Because these images may exist forever and because perpetrators often hold on to the images for long periods of time, we believe that the ten-month-old information is not stale.
State v. Green
2023 – Ohio – 501
Fourth District Appellate Court
Ross County, Ohio
February 14, 2023
On April 1, 2020, Chillicothe Police Detective Christopher Fyffe received a phone call from an individual who identified himself as Agent Alex Harnish. Harnish stated that he worked with the Internet Crimes Against Children task force and informed Det. Fyffe that he would be sending the detective some images depicting minors from a website named Kik. Harnish indicated he would send the detective a compact disk that contained the images, a copy of a subpoena with subscriber information, and other data to assist in the investigation.
Shortly thereafter, Detective Det. Fyffe received a compact disk that contained subscriber information for an IP address. This information identified Mr. Justin Green as the subscriber and listed Mr. Green’s street address, email address, and phone number. The disk also contained four files, dated June 29, 2019, that each contained an image of possible underage females photographed in various states of undress.
On April 7, 2020, Detective Det. Fyffe requested a warrant to search Mr. Green’s residence, which the trial court granted. Two days later, the detective served the search warrant and talked to the occupants, Mr. Green and his girlfriend. Mr. Green admitted that he had used Kik in the past, and his girlfriend stated that Mr. Green “has had a problem in the past with ‘chatting’ with young females on Kik.” As a result of the search, the detective seized a cell phone and an Apple iPad. Det. Fyffe later applied for a warrant to search the electronic devices, which the court also granted.
A Ross County Grand Jury subsequently returned an indictment that charged Mr. Green with five counts of pandering obscenity involving a minor, in violation of O.R.C. §2907.321.
On February 8, 2021, Mr. Green filed a motion to suppress the evidence obtained from the searches of his residence and electronic devices. Mr. Green alleged that the search warrants were not based upon probable cause because the search warrant affidavits were based upon hearsay and the affidavits did not set forth the veracity and basis of knowledge of the person who provided the detective with the information. Mr. Green additionally argued that the information contained in the affidavits was stale. He contended that nearly ten months had elapsed since the alleged criminal conduct and, due to the lapse of time, evidence of this criminal conduct was not likely to be found at his residence or on his electronic devices at the time that the detective applied for the search warrant.
On March 21, 2021, the trial court held a hearing to consider Mr. Green’s motion to suppress the evidence. At the hearing, Detective Det. Fyffe testified that on April 1, 2020 a person who identified himself as Agent Alex Harnish with Internet Crimes Against Children called the detective to inform him that the agent would be sending in the mail some pictures and documentation. The detective indicated he also exchanged emails with the agent, but did not recall whether they exchanged emails before or after he requested the search warrants. Det. Fyffe noted that Agent Harnish’s email address ended with “ice.dhs.gov.”
Detective Det. Fyffe also explained that when he received the information from Agent Harnish, it arrived in a certified mail envelope. He did not recall, however, whether the envelope contained a return mailing address. The detective further testified that the information that Harnish sent him contained a subpoena from Franklin County that was issued to Charter Communications. Det. Fyffe stated he does not know who prepared this subpoena, but the subpoena did state that the subpoenaed information should be sent to “Special Agent Anna Edgar of ICE, with the Department of Homeland Security.”
After hearing the evidence, the trial court overruled Mr. Green’s motion to suppress. Later, Mr. Green entered no- contest pleas to the five counts of the indictment.
On October 20, 2021, the trial court sentenced Mr. Green to serve 12 months in prison for each offense, that the sentences for counts one and two to be served consecutively to one another and the remaining sentences to be served concurrently to the others.
Mr. Green argues that the search warrant affidavits did not include any facts to indicate (1) Why the information purportedly obtained from Agent Harnish is reliable, or (2) That Harnish is indeed who he stated he was.
As such, Mr. Green believes that Harnish’s information should be treated the same as an unidentified informant. Additionally, Mr. Green argues that the nearly ten-month-old information contained in the affidavits did not make it probable that evidence of criminal activity would be found at his residence, or on his electronic devices, at the time that the detective applied for the search warrant.
A search warrant may only be issued:
(1) Upon probable cause,
(2) Supported by oath or affirmation, and
(3) Particularly describing the place to be searched and the person and/or things to be seized.
Kentucky v. King, 563 U.S. 452, 459 (the Fourth Amendment allows a warrant to issue only when “probable cause is properly established, and the scope of the authorized search is set out with particularity”); accord O.R.C. §2933.23; Crim.R. 41.
“The essential protection of the warrant requirement of the Fourth Amendment … is in ‘requiring that [the usual inferences which reasonable men draw from evidence] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’” Illinois v. Gates, 462 U.S. 213, 240, (1983).
Accordingly, a search warrant “affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter.” Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
Mr. Green first alleges that the search warrant affidavits did not establish probable cause because the detective failed to ensure that the source of the information contained in the affidavits (Agent Harnish) is a reliable source. Mr. Green contends that the detective should have independently verified that Agent Harnish is indeed who he claimed to be.
We recognize that “[O]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” State v. Henderson, 51 Ohio St.3d 54, 57, (1990).
Search Warrant Analysis
In the case sub judice [this case], Det. Fyffe relied upon information that Agent Harnish, another law enforcement officer, provided. We find nothing in the record to suggest that the detective’s reliance was unreasonable. The detective stated that he received the information via certified mail shortly after he spoke with Agent Harnish, that part of this information included an investigative subpoena issued to the IP provider that included the name of another agent and an email address that ended with ice.dhs.gov. Det. Fyffe stated that Agent Harnish’s email address also ended with ice.dhs.gov. Although the detective could not recall whether he exchanged emails with Agent Harnish before or after he applied for the warrant, the information that the detective received in the mail, including the investigative subpoena that listed the name of a Special Agent, her email address ending in ice.dhs.gov and her phone number, shows that he reasonably relied upon the information.
Consequently, we disagree with Mr. Green that the search warrant affidavits did not contain sufficiently reliable information to support probable cause to believe that a search of his residence and electronic devices would uncover evidence of criminal activity.
Stale Probable Cause Doctrine
Mr. Green also asserts that the facts contained in the search-warrant affidavits were too stale to establish probable cause to search his residence or his electronic devices. Mr. Green points out that the affidavits reference images downloaded in June 2019 – nearly ten months before Detective Det. Fyffe applied for the search warrants. Mr. Green claims that, given the lapse of time, when the detective applied for the search warrants, he did not have a reasonable basis to believe that this evidence of alleged criminal activity still might be found at his residence or on his electronic devices.
“‘While there is no arbitrary time limit on how old information can be, the alleged facts must justify the conclusion that the subject contraband is probably on the person or premises to be searched.’” State v. Jones, 72 Ohio App.3d 522, 526, (6th Dist.1991).
When reviewing whether information is too stale to establish probable cause, courts may consider “[T]he nature of the criminal activity, the length of the activity, and the nature of the property to be seized.” United States v. Shomo, 786 F.2d 981, 983–84 (10th Cir). Listing factors more specifically as “(1) the nature of the crime; (2) the criminal; (3) the thing to be seized, as in whether it is perishable and easily transferable or of enduring utility to its holder; (4) the place to be searched; and (5) whether the information in the affidavit relates to a single isolated incident or protracted ongoing criminal activity”.
Stale Probable Cause Analysis
In the case sub judice, the search warrant affidavits contained information that, nearly ten months earlier, Mr. Green had downloaded child pornography. Because these images may exist forever and because perpetrators often hold on to the images for long periods of time, we believe that the ten-month-old information is not stale. Consequently, we do not agree with Mr. Green that the information contained in the search – warrant affidavits was too stale to support probable cause to believe that his residence and electronic devices would contain evidence of child pornography. The trial court, therefore, did not err by overruling Mr. Green’s motion to suppress the evidence discovered upon executing the search warrants.
Accordingly, based upon the foregoing reasons, we overrule Mr. Green’s assignment of error and affirm the trial court’s judgment.
Information for this article was obtained from State v. Green, 2023 – Ohio – 501.
This case was issued by the Fourth District Appellate Court and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
- What is Stale Probable Cause? That is when law enforcement relies on information that was previously probable cause. There is no definitive time frame where probable cause can become stale. Rather, it is a more complex analysis. In 2008 Ohio’s Tenth District Appellate Court issued State v. Ingold, 2008 – Ohio – 2303 and explained the doctrine “The question of staleness is not measured solely by counting the days between the events listed in the affidavit and the application for the warrant”. Id at 23. “Ohio courts have identified a number of factors to consider in determining whether the information contained in an affidavit is stale, including the character of the crime, the criminal, the thing to be seized, as in whether it is perishable, the place to be searched and whether the affidavit relates to a single isolate incident or ongoing criminal activity.”. In this case the Fourth District Court recognized that child pornography consumers/predators retain photos for their grotesque and demented sexual gratification even though the photos and videos are readily perishable. Therefore, the tenth month gap/delay for probable cause was determined not to be stale.
- Green’s defense counsel made a feeble attempt to discredit Det. Fyffe because he failed to confirm the employment status of the two Department of Homeland Security Special Agents. The Fourth District Court did well to dismiss this claim by quoting the Supreme Court of Ohio “[O]bservations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” State v. Henderson, 51 Ohio St.3d 54, 57, (1990).
- Chillicothe Police Det. Christopher Fyfee should be highly commended for his work to investigate and help successfully prosecute Mr. Green!
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