United States v. James Carroll , 750 F.3d 700 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2600
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES V. CARROLL,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-cr-114-JMS-DKL-1 — Jane E. Magnus-Stinson, Judge.
ARGUED APRIL 1, 2014 — DECIDED APRIL 29, 2014
Before TINDER and HAMILTON, Circuit Judges, and KAPALA,
District Judge.*
Kapala, District Judge. Defendant-Appellant, James V.
Carroll, pled guilty to one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and six
*
The Honorable Frederick J. Kapala of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 13-2600
counts of sexual exploitation of a child, in violation of 18 U.S.C.
§ 2251(a). Carroll now appeals the district court’s denial of his
motion to suppress having reserved the right to do so in his
plea agreement. We affirm.
I. Background
On February 7, 2012, a thirteen-year-old girl reported that
she had been molested by Carroll when she was eight years
old. On March 1, 2012, Detective Kurt B. Spivey of the
Indianapolis Metropolitan Police Department began an
investigation. On the same date, Detective Spivey presented a
search warrant affidavit to a judge of the Superior Court of
Marion County, Indiana, seeking to search Carroll’s residence
for evidence of child pornography and sexual exploitation of
a child.
In his affidavit, Detective Spivey outlined his sixteen years
of law enforcement experience including the last seven during
which he primarily conducted child pornography and child
exploitation investigations. Detective Spivey indicated that
through his training and experience he developed a working
knowledge and understanding that collectors of child
pornography go to great lengths to secure and maintain their
collections. According to Detective Spivey, child pornography
collectors value and retain their collections because the images
supply sexual gratification, are difficult to obtain, present a
threat of prosecution, carry a highly negative stigma, and are
used to trade for new images. Detective Spivey explained that
it is common to find discarded or outdated computers stored
in closets, basements, or attics for long periods of time and that
even deleted images may be retrieved years later through a
No. 13-2600 3
forensic process. In particular, Detective Spivey indicated that
in the past he found digitally stored images that were being
used for sexual gratification up to five years after the images
were created. He also noted that with current technology,
images may be copied with the touch of a button between
memory sticks and other storage devices with great ease and
speed allowing images to be placed on multiple devices within
a house. These devices provide a highly mobile source of
storage which can easily be removed from a computer or other
device and hidden.
Detective Spivey swore that on February 7, 2012, the victim
reported that when she was eight years old she was molested
by Carroll, a former babysitter who was also a friend and
co-worker of her father. She reported that Carroll fondled her
vagina, underneath her clothing, while on the couch. She also
advised that Carroll showed her digital images on his camera
of children that were younger than her in partial states of
undress. The children were posed in front of professional back
drops in “Victoria Secrets [sic] type pictures.” She described
the camera as Carroll’s camera with the big lens. Additionally,
she reported that an adult male she believed to be Carroll
entered her bedroom, lifted her gown, and photographed her
bare genitalia. She did not open her eyes, but believed it to be
Carroll because the only other adult in the residence was her
father, and she did not think it was him. She did not see the
camera, but when she heard it operate she immediately
believed it to be Carroll’s camera. She explained that she knew
Carroll to be a professional photographer, had spent time
around Carroll with his camera, and was familiar with its
operation.
4 No. 13-2600
Detective Spivey swore further that the victim’s father
advised that he works with Carroll, and that Carroll is a
professional photographer. The father indicated that Carroll
has a desktop computer in his office, takes his camera from the
office to his residence on a daily basis, and uses the devices in
conjunction with one another. He also indicated that Carroll
uses a large number of thumb drives or memory sticks.
The Superior Court judge found that there was probable
cause to search Carroll’s residence and issued the warrant. The
warrant authorized the police to search for, among other
things, “[a]ny and all materials, supplies, devices used to
produce, transport, develop, promote, store, distribute or
display child pornography, evidence of child solicitation
and/or child exploitation” including, among other things,
“[a]ny home/personal computers and/or computer
components, desktop/laptop computers, computer notebooks,
computer disc drives, magnetic storage devices, computer
software, flash and/or media cards, thumb drives, memory
chips/components, CDs/DVDs and/or floppy discs,”and “[a]ny
photography equipment, cameras digital or conventional.”
Police searched Carroll’s residence on March 3, 2012. An
analysis of Carroll’s computer and other digital media located
in his residence revealed numerous images of the victim in
various states of undress engaged in sexually explicit conduct.
During the search Carroll made incriminating statements to
Detective Spivey. Other search warrants followed,
accompanied by additional interviews with Carroll during
which he made more incriminating statements. Carroll was
ultimately charged with one count of possession of child
pornography and six counts of sexual exploitation of the victim
No. 13-2600 5
for the purpose of producing visual depictions of her.
Thereafter, Carroll filed a motion to suppress in which he
argued that the information in Detective Spivey’s affidavit was
stale because it was five years old and, thus, older than the
four-year-old evidence found to be stale in United States v.
Prideaux-Wentz, 543 F.3d 954, 958 (7th Cir. 2008).
In denying the motion to suppress, the district court
rejected Carroll’s staleness argument relying in part on this
Court’s analysis in United States v. Seiver, 692 F.3d 774 (7th Cir.
2012), and alternatively held that even if the search warrant
was not supported by probable cause the good-faith exception
to the exclusionary rule applied. United States v. Carroll, No.
1:12-cr-114-JMS-DKL-1, 2013 WL 937832 (S.D. Ind. Mar. 11,
2013). Thereafter, pursuant to a written plea agreement, Carroll
pled guilty to all counts while reserving his right to appeal the
denial of his motion to suppress. The district court accepted
Carroll’s plea and imposed a 360-month sentence.
II. Discussion
Carroll argues that the district court erred in denying his
motion to suppress because the information provided in the
affidavit was stale and therefore did not establish probable
cause to search his home. In addition, Carroll argues that the
district court erred in concluding that even if the search was
not supported by probable cause, the good-faith exception to
the exclusionary rule applies.
When a judge receives an application for a search warrant,
the judge must make “a practical, common-sense decision
about whether the evidence in the record shows a fair
probability that contraband or evidence of a crime will be
6 No. 13-2600
found in a particular place.” United States v. Miller, 673 F.3d
688, 692 (7th Cir. 2012). Probable cause is a fluid concept that
focuses on “the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal
technicians, act.” Illinois v. Gates, 462 U.S. 213, 231 (1983)
(quotation marks omitted). Determining whether probable
cause exists requires a common-sense analysis of the facts
available to the judicial officer who issued the warrant. See id.
at 230, 238. Recency of the information provided to the issuing
judge is one factor bearing on the question of probable cause.
United States v. Pappas, 592 F.3d 799, 803 (7th Cir. 2010). “When
a search is authorized by a warrant, deference is owed to the
issuing judge’s conclusion that there is probable cause.” United
States v. Sutton, 742 F.3d 770, 773 (7th Cir. 2014). “Courts
should defer to the issuing judge’s initial probable cause
finding if there is substantial evidence in the record that
supports his decision.” Id. (quotation marks omitted).
In his affidavit, Detective Spivey stated that the victim
revealed that, five years earlier, Carroll had molested her,
showed her pictures on his digital camera of young children in
partial states of undress, and photographed her bare genitals
while she was ostensibly sleeping. The issue before this Court
is whether this information was too stale to create a fair
probability that evidence of child pornography or sexual
exploitation of a child would be found on a computer or other
digital storage devices within Carroll’s residence at the time
the search warrant was issued. In evaluating this issue, we
recognize that a staleness inquiry must be grounded in an
understanding of both the behavior of child pornography
collectors and of modern technology. See Seiver, 692 F.3d at
No. 13-2600 7
776-77. In this case, the warrant affidavit adequately addressed
these considerations by explaining why Carroll may have
retained the images of the victim on his computer or other
digital storage devices, and how these images, even if deleted,
may still be recoverable because they were not yet overwritten.
Detective Spivey’s affidavit made clear that he had learned
through training and experience that collectors of child
pornography hoard their images for long periods of time
because of the great personal value the images have for sexual
gratification, the difficulty in obtaining the images as a result
of their illegality, and their value to other collectors such that
the images may be traded for new images. This “hoarding”
habit among collectors of child pornography is well established
in this Court’s precedent. See, e.g., United States v. Watzman, 486
F.3d 1004, 1008 (7th Cir. 2007) (endorsing the observation that
child pornography is hoarded); United States v. Hall, 142 F.3d
988, 995 (7th Cir. 1998) (holding that child pornographers’
tendency to maintain their collections for long periods of time
was part of a showing demonstrating more than a fair
probability that evidence of criminal activity would be
discovered).
In Prideaux-Wentz, this Court recognized that “collectors
and distributors [of child pornography] rarely, if ever, dispose
of their collections,” but determined that “there must be some
limitation on this principle.” 543 F.3d at 958. In finding that the
search warrant in that case lacked probable cause because the
evidence in the warrant affidavit was stale, this Court
concluded that the information indicating that the defendant
had uploaded child pornography may have been “at least four
years old by the time the government applied for a warrant.”
8 No. 13-2600
Id. This Court declined to hold that this evidence of this age
was stale as a matter of law, but held that “the government’s
failure to find out the dates in which the pictures were
uploaded supports a finding of staleness in this case because it
could have easily obtained this information by contacting
Yahoo!.” Id. at 959. This Court concluded that “[t]he four year
gap, without more recent evidence, undermines the finding
that there was probable cause that the images would be found
during the search.” Id.In recognition of the well-established hoarding habits of
collectors of child pornography, this Court’s holding in
Prideaux-Wentz and cases from other circuits make clear that
under certain circumstances years can pass between
information about child pornography offenses and applications
for search warrants without rendering the information stale.
See, e.g., United States v. Burkhart, 602 F.3d 1202, 1206-07 (10th
Cir. 2010) (holding that an email between child pornography
distributor and the defendant that occurred two years and four
months before issuance of a search warrant for the defendant’s
home was not stale); United States v. Morales-Aldahondo, 524
F.3d 115, 119 (1st Cir. 2008) (holding that a more than three-
year lapse between the defendant’s purchase of child
pornography and the warrant application did not render the
information stale because a special agent attested that those
who download child pornography tend to retain images for
years and use computers to augment and store collected
images); United States v. Eberle, 266 F. App’x 200, 205-06 (3d Cir.
2008) (holding that three-and-a-half-year-old information was
not stale “because individuals protect and retain child porno-
graphy for long periods of time as child pornography is illegal
No. 13-2600 9
and difficult to obtain”); United States v. Irving, 452 F.3d 110,
116, 125 (2d Cir. 2006) (rejecting staleness argument where
warrant was issued based on, among other things, various
letters the defendant wrote two or more years earlier about his
past sexual exploitation of children, a five-year-old witness
statement, child erotica images on diskettes found five years
earlier in the defendant’s luggage, and five-year-old
identifications by children who witnessed the defendant
sexually abuse young boys); United States v. Riccardi, 405 F.3d
852, 861 (10th Cir. 2005) (finding five-year-old information
relied upon in part in issuing search warrant was not stale).
These cases, of course, do not establish bright line time
limits after which information concerning the possession of
child pornography becomes too stale to support a finding of
probable cause. Indeed, the case-by-case,
totality-of-the-circumstances, nature of the probable cause
determination militates against establishing a bright line time
limit. See Sutton, 742 F.3d at 774 (“[T]here is no bright line rule
for determining staleness.”); Pappas, 592 F.3d at 803 (same).
Consequently, we are not obligated to deem the information at
issue in this case stale just because it is older than information
at issue in any previous case including the four-year-old
information that was deemed stale in Prideaux-Wentz. Instead,
as is well understood, each case is sui generis. See Gates, 462 U.S.
at 232 (“[P]robable cause is a fluid concept–turning on the
assessment of probabilities in particular factual contexts–not
readily, or even usefully, reduced to a neat set of legal rules.”).
The facts presented to the issuing judge distinguish this
case from Prideaux-Wentz and demonstrate a likelihood of
10 No. 13-2600
retention that was greater than could be expected in the normal
child pornography case. Not only was Carroll the producer of
the child pornography sought, but the images were of the bare
genitals of the victim, whom he had personally molested.
While pornographic images of anonymous children could be
replaced with images of other anonymous children, Carroll’s
images of the eight-year-old victim were irreplaceable to him.
Under these circumstances, it was fair for the issuing judge to
infer that Carroll would highly value the images of the victim
and retain them on some type of digital media for a very long
time.
The staleness of the information at issue in this case was
also diminished in several other ways not present in
Prideaux-Wentz. For instance, the issuing judge in this case was
presented with Detective Spivey’s assertion that he had
previously recovered five-year-old digitally stored
pornographic images of children, while the issuing judge in
Prideaux-Wentz did not have similar information. In addition,
Detective Spivey sought a search warrant within days of
learning of the victim’s revelation, in contrast to Prideaux-
Wentz where a year lapsed between the last tip that defendant
uploaded child pornography and the application for the search
warrant. See Prideaux-Wentz, 543 F.3d at 956-57. Moreover,
Detective Spivey provided the issuing judge with a definitive
time when Carroll possessed images of child pornography,
whereas the issuing judge in Prideaux-Wentz was left to guess.
We must also take into account the possibility of recovering
deleted images from the computer or other digital storage
devices within Carroll’s residence. In Seiver, this Court
No. 13-2600 11
recognized that even after a computer file is deleted it remains
in the computer until it is overwritten, which allows computer
experts to routinely extract deleted files from hard drives. 692
F.3d at 776. This Court noted that “‘[s]taleness’ 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.” Id. at 777. While acknowledging that the
longer the interval between uploading of the material sought
and the search of the computer, the greater the possibility that
a deleted file will no longer be recoverable because it has been
overwrittten or because the computer has been sold or
destroyed, this Court explained that:
rarely will [these possibilities] 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, and
not a probability that exceeds 50 percent (“more
likely than not”), either. 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.
....
No doubt after a very long time, the likelihood
that the defendant still has the computer, and if he
does that the file hasn’t been overwritten, or if he’s
sold it that the current owner can be identified,
drops to a level at which probable cause to search
12 No. 13-2600
the suspect’s home for the computer can no longer
be established. But seven months is too short a
period to reduce the probability that a computer
search will be fruitful to a level at which probable
cause has evaporated.
....
The most important thing to keep in mind for
future cases is the need to ground inquiries into
“staleness” and “collectors” in a realistic
understanding of modern computer technology and
the usual behavior of its users. Only in the
exceptional case should a warrant to search a
computer for child pornography be denied on either
of those grounds (there are of course other grounds
for denial).
Id. at 777-78 (citations and quotation marks omitted). The
possibility that Carroll deleted the images from one or more
devices but that the images remained recoverable, or at least
partially recoverable, extended the duration during which it
could reasonably be expected that the images would be found,
such that the five-year-old information provided by the victim
was not stale. This consideration of recoverability, together
with the other distinctions we have discussed, are more than
sufficient to compensate for the circumstances that
undermined the finding of probable cause in Prideaux-Wentz.
Carroll argues that the district court’s reliance on Seiver was
inappropriate because the facts in Spivey’s affidavit do not
contemplate the use of a computer in the crime. Carroll
maintains that there was no information indicating that at the
No. 13-2600 13
time of the crime Carroll owned a computer, used a computer,
or regularly transferred images between his camera and his
computer. We disagree. The information before the issuing
judge was that Carroll was a professional photographer in 2007
who utilized a digital camera. Thus, it was a fair inference that
he used a computer in 2007 to augment and store the digital
photographs that he took. In any event, the point in time that
is relevant to the probable cause evaluation is when the
warrant is issued. The warrant affidavit included information
that Carroll was a professional photographer in 2012 and at
that time carried his digital camera between his home and his
office and used his camera in conjunction with a desktop
computer at his office, as well as with thumb drives and
memory sticks. It was therefore fair to infer that Carroll had a
computer or other digital storage devices in his residence at the
time the search warrant was issued in 2012. Moreover, the
memory sticks and thumb drives are a means of storing
electronic images. They cannot display images without the use
of other equipment. Therefore, it was also fair to infer that
Carroll used these thumb drives and memory sticks to transfer
images to another computer or digital storage device within his
residence.
Carroll also argues that digital cameras have much less
storage capacity than a computer hard drive and,
consequently, any deleted files therein would be overwritten
much sooner than files on a hard drive. Based on this theory,
he claims that the Seiver analysis is inapplicable in this case.
Carroll cites various internet articles to establish the number of
photographs that the respective types of equipment can
typically store. Carroll did not, however, advance this
14 No. 13-2600
argument in the district court and has done so for the first time
in his reply brief on appeal giving the government no
opportunity to respond. The argument is therefore waived. See
United States v. Vitrano, ___ F.3d ___, 2014 WL 1328273, at *3
(7th Cir. April 4, 2014). Moreover, we cannot consider the
articles referenced by Carroll because they were not presented
to the district court and are not part of the record on appeal.
See Fed. R. App. P. 10(a). In any event, the warrant affidavit in
this case gave ample reason to infer that Carroll, a professional
photographer, could and would manage limited memory
capacity on his cameras by saving digital images on other
storage devices.
Carroll also argues that the information in the affidavit was
stale even under Seiver due to the extraordinary amount of
time between the crimes alleged by the victim and the issuance
of the search warrant. Carroll maintains that the delay in this
case was sixty months, which is eight-and-one-half times the
delay of seven months in Seiver. In Seiver, this Court explained
that only after a very long time would the likelihood that a file
had been overwritten rise to a level at which probable cause
could no longer be established and that seven months was too
short a period to reduce the probability to a level at which
probable cause had evaporated. 692 F.3d at 777. In other
words, this Court said seven months did not constitute the
very long time after which deleted images could no longer be
expected to be recovered, but we declined, as we do here, to
define that time in terms of months or years. Instead, we hold
only that, under the circumstances of this case, the information
in the warrant affidavit was not stale because it remained
reasonable to expect that images of child pornography would
No. 13-2600 15
be present on defendant’s computer or other digital storage
devices or, if deleted, that the images could be recoverable.
III. Conclusion
For these reasons, consistent with the necessary deference
to the issuing judge’s determination of probable cause, we
conclude that the information in Detective Spivey’s affidavit
was sufficient to establish a fair probability that the computer
or other digital storage devices within Carroll’s residence
would contain evidence of child pornography or sexual
exploitation of a child, despite the fact that the photographs
were taken approximately five years earlier. Therefore, we
hold that there is a substantial basis in the record to support
the decision to issue the search warrant for Carroll's residence.
As a result, we need not reach the issue of good-faith reliance
on the search warrant. Thus, Carroll’s conviction is
AFFIRMED.