10th Circuit upholds search warrant for child possession based on two year old emails verifying purchase
U.S. v. Burkhart, No. 09-7091 (10th Cir. April 23, 2010)
10th Circuit upholds search warrant for child possession based on two year old emails verifying purchase
A 10th Circuit panel (Judge Kelly writing, joined by Tacha and Holmes) upheld William David Burkhart’s conviction for “possession of one or more matters containing a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. ยง 2252(a)(4)(B).” Europol sent the FBI “about 10,000 emails” between an Italian national running a child porn website and his U.S customers. Burkhart’s email address was among these, and his emails “verified purchase” of child pornography. The FBI sought and received a warrant. Burkhart pled guilty but reserved the right to appeal the denial of his motion to suppress the evidence.
On appeal, Burkhart argued, among other things, that the FBI’s affidavit did not establish probable cause because “the information from Europol was so old as to be stale.” When the warrant was executed over two years had passed since the most recent date in evidence.
Rejecting this argument, the court first pointed out that Burkhart’s crime was possession rather than reception, the former offense not ending as long as he possessed the videos. Second, the most recent evidence (an email) “occurred well within the five-year statute of limitations.” According to the court, these facts, along with FBI testimony regarding the tendency of child pornography collectors to “retain materials for many years,” (hoarding) formed a substantial basis for the issuance of the warrant. Burkhart argued that the “hoarding assumption” is “based on the outdated realities of regular mail, rather than the relative ease of anonymous collection through the Internet.” But the court found it even more relevant in light of the permanence of digital imagery:
Given the nature of the evidence to be seized, the Internet context may mitigate against staleness: information that a person received electronic images of child pornography is less likely than information about drugs, for example, to go stale because the electronic images are not subject to spoilage or consumption . . . Instead, electronic files “can have an infinite life span.” We fail to see how even “on demand” Internet availability removes the incentive to hoard what has been collected.
COMMENTS
