Six month old information was not stale in a child porn investigation. United States v. Smither, 2009 U.S. Dist. LEXIS 17231 (E.D. Ky. March 6, 2009). There are four factors:<\/p>\n
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). Here, the affidavit contained information that the defendant traded child pornography on eight occasions. This is sufficient to suggest that the offense was ongoing especially given the nature of the criminal activity. …<\/p>\n
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. Abboud, 438 F.3d at 573. However, a single change of residence by the defendant does not necessarily indicate that the defendant was “nomadic.” “Commonsense … suggests that individuals who have a continuing interest in child pornography have extremely limited options that preclude them from being nomadic.” United States v. Wiser-Amos, 2007 U.S. Dist. LEXIS 66512, 2007 WL 2669377 (W.D. Ky. Sept. 7, 2007). …<\/p>\n
The third factor considers whether the nature of the alleged evidence is “perishable,” “easily transferable,” or “of enduring utility to its holder.” See Abboud, 438 F.3d at 573. Child pornography has an “enduring” quality to the perpetrator. Courts that have addressed staleness challenges in pornography cases have recognized that pedophiles and collectors of pornography, particularly involving children, often hoard their material and do not discard it. As such, these courts have concluded that information relating to “continuing offenses,” such as collecting pornography and sexual abuse, have more durability than offenses that are random or isolated. … Further, given the nature of computer storage, it is reasonable to assume that the computer that originally contained the image in question still contained that image because “images and videos stored on a computer are not easily eliminated from a computer’s hard drive.” United States v. Toops, 2007 U.S. Dist. LEXIS 8629, 2007 WL 433562 *4 (M.D. Ala. Feb. 6, 2007).<\/p>\n
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.\n<\/p><\/blockquote>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
b2evALnk.b2WPAutP Continue reading