This is a staleness argument on a motion to suppress, arguing that the information used to support the warrant was 5 years old.
Facts: Appellant was a professional photographer, and a friend of the victim’s father. He babysat for the victim from time to time. In Feb 2012, the then 13 year old victim reported that Appellant molested her when she was 8 years old and took pictures of her. Law enforcement investigated and the Detective presented an affidavit for search warrant detailing his qualifications and experience over the prior 16 years as a LEO (7 specifically relating to child exploitation). He explained that based on his knowledge collectors of CSE Images go to great lengths to protect their collection, the nature of digital evidence, how highly transportable it is, and that he is aware of images being used greater than 5 years from their creation date. The search warrant was issued. Forensic analysis revealed multiple images of the victim in various states of undress and engaging in sexually explicit conduct.
Attack of Search Warrant: Appellant moved to suppress the evidence based on a staleness argument. The District Court denied the motion. Appellant entered a conditional guilty plea to the charges and was sentenced to 30 years. He argues on appeal that the District Court erred in denying his staleness argument, and that the judge erred in concluding that even if the information was stale, the good faith exception applied.
Law/Analysis: When a judge receives an application for a search warrant, the judge must make “a practical, common-sense decision about whether the evidence in the record shows a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Miller, 673 F.3d 688, 692 (7th Cir.2012). Recency of the in- formation provided to the issuing judge is one factor bearing on the question of probable cause. United States v. Pappas, 592 F.3d 799, 803 (7th Cir.2010). “When a search is authorized by a war- rant, deference is owed to the issuing judge’s conclusion that there is probable cause.” United States v. Sutton, 742 F.3d 770, 773 (7th Cir.2014). “Courts should defer to the issuing judge’s initial probable cause finding if there is substantial evidence in the record that supports his decision.” Id.
In evaluating this issue, we recognize that a staleness inquiry must be grounded in an understanding of both the behavior of child pornography collectors and of modern technology. See Seiver, 692 F.3d at 776–77. In this case, the warrant affidavit adequately addressed these considerations by explaining why Carroll may have retained the images of the victim on his computer or other digital storage devices, and how these images, even if deleted, may still be recover- able because they were not yet overwritten.
In Prideaux–Wentz, this Court recognized that “collectors and distributors [of child pornography] rarely, if ever, dispose of their collections,” but determined that “there must be some limitation on this principle.” 543 F.3d at 958. In finding that the search warrant in that case lacked probable cause because the evidence in the warrant affidavit was stale, this Court concluded that the information indicating that the defendant had uploaded child pornography may have been “at least four years old by the time the government applied for a warrant.”
The facts presented to the issuing judge distinguish this case from Prideaux–Wentz and demonstrate a likelihood of retention that was greater than could be expected in the normal child pornography case. Not only was Carroll the producer of the child pornography sought, but the images were of the bare genitals of the victim, whom he had personally molested. While pornographic images of anonymous children could be replaced with images of other anonymous children, Carroll’s images of the eight- year-old victim were irreplaceable to him. Under these circumstances, it was fair for the issuing judge to infer that Carroll would highly value the images of the victim and retain them on some type of digital media for a very long time.
We must also take into account the possibility of recovering deleted images from the computer or other digital storage devices within Carroll’s residence. In Seiver, this Court recognized that even after a computer file is deleted it remains in the computer until it is overwritten, which allows computer experts to routinely extract deleted files from hard drives. 692 F.3d at 776.
Holding: Consistent with the necessary deference to the issuing judge’s determination of probable cause, we conclude that the information in Detective Spivey’s affidavit was sufficient to establish a fair probability that the computer or other digital storage devices within Carroll’s residence would contain evidence of child pornography or sexual exploitation of a child, despite the fact that the photographs were taken approximately five years earlier.