In United States v. Prawdzik, 2012 U.S. App. LEXIS 10840 (3d Cir. 2012), the Third Circuit affirmed a motion to suppress over an argument that a search warrant contained stale information because it had been three years since the sexual abuse had occurred.
Thursday, May 31, 2012
On appeal, the defendant argued that the information supporting the search warrant was stale because the sexual abuse had ended three years earlier. The appellate court acknowledged that information supporting child pornography crimes could potentially grow stale, but the facts of this case did not support such an argument.
The defendant had sexually abused the child over a period of five to six years and was known at the time of the search warrant to have transferred videos of the abuse to his computer. Because "pedophiles rarely, if ever, dispose of child pornography," it was likely that the videos would still be there. Additionally, the defendant had recently contacted the victim, his daughter, by phone. As such, "there was a 'substantial basis' for the magistrate judge to conclude that the affidavit established probable cause."
Age of information is a factor to be considered in determining probable cause - the nature of the crime and the evidence presented should also be considered. See, e.g., United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010).