One-month subscription to kiddy porn site is probable cause for warrant

      In United States v Freschette, the 6th U.S. Court of Appeals reversed a trial court ruling granting a motion to suppress evidence allegedly wrongfully obtained. The defendant claimed there was no probable cause to support the issuance and execution of a warrant upon Freschette's home and computer where kiddy porn was found. The issue in the case on appeal is whether it is probable that someone who pays approximately $80 for a subscription to a web site is likely to use that subscription.

     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.”

     The 6th Circuit addressed two issues: (1) the Defendant's claim that the evidence was stale and (2) the defendant's that the warrant was invalid because magistrate judge lacked substantial basis to conclude that probable cause existed.

    Probable cause for a search warrant exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” The 6th Circuit concluded the warrant here was valid because the it provided the magistrate judge with a substantial basis for finding probable cause. The following was cited as supporting a finding of of probable cause:

1. The defendant paid $79.95 to access a commercial child pornography site on January 13, 2007, using an email address and PayPal account connected to his residence at 8-- Van ---- Street.
2. Evidence that an individual subscribed to child pornography web sites “supports the conclusion that he has likely downloaded, kept, and otherwise possessed the material.” [citation omitted]
3. The agents verified that the defendant, a registered sex offender, continued to reside at this address at the time of the search on April 8, 2008.
4. The agent drafting the probable cause affidavit cited his four years of experience handling child pornography cases, in which he had found that consumers of child pornography usually maintain illegal images using their computers and that evidence can remain on the computers even after the viewer deletes the images.

The 6th Circuit said that just because the subscription was only a one-month subscription did not render it stale or lacking in probity on the issue of probable cause.

The entire 17-page opinion in United State v Freschette, Docket No. No. 08-2191, released on October 8, 2009 and recommended for publication may be read here.