CA10: Unappealed suppression order from one district collateral estoppel on reindictment on same facts in a different district

Defendant was indicted for child pornography, and the district court suppressed. The government appealed but dismissed the appeal without filing a brief. In the district court it dismissed the indictment. Later, on the same evidence from the same search warrant, the government indicted him in a different district. Collateral estoppel bars the second case because the suppression order stands. United States v. Arterbury, 2020 U.S. App. LEXIS 18047 (10th Cir. June 9, 2020).

The affiant officer’s statement that those involved in frauds often keep records of their activities, and that overcomes on the totality a claim of staleness. It was eight months between the fraud and the search warrant, and the warrant was for Facebook records, too. “A gap in time may not undermine the information contained in the warrant where ‘“a continuing pattern or other good reasons’ suggest that the evidence sought remains in the location to be searched[.]”’” United States v. Martinez, 2020 U.S. Dist. LEXIS 100277 (N.D. Cal. June 8, 2020).