The Massachusetts Supreme Judicial Court heard oral argument in a case that addresses the issue of when a warrant is stale in the case of an alleged seizure of child pornography from a defendant’s computer. The case of Commonwealth v. Robert Guastucci, argued on March 5, 2020 raised this issue before the Massachusetts Supreme Judicial Court.
A warrant under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights may only issue on probable cause. The information contained in the warrant must be based on facts closely related in time to the issues raised in the warrant to justify probable cause. The Massachusetts SJC has looked to two particular factors in evaluating whether a warrant is stale:
- The age of the facts;
- The nature of the conduct alleged to have violated the law.
Staleness of a Warrant in Drug Cases
The issue of Staleness of a warrant has come up most frequently in drug cases. In drug cases, the court has found that the facts that a warrant are based on become stale quickly based on the mobility of drugs. The Appeals Court decided the case of Commonwealth v. Rice, 47 Mass. App. 586 (1999), where the court decided that the facts of an isolated drug transaction could become stale after six weeks, unless it was alleged that it was a continuous course of conduct, then the age of the allegations would become less important. A continuous course of conduct allows more recent information to confirm the reliability of prior older information, according to the case law.
Staleness in Child Pornography requires a different analysis as Courts find the images are likely hoarded or saved
In the Guastucci case, the defendant uploaded one image of child pornography seven months ago. The defendant claimed that it was stale because there was no facts alleged that he was a collector of child pornography or that he still had that computer in his house.
The Court found that staleness is different analysis because people keep computers for many years and because files are never really deleted from a computer for the average computer user. The Court also during oral argument focused on the difference between whether the image was uploaded or downloaded. Justice Gaziano suggested that a file that is uploaded it allows for an inference of knowledge because a user would be unlikely to share a photo that he never viewed where a download could be inadvertent.
The Justice also addressed the issue of how much knowledge of computers could it assume that a reasonable magistrate possessed. The affidavit about files and the the duration they would be stored on computers was not presented in the affidavits.
The defendant argued that the seven month delay made the information in the warrant stale. The fact of the delay the defense lawyer argued meant that there was no longer probable cause to issue the warrant. If courts find that the defendant is a collect or hoards child pornography, the time period is less relevant. The SJC addressed this what should the time period; it cannot be a forever probable cause said Justice Gaziano.
The issue of staleness in the context of Child pornography has not been addressed by the SJC. The defense pointed to a leading federal case United States v. Raymonda from the Second Circuit Court of Appeals, 780 F.3d 105, 114 (2d Cir. 2015) suggesting that the defendant accessed the images in circumstances sufficiently deliberate to willful to suggest that he was an intentional collector likely to hoard those images and acquire new ones. The defense argued that without additional evidence of propensity to collect images a warrant cannot be valid when it is far removed from the date of the search.
I would expect the Court to find the seven month delay still supported probable cause based on the fact that the images are likely to be kept and it was uploaded, indicating that the person knew what was on the image. Further, Justice Lowy did not seem to adopt the argument of the defense that the information was sat on by the police,. but suggested that the police could have good reason to sit on information. The SJC indicated that perhaps they sit on the information at their peril, but given the fact that these images are not likely to be deleted I would expect the SJC to find probable cause. If the defense prevails, I would expect not to be on the fact that the affidavit did not have sufficient details of how images are stored and the background computer knowledge to provide the magistrate with probable cause. The Court addressed how much knowledge of computers do we assume that a district court magistrate has. The SJC will likely use this case to define the duration of probable cause and the details that should be presented in a search warrant affidavit.
To listen to the oral arguments in the Guastucci case you can find them on the Suffolk University Law School Website.
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You can also watch my video commentary on this case.