Friday, June 19, 2009


This post is about the nature of the information police officers rely on to get a magistrate to issue a search warrant.

As I’ve explained, the 4th Amendment’s default position is that to be “reasonable” a search (and seizure) must be conducted pursuant to a search (and seizure) warrant.

And as I noted in an earlier post, to get a warrant, officers must present the magistrate who an issue the warrant with information that establishes probable cause to believe evidence of a specific crime will be found in a particular place -- the place to be searched. If they do that, then the magistrate will issue the warrant.

As I may have noted, probable cause is less than the beyond a reasonable doubt standard of proof used in criminal cases, and eve lower than the preponderance of the evidence standard used in civil cases. That makes sense because applications for and the issuance of search warrants takes place in a context that’s a lot more fluid than a civil or criminal trial. Police are investigating to see if they can bring criminal charges the validity of which will then be determined at a trial.

The purpose of probable cause is to curb an officer’s discretion. As I may have noted, the 4th Amendment was adopted to abolish general warrants, a device British officers used in the colonial era. A general warrant was basically a blank check; it let an officer search anywhere just because he was so inclined. The colonists hated general warrants because they were easily abused. The 4th Amendment therefore requires that an officer get a search warrant – based on probable cause to believe evidence of a specific crime will be found in a specific place – before he can search that place. Requiring probable cause was not intended to prevent police officers from doing their jobs; it was intended to ensure that they could not search someone’s property on a whim.

This post is a about a case that raised an issue related to probable cause: U.S. v. Silva, 2009 WL 1606453 (U.S. District Court for the Western District of Texas 2009). On May 5, 2008, federal agents obtained a search warrant for Fernando Silva’s home; they executed the warrant on May 6, seizing a computer, hard drives and thumb drives, among other things. On March 19, 2009, Silva was charged with possessing child pornography, and moved to suppress the evidence seized in the May 6 search.

Silva argued the evidence should be suppressed because the “warrant lacked probable cause because the information relied upon was stale.” U.S. v. Silva, supra. The staleness principle adds a temporal element to the probable cause requirement. As one court noted, “[u]nder the staleness doctrine, `information supporting the . . . application for a warrant must show that probable cause exists at the time the warrant issues.’” U.S. v. Meryl, 2009 WL 943574 (U.S. Court of Appeals for the Eleventh Circuit 2009).

The staleness doctrine is a matter of common sense: If an informant tells an officer that “a year ago they were selling drugs out of the house at 344 Brown Street, and I bought drugs from them”, that information probably can’t be used in establishing probable cause to search 344 Brown Street for drugs today. Because someone was selling drugs out of the house a year ago does not mean they’re selling drugs there today; to get a warrant to search 344 Brown Street, officers have to show probable cause to believe that drugs are being sold there now. Silva essentially claimed they hadn’t done that in his case.

In analyzing the staleness issue, we start with the information the federal agents used to get the warrant. Here’s how the federal district court summarized what they had:

Immigrations and Customs Enforcement (ICE) Special Agent Butler provided the Magistrate Judge a sworn affidavit. The affidavit stated that in April 2006, ICE began Operation Flicker, investigating a website known as the `Home Collection.’ The investigation revealed this organization was responsible for numerous commercial child pornography websites. Individuals would pay . . . $79.95 or $99.95 a month to gain access to the restricted websites. . . . [O]n January 18, 2007, the Defendant paid $99.95 to a PayPal account for Video Shop CD1, ID 1159. . . . The subject identifier 1159 refers to a child exploitation member restricted website known as `Video Shop CD 1.’ ICE agents purchased access to this member restricted website on February 12, 2007 and March 19, 2007. On these two occasions, the transaction was either identified by the subject identifier Video Shop CD1 or Item 1159. . . .

[O]n May 18, 2007, a summons was prepared and served on Time Warner requesting subscriber information for the Defendant's identity and residence. Time Warner confirmed that the Defendant was the subscriber and still had an active account. . . .

[O]n August 23, 2007, a Federal Grand Jury Subpoena was prepared and served on Wells Fargo Bank Texas, N.A., the financial institution responsible for issuing the check/debit card (# xxxx74013491xxxx) [redacted] to checking account number xxx-xxxxxxx. [redacted] On April 30, 2008, the account number was verified as belonging to the Defendant. The statement revealed that a check card purchase in the amount of $99.95 was debited by PayPal to Defendant's account. There was no information provided by Wells Fargo Bank that there had been any evidence of suspected fraud, identity theft, unauthorized use, or wrongful charges related to he purchase in question. A comparison of Webtrace records indicated the Defendant purchased access to a child pornography website on January 18, 2007. . . .

[A]gents in another investigation titled Operation FALCON identified Defendant as possibly . . . accessing suspected child pornography website on April 26, 2003 and May 20, 2003. The email account used to purchase access to the Operation FALCON website was the same account used to purchase access to the Video Shop CD 1 website. Defendant's current address was also identified by Operation Falcon at the time.

U.S. v. Silva, supra. The search warrant remember, issued on May 5, 2008. Silva said since “473 days had elapsed from when the illegal activity was discovered to the day the search warrant was issued,” the evidence was stale. U.S. v. Silva, supra.

In ruling on Silva’s argument, the judge to whom the case is assigned pointed out that whether evidence used to obtain a warrant is stale is “not merely an exercise in counting the days or even months between the facts relied on and the issuance of the warrant.” U.S. v. Silva, supra. As the judge noted, the “age of inculpatory information” is only one facts in determining if a warrant was based on stale evidence:
Staleness is to be determined on the facts of each case. A finding of staleness . . .can depend upon the nature of the unlawful activity, and when the information of the affidavit clearly shows a long-standing, ongoing pattern of criminal activity, even if fairly long periods of time have lapsed between the information and the issuance of the warrant. Information a year old is not necessarily stale as a matter of law, especially where child pornography is concerned.
U.S. v. Silva, supra. The judge found the evidence used in this case was not stale, and therefore could be used to establish probable cause for the warrant:
[A]n investigation of child pornography involves a multitude of websites, companies, and individuals whose common goal is to elude detection. Given the complicated nature of a child pornography investigation, the evidence may take several months or years to accrue, and . . . may consist of bits and pieces from several camouflaged sources. It would frustrate the Fourth Amendment[] . . . to force those tasked with investigating child pornography to hastily charge an individual based upon incomplete and uncorroborated information because of fear that a more complete investigation would consume too much time, rendering some information stale and unable to support a search warrant. . . . [I]t is better [to give investigators] a reasonable amount of time so [they] may acquire as much corroborated information concerning the suspect and the alleged activity before taking the next step of entering his home or residence.
U.S. v. Silva, supra. In finding the evidence wasn’t stale, the judge also relied on the premise that information
is less likely to be stale where the items sought in a search are of the type which could reasonably be expected to be kept in a particular location for long periods of time. At least one circuit has found that computer files are of a type that could be expected to be kept for long periods of time in the place to be searched.
U.S. v. Silva, supra. He also noted that evidence is “unlikely to be stale if it `clearly shows a long-standing, ongoing pattern of criminal activity”. U.S. v. Silva, supra.

The judge found the evidence showed Silva purchased child pornography in 2007 and was “possibly purchasing child pornography” in 2003. U.S. v. Silva, supra. He also found that the information submitted in support of the warrant showed that the evidence being sought was of a type that could be expected to be kept for a long time:
[T]he affidavit provided by Special Agent Butler . . . stated that persons involved in pornography and pedophilia tend to keep for long periods of time extensive pornography collections. This observation supports the conclusion that the more than a year gap between receipt of the information and issuance of the warrant is not excessive.
U.S. v. Silva, supra.

As a matter of common sense, I suppose the judge is right. As he and other judges have noted, if the information law enforcement has shows someone is a collector of something, it’s reasonable to infer that they will hold on to that thing (or things of that types), even for a long time. And it probably makes sense to give law enforcement some latitude in investigations that involve concerted attempts to conceal online activity so they can satisfy the 4th Amendment’s requirements, instead of putting them in the position of having to act on inadequate information.

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