D.Vt.: CP SW doesn’t need a temporal limitation

A search warrant for child pornography doesn’t really need a temporal limitation, considering the nature of what’s sought. United States v. Johnson, 2021 U.S. Dist. LEXIS 122802 (D. Vt. June 29, 2021):

The crimes specified in the warrant application were “possessing, distributing and receiving child pornography.” (Gov’t Ex. 1.) These offenses were not limited to child pornography downloaded through KIK. The KIK tip provided a basis for a finding of probable cause to believe that defendant possessed child pornography. The investigation, however, was not limited to that conduct. S.A. Moynihan’s affidavit described how “collections [of child pornography] are often maintained for several years and are kept close by, usually at the individual’s residence, to enable the collector to view the collection, which is valued highly.” (Gov’t Ex. 1, ¶ 10(d).)

The cases cited by Defendant in support of a temporal limitation concern crimes which occur at a specific time. These include violations of state sex offender registration requirements, United States v. Irving, 347 F. Supp. 3d 615 (D. Kan. 2018), and public indecency, United States v. Winn, 79 F. Supp. 3d 904 (S.D. Ill. 2015). A search of all computer records, including dates prior to the charged offense, could reveal little or no relevant information and was consequently too broad. But possession of child pornography is conduct of a different stripe altogether. It has a beginning and an end, but these may be years apart. Probable cause to search or otherwise investigate the defendant may arise at any time during possession and frequently concerns only a small portion of the contraband in a defendant’s collection.

The search limits proposed by Defendant—restricting the search to files created within a period of two months—would miss evidence of a file previously acquired. The Government was under no constitutional requirement to limit the search to images downloaded during any particular period of time. The protection against an overly broad search was met in this case by the requirement that the Government search only for evidence of child pornography crimes, not the date of the conduct giving rise to probable cause. See United States v. Trader, 981 F.3d 961, 969 (11th Cir. 2020).

Similarly, the Government was under no constitutional requirement to identify a small number of electronic devices to search. The warrant application and affidavit were comprehensive in their identification of every conceivable type of electronic device as potential sources of evidence. That is because electronic files appear on many types of devices. Televisions connect to the internet; cell phones have some of the same capabilities as laptops; and electronic traces of communication and use may be found on virtually any device with a memory chip or card.