client – let alone a lengthy employment history with that company. Indeed, the only fact represented in the Affidavit was that the Client was an employee as of September 29. There was no evidence that he was an employee either before or after that isolated date in history. Thus, the Order’s speculation, made completely outside the four corners of the Affidavit, is also unsupported by the Affidavit.
33. In excusing Agent T.’s abdication of any facts in the Affidavit to support the proposition that the Client still lived in that location (13 months later) the Court stated as follows:
Moreover, based on the training and experience of Agent T., a magistrate could conclude that the detective would verify the residential information.

Order at 8 (emphasis added).

34. It is hornbook law that a magistrate can only base a decision on probable cause from within the four corners of the affidavit. Thus, and respectfully, it is improper to support the search warrant affidavit – based on speculation of the issuing magistrate that Agent T. “would” have done his job, and provided the mandatory probable cause for the nexus element. During the suppression hearing, Agent T. conceded that he put none of that information about any “background investigation,” into his Affidavit. The Court, in note 1, at page 8 of the Order, states that such information “would provide his [Stuart’s] current address” – but the key is that the Affidavit did not do so. Any speculation as to what Agent T. “would” or could have done is impermissible speculation, outside the four corners of the Affidavit. Indeed, if satisfying the nexus element of the Fourth Amendment was simply a matter of assuming that officers always did their job, there would be no need to require officers to actually comply with the requirements of the Fourth Amendment.
35. Lastly, the Order states that, “The affidavit contains a sworn assertion of occupancy.” Order at 8. Respectfully, that is incorrect. As noted, the Affidavit asserts only that International Flavors and Fragrances confirmed that the Client was an employee who (as of their September 29 response), “also lives at Orange Park, FL.” Again, that assertion involved nexus probable cause that ended up being 13 months old – and hence stale.

D. Storage Device – No Probable Cause Alleged Regarding the Presence of a Storage Device

36. In analyzing the defense assertion that the Search Warrant Affidavit completely failed to establish any probable cause for the existence of some storage device, the Order recited one of the paragraphs in which Agent T. recited his experience. Specifically, the Order, at 8-9, cites [unnumbered] paragraph 7, at page 5 of the Affidavit, in which Agent T. asserts that “files related to the exploitation of children [are] found on computers and other digital communication devices.” The Order then notes that this paragraph is found under the “Computer Evidence” heading – and not under the “Probable Cause” heading. Order at 9. Of course, it is not under the “Probable Cause” heading, or within any of the facts alleged in support of the probable cause (at pages 2-9 of the Affidavit), for the obvious reason that this generic claim was not part of the probable cause. More to the point, Agent T.’s belief as to what type of items he should be searching for – does not establish probable cause as to the actual existence of images on such a device. Moreover, Agent T. testified at the suppression hearing that all of the probable cause in support of his Affidavit was found in the “Probable Cause” section. Thus, by his own testimony, his probable cause as to the existence of a storage device in the possession of the Client can not be found in this generic, boilerplate language, listing items for which the Agent wished to search.
37. The Order further excused the failure of the Affidavit to provide probable cause to establish the existence of a storage device, by concluding that “it is reasonable to believe, however, that a fixed computer will most likely remain in the residence of its owner” citing Felix. Order at 9 (emphasis added). Of course, here, there is no evidence whatsoever that the alleged child pornography uploaded on May 21 was uploaded to a computer at all – let alone a “fixed computer.” Moreover, Agent T. testified at the suppression hearing that he had no idea what the images were uploaded to, and it could have been any type of electronic device, including a home computer, laptop, iPad or smart phone. In short, not only is there no evidence recited in the Affidavit in support of the proposition that the images were uploaded to a “fixed computer” – but Agent T. specifically testified that he had no probable cause as to what type of electronic device was used to upload the images. Thus, respectfully, this conclusion that the images were located on a “fixed computer,” and thus the Affidavit established probable cause to search the home, is unsupported by either the four corners of the Affidavit, or by the sworn testimony of Agent T.

E. Franks v. Delaware

38. We have analyzed the Franks v. Delaware issue in our Motion to Suppress Evidence, at Part C, pages 14-16, as well as in our Post Suppression Hearing Memorandum of Law, at Part F, pages 10-13. We adopt and incorporate herein the analysis set forth in both of those pleadings.
39. In rejecting the Franks challenge by the Client, the Order states as follows:
Defendant has failed to establish that Agent T. intentionally meant to deceive the Court by having Judge S. sign the second warrant, instead of returning to Judge W., who signed the initial warrant to obtain corporate records from the Company.

Order at 10 (emphasis added).

40. Respectfully, that sentence misstates the position of the Defendant, as well as the law. First, Franks does not require, and the Client does not allege, that Agent T. omitted the incredibly significant information gained from the July 28 Company search warrant – with intent to “deceive” Judge S. Nor is such an evil mens rea requirement a component of a Franks analysis. Second, Franks is violated not only by “intentionally” omitting information, but also if it is done with “reckless disregard for the truth.” Franks at 171-72. Of course, Agent T. absolutely knew that his first warrant (sought for the express purpose of seeking to update his probable cause), demonstrated that there was absolutely no update to the probable cause. He intentionally sought that original Company warrant on July 28, for the express purpose of updating his probable cause. Thus, it cannot be gainsaid that, having intentionally sought that additional Company updated probable cause, he likewise intentionally left it out of the house search Affidavit. However, as noted, intentional omissions are not the only means by which Franks is violated. Violations are also established by a reckless disregard for the truth. That is absolutely what happened here. An Affiant cannot go to one judge, seeking to update probable cause, and not violate Franks by failing to let the second judge know – not only that he was entirely unsuccessful in updating the probable cause – but that his new information further defeated his probable cause by reinforcing the staleness Agent T. already knew existed (at the time he requested the July 28 Company warrant).
41. Lastly, it is not the defense argument that the failure to return to Judge W. constituted the Franks violation. To the contrary, he could have gone to any successor judge. The Franks issue is the failure to inform the second judge that the earlier Company subpoena, which was expressly sought to update the probable cause, not only failed to do so, but further defeated the timeliness of the probable cause. This Franks omission is incredibly important and relevant, given the fact that this entire suppression issue rests on whether or not the information provided by Agent T. was stale. Thus, this omission of further evidence demonstrating staleness constitutes a clear Franks violation.
42. The Order then concludes that omitting the evidence that the account was closed on May 22 “is not material because the criminal act (involving the email account) occurred prior to closing the account.” Order at 10. Thus, the Order concluded that the “omitted information is superfluous.” Id.
43. Respectfully, for all the reasons just recited – that is, that the Company warrant was sought for the express purpose of updating what Agent T. knew to be stale probable cause – cannot be “superfluous” or not “material.” Rather, this failure went to the very heart of the Client’s probable cause challenge. Again, Agent T. specifically testified that his earlier Company Affidavit was executed because he “wanted to update from May 21st” the information regarding the “contents of the e-mail account from May 21st, to the present.” T. Depo (hearing Exhibit 5) at 20:18-25 – 21:1-4. Indeed, that is precisely what Agent T. told Judge W. was the express purpose for seeking that Company warrant. See T. Company Affidavit (hearing Exhibit 1) at [unnumbered] page 4 (see the first paragraph after numbered paragraph 6).
44. Thus, Agent T., both in his Affidavit to Judge W., and under oath, has admitted the express purpose of the Company warrant was to update his probable cause regarding that email account – by securing evidence of the continued use of that email account for alleged evidence of “sharing” – and thereby seek to overcome the 17-month-old staleness issue his lack of diligence in pursuing the New Jersey information had created.
45. However, the evidence retrieved from the Company demonstrated precisely the opposite. Not only was there no update to the very staleness issue that generated the need for the Company search warrant in the first place, but the Company information revealed the email account was only open for two days, and closed 17 months prior to the home search affidavit. Thus, their Company information confirmed the absence of the very “continuous pattern” this Court held was required to defeat staleness. Order at 4. Hence, this Company information would not possibly have been more material to confirming staleness.
46. Notwithstanding the fact Agent T. sought the Company warrant for the express purpose of updating his stale probable cause, he not only omitted the truthful record information obtained from Company, but literally mislead Judge S. by repeating the boilerplate “staleness” claim (quoting, verbatim, the same paragraph Agent Taylor used three months earlier in the Company affidavit). And he did so, knowing he had information from the Company that was entirely contrary to that boilerplate claim, for reason this Company report confirmed an abandonment of any downloading or sharing of child pornography – for the prior 17 months.

WHEREFORE, it is respectfully requested that the Court reconsider its Order Denying Defendant’s Motion to Suppress Evidence and grant said Motion.