Search and Seizure — search warrants – staleness — child pornography

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United States Court of Appeals For the Seventh Circuit

Criminal

Search and Seizure — search warrants – staleness — child pornography

A search warrant based on child pornography seen on a computer seven months earlier is not stale.

“‘Staleness’ is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but rarely relevant when it is a computer file. Computers and computer equipment are ‘not the type of evidence that rapidly dissipates or degrades.’ United States v. Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010). Because of overwriting, it is possible that the deleted file will no longer be recoverable from the computer’s hard drive. And it is also possible that the computer will have been sold or physically destroyed. And the longer the interval between the uploading of the material sought as evidence and the search of the computer, the greater these possibilities. But rarely will they be so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought; for probable cause is far short of certainty—it ‘requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,’ Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983), and not a probability that exceeds 50 percent (‘more likely than not’), either. Hanson v. Dane County, 608 F.3d 335, 338 (7th Cir. 2010). Notice too that even if the computer is sold, if the buyer can be found the file will still be on the computer’s hard drive and therefore recoverable, unless it’s been overwritten. The search warrant will have designated the premises where the computer was expected to be found, and though a computer sold by the occupant will obviously no longer be there, evidence may be found there of the buyer’s identity.”

Affirmed.

11-3716 U.S. v. Seiver

Appeal from the United States District Court for the Central District of Illinois, Shadid, J., Posner, J.