Child Porn Addicts Cling to Images Like New Velcro …

 

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

 

ICAC Contacts Chillicothe Detective

On Wednesday April 1, 2020, Chillicothe Police Detective Christopher Fyffe received a phone call from an individual who identified himself as Agent Alex Harnish. Agent 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. Agent 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.

Mr. Justin Green is Identified as a Child Porn Suspect

Shortly thereafter, 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.

[H]as had a problem in the past with ‘chatting’ with young females

On April 7, 2020, 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.

Indicted for Pandering Obscenity Involving a Juvenile

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.

Motion to Suppress

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.

Mr. Green Challenges the Credentialing of Agent Harnish

On March 21, 2021, the trial court held a hearing to consider Mr. Green’s motion to suppress the evidence. At the hearing, 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.

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.”

Motion to Suppress is Denied

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.

Mr. Green is Convicted and Sentenced to Two Years in Prison

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 Appeals the Probable Cause and Staleness in the Search Warrant

In his sole assignment of error, Mr. Green asserts that the trial court erred by overruling his motion to suppress evidence because, Mr. Green contends, the search warrants were not based upon probable cause. Mr. Green claims that the information contained in the affidavits is not reliable and is stale. 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.

Mr. Green disputes Det. Fyffe’s characterization of Agent Harnish’s information and argues that information obtained from other law enforcement officers may serve as a reliable basis for issuing a search warrant. The state further disagrees with Mr. Green’s assertion that the nearly ten-month-old information did not establish probable cause to believe that evidence of child pornography would be located at his residence, or on his electronic devices, when Det. Fyffe applied for the search warrants.

Established Case Law on Search Warrants

A search warrant “[A]ffidavit 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 (1978)

“[T]he evidence must be sufficient for the magistrate to conclude that there is a fair probability that evidence of a crime will be found in a particular place.”.  Illinois v. Gates, 462 U.S. 213 (1983)

Source of the Information

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 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 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.

Det. Fyffe Could Rely on Agent Harnish’s 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.

Is a Tenth Month Gap between the Crime and Search Warrant Rise to the Level of Staleness?

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 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.

Established Case Law on the Staleness Doctrine

“[T]he timeliness of the information contained in the affidavit is an important variable.” U.S. v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986)

However, “[P]robable cause is not determined simply by counting the number of days between the facts relied on and the issuance of the warrant.” Id at 983-984.  Instead,

“[W]hether facts are ‘too stale’ to be of probative value must be decided on a case-by-case basis.” State v. Goble, 2014 – Ohio – 3967

“‘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 “the nature of the criminal activity, the length of the activity, and the nature of the property to be seized.” U.S. v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986)

In State v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009), for example, the court determined that information that a defendant paid for a one-month subscription to a child-pornography web site still supported probable cause to believe that evidence of criminal activity would be located at the defendant’s home even though officers executed the search warrant 16 months after the defendant’s one-month subscription ended. In analyzing the staleness factors, the court observed that “child pornography is not a fleeting crime,” and “‘is generally carried out in the secrecy of the home and over a long period.'” 

Applying these factors led the State v. Frechette, 583 F.3d 374, (6th Cir. 2009) court to conclude that the 16-month-old information regarding the defendant’s one-month subscription was not stale information. The court therefore determined that the magistrate correctly considered the information when deciding whether probable cause supported issuing the search warrant.

Because Addicts Cling to Child Porn Like New Velcro …

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.

Conclusion and Holding

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.

State v. Green, 2023 – Ohio – 501 was issued on February 14, 2023 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.

Lessons Learned:

  1. The Fourth Amendment Timeclock – In 1932 the U.S. Supreme Court held “A warrant must be supported by ‘facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time’. Sgro v. United States, 187 U.S. 206, 210 (1932). Therefore, if the period of time is too lengthy between the crime and issuance of the search warrant, that is likely to be challenged by a defendant.  However, Sgro should be contrasted with “The passage of time becomes less significant when the crime at issue is ongoing or continuous and the place to be searched is a secure operation base for the crime.” U.S. v. Henson, 848 F.2d 1374, 1382 (6th Cir. 2001).
  2. Arrest Warrants – The primary focus of the Stale Probable Cause Doctrine is mostly focused on search warrants and not on arrest warrants. For more on the Staleness Doctrine for arrest warrants see: Eight Days after Probable Cause is Established does a Law Enforcement Officer Need an Arrest Warrant Before a Warrantless Arrest is Effected?
  3. Just Like New Velcro – In this case the Fourth District Appellate Court took special note of the child porn crime, noting that suspects often cling to images for long periods of time 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.”. Law enforcement should remain cautious of long periods of time between a crime and requesting a search warrant.  I strongly concur with the court on their special application of child porn and timeliness. However, in other investigations such as narcotics investigations long periods of time may be problematic for the issuance of search warrants.  For more on this doctrine see: Was the Probable Cause on the Search Warrant Affidavit Stale?
  4. Pre-Sent Arms! Agent Alex Harnish and Chillicothe Police Detective Christopher Fyffe should be highly commended for working in concert to identify, investigate, arrest and convict Child Porn Addict Mr. Justin Green.  Well done!

Does your agency train on Search Warrant Affidavit’s?

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.