3rd Circuit: Search warrant is not stale where it was based on child porn accessed four months earlier
U.S. v. Vosburgh, No. 08-4702, 2010 WL 1542340 (3rd Cir. April 20, 2010)
Search warrant is not stale where it was based on child porn accessed four months earlier
The Third Circuit ruled that a Roderick S. Vosburgh’s attempt to download “a video that purported to be child pornography,” together with law enforcement testimony asserting that “child pornography collectors tend to hoard their materials and rarely, if ever dispose of them,” provides a “substantial basis for [a] magistrate’s conclusion that there was a ‘fair probability that contraband or evidence of a crime [would] be found’” in the user’s apartment:
[S]everal Courts of Appeals have held that evidence that the user of a computer employing a particular IP address possessed or transmitted child pornography can support a search warrant for the physical premises linked to that IP address. . . . The unique nature of the IP address assigned to Vosburgh on October 25 made his attempts to access the Link fairly traceable to his Comcast account and the physical address to which that account was registered. . . .
Attempted possession of child pornography is a federal crime. See 18 U.S.C. ยง 2252(b)(2). Therefore, the attempts to access the Link by someone using Vosburgh’s IP address were undoubtedly criminal activity.
The court also held that “the four-month gap between the warrant application and the attempts to access” did not render the information in the affidavit stale:
As the affidavit explained, and as we have long recognized, persons with an interest in child pornography tend to hoard their materials and retain them for a long time . . . Child pornography is illegal, and therefore difficult and risky to obtain. Presumably, once a child pornography collector gets his hands on such material he will not be quick to discard it . . . The magistrate’s task was to make a practical, commonsense decision as to whether there was a fair probability that evidence of criminal activity-including possession or even attempted possession of child pornography-would be found in Vosburgh’s apartment four months after he attempted to access the Link. On the facts before us, and in light of our precedents, we agree that the magistrate had a substantial basis for concluding that there was. Our decision fits comfortably within the body of case law concerning staleness in the context of child pornography.
COMMENTS
