The Lawletter Vol 40 No 2
In a recent case from the U.S. Court of Appeals for the Second Circuit, the court held that a search warrant obtained to search the defendant's residence for evidence of child pornography was not supported by probable cause, because the information supplied by the affiant was stale. United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015). In seeking the warrant, the affiant referenced a single incident when someone had accessed thumbnail images of child pornography on the Internet from the defendant's Internet protocol address, which had occurred nine months earlier. The affidavit also included boilerplate language about how persons who look at and collect images of child pornography generally hold on to such images indefinitely. The court concluded that the evidence was equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window, and it held that absent any facts to show that the defendant was a collector of child pornography likely to hoard pornographic files, a single incident of access did not create a fair probability that child pornography would still be found on the defendant's computer months later.
However, the court further found that the good-faith exception to the exclusionary rule applied, even though the same officer who obtained the warrant was the affiant in a previous case involving similar facts, United States v. Coon, No. 10-CR-110A, 2011 WL 1871165 (W.D.N.Y. May 16, 2011), in which the court held that one-year-old evidence of possession of child pornography was too stale to create probable cause. The court rejected the argument that the officer's knowledge of the prior case served to alert him to the deficiency of his affidavit in the case before it, and found that the officer's knowledge that the court in Coon had found the evidence of possession too stale to create probable cause could not have given him notice that his affidavit in this case would be found equally deficient.