The Kickham Comment - Boston Criminal Attorney Blog
In Part One of my previous post on this subject, I discussed the Supreme Judicial Court’s recent ruling upholding the validity of a search warrant issued for the defendant’s computer, when the warrant was issued seven months previous to the computer’s seizure. That case is Commonwealth vs. Guastucci, SJC-12829, and the defendant was convicted of uploading and possessing child pornography on his computer. A video of oral arguments before the SJC can be viewed by clicking here, courtesy of Suffolk University Law School.
Before going further, let’s define the legal standard that police and law enforcement must establish, in order for a judge to issue a search warrant. Very briefly, it’s called “probable cause”. Basically, this means that a judge must find that a substantial basis exists to believe that evidence of criminal activity may reasonably be expected to be located in the location searched “at the time the search warrant issues” (Commonwealth v. Long, 482 Mass. 804, 809; 2019). Generally speaking, it is not overly difficult for police or a law enforcement agency to obtain a search warrant. That being said, what made the Guastucci case notable was that the defendant didn’t deny any other elements of the crime he was charged with – it was his “staleness” argument over the search warrant that was at issue. On appeal from his conviction, the defendant argued that the passage of seven months between the alleged upload of child pornography and the application for a search warrant rendered the warrant stale so that it lacked probable cause.
This legal argument failed. The SJC affirmed Defendant’s conviction of two counts of possession of child pornography, holding that the information in the search warrant was sufficient for a magistrate to have found probable cause, and that the information in the trooper’s application for a search warrant did not render the warrant so stale so that it lacked probable cause.
The court emphasized that “because of the highly fact-intensive nature of the inquiry, it is not possible to formulate a bright-line test for staleness (in determing the existence of probable cause in granting or denying a search warrant)”, noting (timeliness of facts is “determined by the circumstances of each case” (citing Sgro v. United States, 287 U.S. 206, 211 (1932). In Massachusetts, the SJC noted that “We typically measure the timeliness of information supporting an application for a search warrant by considering two factors: 1) The nature of the criminal activity under consideration”, and 2) The nature of the item to be seized.”
In drawing a contrast to illustrate the nature of the item(s) to be seized, the court noted that in cases alleging possession or distribution of illegal drugs, probable cause to search for such items rapidly decreases with the passage of time, because illegal drugs are either rapidly consumed or distributed. However, in this case, a computer is not as perishable or disposable: The court noted that “it was durable and of continuing use to its holder, and therefore likely to be retained for some time.”
Further, the court gave special analysis to the type of criminal activity alleged in this case, specifically as that activity relates to the typical defendant behavior in child pornography cases. This has been referred to in several court decisions as the “propensity issue” in child pornography cases, “child pornographer proclivities” and the “collector inference” with child pornography crimes. Essentially, it refers to statistical studies that have shown that people who are attracted to child pornography and purchase or acquire such mages, are highly likely to collect and retain such images, not discard them. In its decision here, the SJC recognized these presumptions, effectively adopting the U.S. Second Court of Appeals decision in U.S. v. .Raymonda, 780 F3d 105 (2015). This analysis strongly influenced both the Superior Court judge’s denial of the defendant’s Motion To Suppress at his trial, as well as the SJC’s upholding that denial.
So, when it comes to search warrants involving computers or digital devices, the police have a wide berth when it comes to passage of time between when a search warrant is granted, and the time it is executed. Translation: Defendants who are charged with internet crimes – particularly crimes involving sexual offenses and child pornography – cannot argue “too late” if the police take several months before they actually execute the search warrant for a computer.