State v. Roy

201 A.3d 609

STATE of Maine

v.Christopher W. ROY

Docket: And-18-55

Supreme Judicial Court of Maine.

Argued: September 13, 2018

Decided: January 29, 2019

Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau, PLLC, Portland, for appellant Christopher W. Roy

Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty. (orally), Lewiston, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.

HUMPHREY, J.

[¶1] In this appeal, we address the effect of technology on the constitutional balance between the particularity and timeliness requirements of a search warrant and the ever-expanding digital space into which that search may reach.

[¶2] Christopher W. Roy appeals from a judgment of conviction for three counts of possession of sexually explicit material of a minor under age twelve (Class C), 17-A M.R.S. § 284(1)(C) (2017), entered in the trial court (Androscoggin County, MG Kennedy, J. ) after Roy pleaded guilty conditioned on his opportunity to appeal the denial of his motion to suppress. M.R.U. Crim. P. 11(a)(2). We affirm the judgment.

I. BACKGROUND

[¶3] Viewing the evidence in the light most favorable to the court's order denying the motion to suppress, the record supports the following facts. See State v. Sasso , 2016 ME 95, ¶ 2, 143 A.3d 124. On August 18, 2016, a detective with the Maine State Police Computer Crimes Unit used a file-sharing network to download a file of interest in child pornography investigations. The detective determined that this file was made available by a device connected to a certain IP address.¹ The detective later viewed the file, which included a video of a young girl, approximately three to five years of age, unclothed and being sexually abused by an adult.

[¶4] The detective consulted with the United States Department of Homeland Security and learned that the IP address was registered to Time Warner Cable, a nationwide internet service provider. On August 22, 2016, Time Warner informed the detective that Roy was the subscriber of the account associated with that IP address when the video file was downloaded and provided the detective with the account's service address in Maine. The address matched that of Roy on file with the Maine Bureau of Motor Vehicles.

[¶5] Based on this information, the detective prepared an affidavit and request for a search warrant. On August 31, 2016—thirteen days after learning that the downloaded file appeared on the file-sharing network by way of Roy's IP address—the detective sought and the court issued a warrant authorizing (a) the search of Roy's residence and property, outbuildings, vehicles, and persons on the property at the time the warrant was to be executed, and (b) in relevant part, the seizure of the following items believed to "constitute instrumentalities" of the crimes of illegal possession and dissemination of sexually explicit depictions of minors, 17-A M.R.S. §§ 283, 284 (2017):

1. Images of child pornography, in any form;

2. Records or images in any form pertaining to the manufacture, possession or receipt of child pornography;

3. Records or images in any form relating to the identity of the minors depicted in any seized images;

4. Records or images in any form reflecting personal contact with any of the minors depicted in any seized images;

5. Records or images in any form reflecting access to, or payment for access to, websites containing or relating to child pornography;

6. Computers, portable electronic devices and digital storage media of any kind .... [A]ny electronic system or device capable of storing and/or processing data in digital form, including: central processing units; laptops or notebook computers; personal digital assistants; wireless communication devices such as telephone paging devices, beepers, and cellular telephones[;] peripheral input/output [devices] such as keyboards, printers, scanners, plotters, monitors, and drives intended for remova[ble] media; related communications devices such as modem[s], cables, and connections; storage media such as hard disk drives, floppy disks, thumb drive[s], magnetic tapes, and memory chips; and security devices; [and]

7. Evidence in any form suggesting a sexual interest in minors and their activities. These items are to include collections of photographs or magazines containing images of children [and/or] adolescents ....

[¶6] The next day, September 1, 2016, the police executed the search warrant and seized nearly 600 sexually explicit images of children that were stored on a cellular telephone and a microSD card (a small portable digital media storage device). The ages of the children depicted in the images seized ranged from under one year to nine years.

[¶7] In February 2017, a grand jury returned an indictment charging Roy with eight counts of possession of sexually explicit material of a minor under the age of twelve. See 17-A M.R.S. § 284(1)(C). Roy moved to suppress the evidence seized pursuant to the search warrant. After holding a hearing, on December 7, 2017, the court (Androscoggin County, MG Kennedy, J. ) denied his motion.

[¶8] In February 2018, Roy pleaded guilty, conditionally, to three counts of the indictment and the State dismissed the remaining five counts. Roy timely appealed.

II. DISCUSSION

[¶9] Roy argues that the court erred by not suppressing the seized evidence because the search warrant was stale, failed to describe items presumptively protected by the First Amendment with "scrupulous exactitude," and otherwise failed to describe the places to be searched and the items to be seized with sufficient particularity.

A. Staleness

[¶10] Roy contends that the court erred by denying his motion to suppress because the circumstances described in the affidavit supporting probable cause to issue a search warrant—information that the downloaded video file was from an IP address associated with Roy's computer—were thirteen days old when the warrant was issued, rendering the foundation for the warrant stale. As a result, he argues, by the time the warrant was requested and issued, the affidavit provided no basis to conclude that the downloaded file was still in the place associated with Roy's IP address.

[¶11] When reviewing the denial of a motion to suppress on grounds that the information relied on for issuing a search warrant was stale, we review directly the finding of probable cause by the issuing judge, giving great deference to that determination, and we must draw all reasonable inferences that support the decision to issue the warrant. State v. Wright , 2006 ME 13, ¶ 8, 890 A.2d 703 (quotation marks omitted).

[¶12] "Probable cause exists when, based on the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Samson , 2007 ME 33, ¶ 12, 916 A.2d 977 (quotation marks omitted). To meet this standard, the affidavit supporting the warrant must set forth some "nexus" between the information upon which the warrant relies and the location of the property to be seized. Id . ¶ 15. Whether probable cause still exists at the time a warrant is requested is determined not by the mere passage of time between observation of the evidence and application for the warrant but by the consideration of the unique facts and circumstances of the case at hand. See State v. Crowley , 1998 ME 187, ¶ 5, 714 A.2d 834 (time between circumstances and request for search warrant); State v. Willey , 363 A.2d 739, 742 (Me. 1976) (time between circumstances and issuance of search warrant). That timeframe, Roy acknowledges, does not lend itself to a per se maximum period of time within which a search warrant must be sought. See Wright , 2006 ME 13, ¶ 9 & n.3, 890 A.2d 703.

[¶13] In Wright , we were presented with a similar challenge to the timeliness of a warrant in a child pornography investigation where at least eighty days had elapsed between the occurrence establishing probable cause and the issuance of the warrant. Id . ¶ 7. The affiant cited the opinions of experts in child pornography investigations to support his assertion that those who collect child pornography are "likely to retain the images" for long periods, sometimes "indefinitely," rather than disposing of them. Id . ¶¶ 7, 11. We held that in the context of a child pornography investigation, the passage of eighty days between the observation of a crime and the application for a warrant is not too long to render the information stale because of the demonstrated propensity of its consumers to retain the images for long periods of time. Id. ¶ 11 ; see also United States v. Seiver , 692 F.3d 774, 778 (7th Cir. 2012) (noting that a central inquiry into staleness in a child pornography investigation requires a "realistic understanding of modern computer technology and the usual behavior of its users"). Other courts have held that, in the context of a child pornography investigation, much longer periods of time—even years—may pass without the information relied on for a warrant becoming stale.²

[¶14] In this case, the detective's affidavit describes practices by which electronic forms of child pornography are commonly received, collected, and retained for considerable lengths of time, and the affidavit outlines the detective's training and investigatory experience in child pornography cases. As in Wright, this detailed information is sufficient to demonstrate that, given the short time between the download on August 18 and the request for a warrant on August 31—only thirteen days—and considering the nature of the contraband at issue, the court had a substantial basis on which to conclude that the file of interest identified in the affidavit would still be in Roy's possession on his computer or accessible by his electronic devices. The information the court relied on was not stale and the court did not err in so ruling.

B. Constitutional Adequacy

[¶15] Roy next argues that the...