U.S. v. Frechette

• Decision Date: 08 October 2009
• Docket Number: No. 08-2191.,08-2191.
• Citation: 583 F.3d 374
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Douglas FRECHETTE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

583 F.3d 374

UNITED STATES of America, Plaintiff-Appellant, v. Douglas FRECHETTE, Defendant-Appellee.

No. 08-2191.

United States Court of Appeals, Sixth Circuit.

Argued: August 6, 2009.

Decided and Filed: October 8, 2009.

ARGUED:

Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellant. Helen C. Nieuwenhuis, Nieuwenhuis Law Offices, P.C., Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellant. Helen C. Nieuwenhuis, Nieuwenhuis Law Offices, P.C., Grand Rapids, Michigan, for Appellee.

Before: MOORE and ROGERS, Circuit Judges; THAPAR, District Judge.^*

THAPAR, D. J., delivered the opinion of the court, in which ROGERS, J., joined. MOORE, J. (pp. 381-84), delivered a separate dissenting opinion.

OPINION

THAPAR, District Judge.

The issue in this case is whether it is probable that someone who pays approximately $80 for a subscription to a web site is likely to use that subscription. Because we hold that it is probable, we REVERSE the district court and REMAND this case.

I.

The facts in this case are undisputed. On April 3, 2008, Agent Craig Smith of the Bureau of Immigration and Customs Enforcement ("ICE") presented an affidavit to a magistrate judge containing the following information:

On November 26, 2007, agents learned that on January 13, 2007, the defendant paid $79.95 for a one-month subscription to a child pornography subscription web site. Agents had previously viewed the splash pages for this web site (the pages that welcome the visitors to the web site) on December 27, 2006, and found that it contained the following photographic images of child pornography:

(1) An image depicting two naked prepubescent females with one spreading the legs of the other to expose the genitalia to the camera in a lewd and lascivious manner (2) An image of a naked prepubescent female identified as "Gayla 11 y.o." indicating her age to be eleven-years old. She is posed with her genitalia exposed to the camera in a lewd and lascivious manner;

(3) An image of a naked prepubescent female inserting an object into her vagina;

(4) A blinking indicator that identifies the girls on the web site as being between five to fourteen-years of age;

(5) The "join us now" page had images of minor females displaying their genitalia in a lewd and lascivious manner with an advertised price of $79.95 for access to the web site.

To pay for this subscription, the defendant opened a PayPal account in his own name and address.¹ He listed a phone number registered to the same address — 8 — Van ____ Street, Muskegon, Michigan 49442—where he lived with his mother.² PayPal records indicate that January 13, 2007, was the first and last day he used this PayPal account. The defendant used his debit card with Huntington Bank to transfer $79.95 to his PayPal account.

In addition, the agent determined that Comcast owned the IP address used to access the web site and that the person who used that IP address had an email address that had been registered on January 13, 2007, to the residence located at 8 — Van ____ Street. Agent Smith also stated that based on his experience, evidence of the storage of child pornography is often present on the computer hard drives of consumers of child pornography—sometimes in multiple locations on the hard drive, some of which they may not even be aware of.

The affidavit further indicated that the defendant had a previous criminal history and was listed in the Michigan State Sex Offender Registry at the same address. At the time of the affidavit, the probation office, the postal service, and the department of motor vehicles listed the defendant at that address as well.

On April 3, 2008, Agent Smith presented the affidavit to a magistrate judge, who determined that probable cause existed that evidence could be found at 8 — Van ____ Street, and thus issued a search warrant. Upon executing the search warrant on April 8, 2008, the agents recovered images of child pornography from the defendant's computer. The defendant also confessed to possessing child pornography during an interview with an agent. On May 14, 2008, a federal grand jury indicted the defendant on two counts related to the receipt, 18 U.S.C. § 2252(a)(2)(A), and possession, 18 U.S.C. § 2252(a)(4)(B), of child pornography.

On September 12, 2008, the district court held a hearing on the defendant's motion to suppress the evidence. The district court suppressed the evidence because it found that the evidence of the January 13, 2007, subscription was stale, and in turn that the affidavit lacked a "link between the factual basis and the conclusion that there was a fair probability that evidence of a crime would be found at the defendant's home or on the computer."

II.

As a preliminary matter, stale information cannot be used in a probable cause determination. See United States v Spikes, 158 F.3d 913, 923 (6th Cir.1998) (citing W. LaFave, Search and Seizure § 3.7 (3d ed.1996)). The staleness inquiry depends on the "inherent nature of the crime." Id. (quoting United States v. Henson, 848 F.2d 1374, 1382 (6th Cir. 1988)). Thus, the court must first focus on whether information that is sixteen-months old is stale. In the drug trade, the answer is usually yes. See United States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005) ("[I]nformation of an unknown and undetermined vintage relaying the location of mobile, easily concealed, readily consumable, and highly incriminating narcotics could quickly go stale in the absence of information indicating an ongoing and continuing narcotics operation.") (citations omitted). That is so because drugs are usually sold and consumed in a prompt fashion. With respect to images of child pornography, however, the answer may be no because the images can have an infinite life span.

In analyzing whether information is stale, this court considers the following factors:

(1) the character of the crime (chance encounter in the night or regenerating conspiracy?),

(2) the criminal (nomadic or entrenched?),

(3) the thing to be seized (perishable and easily transferrable or of enduring utility to its holder?), and

(4) the place to be searched (mere criminal forum of convenience or secure operational base?).

United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir.2006) (citing Spikes, 158 F.3d at 923) (upholding search warrant for evidence of bank fraud when the fraud occurred three years before the warrant application). The application of these factors to the instant case reveals that the information presented to the magistrate judge was not stale.

1. Character of the Crime. As we have explained on multiple occasions, child pornography is not a fleeting crime. And "because the crime [of child pornography] is generally carried out in the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting crimes do not control the staleness inquiry for child pornography." United States v. Paull, 551 F.3d 516, 522 (6th Cir.2009) (citing United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006)). Indeed, in Paull, the search warrant approved was based on an affidavit that included evidence of the defendant's subscription to a child pornography web site that was purchased thirteen months before the actual search. Id. at 522-23 (citing United States v. Lacy, 119 F.3d 742, 746 (9th Cir.1997) (upholding search for child pornography based on evidence that the defendant subscribed to a similar web site ten months prior to the search)). Moreover, here the agent stated that in his experience evidence of child pornography downloading often remains on a computer for lengthy periods of time. See United States v. Williams, 544 F.3d 683, 686 (6th Cir.2008) (holding that courts may give "considerable weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found" (citing United States v. Bethal, 245 Fed.Appx. 460, 465 (6th Cir.2007))); see also Wagers, 452 F.3d at 540 ("[E]vidence that a person has visited or subscribed to web sites containing child pornography supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material." (citing United States v. Martin, 426 F.3d 68, 77 (2d Cir. 2005); United States v. Froman, 355 F.3d 882, 890-91 (5th Cir.2004))).

2. The Criminal. The affidavit clearly established that the defendant was not nomadic. Indeed, all of the evidence indicated the defendant lived in the same house for the entire sixteen months in question.

3. The Thing to be Seized. Unlike cases involving narcotics that are bought, sold, or used, digital images of child pornography can be easily duplicated and kept indefinitely even if they are sold or traded. In short, images of child pornography can have an infinite life span. See United States v. Terry, 522 F.3d 645, 650 n. 2 (6th Cir.2008) ("Images typically persist in some form on a computer hard drive even after the images have been deleted and, as ICE stated in its affidavit, such evidence can often be recovered by forensic examiners." (citing Lacy, 119 F.3d at 746)).

4. The Place to be Searched. The place to be searched in this case was the defendant's residence, which is clearly a "secure operational base." See Paull, 551 F.3d at 522 (holding that the crime of possession of child pornography "is generally carried out in the secrecy of the home and over a long period" (citing Wagers, 452 F.3d at 540)).

All of the Abboud factors indicate that the evidence was not stale in this case. Thus, the magistrate judge was correct to consider the defendant's subscription when making the probable cause determination.

III.

The staleness inquiry, however, does not conclude our analysis. The next question is whether the magistrate judge had a substantial basis to conclude that probable cause existed. See United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 20...