Search warrants and staleness – CP cases.

United States v. Smither, No. 09-3-KSF, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009), is worth the read for a refresher on challenging search warrants because the information is stale.  Those of us who have tried are well aware that it's almost impossible to have a child pornography warrant suppressed for staleness.   The author at fourthamendment.com comments.

 Most cases just dispose of this argument simply. This opinion explains
it far better. To my knowledge no child porn defendant has won a
staleness argument where the information was less than one year old.  (for me, in one case less than two years old.)

The court in Smithers had the following to say.

In United States v. Paull, 551 F.3d 516, 522 (6th Cir. 2009), the Sixth Circuit held that because the crime is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes does not control the staleness inquiry for child pornography, indicating that the time period may be longer than usual and the factors need not be rigidly applied.

United States v. Smither, No._________, 2009 U.S. Dist. LEXIS 17231, at *6 (E.D. Ky. Mar. 6, 2009).

The first factor considers whether the crime at issue is a one-time occurrence or part of ongoing criminal activity. The Sixth Circuit has recognized that information suggesting "ongoing criminal activity" is more durable that information of discreet offenses. United States v. Greene, 250 F.3d 471, 481 (6th Cir. 2001).

United States v. Smither, No._________, 2009 U.S. Dist. LEXIS 17231, at *6 (E.D. Ky. Mar. 6, 2009).

The second factor addresses whether the suspected criminal is "nomadic" or "entrenched." The defendant argues that he had moved since the information about the residence associated with the email account was obtained. Obviously, if a criminal defendant moves frequently with the hope of avoiding detection or capture, the possibility that evidence of his or her criminal conduct will be found in a given location diminishes rapidly with the passage of time.

United States v. Smither, No._________, 2009 U.S. Dist. LEXIS 17231, at *7–8 (E.D. Ky. Mar. 6, 2009).

The third factor considers whether the nature of the alleged evidence is "perishable," "easily transferable," or "of enduring utility to its holder."

United States v. Smither, No._________, 2009 U.S. Dist. LEXIS 17231, at *8 (E.D. Ky. Mar. 6, 2009).

The fourth factor considers whether the place identified by the search warrant is a mere criminal forum of convenience or a secure operational base. See Abboud, 438 F.3d at 573. There is a greater probability of finding evidence at a location that is "at the heart of the criminal charges." See id. at 574. Since criminal activity involving child pornography is often conducted in a private setting, such as a home, by persons who commonly collect and store their materials (see Miller, 450 F. Supp. 2d at 1335), there is reasonable likelihood that the perpetrator in this case used a computer at his residence to store and transmit the illicit images in question.

United States v. Smither, No._________, 2009 U.S. Dist. LEXIS 17231, at *4–10 (E.D. Ky. Mar. 6, 2009).

In Smithers the court found the search warrant was not made on stale information, therefore they did not have to decide the issue of a "good faith exception."  But they went ahead and did so anyway, holding that the good faith exception applies.

Here is a link to the Department of Justice, Computer Crime & Intellectual Property Section, Electronic Evidence Search & Seizure Legal Resources.  Of course it's the "school solution," but still an excellent starting point.

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