I am becoming more familiar with child porn cases than I ever wanted to be, but how fresh does information have to be for a computer search warrant? Can it be withing 15-30 days or does it need to be less. I have not had the chance to research it yet, so any cases would be of help. Thanks!
I think the term you want is stale rather than fresh. Since computer data isn't fungible the same way as dope, I think staleness shouldn't be much of a problem. Couldn't you put something in your warrant affidavit to the effect that persons who possess illegal porn on their computers usually keep it rather than deleting it or moving it somewhere else? That would probably help cover a staleness problem.
That is what we are thinking, but I did not know if there was any case law on the subject. this person has been doing this for a long time and I don't want to screw it up. THanks for your reply!!
Another thing pertinent to this issue is the fact that persons in the business of selling this crap probably aren't selling it in its original form, but in the form of a digital copy. In other words, they have a digital image, and they sell copies of the image, always maintaining the image so that they can continue to sell or otherwise use (ugh!) the image.
Again, your investigators can probably include this in their affidavit for warrant, thus addressing any staleness issue within the four corners and ensuring the affidavit states probable cause. You're trying to show continuing conduct, i.e. possession of digital child porn.
I pulled this from Marchand v. State2003 Tex. App. LEXIS 4719 (Tex. Appp. Amarillo, June 4, 2003, no pet. h.)(memo. op.):
To justify a magistrate's finding that an affidavit is sufficient to establish probable cause to issue a search warrant, the facts set out in the affidavit must not have become stale when the magistrate issues the search warrant. See Rowell v. State, 14 S.W.3d 806, 809 (Tex.App.--Houston [1st Dist.] 2000), aff'd, 66 S.W.3d 279 (Tex.Crim.App. 2001); Guerra v. State, 860 S.W.2d 609, 611 (Tex.App.--Corpus Christi 1993, pet. ref'd). To determine [*10] whether the facts supporting a search warrant have become stale, we examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. See Rowell, 14 S.W.3d at 809. When the affidavit recites facts indicating activity of a protracted and continuous nature or a course of conduct, the passage of time becomes less significant. Id.; Lockett v. State, 879 S.W.2d 184, 189 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd).
While it doesn't deal specifically with a staleness issue, perhaps Duncan, 72 S.W.3d 803 may lead to relevant case law.
Brief General Summary (See TDCAA book) - Information concerning a small amount of drugs being seen at a location must be relatively recent for a magistrate to reasonably conclude that the drugs will be found at that location as the reasonable expectation of a magistruate must be that drugs will have been consumed or sold if the the information is stale. To grant a search warrant the magistrate must find that there is a reasonable expectation that the item sought still exist at the location to be searched.
In child porn cases and sexual assaults on children where they report the use of "toys" or porn, the information of the existence is often not of the "just yesterday" type. When drafting search warrants for such items I try to incorporate language that such items are usually maintained for months and even years. The reason we often get hundreds or thousands of images is that criminals who commit this type of crime never throw anything away. Your investigating officers have been to schools and hopefully have some prior experience and have talked to experts in the area. Put language in the search warrant to qualify your affiant as an expert in the magistrates opinion and then have the affiant state in the affidavit that in their "expert" opinion based upon training and experience that if the images were there 6 months ago or 12 months ago or whatever, then it is more that reasonable to expect that the images will still be there.
When getting a warrant to seize blood or some other item for analysis one usually includes a statement that affiant has talked to a particular expert and that the expert has reported that "if you get the item then I can to the analysis and demonstrate ..." Incorporating expert opinions in affidavits of probable cause is not improper nor unusual.
If your officer can't be the expert, have them get on the phone and find an expert as to the hording aspect of child pornographers' behavior. Then have that coversation woven into the probable cause affidavit citing the expert's name, training, qualifications, etc.
Call me if you need more, I should be able to dig out some sample language.
For a discussion of staleness in this context, see Morris v. State, 62 S.W.3d 817 (Waco 2001).
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