WILLIAM S SLOAN v. State of Indiana ( 2023 )

FILED
Dec 29 2023, 8:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Bailey Casanova Theodore E. Rokita
Casanova Legal Services, LLC Attorney General of Indiana
Indianapolis, Indiana
Tyler Banks
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William S. Sloan, December 29, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CR-2250
v.
Appeal from the
State of Indiana, Johnson Superior Court
Appellee-Plaintiff. The Honorable
Douglas B. Cummins, Judge
Trial Court Cause No.
41D03-1912-F1-22
Opinion by Senior Judge Robb
Chief Judge Altice and Judge Brown concur.
Robb, Senior Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 1 of 19
Case Summary and Issue
[1] William Sloan appeals his conviction of three counts of child molesting,
challenging the admission of evidence seized from his home pursuant to a
search warrant. Sloan contends the trial court erred by admitting the evidence
because the probable cause affidavit supporting the warrant omitted a material
fact and did not establish a sufficient nexus between him and the alleged
criminal activity. We conclude the affidavit sufficiently established probable
cause for the issuance of a search warrant for Sloan’s residence, and we affirm.
Facts and Procedural History
[2] In 2019, Detective Brian Swisher of the Greenwood Police Department was
assigned to the investigations division where he dealt with internet crimes
against children. The detective used software on a computer in his office that
allowed him to monitor downloads associated with child pornography.
Through the use of this software, he discovered an IP address offering a file that
appeared to contain child pornography. He downloaded and viewed the file to
confirm his suspicion. The detective then determined that the IP address was
registered to AT&T, that it was located in Greenwood, and that the account
was in Sloan’s name.
[3] Prior to Detective Swisher moving forward with his investigation, he was
notified that another officer and a representative from the Department of Child
Services were going to Sloan’s residence to respond to an allegation of
molestation against Sloan by his step-daughter. Concerned about the
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 2 of 19
destruction of evidence, the detective prepared and submitted a probable cause
affidavit to obtain a search warrant for Sloan’s residence. The warrant was
issued, and the residence was searched. Evidence seized during the search
included two videos of Sloan engaged in sexual activity with his step-daughter.
[4] The State charged Sloan with three counts of child molesting. At trial, the
videos were admitted over Sloan’s objection, and he now appeals the propriety
of their admission.
Discussion and Decision
A. Technical Background
[5] Because cases involving technology often contain technical terms and because
an understanding of the principles involved is vital to understanding the issue
and arguments before the Court, we begin with an overview of such terms.
[6] The term “IP address” is short for Internet Protocol address, and it is a unique
number assigned to every device that connects to the internet. See Internet
Corporation for Assigned Names and Numbers, Beginner’s Guide to Internet
Protocol (IP) Addresses 4, 2 (2011) https://www.icann.org/resources/files/ip-
addresses-beginners-guide-2011-03-04-en [https://perma.cc/FM65-D25M] (last
visited December 15, 2023). When an individual purchases internet service
from an internet service provider (“ISP”), the ISP assigns a unique IP address to
the individual. Office of Legal Education, United States Department of Justice,
Searching and Seizing Computers and Obtaining Electronic Evidence in
Criminal Investigations 65 (2009) https://www.justice.gov/criminal-
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 3 of 19
ccips/ccips-documents-and-reports [https://perma.cc/R7MD-N8UV] (last
visited December 15, 2023); see also ICANN Guide at 4, 6, 11.
[7] This case also involves BitTorrent, a peer-to-peer (“P2P”) file-sharing network.
“P2P software is readily available on the internet and often free to download.”
Ex. Vol. p. 15, Defendant’s Ex. F (PC Aff.). When P2P software is running on
a device that is connected to the internet, the user can download digital files
from and share files with other users on the same or compatible P2P networks.
Id. On BitTorrent, users create a torrent file for the digital file they wish to
share on the network. Id. Torrent files are small files that contain information
about the available digital file and provide a method for downloading the digital
file. Id. Each particular torrent file is associated with a unique identifier known
as an “infohash.” Id. The Supreme Court of Rhode Island explained these
networks as:
When a person uses these types of file-sharing services, it is akin
to “leaving one’s documents in a box marked ‘free’ on a busy city
street.” In order to use a peer-to-peer network, an individual
must download software for the program. Peer-to-peer networks
use hash values to verify the content of electronic files that are
available for copying. Hash values—commonly referred to as
“electronic fingerprints”—consist of “a string of numbers that,
for all practical purposes, uniquely identifies a digital file” and
will change any time a file is altered. Over time, law
enforcement and other entities have identified and confirmed that
certain hash values contain child pornography.
In re Austin B., 208 A.3d 1178, 1181 (R.I. 2019) (internal citations and footnote
omitted).
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 4 of 19
B. Search Warrant Affidavit
[8] The probable cause affidavit in support of the search warrant alleged that:
• On July 1, 2019, Detective Swisher was conducting an investigation on
the BitTorrent network looking for users sharing child pornography.
• The detective focused his investigation on a device using the IP address
99.9.229.7 because it was offering a torrent file that was identified by an
infohash associated with child pornography.
• Using a computer that was running investigative BitTorrent software, the
detective connected to the device at IP address 99.9.229.7 and
downloaded directly from that device and IP address the file that was
being offered and was named “boy girl sex 6yo.avi.”
• Detective Swisher viewed the downloaded file and confirmed it
contained child pornography.
• In October 2019, the detective used an online database that provides
geolocation of IP addresses to determine that the IP address 99.9.229.7
was registered to ISP AT&T and was located in Greenwood.
• A subpoena was sent to AT&T for subscriber information for IP address
99.9.229.7 during the time period on July 1, 2019 in which the detective
downloaded the file. AT&T responded that the IP address was at that
time and date assigned to Sloan at an address in Greenwood. Through
another online search, the detective confirmed Sloan’s address.
C. Pre-Trial Motions
1
[9] Sloan requested a Franks hearing for the purpose of determining the
truthfulness of certain statements in Detective Swisher’s affidavit, specifically
1
In Franks v. Delaware, the United States Supreme Court held that a hearing is required when the defendant
“makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant affidavit[.]” 438 U.S. 154, 155-56, 98 S. Ct.
2674, 57 L. Ed. 2d 667 (1978). If the defendant proves the allegation by a preponderance of the evidence, the
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 5 of 19
the time of the download of the suspect file. See Appellant’s App. Vol. II, pp.
197-99. Sloan also moved to suppress all the evidence seized from his home as
a result of the search warrant. He listed five reasons the search was improper:
(1) the application for the search warrant included false and misleading
representations and/or omissions and stale information; (2) the warrant was
overly broad; (3) the State failed to substantially comply with the statutory
requirements to obtain a warrant electronically; (4) in executing the warrant,
the officers exceeded its scope; and (5) in executing the warrant, the police
unlawfully entered the home without properly knocking and announcing their
presence. See Appellant’s App. Vol. II, pp. 214-15. Following a hearing, the
trial court denied Sloan’s motions, and the evidence was admitted at trial over
his objection.
D. Analysis
[10] Sloan argues that admission of the evidence was improper because the search
warrant used to seize the evidence was not supported by probable cause. He
asserts the warrant was invalid because it failed to inform the issuing court of
the possibility that someone other than himself, on a device not belonging to
him, could have used his Wi-Fi to connect to the internet and offer the file
containing images of child pornography. Sloan further claims that, because of
search warrant must be voided where, “with the affidavit’s false material set to one side, the affidavit’s
remaining content is insufficient to establish probable cause[.]” Id. at 156.
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 6 of 19
this possibility, any nexus between himself or a device at his residence and the
criminal activity was insufficient to support a search warrant.
[11] We observe that Sloan framed the issues below differently from how he frames
them on appeal. Consequently, whether he raised this issue to the trial court is
2
subject to dispute. Nevertheless, as the State does not raise a waiver argument,
and because we prefer to resolve matters on their merits instead of on
procedural grounds, Littleton v. State, 954 N.E.2d 1070, 1075 (Ind. Ct. App.
2011), we address the issue as presented.
[12] When a defendant challenges the propriety of a search following a completed
trial, the issue is one of whether the trial court properly admitted the evidence.
Bulthuis v. State, 17 N.E.3d 378, 382 (Ind. Ct. App. 2014), trans. denied. The trial
court’s ruling on the admission or exclusion of evidence is reviewed for abuse of
discretion. Cherry v. State, 57 N.E.3d 867, 875 (Ind. Ct. App. 2016), trans.
denied. An abuse of discretion occurs when a decision is clearly against the
logic and effect of the facts and circumstances before the court. Paul v. State,
971 N.E.2d 172, 175 (Ind. Ct. App. 2012).
[13] Both the Fourth Amendment to the United States Constitution and article 1,
section 11 of the Indiana Constitution require probable cause for a search
warrant to issue. Casady v. State, 934 N.E.2d 1181, 1188 (Ind. Ct. App. 2010),
2
In its order denying Sloan’s motion for a Franks hearing and to suppress the evidence, the court refers to
defense counsel’s mention that an “unknown individual(s) may have ‘piggy backed’ off the IP address in
question.” Appellant’s App. Vol. III, p. 5.
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 7 of 19
trans. denied. Probable cause is a fluid concept that is incapable of precise
definition and that must be decided based on the facts of each case. Id. “In
deciding whether to issue a search warrant, the issuing magistrate’s task is
simply to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit, there is a fair probability that evidence
of a crime will be found in a particular place.” Crabtree v. State, 199 N.E.3d 410,
415 (Ind. Ct. App. 2022).
[14] In turn, the reviewing court’s duty is to determine whether there was a
substantial basis for the warrant-issuing judge to conclude that probable cause
existed. Casady, 934 N.E.2d at 1189. Although the reviewing court applies a de
novo standard of review, we give significant deference to the issuing judge’s
determination and focus on whether reasonable inferences drawn from the
totality of the evidence support the finding of probable cause. Crabtree, 199
N.E.3d at 415. “In determining whether an affidavit provided probable cause
for the issuance of a search warrant, doubtful cases are to be resolved in favor of
upholding the warrant.” Id. Likewise, we will not invalidate warrants by
interpreting probable cause affidavits in a hypertechnical, rather than a
commonsense, manner. Rios v. State, 762 N.E.2d 153, 161 (Ind. Ct. App. 2002).
1. Omission of Information
[15] On appeal, Sloan claims Detective Swisher erroneously omitted from his
affidavit the material information that “he did not know whether the device
from which the video was downloaded was inside [Sloan’s] house, outside the
house, or even on the property.” Appellant’s Br. p. 18. In other words, Sloan
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 8 of 19
asserts the detective should have informed the issuing court of the possibility
that someone other than Sloan could have accessed his internet connection and
made the child pornography file available for download. This appears to be the
first occasion for this Court to address this specific issue.
[16] A probable cause affidavit must include all material facts, which includes facts
that cast doubt on the existence of probable cause. Ware v. State, 859 N.E.2d
708, 718 (Ind. Ct. App. 2007), trans. denied. When the State has failed to
include a material fact, we determine the validity of the warrant by considering
collectively the omitted information and the information contained in the
affidavit. Id.[17] For a warrant to be invalid due to omission of information from an affidavit,
the defendant must establish (1) that the affiant engaged in deliberate falsehood
or reckless disregard for the truth in omitting the information and (2) that
probable cause would no longer exist if the omitted information were
considered by the issuing judge. Darring v. State, 101 N.E.3d 263, 268 (Ind. Ct.
App. 2018). This rule “protects only against omissions that are ‘designed to
mislead, or that are made in reckless disregard of whether they would
mislead,’” the issuing judge. Keeylen v. State, 14 N.E.3d 865, 877 (Ind. Ct. App.
2014) (citation and quotation marks omitted) (quoting U.S. v. Colkley, 899 F.2d
297, 301 (4th Cir. 1990)), clarified on reh’g, 21 N.E.3d 840, trans. denied.
[18] Here, Sloan makes no attempt to establish that Detective Swisher engaged in a
deliberate falsehood or a reckless disregard for the truth when he failed to
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 9 of 19
include the information in his affidavit. Further, we cannot agree with Sloan’s
suggestion that the possibility that some unidentified individual was
conceivably able to access his internet connection and offer the download is a
“material fact” that is crucial to the determination of probable cause. This
notion is sheer speculation that lacks any factual underpinning.
[19] We are not alone in our assessment of this theory; other courts have also
considered and rejected this argument. Most notably, in People v. Hayon, 62
N.Y.S.3d 754, 760 (N.Y. Sup. Ct. 2017), the defendant was charged with 94
counts of possession of a sexual performance by a child. The authorities
executed three search warrants and seized computers and other devices
containing child pornography from both the defendant’s home and office. He
moved to suppress the evidence, claiming the warrant application was deficient
“because it failed to explain to the court the ‘realistic possibility’ that someone
other than defendant, such as a ‘neighbor, a visitor or someone outside the
3
premises’ could have used defendant’s unsecured IP address . . . .” Id.(emphasis added). Classifying this argument as “extremely weak,” the court
stated:
His argument rests on the idea that because anything is possible,
the warrant court must exclude every alternative theory to a
3
An internet subscriber’s unsecured or non-password protected internet connection allows a person in the
vicinity of the home—standing on the sidewalk in front of the house, for example—to access and use the
subscriber’s internet connection without a password and while under the disguise of the subscriber’s IP
address. See Milan v. Bolin, 795 F.3d 726, 727 (7th Cir. 2015) (explaining meaning of unsecured Wi-Fi
network).
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 10 of 19
certainty, a view that is inconsistent with the meaning of
probable cause. In an often-quoted description of probable
cause, the United States Supreme Court bluntly stated, “[i]n
dealing with probable cause, however, as the very name implies,
we deal with probabilities” (Brinegar v. United States, 338 U.S.
160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 [1949]). “The affidavit
need not contain information providing certainty that the objects
sought will be found in the search . . . but rather whether the facts
and circumstances taken as whole gave the magistrate probable
cause to believe that the desired items would be found in the
search” (United States v. Brinklow, 560 F.2d 1003, 1006 [10th Cir.
1977], cert. denied 434 U.S. 1047, 98 S. Ct. 893, 54 L. Ed. 2d 798[1978] ).
Id.; see also U.S. v. Featherly, 846 F.3d 237 (7th Cir. 2017) (defendant challenged
affidavit by claiming it contained deliberate falsehood that kept issuing judge
from considering possibility that someone else in trailer park had connected to
his modem without his knowledge and used his internet connection to share
child pornography; court noted that while unknown user conceivably could
connect to another’s modem through unsecured wireless network, record did
not reflect that defendant had such a network and held that connection between
IP address and modem at internet subscriber’s residence was sufficient to justify
search).
[20] Likewise, the record here does not reflect whether Sloan’s internet connection
was unsecured but given the facts and determination in both Hayon and
Featherly, it is of no moment. The affidavit did not need to exclude every
hypothesis of Sloan’s innocence to establish sufficient probable cause for the
warrant; rather, it needed to demonstrate to the issuing judge that, given all the
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 11 of 19
circumstances, there was a fair probability that evidence of a crime would be
found in a particular place. Crabtree, 199 N.E.3d at 415. Sloan has failed to
establish the detective omitted any material fact that would have left probable
cause in doubt.
2. Nexus
[21] Indiana Code section 35-33-5-2 incorporates the principles of protection against
unreasonable searches and seizures and details the information to be included
in a search warrant affidavit. The statute provides in relevant part:
[N]o warrant for search or arrest shall be issued until there is filed
with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be
searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that
the affiant believes and has good cause to believe that:
(A) the things sought are concealed there; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts known to the affiant through personal
knowledge or based on hearsay, constituting the probable cause.
Ind. Code § 35-33-5-2(a) (2014). Accordingly, “a probable cause affidavit is
required to establish a logical connection, or nexus, between the suspect and the
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 12 of 19
location to be searched.” Rader v. State, 932 N.E.2d 755, 759 (Ind. Ct. App.
2010), trans. denied.
[22] Sloan acknowledges that Detective Swisher’s affidavit established a nexus
between the downloaded file and his IP address and between his IP address and
his residential address. Appellant’s Br. p. 18. However, based on the chance
that someone else accessed his internet connection to make the file available, he
asserts the affidavit failed to establish a nexus between the file and any person
or device at his address. Id. at 18-19. We thus restate the question posed here
as whether identification of a specific IP address that is being used to make
child pornography available and the physical address to which the IP address is
linked creates a sufficient nexus to support a search warrant for that physical
address, despite the possibility that an individual other than the subscriber may
have been using the IP address. As with Sloan’s related first argument, this
Court has not yet addressed this precise question. However, several federal and
state courts have had occasion to do so and have rejected it.
[23] In United States v. Perez, 484 F.3d 735 (5th Cir. 2007), the defendant was
convicted of transmitting child pornography by means of a particular IP address
that was assigned to him at his home address. On appeal, the defendant
contended that the association of an IP address with a physical address does not
give rise to probable cause to search that address. He argued that if he used an
unsecured wireless connection, neighbors would have been able to easily use his
internet access to make the transmissions of child pornography. The affidavit
supporting the search warrant included the IP address, the fact that the IP
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 13 of 19
address was assigned to Perez, and Perez’s specific physical address. The court
determined that it was clear there was a substantial basis to conclude that
evidence of criminal activity would be found at Perez’s physical address and
reasoned that, while “it was possible that the transmissions originated outside of
the residence to which the IP address was assigned, it remained likely that the
source of the transmissions was inside that residence.” Id. at 740 (emphasis
added). See also U.S. v. Vosburgh, 602 F.3d 512 (3rd Cir. 2010) (agreeing with
reasoning in Perez and holding that evidence that computer with particular IP
address possessed or transmitted child pornography can support search warrant
for physical premises linked to that IP address).
[24] More recently, in Commonwealth v. Martinez, 71 N.E.3d 105 (Mass. 2017), the
defendant appealed from his conviction of possessing child pornography.
Martinez challenged the affidavit supporting a search warrant, claiming the
police needed to do more to link him to the place to be searched and the items
to be seized before a valid warrant could issue. He argued the authorities did
not determine whether the internet connection at the apartment used a wireless
router, and, if so, whether the wireless network required a password. As a
result, it was possible that “someone other than the subscriber, located at a
different physical address, was ‘joyriding’ on an unsecured wireless network
based out of the apartment.” Id. at 113.
[25] In its decision, the court included a helpful explanation of the evolution of the
internet as it relates to the ability to link an individual to internet activity:
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 14 of 19
In the early days of the Internet, when a residential Internet
subscriber went online using only a home computer connected to
a hard-wired Internet connection, there was a very strong
correlation between an IP address assigned to a subscriber and a
particular computer. Now, however, many subscribers use a
wireless Internet router, which allows multiple devices within the
range of the router to connect to the Internet simultaneously. To
the outside world, all of these devices will share a single public IP
address—the one that the ISP has assigned to its subscriber. . . .
As a result, the correlation between an Internet subscriber’s
assigned IP address and any one particular Internet-enabled
device may often be weaker than it once was. However, the
correlation between an IP address and a physical address can still
be strong, at least when the ISP has verified its assignment of a
particular IP address to a subscriber at a specific physical address
at a specific point in time.
Id. at 107-08 (internal citations omitted).
[26] The court acknowledged that, from a “technological standpoint,” if an internet
subscriber sets up an unsecured wireless internet network, a computer outside
of the physical address could access the internet and share child pornography
using the subscriber’s IP address. Id. at 114. Nevertheless, the court found
Martinez’s argument missed the mark, explaining:
A showing of probable cause to search a place (as opposed to
arrest a person) need not identify a specific criminal suspect—
although frequently it does. Indeed, the critical element in a
reasonable search is not that the owner of the property is
suspected of crime but that there is reasonable cause to believe
that the specific things to be searched for and seized are located
on the property to which entry is sought. In other words, police
need only demonstrate a sufficient nexus between the criminal
activity under investigation, the items sought, and a place to be
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 15 of 19
searched where the items may reasonably be expected to be
located—independent of whether they have identified a specific
criminal suspect. Certainly police may have an easier time
demonstrating a sufficient nexus if they can link a specific suspect
(e.g., the named Internet account holder) to the criminal activity.
However, such a link is not always required.
Id. at 113-14 (internal citations and quotation marks omitted). The court also
clarified that probable cause does not require a showing of certainty that
evidence of criminal activity will be found at a particular location nor does it
require a showing that any and all possibilities of finding the evidence
elsewhere have been excluded. Id. at 115 (quoting Commonwealth v. Anthony,
883 N.E.2d 918, 926 (Mass. 2008)).
[27] The affidavit in Martinez included an IP address that was used to share child
pornography and the subscriber’s name and residential address to which the IP
address was assigned at the time in question. The court thus concluded that
“[t]he temporal and geographical links between the target IP address and the
physical address to be searched provided a substantial basis” for concluding that
evidence connected to the suspected crime “likely would be found at the
specified premises” and “therefore gave rise to a sufficient nexus between the
suspected criminal activity and the residence.” Id. at 111. See also In re Austin
B., 208 A.3d 1178 (finding search warrant valid where warrant application
contained IP address that was being used to share images of child pornography,
physical address linked to IP address, and subscriber’s name, even though it
was later learned subscriber no longer lived there); Commonwealth v. Green, 204
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 16 of 19
A.3d 469, 475 (Pa. Super. Ct. 2019) (rejecting defendant’s argument that
possibility that another person could have used his IP address precluded finding
of probable cause for search warrant and finding sufficient affidavit containing
information that child pornography had been downloaded by device using IP
address associated with defendant’s residence), aff’d by 265 A.3d 541 (Pa. 2021).
[28] Similar rulings have been reached in State v. Aston, 125 So. 3d 1148 (La. Ct.
App. 2013) (concluding search warrant was based on probable cause where
supporting affidavit contained IP address of device that had shared images of
child pornography, as well as name and physical address to which IP address
was assigned), writ denied by 135 So. 3d 618 (La. 2014); State v. Aguilar, 437
S.W.3d 889 (Tenn. Crim. App. 2013) (rejecting defendant’s claim that
supporting affidavit failed to establish nexus between child pornography files on
computer and his residence and concluding that affidavit containing IP address
of computer and subscriber name and address linked to IP address was
sufficient to establish probable cause for warrant to search defendant’s
residence); Barrett v. State, 367 S.W.3d 919 (Tex. Ct. App. 2012) (holding
affidavit sufficient to support probable cause for search warrant for evidence of
child pornography at particular address where affidavit provided IP address and
subscriber’s name and address associated with specific IP address).
[29] Here, the probable cause affidavit in support of the search warrant submitted to
the court was thoroughly detailed and provided ample evidence to conclude
that probable cause existed for the issuance of the warrant to search Sloan’s
residence. In his affidavit, Detective Swisher explained peer-to-peer sharing
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 17 of 19
networks generally and BitTorrent specifically, including the process for
searching and downloading files on the network. He conveyed his knowledge,
acquired through training and experience, of the dissemination, collection, and
storage of child pornography and the behaviors of individuals involved in such
acts. He further expressed his understanding of the role of forensic experts to
sort and obtain information from a computer system, including concealed
information. The detective provided background information on mobile
devices and related terminology, as well as information on the process of
acquiring data from these devices.
[30] In addition, Detective Swisher specifically averred that a device using the IP
address 99.9.229.7 was on the BitTorrent network offering a file that was
identified by an infohash associated with child pornography. The detective
connected to the device at IP address 99.9.229.7 and downloaded directly from
that device and IP address the file that was being offered and was named “boy
girl sex 6yo.avi.” He then viewed the downloaded file and confirmed it
contained child pornography. The detective used an online database to
determine that the IP address 99.9.229.7 was registered to ISP AT&T and was
located in Greenwood. Information obtained from AT&T showed that the IP
address was, at the time and date in question, assigned to Sloan at his address
in Greenwood. The detective confirmed Sloan’s address through another
online search.
[31] The fundamental question is whether there was a substantial basis from which
the warrant-issuing judge could conclude there was a fair probability that
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 18 of 19
evidence of the crime of child pornography would be found in Sloan’s
residence. We emphasize here that probable cause deals with probabilities, not
certainties. See Keeylen, 14 N.E.3d at 871 (“‘Probable cause is only a probability
or substantial chance of criminal activity, not a certainty that a crime was
committed.’”) (quoting Suarez v. Town of Ogden Dunes, Ind., 581 F.3d 591, 596
(7th Cir. 2009)). Despite the possibility that an individual other than Sloan may
have used the account, the circumstances here establish a fair probability that
Sloan, the subscriber, committed this act and that evidence of the illegal activity
would be found in his home. We therefore hold that facts establishing illegal
internet activity associated with a particular IP address and assignment of the
IP address at the time in question to a particular internet subscriber at a specific
physical address provide a nexus between the illegal activity and the physical
address sufficient to establish probable cause for a warrant to search the
residence at the physical address.
Conclusion
[32] The trial court did not err by admitting the evidence seized from Sloan’s
residence pursuant to the search warrant because the affidavit supporting the
warrant sufficiently established probable cause for its issuance.
[33] Affirmed.
Altice, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 22A-CR-2250 | December 29, 2023 Page 19 of 19