Question: (1) When you get a warrant for child pornography, do you need to attach images? (2) Does a search warrant for digital evidence become stale when there are months between the alleged crime and the warrant’s issue date?
Quick answer: (1) No. However, you should be as specific as possible in describing the content of the images so it is clear they are contraband. (2) No. Digital evidence tends to be persistently kept, so a search warrant can be issued months after a transaction.
Facts: On Sept. 7, 2009, a Franklin County task force received a “cyber tip” from the National Center for Missing and Exploited Children (NCMEC) that an IP address registered to defendant Nathan Eal’s house had uploaded 14 files of possible child pornography to the Internet. The images had been uploaded in April, almost five months earlier. The NCMEC forwarded a disk with copies of the uploaded images. Then, on Sept. 14, 2009, the task force received another tip from the Seattle, Wash., Police Department, explaining that a Yahoo account holder using Eal’s IP address had uploaded potential child porn photos to a website. One of the task force’s members reviewed the images to confirm they were child porn under the Ohio Revised Code’s definition. That same day, the task force used both tips to obtain a search warrant of Eal’s home to seize all computers in the residence. The warrant affidavit described the photos as “young preteen boys who were in various stages of undress.” On Sept. 16, the task force executed the warrant and interviewed Eal during the search. Eal’s personal computer was seized, and a later forensic search revealed images of child pornography that confirmed the two tips. Eal was charged with multiple counts of pandering sexually oriented material involving a minor.
Why the case is important: The court found that, although a “close call,” the task force’s warrant affidavit established probable cause. Even though the images were not attached to the affidavit, and the description of the photos caused the magistrate to subjectively decide if they were actually “child pornography,” the totality of the circumstances showed that probable cause existed. The warrant affidavit also included (1) two separate tips from separate agencies that child porn was being uploaded from Eal’s IP address; (2) the account names of the individual who uploaded the images, “luvsboys69” and “blpicmaster”; and (3) the task force’s experience that suspects who collected child pornography typically kept the porn on digital media for a lengthy amount of time. Plus, the fact that the task force called the images “child pornography” also helped establish probable cause because it doesn’t take an expert to recognize it.
Next, the court held that the task force’s warrant was not stale under the circumstances. Although at least five months had passed since the images were uploaded to the Internet, staleness has to do with more than the amount of time between the alleged crime and warrant’s issue date. Other things to consider are the character of the crime, the criminal, if the items to be seized are perishable, the place to be searched, and whether the incident is isolated or an ongoing criminal activity. In Internet child porn cases, these factors are closely related, and technology’s capabilities also play a role in deciding if a warrant is stale. Conduct involving child porn is continuing in nature. Plus, technology allows for a large amount of digital media storage. The task force had evidence that the crime was ongoing, with two separate tips involving different instances a month apart. Also, the task force explained that child porn collectors tended to keep their images for long periods of time, which created a probability that the images were still located on a computer in Eal’s home at the time the task force got the search warrant.
Keep in mind: When drafting a warrant affidavit to search a computer for digital images, remember to be as specific as possible in your descriptions to eliminate any later challenges to the warrant. Digital media is more difficult to specifically describe, so you should try to collect other evidence to include in the affidavit, if possible.
However, one benefit to searching digital media is that the chances of your warrant becoming stale may be reduced. Crimes involving digital technology allow for a massive amount of information to remain on a computer for long periods of time. So your warrant may not be in danger of becoming stale even if there are months between the alleged crime and the issue date on the warrant. That being said, you still must be diligent in executing a warrant in as timely a way as possible, no matter the crime.
to read the entire opinion.