United States v. Kreitzer, 2013 WL 3479245 (S.D. Ohio), July 2013

Ohio gets two appearances this month for case law related to search warrants for child pornography.  Kreitzer is based on defendant’s motion to suppress the evidence seized from his home as well as to suppress the multiple incriminating statements he made to the police.

Local law enforcement was notified of a website which was operating in a nearby jurisdiction providing images of child pornography.  The investigation revealed the web access logs which recorded all of the activity from the website, including uploads and download from users.  Defendant’s IP address was recorded as on March 19, 2010 for an image of a naked pre-pubescent girl.  After obtaining the IP address, a subpoena was issued to the internet service provider, which returned an address for defendant.  An affidavit for search warrant of defendant’s home was filed, and a search warrant was issued and executed on May 5, 2011.  Defendant was not home at the time of the execution, but the warrant was attached to his door along with a list of the items seized. Among the items seized were digital media devices and printed out photos of child pornography.  Defendant made phone contact with the police and informed them on multiple occasions that child pornography would be found.

After adequately discussing appropriate Fourth Amendment law, and law related to staleness, the district court conducted an analysis as it related to child pornography and digital media.  Importantly, the court noted that “the staleness test does not exist ‘to create an arbitrary time limitation within which discovered facts must be presented to a magistrate.’” U.S. v. Frechette, 583 F.3d 347 (6th Cir. 1988)).  The court went on to differentiate between drugs (which are typically sold and consumed in prompt fashion) and child pornography (where “images can have an infinite life span”). Id. at 378.  Moreover, the court reiterated that the Sixth Circuit has consistently rejected staleness challenges to evidence obtained many months before the issuance of a warrant based on probable cause of evidence of child pornography holding that “the character of a child pornography crime does not render the Government’s evidence vulnerable to Defendant’s staleness challenge, based only on the 13 months that passed after the record of activity on the website and the magistrates approval of the search warrant…”

The court denied defendant’s motion to suppress, as well as the motion to suppress his incriminating statements.

This entry was posted in Fourth Amendment, Probable Cause, Search Warrant, Suppression, Uncategorized. Bookmark the permalink.

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