Motion to Suppress Evidence – Statements and Property
COMES NOW the Defendant, by and through his undersigned counsel, and, pursuant to Rule 3.190(h), Fla. R. Crim. P., moves this Honorable Court to suppress certain evidence, and any evidence acquired as a result thereof, including statements of the Client, obtained by an unlawful search and seizure, in any criminal proceeding of the above-styled cause, and in support hereof, the Defendant states as follows:
1. Property possessed by the defendant was illegally seized on October 27, by Agent H. T. of the Florida Department of Law Enforcement (FDLE), and other government agents, on the basis of an invalid search warrant issued without probable cause and in violation of the defendant’s constitutional right to be secure against unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution.
2. As will be seen, Agent T.’s two 2016 Clay County affidavits (one for Google records and one for a search of the home) asserted the sole source of probable cause to have come from a predicate investigation conducted by Detective B., and New Jersey detective.
3. The facts recited herein are derived from both of the Clay County Affidavits filed by FDLE Agent T. (the first in support of a warrant for Google records, and the second in support of a warrant for a search of the subject home), and are undisputed. In addition, facts recited from the deposition of Agent T. will be designated as “Depo at [page/line(s)].” A courtesy copy of the T. deposition will be attached to this motion, along with the seven exhibits marked and identified in that deposition, which include the documents referenced herein, including the two T. Clay County search affidavits.
B. New Jersey Warrant
4. On May 22, Google provided information to the National Center for Missing and Exploited Children (NCMEC) that their records showed child pornography was uploaded onto Google email servers on May 21.
5. Det. T. B. of the Monmouth County Prosecutor’s Office conducted a search of the American Registry of Internet Numbers (ARIN) and determined the IP address was owned by a Company. In August, he learned (from a subpoena to AT&T) the email address belonged to K. W.
6. On September 10, Det. B. executed an Affidavit in support of a Communications Data Warrant, to Google, for the contents of the email address, for May 21, (the date reported by Google that child pornography was uploaded onto Google email servers). The New Jersey Court issued the requested warrant.
7. On that same date, September 10, Det. B. issued an Affidavit and Application for an 18 U.S.C. §2705(b) Order – to prevent Google from notifying the subscriber, before complying with the warrant. The subscribers were Ms. W. and the Client. The Court granted this request (which Det. B. requested to be for 180 days, in violation of the statutory limit of 90 days). In compliance with the order, Google did not notify Ms. W. or the Client before complying with the warrant.
C. Clay County Search Warrants
8. On October 14, Det. B. contacted Agent T. with FDLE, and reported the May 21 images. This contact occurred an entire 12 months prior to Agent T.’s October 25 Affidavit for the search warrant of the Client’s home, and 17 months after the initial Google report of the upload to NCMEC.
9. During that one year delay, Agent T. sought and obtained two Clay County search warrants. The first was for records from Google, to “update” the stale probable cause. The second was for a search of the home.
10. On July 28, Agent T. prepared his first Clay County Affidavit, seeking a warrant for Google records, which he brought to Circuit Court Judge G. W., stating he was looking for emails and their attachments, for the subject email account, for the time period from May 21 (the date Google provided information to NCMEC regarding the upload) to the present (that is, the date of his Affidavit, July 28).
11. In that Affidavit, as part of “Affiant’s Probable Cause,” Agent T. stated that, in his experience, “… offenders who possess child pornography will share these images with other offenders online.” (emphasis added). Thus, he wanted to obtain evidence the Client was “sharing images with other offenders online,” to support his probable cause claim, and cure the staleness problem inherent in what was, by the time of this Google records Affidavit, a stale period of 14 months.
12. Agent T. testified in his deposition he knew that stale probable cause defeated the validity of a search warrant. Depo at 19:3-15; 19:23-25.
13. As a result of this significant staleness concern, Agent T. sought to “update” his probable cause. Thus, he admitted in his deposition the following:
a. That his purpose in seeking this Google warrant was to “seek evidence that the Client was continuing to share images with others online.” Depo at 18:14-17 (emphasis added).
b. He did so because he “wanted to update [the probable cause] from May 21st, which was the day you were told from Detective B. the images had been reported by Google to the NEC facility.” Depo at 20:25 – 21:1-4 (emphasis added).
c. In short, knowing the only evidence of sharing was, at that time, 14 months old, Agent Taylor was “looking for any and all information from the date of the images, May 21st to the present.” Depo at 21:13-16 (emphasis added).
14. The May 21 “images” date was already 14 months old – at the time Agent T. requested the Google email warrant from Judge W. (and 17 months old by the time Agent T. requested the home search).
15. Judge W. issued the Search Warrant to Google, pursuant to F.S. §92.605, as requested by Agent T., requesting the production of such email records, for the period from May 21 through July 28.
16. In response to this warrant, Google did not produce any records of account activity (since the email account was closed, on May 21 – the same day Google reported the images), and therefore provided no evidence the Client was still engaged in the activity Google reported in May – or that he was “sharing” images with other offenders online. Depo at 20:9-12; 21:19-21.
17. Such absence of evidence was contrary to the representations made by Agent T., in his search warrant affidavit, that “… offenders who possess child pornography will share these images with other offenders online.” In truth, his 17 month old investigation produced absolutely no evidence that anyone using that Google email address was involved in “sharing images with other offenders online” – other than that single instance, 17 months earlier.
18. Indeed, the report Agent T. received from Google (Exhibit 6 to T. deposition), revealed the email account in question was opened on May 19, and closed a mere two days later, on May 21. Thus, the sole evidence of alleged sharing of child pornography was a single email in an email account that was only open for two days, 17 months prior to the home search Affidavit.
19. On October 25 – another three (3) months after the Google Warrant was issued (and two months after he received the August 17 letter from Google – Ex. 6 to the T. deposition) – Agent T. prepared a second affidavit. This was an Affidavit for a Search Warrant of the Client’s (and Ms. W.’s) home. As evidenced by the judicial signatures on the warrants, Agent T. brought that Affidavit to Circuit Court Judge J. S. (and not to the judge who issued the Google warrant). This Affidavit contained the same information obtained from New Jersey regarding the May 21 transmission of images/videos – but did not inform Judge S. about the prior July 28 Google search warrant or affidavit (Depo at 25:10-14) – even though he specifically discussed the fact, prior to approaching Judge S., that he “had previously presented these facts to Judge W.” Depo at 24:20-24.
20. Thus, this failure and omission was clearly committed with knowledge of his prior request of Judge W. – not only because he obviously knew he was the author of that Google warrant Affidavit, three months earlier, but because, as noted, he specifically discussed, immediately prior to presenting the house search affidavit to Judge S., having presented the same facts to Judge W.
21. Armed with that express knowledge, Agent T. did not inform Judge S. of the following:
a. That the prior Google search affidavit and warrant even existed, or that he had previously filed an affidavit and obtained a Google search warrant – from a fellow Clay County Judge. Depo at 25:10-14. Thus, his prior affidavit and warrant were concealed, in their entirety, from Judge S.
b. That he had sought that Google warrant for the express purpose of updating his stale probable cause.
c. That the response from Google provided no evidence the Client was “sharing images with other offenders online” – contrary to the assertions in both of his search warrant affidavits. Depo at 25:15-20.
d. That the response from Google revealed that the sole evidence of alleged sharing of child pornography, in the possession of Agent T., was a single email in an email account that was only open for two days, 17 months prior to the home search Affidavit. Depo at 25:21-25.
22. Consequently, importantly, the most recent probable cause Agent T. had for the Client (or anyone using that email address) allegedly possessing child porn was the activity reported by Google on May 21 – 17 months earlier, which, as noted, involved a single email in an email account that was only open for two days, 17 months prior to the home search Affidavit.
23. At the time of this October 25 search warrant, Agent T. had received a response from Google, and obtained all of the records “to the present date,” and thus there was no reason to speculate (as he continued to do in this second warrant for the home search) whether there was more information. Furthermore, the absence of such records, as well as the fact the account was only open a mere two days, and had been closed for 17 months, was entirely exculpatory, but yet concealed from Judge S.
MEMORANDUM OF LAW
A. New Jersey Google Warrant – Failure to Notify Subscriber
As stated above, on May 22, Google provided information to the National Center for Missing and Exploited Children (NCMEC) that their records showed child pornography was uploaded onto Google email servers on May 21. On September 10, Det. B. executed an Affidavit in support of a Communications Data Warrant, to Google, for the contents of the email address, for that single day, May 21. The New Jersey Court issued the requested warrant.
On that same date, September 10, Det. B. issued an Affidavit and Application for an 18 U.S.C. §2705(b) Order – to prevent Google from notifying the subscriber or this request. The subscribers were K. W. and the Client. The Court granted this request, and Google did not notify Ms. W. or the Client before complying with the warrant.
Section 2705(b) provides for a 90 day delay in notifying the subscriber, and permits 90 day extensions of that delay. In his warrant, Det. B. improperly requested 180 days of non-disclosure (double the statutorily-permitted time period for an initial delay period). This request was improperly granted by the New Jersey Court.
Upon expiration of the delay period, 18 U.S.C. §2705(a)(5) requires the following notice be provided to the subscriber:
… the governmental entity shall serve upon … the customer … a copy of the process … together with notice that …
(A) states with reasonable specificity the nature of the law enforcement inquiry; and
(B) informs such customer or subscriber—
(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;
(ii) that notification of such customer or subscriber was delayed;
(iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and
(iv) which provision of this chapter allowed such delay.
As noted, the New Jersey Order delaying notice was issued on September 10. The delay granted by the court was 180 days (improperly requested by Det. B., and improperly ordered). That improper 180-day period expired on March 10. However, no such mandatory statutory notice was provided to the subscribers, Ms. W. or the Client – either at the correct 90-day period, or at the unlawful 180-day period requested by Det. B.
Importantly, as noted, even with the unauthorized 180-day delay, that notice was due not later than March 10. Thus, that notice should have been provided some seven (7) months before the October 25, search of the Client’s and Ms. W.’s home. It should have been provided by Det. B., or Agent T., or both. However, neither officer provided the required notice.
Moreover, as noted Agent T. corrected acknowledged, under oath, his investigation was subject to the lawfulness of the NJ investigation, and application of the “fruit of the poisonous tree” doctrine.
By violating the notice requirements of the statute, in effect, Det. B. (and later Agent T.) ended up in secret possession of the subscriber information, without notifying the subscriber, for a period of seven months more than allowed, and thus, after the delayed notice term expired, Agent T. was not lawfully in possession of that information. In turn, any use of that information would then implicate the fruit of the poisonous tree doctrine.
This statutory notice requirement is clearly a due process requirement. The statutory notice provisions are clearly there for the express purpose of notifying the subscriber of the existence and nature of the investigation. Indeed, as noted above, that is the express language of the statute (that is, the officers are to inform the subscriber “with reasonable specificity the nature of the law enforcement inquiry”). Thus, the failure to comply with the notice requirement (for some seven months) prevented the Client from exercising his lawful rights under that notice provision. Giving him “notice,” when they walked through the door of his home, to conduct the search, was the antithesis of the express purpose of the notice provision, which is clearly designed to permit subscribers to respond to such a “law enforcement inquiry.”
As a consequence, the Client was deprived of his due process rights, as guaranteed by the 4th and 14th Amendments to the United States Constitution, which, of course, have been adopted by the Florida legislature, with regard to constitutional rights of citizens. Constitution of the State of Florida Art. I, Sec. 12.
In addition, if the proper notice had been given, the Client would have been able to lawfully attend to this matter, and taken the steps necessary to either clean up or remove his computer from the premises, such that it would not have been sitting there, subject to seizure, seven months later. Moreover, he would have been able to confer with counsel, and certainly would not have spoken with the officers, without the benefit of counsel, when they came to his house.
Thus, on at least two levels, this conduct of Det. B. (adopted by Agent T.) implicates suppression.
B. Fruit of the Poisonous Tree
In addition to the fact that both Clay County search warrant affidavits make it abundantly clear (on their face) that Agent T. adopted the investigation of New Jersey Det. B., in its entirety, and thus is responsible, from a Fourth Amendment analysis, for any unlawful conduct occurring in the New Jersey investigation, Agent T., in his sworn deposition testimony, agreed to that bedrock legal principle, testifying as follows:
1. Agent T. rightly testified his Clay County search affidavits contained a “detailed listing of information that [he] obtained from New Jersey,” that is, he relied on the investigation and conduct of New Jersey Detective B. Depo at 8:2-10.
2. His investigation “built on what [he] had been provided” by Det. B. Depo at 8:11-15.
3. Indeed, regarding the “Affiant’s Probable Cause” component of his search warrant affidavits (including the affidavit for the search of the house), “All of that is information that came from the New Jersey detective.” Depo at 16:11- 23.
4. When he takes over an investigation from another agency, he agreed it is “important to you to know whether that previous investigation was done lawfully and properly.” Depo at 8:16-21 (emphasis added).
5. Agent T. was familiar with the legal suppression principle of “fruit of the poisonous tree,” and agreed any illegal conduct involving the New Jersey investigation would taint his investigation. Depo at 8:22-25 – 9:1-2.
In short, by adopting, in total, the New Jersey investigation, Agent T. admitted he is responsible for any legal errors in that investigation, that tainted his investigation.
Thus, the fruits of the search of the Client’s home, and any statements made by the Client at that time, must be excluded, as derived in their entirety from the New Jersey investigation.
C. Clay County Search Warrants
As noted, Det. B. contacted Agent H. T. with FDLE on October 14. On July 28, Agent T. prepared an Affidavit for Search Warrant, for Google records, stating he was looking for emails and their attachments for Ms. W.’s and the Client’s email account, for the time period from May 21 to the present [July 28]. In that Affidavit, as part of “Affiant’s Probable Cause,” Agent T. stated that, in his experience, “… offenders who possess child pornography will share these images with other offenders online.” Thus, he wanted to obtain evidence the Client was “sharing images with other offenders online.” As noted, he admitted in his deposition, his purpose was to update the probable cause from May 21 – which was 14 months old – at the time he requested the email warrant from Judge W.
Judge W. issued the requested Search Warrant to Google, pursuant to F.S. §92.605, for the period from May 21 through July 28. However, Google did not produce any records, and therefore provided no evidence the Client was engaged in obtaining child pornography since May – or that he was “sharing” child pornography images with others online. Thus, Agent T.’s statement to Judge W. in his probable cause affidavit, that “offenders who possess child pornography will share these images with other offenders online,” was proven to be false, with regards to the Client.
When Agent T. prepared his second affidavit, on October 25 – three (3) months after the email Warrant was issued – seeking a search of defendant’s home, he did not inform Judge S. about the July 28 Google search warrant or affidavit, or the August 17 letter report from Google, or the fact that Agent T. had not acquired any evidence to establish that the Client was obtaining or sharing images online, on any date after the May 21 date, which, by the time of his application for a search of the home, was 17 months earlier. Even more importantly, Agent T. failed to inform Judge S. that his sole probable cause involved a single email in an email account that was only open for two days, 17 months prior to the home search Affidavit.
Thus, importantly, the most recent probable cause the agent had that the Client allegedly possessed child porn was the activity reported by Google on May 21 – 17 months earlier. Indeed, if that probable cause was stale, and in need of more current probable cause, as evidenced both (1) by Agent T.’s July 28 application for a Google warrant, which clearly sought to obtain probable cause that was not stale, and (2) by Agent T.’s admissions in his deposition the purpose of that July 28 affidavit and Google search warrant was to “update” his probable cause, so that it was not stale, his probable cause was all the more stale – three months later – when he sought the home search warrant from Judge S. Yet, Agent T. withheld that relevant information from Judge S., which he has acknowledged, under oath, was for the express purpose of obtaining non-stale probable cause.
Florida courts have routinely held that the rule of thumb on a staleness determination is 30 days. Montgomery v. State, 584 So. 2d 65 (Fla. 1st DCA 1991), Hayworth v. State, 637 So. 2d 267, 267 (Fla. 2d DCA 19943), and Fletcher v. State, 787 So. 2d 232, 234 (Fla. So.2d 2001).
Agent T. asserted in both affidavits that, “… offenders who possess child pornography will share these images with other offenders online.” However, this claim is inherently inconsistent with his representation to Judge W., and his sworn deposition testimony, of his need to update his stale probable cause.
It is understood the State can be expected to assert that the 30 day staleness rule of Florida courts does not apply to searches for child pornography. However, the desire of the State to conduct searches, in perpetuity, of those suspected of possession of child pornography, is not the law, and the State’s assertion that the staleness law on child porn trumps common sense notions of staleness is erroneous.
First, the law the State cites suggests that some, but not all, collectors of child pornography will save images. Here, there is no evidence the person transmitting the child pornography 17 months earlier was such a collector. Moreover, here, the only probable cause was a (1) single email, (2) transmitted 17 months before the house search, from an email address that (3) only existed for two (2) days (5/19-21). The case law confirms that such an isolated event does not implicate the “law enforcement can search anytime” mantra advocated by the State. Nor does a boilerplate claim in an affidavit establish a sufficient and particularized factual basis to support the State’s claim in this case, where, as noted, there is was an isolated email some 17 months earlier. Such conclusory statements do not satisfy the probable cause requirement.
Moreover, as conceded by Agent T., he clearly sought the Google records for the express purpose of updating his probable cause. But it did not do so – and he ignored the fact it did not do so – and failed to inform Judge S. of that failure – even though he told Judge W. he did need such records to update his probable cause. That withholding of exculpatory information is clearly a Franks violation – for four compelling reasons: (1) the affiant utterly failed to reveal even the existence of the earlier Google warrant, (2) failed to disclose that Google warrant was for the express purpose of updating his probable cause, (3) failed to disclose the Google warrant did not establish any update on his probable cause, and (4) failed to disclose the Google response further defeated his probable cause, by revealing the email account had been open a mere two days, and was closed 17 months earlier.
In addition, the affiant’s express purpose of applying for the Clay Google warrant, to “update” his probable cause, refutes the position of the State in this case, in which they assert they can ignore the need to update the stale probable cause their own affiant informed the court he needed to do.
Importantly, as will be discussed below, the State’s cases do not abrogate the fundamental requirement that a warrant cannot be issued based on stale probable cause.
As Agent T. well-knew, at the time of this October 25 search warrant affidavit, he had received a response from Google, and obtained all of the records “to the present date,” and thus there was no reason to speculate (as he continued to do in this second affidavit for the home search) whether there was more information. Furthermore, as noted, not only was the absence of such records from Google was exculpatory, but, a fortiori, the information that the email account had only been open for two days, and was closed on May 21 – the very day of the Google report – was especially exculpatory.
Since the July 28 Google warrant did not produce any further downloads (after the May 21 download), and, indeed, the account did not exist after May 21, the failure to so inform the judge was either a false statement or a material omission, which Judge S. relied upon when issuing the search warrant. Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), if a false statement or omission is knowingly and intentionally, or with reckless disregard for the truth, included in a search warrant, and the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided, and the fruits of the search excluded.
Here, the failure to inform Judge S. of the prior Google warrant, and the response from Google, which failed to establish that the Client was obtaining or sharing images online, on any date after the May 21 date, was either a false statement, or a material omission. But for that false statement, or material omission, probable cause would not exist for the search warrant of his home, due to the staleness of the 17 month old information. Thus, the fruits of the search of the Client’s home, and any statements made by the Client at that time, must be excluded.
D. Analysis of Case Law
This section will analyze the relevant case law, addressing the staleness issue, in the context of searches for child pornography. This case law consists of 11 cases the State kindly cited to counsel, in support of their position the 17 month old probable cause in this case is not stale. Respectfully, as will be demonstrated, the State’s position is inaccurate.
1. Sabourin v. State, 39 So. 2d 376 (Fla. 1st DCA 2010)
Sabourin involved facts entirely different from this case, which permitted the court to determine the probable cause (“p.c.”) 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.”
b. The probable cause in Sabourin was not stale, based on facts entirely absent from this case, that is:
(1) “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.
(2) “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.”
(3) “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.’).” Conversely, with the Client, there was no p.c. of any “on-going criminal activity.” Rather, there was but a single email, transmitted 17 months earlier.
2. Cano v. State, 884 So. 2d 131, 132 (Fla. 2d DCA 2004)
This case addresses whether a court is required to undergo a Frye analysis of information and conclusory statements by an officer regarding the “typical” behavior of child pornographers.
“Although not expressly stated, this portion of the application for the search warrant was included to establish … (2) the tendency of such persons to store and retain such images for an extended time. The extended period of retention was important to establish that the victim’s information about data in the computer in December was not stale in July.” Thus, the time gap in Cano was only 6 months – not 17. Moreover, the p.c. involved data actually on a computer – not just an email. It is understood that data is retained on a computer. Not so with an email.
Importantly, and contrary to the Client, “The issue of staleness was decided in a context where the underlying sexual misconduct had been ongoing for many years, and the evidence about the digital photographs in the computer was about eight months old.” Cano at 135. Conversely, with the Client, there was no evidence of (1) ongoing activity, (2) that he had any materials on a computer, (3) and the single email was 17 months earlier (double the 8 months in this case – which did not create staleness, since the activity was “ongoing”).
Of interest, the issue of staleness was not raised as a defense, and, other than the above quotes, not directly addressed by the court.
3. State v. Felix, 942 So. 2d 5, 7 (Fla. 5th DCA 2006)
This was an appeal by the State, after suppression was granted. However, since no evidentiary hearing was held, the review was de novo, instead of the abuse of discretion standard.
The emailed images in this case were five and one-half months old (and thus much more recent than in the Client’s case).
Just as we urge here, the court held, “A magistrate is required to know this specific time because the length of time between the activity and the date of issuance bears on whether there is probable cause to believe that the items to be seized will still be found at the place to be searched. Id. The longer the time period, the less likely it is that the items sought to be seized will be found at the place listed in the affidavit. Id. As the time period increases, it is said that the evidence becomes stale. A rule of thumb that seems to be recognized by courts as the standard for staleness is thirty days.”
The court, collecting cases, did not cite to anything longer than a ten month delay, and most of the cases cited are approximately six months old.
4. United States v. Ricciardelli, 998 F.2d 8 (1st Cir. 1993)
This is a federal case, and thus not controlling in Florida courts. In this case, Postal Inspectors engaged in a sting operation after uncovering the defendant’s name in an unrelated child pornography investigation that included old mailing lists (16 years old). The information that caused them to initiate the sting was stale, but not the more recent child pornography order, which involved an anticipatory search warrant at the time of the receipt of the pornography. Hence, the probable cause was quite current.
The only mention of staleness is in the concurring opinion, which was a request to the majority, in dicta, that the use of the stale information should have been used to preclude the sting operation. Thus, the State cites this case in error, since staleness was not an issue raised by anyone, except the concurring opinion, and, since the pornography order that supported the anticipatory search was quite current, staleness was not a component of the suppression motion.
5. United States v. Irving, 452 F.3d 110, 115 (2d Cir. 2006)
In this case, the defendant was convicted of traveling to a foreign country to have sex with minors. A witness indicated to law enforcement that the defendant used his computer to communicate with children about sexual abuse. Three children in Mexico identified defendant as their abuser.
Regarding the search of the home, the court held that, “When a defendant is suspected of possessing child pornography, the staleness determination is unique because it is well known that ‘images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes.’” Irving at 125. The search of defendant’s home was in May, while the most recent information about the defendant’s activities was from letters from the defendant describing his exploitation of children in July (22 months earlier). Thus, the gap here is longer than the 17 months in the Client’s case.
However, the huge distinction from the Client is the on-going nature of the conduct in Irving. In that regard, the court noted that the concern is “whether the supporting affidavit depicts continuing conduct or isolated and random instances of illegal conduct.” Id. Irving involved continuing conduct. The Client clearly involves a single “isolated and random” incident.
In addition, the biggest distinguishing factors in Irving are that the defendant was a convicted pedophile, there were numerous letters, testimony, and other corroborating evidence to suggest the defendant had been engaged in an ongoing course of conduct for several years, and continued to personally abuse children. There were witness statements that he continued to use the computer to contact children and the warrant described the defendant as a convicted pedophile engaged in a detailed and ongoing course of conduct. Clearly, the stale and isolated single incident with the Client pales in comparison to that wealth of probable cause.
6. United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002)
In this case (involving bestiality, and not child porn), the Third Circuit granted suppression and overturned a conviction. This case and the discussion are particularly informative, because Zimmerman distinguishes other cases similar to those cited by the State.
For example, Zimmerman, 277 F.3d at 441, n. 4, held that, “Rambling boilerplate recitations designed to meet all law enforcement needs” do not produce probable cause. Thus, the court, citing United States v. Loy, 191 F.3d 360, 366-67 (3d Cir. 1999), held that affiant’s “conclusory statement that people who collect child pornography commonly keep it in their homes is insufficient … to establish the sufficient nexus between the contraband and [the defendant’s] residence.” Id.
The good faith defense was rejected, for reason it was readily apparent that the information was too old.
7. United States v. Peden, 891 F.2d 514, 518 (5th Cir. 1989)
The defendant in this case was previously convicted of soliciting a child for sex, and, a child pornography magazine, addressed to him, had been seized a few months prior. The first magazines were seized in May and the most recent in August. A warrant was obtained seven days later and the search conducted the following day. Clearly, the probable cause was not stale. Although there was a several month gap from the first image of child pornography being sent to the home, the warrant was executed just eight days after subsequent images were sent.
8. United States v. Prideaux-Wentz, 543 F.3d 954, 956 (7th Cir. 2008)
This is a case where the warrant was based on 25 month old information, but was upheld on a good faith exception. The warrant was determined to lack probable cause, due to staleness.
The defendant in this case uploaded nearly 70 images of child pornography, over the course of 18 months, and the NCMEC received 19 tips regarding the images that were being sent and uploaded. The subscriber information on the account (Yahoo, not ISP) matched the defendant. The ISP information matched that of the defendants home and the ISP also indicated that it had disabled an older account of defendants, due to use of child pornography. The last images on the Yahoo account were in January. The search warrant was issued and executed 25 months later, in February.
The court determined, in collecting cases, that evidence between one year and 18 months could be used, as long as it was corroborated by more recent evidence (usually within a month or two). With the Client, not only is their no corroboration, but, as noted, the Google information received by Agent T. was exculpatory.
One of the distinguishing factors, in finding good faith, was that, because “the warrant connected Prideaux-Wentz to several email accounts responsible for uploading or possessing child pornography, we cannot say that it required too much of an inferential leap to conclude that Prideaux–Wentz might be a collector of child pornography.” Id. at 961. The court determined that this evidence bolstered what would have been otherwise boiler plate language regarding the collection of child pornography and how long child pornographers maintain images. In this case, there is no nexus to the Client, and no information – other than the one email. Nothing would bolster or support the boilerplate language.
Again, the “Passage of time is less critical when the affidavit refers to facts that indicate ongoing continuous criminal activity.” Id. at 963.
9. United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997)
Lacy is a case that is frequently cited by the other cases, as it deals with what is likely the outward boundary of time in the cases observed, that is, 10 months.
Lacy also deals with more than sixteen connections and an ongoing course of conduct by the defendant. But, importantly, Lacy held, “We are unwilling to assume that collectors of child pornography keep their materials indefinitely.” Id. at 746.
Although dealing with the ten month period between the images and the search, this is a case where the government acted promptly on the information, once it discovered the nexus and the defendant’s identity.
10. United States v. Riccardi, 405 F.3d 852, 857 (10th Cir. 2005)
The search in this case, where child pornography was found, was pursuant to harassing phone calls made to juveniles. The phone calls were within months of the search.
However, the search also looked for images on his computer, after a search was conducted. Part of the probable cause was based on a five-year-old Kinko’s receipt. However, as the court made clear, “the proximity of the receipt and the computer to hundreds of other Polaroid shots of teenage males, many of them pornographic, made it likely that some of these, too, had been converted to a computer format, from which they could be distributed over the internet.” Id. at 861.
Thus, the Kinko’s receipt was additional probable cause to search the computer, which included hundreds of Polaroid images of child pornography. Obviously, this is not only distinguishable from the affidavit in the Client, but a completely separate questions were addressed, such as breadth and specificity, which are immaterial to the analysis in Stuart.
11. United States v. Lamb, 945 F. Supp. 441 (N.D.N.Y. 1996)
This is a trial court order, in federal court, in New York, and not an appellate opinion.
This case involved the transmission of over 100 images, over the course of nearly a year and a half. The staleness argument was that approximately five months had elapsed between the last known transmission of child pornography and the search.
However, there is great language designed to undermine the “hoarder” boilerplate language. This court held that “before the presumption that pedophiles, preferential child molesters, or child pornography collectors hoard their materials for extended periods can be applied, the judicial officer scrutinizing the warrant application must have sufficient information from which it can be concluded that the target falls within these categories.” Citing United States v. Weber, 923 F.2d 1338 (9th Cir.1990)(emphasis added). Here, as noted, there was no evidence that Stuart was a “collector” or hoarder.
The court also distinguished Peden, finding that “unlike Peden, there is no indication that defendant has had prior problems involving the sexual abuse or exploitation of children. The only factor which supported the notion that defendant fell within the class of persons likely to hoard a large collection of child pornography was the sheer number of transmissions he was allegedly involved in and the length of time over which they occurred: over 100 transmissions involving over 150 images over an eight-month period. Ex. F att’d to Def.’s Notice of Motion, Doc. 22, at 15–16. “This pattern of activity is inconsistent with someone who merely succumbed to an aberrational deviant prurience on a single occasion.” Id. at 461. Clearly, no such pattern of on-going activity applies to the affidavit here.
In short, the State cannot cite any case defeating the proposition the 17 month old p.c. in this case was stale, where it involved an isolated, single email, from an account that was only open two days.
E. Isolated Instance
As noted above, the State’s desire to disregard hornbook staleness law, and urge the Court to ignore the fact the only probable cause in this case is 17 months old, is based on cases in which the probable cause involved a pattern of activity, occurring over a period of time, that truly established probable cause the child porn collector is maintaining his collection. No such circumstances exist here, as demonstrated by the following factors:
1. The only probable cause recited was a (1) single email, (2) transmitted 17 months before the house search, from an email address that (3) only existed for two (2) days (5/19-21).
2. Subsequent to that solitary event, occurring 17 months earlier, there were absolutely no instances of sharing, possessing, manufacturing and/or producing child pornography.
3. The characteristics of the Client were inconsistent with any such claim that he was engaged in some continuous child pornography conduct.
4. He holds a PhD in Chemistry, and Agent T. knew that before he interviewed him on the day of the search. Depo at 7:2-4.
5. Agent T. had no evidence that the Client had “done anything improper with his fiancé’s two young boys.” Depo at 7:5-8.
6. Agent T. had no evidence of the Client ever being “involved in the manufacturing of any child pornography.” Depo at 7:9-12.
7. Agent T. had no evidence the Client did “ever take a photograph or videotaped any child involved in some type of improper child pornography.” Depo at 7:13-16.
8. Agent T. had no evidence the Client had ever “engaged in any illegal acts with a minor.” Depo at 7:17-20.
9. The State is aware the Client has submitted to a sexual history polygraph, which confirms he has never had sexual contact with any child, and has also had a psychosexual evaluation, which confirms he is a low-risk to the community for hands-on offenses, for which the trained psychologist recommended probation.
In short, the incredibly isolated and sanitized facts in this case utterly fail to provide the factual predicate for the State to overcome a 17 month period of staleness.
F. Evidence to be Suppressed
Based on the foregoing facts and authorities, the defendant seeks suppression of the illegally obtained evidence, including but not limited to the following:
1. Baggie containing 11 multimedia cards and 1adapter;
2. Canon digital camera (PowerShot A2300);
3. SwissGear backpack containing Dell laptop and multiple phones;
4. Black IBM laptop;
5. eMachine computer;
6. 2 large black CD/DVD cases full of misc. disks;
7. 1 shopping back full of misc. CD/DVD; and
8. Any statements made by the Client.
WHEREFORE, Defendant requests that this evidence, obtained by an unlawful search and seizure, as well as any evidence and/or statements derived therefrom, be suppressed.