State of Ohio v. Willard, 2013 WL 3582679 (Ohio App. 8 Dist.)), July 2013

Appellant, who had a prior conviction for pandering obscenities involving a minor, pled no contest to 21 counts of an indictment after Appellant’s brother turned him in for showing adult pornography to Appellant’s brother’s children.  Appellant appealed his conviction arguing his motion to suppress should have been granted.

On February 22, 2011 Appellant’s brother filed a police report against Appellant for showing pornography to the children.  The boys described what they were shown by their Uncle to the police detective.  On March 11, 2011 the detective prepared an affidavit for a search warrant of Appellant’s home.  A judge issued the search warrant, and it was executed on March 14, 2011.  A number of electronic media devices were seized, and examined by a member of the ICAC task force.   A search of the computer revealed child pornography.  Appellant filed a motion to suppress the evidence at trial, which was denied.  Subsequently, Appellant pled no contest.

Attack on the Search Warrant: On appeal he argued that the trial court erred as a matter of law in overruling Appellant’s motion to suppress where the search warrant was invalid because the affidavit contained stale information and lacked evidence of ongoing criminal activity.

Appellant argued that nearly eight months had elapsed between the dates he allegedly showed the children pornography and the date of the search warrant.  The court noted that “in addressing the issue of staleness, we not that an affidavit in support of a search warrant must present timely information and include facts so closely related to the time of issuing the warrant as to justify a finding of probable cause.” Citing State v. Hollis, 98 Ohio App.3d 549.  However, the court went on, “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. State v. Yanowitz, 67 Ohio App.2d 141.   The court went on to differentiate staleness between types of cases.  “Ohio courts have recognized that the continuing nature of sexual offenses involving minors often justifies a finding of probable cause where the information supplied in an affidavit identifies conduct that occurs several months prior to the warrant’s issue.”  State v. Van Voorhis, 3d Dis. No. 8-07-23  More, “federal courts addressing challenges to search warrants in child pornography cases, particularly those involving images stored on a computer, typically employ a staleness analysis sensitive to technology and to the particular criminal activity at issue.” U.S. v. Miller, 450 F. Supp.2d 1321, 1335 (M.D. Fla.2006).

In affirming the lower court’s decision, the appellate court stated “due to the digital nature [of the evidence], pornographic images can be stored indefinitely in the hard drive of an individual’s computer” State v. Hale, 2d Dist. No. 23582.

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