The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The defendant, Ronald Ohlson, is charged in an Indictment with one count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The case was referred to Magistrate Judge Jeremiah J. McCarthy for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).
On September 30, 2011, defendant Ohlson filed a motion to suppress evidence seized from his residence during execution of a search warrant authorized pursuant to Fed.R.Crim.P. 41 by Magistrate Judge H. Kenneth Schroeder, Jr., of this Court. On October 14, 2011, the government filed a response in opposition to the motion to suppress. The defendant filed a reply on October 28, 2011.
On November 18, 2011, Magistrate Judge McCarthy issued a report and recommendation ("Report and Recommendation") recommending that the motion to suppress evidence seized from defendant Ohlson's residence be denied in all respects. On December 12, 2011, the defendant filed objections to the Magistrate Judge's Report and Recommendation. On December 22, 2011, the government filed a response. Oral argument on the objections was held on January 6, 2012.
Pursuant to 28 U.S.C. § 636(b)(1), this Court applies a de novo standard of review to those portions of the Report and Recommendation to which objections are raised. United States v. Rosa, 11 F.3d 315, 328 (2d Cir. 1993). Upon de novo review of the issues raised concerning the motion to suppress evidence made by defendant Ohlson, the Court adopts Magistrate Judge McCarthy's Report and Recommendation in part and modifies it in part. The Court finds, in what is an extremely close call, that the search warrant was not supported by probable cause because essential information was stale as to the defendant's residence, but finds that the good faith exception to the exclusionary rule of the Fourth Amendment applies. The defendant's motion to suppress evidence is therefore denied.
Defendant Ohlson seeks primarily to suppress evidence obtained from a computer seized in his residence at 8 Goade Park, Batavia, New York. The defendant argues that because information presented in the affidavit in support of the search warrant that child pornography had been accessed by a computer from the residence was more than a year old when the search warrant was authorized, the information in the warrant was too stale to support a finding of probable cause to search the residence. The defendant specifically objects to Magistrate Judge McCarthy's finding that the information in the warrant affidavit was not stale based upon a law enforcement agent's representation in the affidavit that reliable experience shows that persons with a sexual interest in images of children tend to keep pornographic images of children for years. The defendant also objects to the Magistrate Judge's alternative conclusion that, even if probable cause for the search warrant was stale, the warrant and the supporting affidavit were objectively sufficient to justify a law enforcement agent's reliance upon them so that the good faith exception to the Fourth Amendment's exclusionary rule as stated in United States v. Leon, 468 U.S. 897 (1984), preserves the evidence from suppression.
The task of assessing probable cause for a search warrant is essentially
"a practical, common-sense" evaluation of facts presented to a magistrate judge in support of a search warrant to determine whether there is a "fair probability that contraband or evidence of a crime will be found" at a certain location. Illinois v. Gates, 462 U.S. 213, 238 (1983). The facts presented in support of a warrant need not themselves show that the reasons to search are "correct or more likely true than false"; they need only "warrant a man of reasonable caution in the belief" that evidence of a crime will be found. Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion) (citation omitted). "A magistrate's 'determination of probable cause should be paid great deference by reviewing courts." Gates, 462 U.S. at 236 (citation omitted). This deference reflects a "strong preference" for searches conducted pursuant to a warrant, id. at 232, 236, and the long-standing and legitimate preference that law enforcement agents submit evidence to a neutral magistrate before taking action, especially before seeking to search a private residence. See United States v. Ventresca, 380 U.S. 102, 108 (1965).
Applying the great deference that is due to the probable cause finding of the issuing Magistrate Judge in this case, the Court finds that the information in the search warrant affidavit for defendant Ohlson's residence at 8 Goade Park, Batavia, New York, was stale and lacked probable cause to justify the search of the residence. The search warrant affidavit established that an IP address*fn1 associated with the defendant's residence, during a five-day period from March 15, 2010 through March 19, 2010, accessed an indeterminate number of small thumbnail images of child pornography from a website hosting images of child pornography. The affidavit quotes pertinent web access logs showing that a computer using the IP address was used to access pages with the small thumbnail images of child pornography and that at least three of the thumbnail images of child pornography were enlarged. The affidavit represented that computer files or remnants of the files are recoverable even years after they have been downloaded onto a hard drive, deleted, or viewed over the internet. This is a well-recognized characteristic of digital evidence. See e.g., United States v. Coon, 2011 WL 1871165 *1-2 (W.D.N.Y. 2011). The warrant affidavit therefore demonstrated that some evidence of the child pornography images would be forensically recoverable from the computer used to access the images even years after the images were accessed*fn2 .
However, during the more than one year that elapsed from the time the IP address associated with defendant Ohlson's residence accessed the images of child pornography, no other, fresher evidence of a child pornography offense associated with the same IP address or with the defendant's residence was developed and presented to the Magistrate Judge who authorized the search warrant for the residence. No other, fresher evidence that the computer that was used to access the images of child pornography for the one five-day period in March of 2010 actually remained in the residence of April of 2011 was developed and presented to the issuing Magistrate Judge.
As this Court has noted previously, an essential question in cases like this is not only whether child pornography images or remnants of such images remain on a computer used to access the images for a long period of time - it is clear that they do - an essential question is also whether the computer that accessed the images remains at the residence that is to be searched:
[T]he ability to recover deleted computer files does not, without more, support probable cause to search a residence. There also must be probable cause to believe that the computer will be located at the residence at the time of the search. Ordinarily, where the time between the downloading of the pornography and the search of the residence is relatively brief, it is easy to infer that the computer is still at the location where the pornography was downloaded. The shorter the time between those two events, the stronger the inference. Conversely, as more time passes between the initial download and the search of the residence, the more attenuated probable cause becomes.
United States v. Coons, 2011 WL 1871165 *3 (W.D.N.Y. 2011) (holding that information that a child pornography video had been electronically transferred from a computer associated with a residence nearly a year earlier was too stale to justify a search of the residence). More than one year passed from the single five-day period in March of 2010 when probable cause to believe that images of child pornography had been knowingly accessed using a computer at the IP address associated with the defendant Ohlson's residence first arose until the search warrant was presented to, and authorized by, the issuing Magistrate Judge. As the Court observed in the Coon case, it could not reasonably be inferred after so long a passage ...