"THE FEDERAL CORNER"
Old Information Ain't Necessarily Stale Information
F. R. (Buck) Files, Jr.
Federal prosecutors and law enforcement officers should be enthusiastic about the United States Court of Appeals for the Fifth Circuit's recent holding that an 18-month delay between the time that child pornography images were accessed by the defendant from a peer-to-peer networking site and the issuance of a search warrant did not render the information stale. United States v. Allen, ___ F.3d ___, 2010 WL 4343163 (5th Cir. 2010) [The panel: Circuit Judges Jolly and Garza and District Judge Keith Starrett of the Southern District of Mississippi, Sitting by Designation, who authored the opinion of the Court.]
David Roger Allen was a college professor with no prior criminal record. After his computers and external hard drives were seized by ICE agents under the authority of a search warrant issued by United States Magistrate Judge Stuart Platt, child pornography was discovered on one of his computers. He was indicted for Shipping by Computer, Visual Depictions of Minors Engaging in Sexually Explicit Conduct (Counts One and Two) and another Count charging Receiving Matter Containing Visual Depictions of Minors Engaging in Sexually Explicit Conduct (Count Three).
In the court of United States District Judge Robert A. Junell of the Western District of Texas, Allen filed a motion to suppress the evidence obtained as a result of the search of his computer. Judge Junell denied the motion. Allen and the government entered into a plea agreement that called for him to enter a plea of guilty to Count Three of the indictment, but permitted him to appeal the court's denial of his motion to suppress evidence. Judge Junell imposed a sentence of 121 months imprisonment and ten years of supervised release. Allen filed a timely notice of appeal.
Judge Starrett's opinion includes, in part, the following:
[The Factual Basis in Support of Allen's Guilty Plea]
As set forth in the Factual Basis filed in support of the guilty plea, the following occurred:
In July of 2006 Agents with Immigration and Customs Enforcement (ICE) identified an individual in Oregon by the name of Jeremy Rice. A forensic examination of Rice's computer reveal[ed] over 1,800 images depicting minors engaging in sexually explic[i]t conduct. Rice was found to exchange or share those files using a Google program called Hello. Rice was found to have exchanged these child pornography images with an individual later identified as Jerry Mikowski of Michigan. Mikowski's computer was seized on or about March 29, 2007, during the execution of a court authorized search warrant. A forensic examination of Mikowski's computer revealed approximately 2,000 images of child pornography. A list of Mikowski's Google Hello 'friends' included 'mrhyde6988.' A subsequent investigation revealed 'mrhyde6988' to be this defendant. A file found on Mikowski's computer entitled 'from mrhyde6988' contained two images of minor females, the reviewing Magistrate Judge found these images to depict minors engaging in sexually explicit conduct, to wit: the lascivious exhibition of the genitalia of these children. (Emphasis added)
On or about May 15, 2008, ICE Agents executed a court authorized search warrant at the defendant's residence. Several computers and external hard drives were seized. A forensic examination of the defendant's computer revealed approximately 3,300 images of child pornography, of those approximately 40 images, including duplicates, involved depictions of children involved in 'bondage,' a form of sadomasochism, and approximately two depict children involved in beastiality [sic]. The children depicted in these images vary in age from infancy to approximately 15 years of age. (Emphasis added)
On or about December 13, 2006, the defendant shared images with Mikowski, known to him as 'candyman.' Additionally, on or about February 22, 2007, the defendant also used the Google Hello program on his computer to send several images to an individual known only as 'lilangel55555.' During the investigation, Agents discovered that, in addition to receiving child pornography images, the defendant also shipped and transported child pornography images in interstate commerce. These images were sent using the Google Hello program. (Emphasis added)
[Allen's Argument on Staleness - Judge Junell's Rejection of the Argument - The Court's Concurrence with Judge Junell's Conclusion]
Allen argues the information concerning the photographs stored as 'frommrhyde6988' was stale and therefore could not be used to provide probable cause. The district court correctly rejected this claim. In its opinion, the district court recognized that the affidavit did not establish when the photographs were transferred by Allen to Mikowski. However, the court found that because Allen initiated use of his 'Hello' account on December 6, 2006, that would have been the earliest date the photos could have been sent. The court then assumed, for purposes of analyzing the issue, the images were transferred at the first opportunity, on December 6, 2006. Therefore, the facts underlying the warrant were 18 months old on the date the warrant was issued. The district court found the information was not so stale as to render official belief in its adequacy unreasonable. We concur with the conclusion of the district court.
[The General Rule of Staleness]
The amount of delay which will make information stale depends upon the particular facts of the case, including the nature of the criminal activity and the type of evidence sought. Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.1973). As with other issues concerning probable cause, a magistrate's decision is given considerable deference in the absence of arbitrariness, and the magistrate is expected to act reasonably and use common sense. Id. at 863.
[Why the Information In This Case Was Not Stale]
In this case, the magistrate could have reasonably concluded that the pornographic images were still on the computer at Allen's home at the time the warrant was issued. This conclusion is reasonable given the nature of the evidence sought. In the affidavit submitted to the magistrate, the affiant said that the computer's ability to store images in digital form makes it an ideal repository for child pornography. Internet access permits a computer user to transport and download an image file to his own computer. Important to the staleness issue, the magistrate was advised that computer files or remnants of such files can be recovered months or even years after they have been downloaded onto a hard drive, deleted, or viewed via the internet.
Agent Stone reported to the magistrate in his affidavit that because of the fact that Allen appears to have traded images depicting child pornography and engaged in chat sessions discussing the trade of child pornography, the agent believed Allen had a sexual interest in children. The agent went on to say that individuals who have a sexual interest in children or images of children often maintain their collection on a computer and maintain these collections for several years.
[How Other Circuits Have Treated This Staleness Issue]
A number of courts have considered the issue of whether information in a child pornography case is stale for the purposes of determining whether there was probable cause for the issuance of a warrant. In Riccardi, 405 F.3d at 860-61, the Tenth Circuit considered whether a five-year-old Kinko's receipt found in an envelope with non-pornographic pictures was too stale to support probable cause for the issuance of a search warrant. The court explained that whether information is stale depends on the nature of the criminal activity, the length of the activity, and the nature of the property to be seized. Id. The court went on to say that although the Kinko's receipt may have been five years old, it showed that the defendant had the desire and ability to convert Polaroid photographs of children to a digital format, which is a common means by which child pornographers distribute and exchange their materials. Id. While the receipt was not the only evidence that supported probable cause, the receipt could be considered despite its age. It was not 'stale.' Id.
In United States v. Frechette, 583 F.3d 374 (6th Cir.2009), the Sixth Circuit held that information presented to a magistrate judge regarding a suspect's purchase of a one-month subscription to a child pornography site was not stale though the purchase of the subscription occurred 16 months prior to the search. Id. at 378-79. In reaching this conclusion, the court noted that the crime is generally carried out in the secrecy of the home and over a long period; therefore the same time limitations that apply to more fleeting crimes do not apply to child pornography cases. Id. at 378.
In United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997), the Court upheld a search warrant based on information ten months old. The court explained that information is not stale because the affidavit provided ample reason to believe pornography was in Lacey's apartment. Id. at 745-46; see also United States v. Paull, 551 F.3d 516 (6th Cir.2009) (information that the defendant subscribed to child pornography 13 months earlier was not stale); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir.2008) (holding that '[t]he passage of more than three years from the acquisition of the evidence until the warrant application [did not] render [ ] the evidence stale' in a child pornography case); and United States v. Newsom, 402 F.3d 780, 783 (7th Cir.2005) ('Information a year old is not necessarily stale as a matter of law.').
[The Court's Conclusion]
Accordingly, we find that the district court did not err when it found the information was not stale.
My Thoughts
· What Allen teaches us is this: If the facts are appropriate, officers can take as long as 18 months from the date of the offense to get a search warrant. The officers, the prosecutors and the magistrate judge in Allen did everything properly, but you would have to read the entire case to understand this. If any of them had failed, the result would have been different.
· In Allen, the Fifth Circuit plowed no new ground. Over the years, the Court has rejected staleness arguments in non-child pornography cases and affirmed the defendants' convictions; e.g., see United States v. Webster, 734 F.2d 1048 (5th Cir. 1984) [possession of marijuana] and United States v. McKeever, 5 F.3d 863 (5th Cir. 1993) [possession of cocaine]
· The latest discussion of a staleness issue in a Texas appellate case came out of the prosecution of a cocaine case. Escarzaga v. State of Texas, 2010 WL 3030490 (Tex.App. El Paso 2010) [Discretionary review refused November 10, 2010]. In Escarzaga, Judge Ann Crawford McClure, wrote:
To justify a magistrate's finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become 'stale' when the magistrate issues the search warrant. McKissick v. State, 209 S.W.3d 205, 214 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd); Serrano v. State, 123 S.W.3d 53, 60 (Tex.App.-Austin 2003, pet. ref'd). Probable cause ceases to exist when, at the time the search warrant is issued, it would be unreasonable to presume the items remain at the suspected place. McKissick, 209 S.W.3d at 214. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Id.; Guerra v. State, 860 S.W.2d 609, 611 (Tex.App.-Corpus Christi 1993, pet. ref'd). The amount of delay that will make information stale depends upon the particular facts of the case, including the nature of criminal activity and the type of evidence sought; a mechanical counting of days should not prevail over common sense and reasonableness. Barrow v. State, No. 08-00-00449-CR, 2002 WL 125602 at *3 (Tex.App.-El Paso, Jan.31, 2002, no pet.); Ellis v. State, 722 S.W.2d 192, 196 (Tex.App.-Dallas 1982, pet. ref'd). When the affidavit mentions facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant. Rowell v. State, 14 S.W.3d 806, 809 (Tex.App.-Houston [1st Dist.] 2000), aff'd,66 S.W.3d 279 (Tex.Crim.App.2001).
The criminal activity involved in this case is narcotics trafficking which is known to be of a protracted and continuous nature. See Barrow, 2002 WL 125602 at *3.
