Opinion
No. HHB CR04-0216603
October 6, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS
The defendant John Foran, moves the court to suppress the evidence seized from his residence during the execution of a search warrant on the grounds that the seizure constitutes a violation of his rights under the fourth and fourteenth amendments to the United States Constitution, as well as Article first, § 7, of the Constitution of Connecticut. For the reasons set forth below, the court denies the defendant's motion to suppress.
I FACTUAL AND PROCEDURAL BACKGROUND
The events which led to the issuance of the search warrant in question are set forth in the sworn affidavit filed by Rocky Hill police officers in support of their application for the warrant. According to the warrant affidavit, Rocky Hill police first learned of sexual assault allegations against the defendant from a report it received from the Department of Children and Families (DCF) in December of 2002. At that time, DCF notified police that a careline complaint had been received by DCF from a clergy member concerning an incident of sexual assault, allegedly perpetrated by the defendant against his sister-in-law (the minor) when she was twelve years old. Rocky Hill police opened an investigation into the alleged incident and interviewed the minor's parents in December 2002 or January 2003. However, later in January 2003, this initial criminal investigation was closed by Rocky Hill police at the request of the minor's parents, who both expressed concern about the effect that a police interview would have on the minor's already fragile mental state.
The references in the affidavit to this incident are very vague, and it is unclear whether this report related to the seminude photography session and other events discussed herein or if it concerned another incident between the minor and the defendant. The court requested clarification at the oral argument, but neither attorney was able to provide the court with additional information. Ultimately, however, this uncertainty does not impact upon the resolution of the legal issues presented in the instant motion.
Thereafter, on April 28, 2003, the minor's parents again contacted Rocky Hill police and indicated that they had learned more about the nature and extent of the defendant's relationship with the minor, and wished to have the police investigation reopened. On April 30, 2003, police met with the minor's parents. Based upon the information obtained during that interview, police scheduled an interview with the minor.
On May 1, 2003, the investigating officers interviewed the minor, who was at that time in the ninth grade, concerning the nature of her earlier interactions with the defendant. The minor reported that the incidents occurred when she was twelve years old and in the sixth grade, and the defendant was about twenty-five years old and married to the minor's sister. According to the minor, the defendant at that time had regularly visited her at her residence when she was home alone. On one such visit, the defendant, who knew that the minor was interested in modeling, volunteered to take photographs of the minor and to submit them to modeling agencies. Thereafter, the defendant inquired whether the minor had a matching set of bra and panties for the photography session. When she replied that she did not the defendant asked for her size and indicated that he would purchase a set for her. The defendant specifically advised the minor that she should not tell her mother about their discussion or the planned photography session.
On a subsequent afternoon when the minor was home alone, the defendant returned to the minor's residence with a digital camera and with the promised underwear set, which consisted of a tank top and thong panties. At the outset of the photography session, the defendant used the digital camera to take a number of photographs of the minor in different poses — some while she was lying on a bed. The defendant then told the minor to undress to the underclothes she was then wearing, and the defendant took a number of pictures of the minor in both standing and sitting positions. The defendant then directed the minor to put on the underwear set which the defendant had purchased for her. The minor was very hesitant about putting on and having photographs of her taken in the new underwear set because the thong panties fully exposed her buttocks. The minor, however, agreed to do so because she had been led to believe that the modeling agency had requested such photographs. After the minor put on the underwear set the defendant took numerous photographs on his digital camera of the minor in the underwear set. The defendant then repositioned the thong underwear on the minor's body and took additional photographs. At the conclusion of the session, the defendant said that he would send the photographs to a modeling agency on his computer.
The minor also advised police that after the date of the photography session, the defendant continued to visit the minor's house when she was home alone. The minor noted that the defendant would often tickle her or wrestle with her. On one occasion, she recalls the defendant placing his head in her lap and requesting that she rub it. On another occasion, the defendant, who claimed to be making a movie, requested that the minor go into the bathroom wearing a bathing suit, that she simulate removing the bathing suit and then step into the shower, so that he could film such actions for his movie. The minor performed the "scene" as directed by the defendant, and the defendant filmed her with a videocamera as she did so.
Several days after the minor gave her written statement, the minor's older sister, who by that time (May 2003) was the defendant's ex-wife, provided the investigating officer with a sworn statement. She stated that the defendant owned a Compaq computer, which was equipped with a CD burner, movie editing software and zip disks. The minor's sister stated that the defendant also owned a camcorder which connected to the computer, and further noted that the defendant often edited movies on his computer. Additionally, she informed the investigating officer that the defendant had moved into Apartment 507 at 200 Cold Spring Road, Rocky Hill, Connecticut with a roommate in March 2003, and that she had seen the Compaq computer at this residence.
In response to the aforementioned statements, the investigating officer submitted a warrant application seeking to search the defendant's residence. The warrant affidavit alleged that there was probable cause to believe the defendant, by virtue of his interaction with the minor, had violated the following statutes: (1) General Statutes § 53-21, risk of injury to a child; (2) General Statutes § 53a-196, obscenity as to minors; and/or (3) General Statutes § 53a-196b, promoting a minor in an obscene performance. The court, Handy J., issued the warrant on May 9, 2003, authorizing the search of the defendant's residence for images of child pornography. The warrant specifically authorized police to search for such images in all computer hardware and internal and external computer storage devices, and to seize those images as well as any other handmade or photographic images of child pornography contained in records, documents and materials of any form located within the residence.
The full scope of the warrant's authority was set forth in "Attachment A," which was appended to and incorporated by reference to both the warrant affidavit and the warrant itself.
On May 14, 2003, the police executed the search warrant and seized certain items from the residence — items which included a Hewlett Packard computer and various computer data storage devices. After taking such items into custody and later viewing their contents, the police discovered "over two hundred images of a minor victim . . . changing in and out of clothing [and] images from the so-called `Helen' series, a known child pornography series, which depicts a female no older than eight years old engaging in oral sex with a male." State's Memorandum in Response to Defendant's Motion to Suppress, at p. 1. Thereafter, the defendant was arrested and charged with three counts of risk of injury to a child in violation of General Statutes § 53-21, two counts of promoting a minor in an obscene performance in violation of General Statutes § 53a-196b and over one hundred counts of possession of child pornography in violation of General Statutes § 53a-196d.
In their search of the residence, police apparently did not locate a Compaq computer, the type of computer that, according to the warrant affidavit, had been seen in the residence by the defendant's ex-wife.
After seizing the computer and other equipment, police secured a second search warrant which authorized the examination of the contents of these items. Although the defendant makes a passing reference in his brief to the shortcomings of this second warrant, Defendant's Memorandum of Law in Support of Motion to Suppress Evidence at p. 11, n. 4, the constitutional challenges he raises in his Motion are directed to the circumstances surrounding the seizure of evidence from the defendant's residence, and not to the authority of police later to examine the contents of what had been seized.
On December 19, 2005, the defendant filed a motion to suppress, requesting that the court order the suppression of all items that were seized from his residence on May 14, 2003. Thereafter, on April 10, 2006, the state filed a memorandum in opposition to the defendant's motion to suppress. On June 21, 2006, the parties presented oral argument to this court in support of their respective positions.
II STANDARD OF REVIEW
Before undertaking an examination of the claims raised by the defendant, it is useful to briefly summarize the well-established law regarding probable cause and the standards a reviewing court must apply in determining the constitutionality of a search warrant. In ruling upon a motion to suppress, a reviewing court must "uphold the validity of [a search] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories." (Emphasis added; internal quotation marks omitted.) State v. Buddhu, 264 Conn. 449, 459-60, 825 A.2d 48 (2003), cert. denied, 541 U.S., 124 S.Ct. 2106, 158 L.Ed.2d 712 (2004).
In other words, a reviewing court's responsibility is not to determine whether, presented with the same facts, it would have issued the warrant, or whether the warrant affidavit could have contained additional information or have been more artfully drawn. Rather, the court must "view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause . . . [and] [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference, to the [issuing judge's] determination." (Emphasis added; internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 460; see also State v. Eastwood, 83 Conn.App. 452, 460-61, 850 A.2d 234 (2004).
In fact our constitutional preference for warrants is so strong that the issuing judge's decision is deserving of what our state Supreme Court and the United States Supreme Court has described as "great deference." State v. Mordowanec, 259 Conn. 94, 113, 788 A.2d 48 (2002), quoting United States v. Leon, 468 U.S. 897, 913-14, 104 S.Ct 3405, 82 L.Ed.2d 677 (1984) (because "[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, . . . [our courts] have thus concluded that . . . great deference [must be given] to a magistrate's determination.")
III DISCUSSION
The defendant appears to set forth the following four arguments as grounds for suppressing the evidence seized at his residence on May 14, 2003: (1) the warrant affidavit failed to establish probable cause to believe that the defendant committed a crime; (2) because the information in the warrant affidavit primarily concerned events that occurred between two and three years earlier, the information was stale by the time of the issuance of the warrant; (3) the warrant affidavit failed to set forth any evidence that the images sought by the warrant were stored on computer and, therefore, probable cause did not exist to search any of the computers at the defendant's residence; and (4) the warrant was excessive in scope because it authorized a broad search and seizure of all computers, computer equipment, records, documents and materials at the residence, even though the warrant affidavit made specific reference only to a single Compaq computer, and to no other type of property. Based on the foregoing arguments, the defendant requests that the court order the suppression of all evidence seized pursuant to the search warrant in this case.
The arguments are set forth here in a different order than they appear in the briefs submitted by the parties.
A PROBABLE CAUSE TO BELIEVE A CRIME WAS COMMITTED
The first issue before the court is whether the warrant affidavit set forth probable cause to believe that the defendant had engaged in criminal conduct. It is well established that "[p]robable cause to search exists [only] if there is probable cause to believe that the particular items sought to be seized are connected with criminal activity." State v. Buddhu, 264 Conn. 460. In this regard, defense counsel, citing Krukowski v. Swords, 15 F.Sup.2d 188 (D. Conn. 1998), argues that the conduct attributed to the defendant in the affidavit — namely, his photographing of a seminude child — does not constitute a crime. The state counters that Krukowski v. Swords, supra, 15 F.Sup.2d 188, is distinguishable from the matter before the court, and that there was, in fact probable cause for the issuing judge here to conclude that the defendant's conduct created a situation likely to impair the minor's health or morals in violation of Conn. Gen. Stat. § 53-21. This court agrees with the state.
Section 53-21 of the Connecticut General Statutes provides in relevant part: "(a) Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, . . . shall be guilty of a class C felony . . ." This portion of § 53-21 focuses on the immoral and unhealthful situations into which children may be placed. For this reason, "[w]hat the statute precludes is the creation of a situation that is likely to impair the morals of a victim younger than sixteen years of age. Lack of an actual injury to . . . the . . . morals of the victim is irrelevant . . . [and] actual injury is not an element of the offense . . . [T]he creation of a prohibited situation is sufficient." (Emphasis in original; internal quotation marks omitted.) State v. Eastwood, supra, 83 Conn.App. 476.
Our courts have previously considered the applicability of this part of the risk of injury statute in the context of the photographing of children. "Prior judicial decisions have specifically concluded that the photographing of a nude or seminude minor is a violation of § 53-21. State v. Hauck, CT Page 18245 172 Conn. 140, 374 A.2d 150 (1976) (the defendant took nude and seminude photographs of the victim after promising to give her a grade of `C' in her science class); State v. Manluccia, 2 Conn.App. 333, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984) (the defendant took photographs of the nude victim after telling him that he was going to sell them)." State v. Palangio, 24 Conn.App. 300, 304, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991) (the defendant took photographs of the minor victims in provocative poses in various stages of undress, telling them that the photographs would constitute their modeling portfolios); see also State v. Zarick, 227 Conn. 207, 220, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 595 (1993) ("The trial court correctly held that the photographs seized pursuant to the warrant constituted evidence of the crime of risk of injury to a child. The photographs memorialized situations created by the defendant that were likely to impair the health or morals of children."). In fact, the Appellate Court in Palangio specifically stated that because "[t]he first part of § 53-21 focuses on a defendant's deliberate indifference to, acquiescence in, or the creation of, situations inimical to the child's moral or physical welfare . . . it is the defendant's creation of the situation in which children were posed in various stages of undress and in various types of clothing that is prohibited." (Emphasis added.) State v. Palangio, 24 Conn.App. 305.
Given these unambiguous holdings, the defendant's first claim cannot be seriously entertained. The circumstances surrounding the photographing of the minor here are nearly identical to the circumstances at issue in these earlier cases — both in the incentive or ruse employed by the photographer and in the state of undress of the victim. Accordingly, the issuing judge was certainly justified in concluding that there was probable cause to believe that the conduct of the defendant as recounted in the warrant affidavit was criminal in nature.
At oral argument, defense counsel also seemed to contend that there was no basis to conclude that a crime had occurred because there was no evidence that the defendant, in fact, actually took photographs of the minor. First of all, even if the defendant was only pretending to take photographs, the issuing judge nonetheless was entitled to conclude that the defendant's actions with regard to the minor placed the minor in the type of situation prohibited by § 53-21. Moreover, the mere fact that the minor did not at any time see the photographs developed or otherwise preserved does not preclude a finding of probable cause that such photographs were taken and did exist. In light of the affidavit's reference to the defendant's possession and use of photography equipment, his purchasing of intimate apparel for the minor, his posing and positioning of the minor during the session, and his comments to the minor during the session, the issuing judge certainly could have reasonably concluded that there was probable cause to believe that the defendant had photographed the minor.
Contrary to the claim advanced by the defendant, Krukowski v. Swords, supra, 15 F.Sup.2d 188, does not compel a different conclusion. This court recognizes that Krukowski holds that a photography session involving a seminude minor may not constitute a violation of § 53-21 where the photographs were taken for a legitimate, permitted purpose. But the facts set out in the warrant affidavit here wholly justified the issuing judge's conclusion that the defendant's photographing of the minor was not undertaken for such a proper purpose.
In Krukowski, the District Court noted that the aggregation of the following evidence demonstrated that seminude photographs of a minor girl were taken for a legitimate purpose: (1) the minor was fifteen years old at the time of the photography sessions; (2) the minor's mother procured the services of Krukowski as the minor's modeling agent; (3) the minor's mother signed a release form stating the minor's age and authorizing Krukowski to act as the minor's agent; (4) the minor and her mother signed an `outline of seminude modeling test' giving Krukowski written permission to conduct photography sessions with the minor that included seminude posing; and (5) on all but one occasion, there were multiple professionals present during the modeling sessions. Id., 190-92, 200. Taking these factors into consideration, the federal district court determined that Krukowski was acting as a modeling agent and had not created a situation likely to impair a child's morals. Id., 200.
The issuing judge here was presented with a drastically different set of circumstances. The issuing judge here was informed in the warrant affidavit that (1) the defendant's subject was a twelve-year-old child, then in just the sixth grade; (2) the defendant not only did not seek the permission of the minor's parents (his in-laws at the time) prior to taking seminude photographs of their daughter, he explicitly told the minor not to inform her parents of the photography session; (3) the defendant, apparently not satisfied with the more conservative nature of the minor's own undergarments, had purchased a more revealing underwear set for the minor to wear during the photography session; (4) no modeling professionals or photography assistants were present at any time during the sessions; (5) in addition to photographing the minor, the defendant frequently visited the minor when she was home alone, often wrestling with and tickling her, and once putting his head in the minor's lap; and (6) on a later date, the defendant requested that the twelve year old minor pretend to undress and step into the shower while the defendant took videotape of her doing such acts "for his movie." Given the stark contrast between the facts in Krukowski and the disturbing allegations at issue here, Krukowski simply cannot defeat (certainly not as a matter of law) the issuing judge's determination of probable cause.
Similarly unavailing is the defendant's reliance on State v. Kaminski, Superior Court, judicial district of New Britain, Docket No. CR 04 0214486 (April 25, 2005, Shortall, J.). See Defendant's Memorandum of Law at p. 17. It is true that the search warrant affidavit in Kaminski, unlike the affidavit at issue here, indicated that the defendant had been previously convicted of a child molestation crime. It is also correct that Kaminski notes that a defendant's prior criminal record, when recited in a warrant affidavit, is a relevant factor for a court to consider in determining whether probable cause has been established in the warrant. However, contrary to the defendant's assertion here, Kaminski does not stand for the proposition that a prior record must be alleged in these types of cases in order for probable cause to be found to exist. Therefore, the defendant's claim here that his absence of a prior criminal record "disprove[s] probable cause" and "suggests that [he was engaged in] legal and innocent conduct" with the minor, Defendant's Memorandum at p. 17, finds absolutely no support in the law and is in this court's opinion wholly without merit.
For these reasons, the court finds that the issuing judge was warranted in concluding that there was probable cause to believe that the defendant had engaged in criminal conduct. Accordingly, the defendant's first challenge to the sufficiency of the warrant affidavit must be rejected.
B STALENESS
The defendant next argues that to the extent his conduct could reasonably be deemed criminal, the search warrant at issue was flawed because it was based upon stale information. Defense counsel contends here that, even assuming the information in the warrant affidavit may have justified a search at some earlier point in time, that information had become stale by the time of the warrant because it recounted an isolated event that had occurred more than two years earlier. Because of the passage of that amount of time, the defendant submits that, as a matter of law, there was no probable cause to believe that the type of materials sought by the warrant would be in the defendant's possession at the time the warrant was issued. The state, on the other hand, argues that the nature of both the defendant's conduct and the items sought to be seized reasonably supported the issuing authority's conclusion that there was probable cause to believe that the evidence would still be in the defendant's possession — even though the events described had taken place more than two years earlier. This court again agrees with the state.
Our courts have commented frequently on the type of analysis that is required to resolve a staleness challenge. As our Supreme Court has noted, "although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable . . . Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis. Accordingly, we have refused to adopt an arbitrary cutoff date, expressed either in days, weeks or months, beyond which probable cause ceases to exist . . . The likelihood that the evidence sought is still in place depends on a number of variables, such as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be searched." (Citation omitted; internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 465-66. Indeed, for this reason, it has been stated that "[t]he observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed . . . Andresen v. State, 24 Md.App. 128, 172, 331 A.2d 78 (1975), aff'd, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976)." (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 233 n. 12, 690 A.2d 1370 (1997).
Although our appellate courts have not previously considered a staleness challenge in the context of the particular type of evidence sought by the warrant here, prior cases make clear that it is often reasonable to conclude that an individual will maintain possession of certain types of property for considerable periods of time. For example, in State v. Vincent, 229 Conn. 164, 640 A.2d 94 (1994), thirteen months had elapsed between the disappearance of the defendant's daughter and the issuance of a warrant authorizing the search of the defendant's new residence for photographs of the missing child, her birth certificates and other of her personal artifacts. The defendant contended that the thirteen month period "rendered stale the allegations regarding the circumstances of the disappearance and the whereabouts of [his daughter's] personal effects," id., at 174 — particularly given the fact that the defendant had only been living in his new home for several weeks prior to the date of warrant.
However, the Supreme Court in Vincent unanimously rejected the defendant's claim of staleness. Quoting the language from Andresen v. State excerpted above, the Court held that the warrant "sought materials, records and artifacts, which were reasonably and logically deemed [by the issuing judge] to be in the possession of the defendant, the missing girl's father." Id. at 175. The Court noted that "[i]t does not stretch the imagination to believe that parents keep their children's photographs, birth certificates and childhood artifacts with them [even] as they move from place to place over extended periods of time." Id. Under those circumstances, the Court "refuse[d] to adopt an arbitrary cutoff date . . . beyond which probable cause ceases to exist," id., and therefore held the defendant's claim to be without merit.
Two earlier cases, State v. Carbone, 172 Conn. 242 (1977), and State v. Ives, 37 Conn.App. 40, cert. denied, 234 Conn. 906 (1995), reached similar conclusions and stressed that items with continuing utility to a defendant will likely be retained for extended periods. In Carbone, the Court considered the timeliness of a search warrant which sought stolen precious metals and scrap metal equipment which were alleged by the affidavit to have been sold to the defendant, a scrap metal dealer, seven months earlier. The Court held that the warrant was not stale despite the passage of seven months, in part because the equipment would be useful to the operation of the defendant's business. In State v. Ives, 37 Conn.App. 40 (1995), a search warrant seeking stolen coins in which the defendant-coin dealer had previously expressed interest was issued despite the four-month gap between the theft of the coins and the issuance of the warrant. Rejecting the claim that the warrant was stale, the court observed that "[i]t was reasonable to believe that an avid coin collector who had previously expressed an interest in the coins would keep at least some of them for a period of time as part of his collection." Id. at 47.
While, as noted, our appellate courts have not yet addressed the issue of staleness specifically in the context of a search warrant for the type of sexually stimulating material at issue here, at least one Superior Court decision has considered such a claim. In State v. Toccaline, Superior Court, judicial district of Windham at Danielson, Docket No. CR 00 0109519 (July 18, 2003, Swienton, J.), the Superior Court, though granting the motion to suppress on other grounds, specifically determined that information in the search warrant affidavit concerning the defendant's accessing of a child pornography website was not stale even though the accessing had occurred at least twenty-two months prior to the judge's issuance of the warrant. Noting that a staleness claim required consideration of the nature of the crime, Toccaline held that "the crimes alleged, that is . . . possession of child pornography here, is such that the evidence sought is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched . . . Because of the nature of the crime as the sort that evidence can reasonably be expected to be kept for long periods of time, the court finds that the facts set out in the affidavit were not stale at the time the warrant was issued." (Citations omitted; internal quotation marks omitted.) State v. Toccaline, supra, Superior Court, Docket No. CR 00 0109519.
Toccaline cited another Superior Court decision, State v. Roesing, Superior Court, judicial district of Litchfield, No. CR 00 103351 (July 19, 2001, DiPentima, J.), which similarly rejected a staleness challenge in the context of a search warrant for evidence of child pornography.
Like the Superior Court in Toccaline, the appellate courts of other states have concluded that it is fair and logical for a judge issuing a warrant to infer that individuals who engage in sexually or morally inappropriate behavior with children will tend to retain for extended periods of time any materials which may stimulate or satisfy, or otherwise relate to, their interest and tendency. These courts have repeatedly rejected staleness challenges to search warrants, even when the information relied upon is many years old at the time of the issuance of the warrant. See e.g. Behrel v. State, 151 Md.App. 64, 97, 823 A.2d 696, cert. denied, 376 Md. 546, 831 A.2d 5 (2003) (finding that sixteen-year-old information concerning sexual abuse and possession of child pornography was not stale because "[t]he issuing judge was entitled to conclude from the affidavit that a person charged with sexual abuse and exploitation of children would be likely to retain pornographic material and lewd photographs indefinitely"); People v. Russo, 439 Mich. 584, 614, 487 N.W.2d 698 (1992) (information about events that occurred six years prior to the warrant's issuance was not stale); State v. Woodcock, 407 N.W.2d 603, 605 (Iowa 1987) ("[I]t would be reasonable for an issuing magistrate to conclude that a person charged with sexual exploitation of children through photographs and similar items would be likely to retain them for an indefinite period."); State v. Janetta, 355 N.W.2d 189 (Minn.App. 1984 (gap of two years between the victim's observations of child pornography and the issuance of the warrant "is less critical" given the nature of the materials in question); State v. Kirsch, 139 N.H. 647, 651, 662 A.2d 937 (1995) (although defendant's most recent interaction with the minor victims had occurred six years prior to the application for the warrant, "there would be no reason to conclude that the defendant would have felt the necessity to dispose of" the photographs he had taken of the victims while they were in various states of undress).
Behrel is cited with approval in State v. Toccaline, supra, Superior Court, Docket No. 00 0109519, discussed above.
On the basis of these cases from Connecticut and from other jurisdictions, this court concludes that the affidavit here reasonably supported the issuing judge's conclusion that materials of the nature sought would be in the possession of the defendant at the time of the warrant. To begin, the warrant affidavit provided substantial evidence from which the judge could have concluded that the defendant had a sexual or other immoral attraction to the minor. Indeed, given the secretive nature of all of the defendant's conduct and his repeated efforts to have inappropriate physical contact with a child half his age, one would be extremely hard-pressed to reach any other rational conclusion. In any event, even if such an "innocent" explanation could be suggested, the issuing judge certainly was not required, as a matter of law, to adopt it.
For example, the defendant offered at oral argument that the behavior discussed in the warrant affidavit was acceptable (or in some way less inappropriate) since he was the minor's brother-in-law. Suffice it to say that this court struggled then, and still struggles now, to fully understand this claim — one which seems to suggest that the defendant's conduct here can be viewed as within the bounds of a healthy relationship between any brother-in-law and sister-in-law, not to mention one where the former is about twenty-five years old and the latter is just twelve.
It was equally reasonable for the issuing judge to draw the common sense inference that the defendant would likely long retain both his "interest" in children and any provocative photographic images which would appeal to that interest. The defendant clearly went to considerable lengths here to groom the minor, playing on her modeling aspirations, in order to coax her into posing for the defendant. The defendant went so far as to purchase revealing undergarments for the minor to ensure that the photographs of her would be particularly graphic and thus, presumably, more sexually stimulating to him. The defendant also took advantage of seemingly every opportunity to touch the minor inappropriately — whether it was in the context of adjusting her underwear during the photography session or in the wrestling and tickling behavior which is so commonly a technique of those who have a sexual proclivity toward children.
In this court's opinion, under such circumstances the issuing judge could apply common sense to conclude that the types of images sought by the warrant would be utilized by the defendant for his sexual pleasure and therefore would be in his possession notwithstanding the passage of time at issue here. Frankly, the simple fact of the matter is that photographs — not just of the nature here, but of any kind — are taken specifically so that the images captured on the film can be preserved indefinitely and viewed at various times in the future. Thus, as in State v. Kirsch, 139 N.H. 647, 651, 662 A.2d 937 (1995), "there would be no reason to conclude that the defendant [here] would have felt the necessity to dispose of" the seminude photographs he had taken of the minor, and indeed every reason to conclude that these photographs instead would have been long retained.
The court is not unmindful that, unlike the affidavits at issue in many of the reported cases, the affidavit here does not contain a "pedophile profile" — that is, specific language in which the affiants detail the types of materials typically collected by individuals with pedophilic tendencies and their known propensity to retain these collected materials. However, in the court's view, common sense alone leads to and supports the same conclusion. See United States v. Lamb, 945 F.Sup. 441, 460 (N.D.N.Y. 1996) ("The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases.") As a result, although it may be better practice, where appropriate, to include such a profile in an affidavit seeking these types of materials, the absence of such language will not alone undermine a magistrate's finding of probable cause. See State v. Kirsch, 139 N.H. 647, 651, 662 A.2d 937 (1995).
In this respect, the materials sought here are very much like the papers and artifacts of the missing child which were the subject of the warrant in State v. Vincent, 229 Conn. 164. Just as "it does not stretch the imagination to believe" that parents will retain for extended periods their child's memorabilia, State v. Vincent, 229 Conn. 175, it did not require a "stretch of the imagination" for the issuing authority here to conclude that the defendant would be in possession of the materials sought by the warrant. Having exploited a child in the manner he allegedly did, the defendant could reasonably be expected to possess and retain the artifacts and images of that exploitation, as well as the artifacts and images of children exploited by others, for considerable periods of time — particularly given that "photographs guarantee that there will always be an image of the child at the age of [the defendant's] sexual preference." State v. Kirsch, 139 N.H. 647, 651, 662 A.2d 937 (1995).
As the defendant notes in his Memorandum, it is true that the location sought to be searched here was a relatively new residence for the defendant and not the residence he occupied at the time of his interaction with the minor. However, contrary to the defendant's assertion, his then recent relocation does not mean that information concerning his activities at his prior residence was necessarily stale. First of all, the warrant here still sought evidence from the defendant's home (albeit his new one) — the type of "secure operational base" which, as a general matter, has been held to render "a warrant less likely to be stale." State v. Respass, 256 Conn. 164, 180, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S.Ct. 478, 151 L.Ed.2d 392 (2001). Secondly, and perhaps more importantly, our Court has recognized specifically that valued possessions will be commonly retained by their owner even after the owner takes up a new residence. See State v. Vincent, 229 Conn. 164 (in that "parents keep their children's photographs, birth certificates and childhood artifacts with them [even] as they move from place to place over extended periods of time," search warrant for defendant's residence issued 13 months after the alleged crime was proper even though defendant had lived in the residence only for a matter of weeks prior to the issuance of the warrant).
In reaching this conclusion, the court has considered — but ultimately is not persuaded by — the defendant's claim that the warrant affidavit must be deemed stale because it fails to establish that the defendant was engaged in an ongoing pattern of activity with the minor or with other similar victims. To begin, the court does not agree wholly with the defendant's factual premise — that is, that the defendant's conduct was in fact an isolated incident. While it is true that the affidavit fails to describe any recent interaction between the defendant and the minor, and is silent as to any similar conduct between the defendant and other children, it does provide that the defendant had repeated interaction with the minor during the period at issue. Specifically, the warrant details that the defendant frequently visited the minor when she was home alone, that he photographed her on at least two separate occasions and discussed those "sessions" with her on other occasions, and that he had improper physical contact with the minor on still other occasions. Although the warrant may not indicate over what period of time these events took place, the inappropriate interaction between the defendant and the minor cannot fairly be characterized as "isolated," at least to the extent that the word connotes a single or aberrant occurrence.
The warrant affidavit also supports a finding of an ongoing pattern of activity in another sense as well. Here, while the affidavit here may not indicate that the defendant was involved in an ongoing criminal operation (in the classic sense that might be alleged in a search warrant pertaining to a drug selling operation), the affidavit does support the conclusion that the defendant was likely involved in the ongoing use of the materials which were the subject of the warrant. Specifically, the issuing authority here was entitled to conclude by the application of common sense that the type of materials sought by the warrant would be repeatedly viewed by the defendant over a considerable period of time to fulfill the defendant's ongoing sexual needs and to provide for his continuing sexual gratification. In the court's view, ongoing activity of any kind, be it a defendant's continuing criminal conduct or a defendant's continuing utility of the materials sought, serves to rebut any suggestion of staleness. In the same way that drugs are more likely to be found (even on the basis of dated information) where the defendant is involved in a continuing and regenerating drug conspiracy, materials are more likely to be found (even, again, on the basis of dated information) where the defendant derives continuing utility from them, and his interest in them is regenerating. For these reasons, the court cannot agree with the defendant's claim that there is no evidence of a pattern of continuing activity here. To the contrary, such a pattern exists both in the repeated interaction between the defendant and the minor, and in the ongoing nature of the defendant's utility for these types of materials.
Alternatively, and to the extent the affidavit here does fail to allege ongoing activity (at least in a more classic sense), the court rejects the defendant's suggestion that, absent an allegation of ongoing activity, a warrant based upon dated information must be deemed stale. In the court's view, a pattern of ongoing activity is not necessary to defeat a staleness challenge where there are other reasons to find that the defendant has likely retained the evidence sought in the warrant. In other words, "[w]hile [the defendant] is correct that a continuing pattern would support a warrant, so, too, do `other good reasons.'" United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000), cert. denied, 534 U.S. 858, 122 S.Ct 135, 151 L.Ed.2d 88 (2001). Here, these "other good reasons" have been described and discussed at considerable length in this section (Section IIIB) of this opinion. Even absent a continuing course of conduct, these reasons provided a substantial basis upon which the issuing judge could reasonably conclude that the defendant, despite the passage of time, would be in possession of the materials sought by the warrant.
For the reasons stated, and having afforded the issuing judge's determination the great deference to which it is entitled, the court concludes that the issuing judge could have reasonably determined that the information in the warrant affidavit was not stale and that probable cause existed to issue the warrant. Accordingly, the defendant's second claim must be denied.
See Section II herein.
C PROBABLE CAUSE TO SEARCH COMPUTERS CT Page 18254
The defendant's third claim merits relatively little discussion. Here, the defendant maintains that even if the information in the warrant affidavit was timely, the information failed to establish probable cause to believe that the images sought by the warrant would be stored on computer. The state disagrees, and argues that the allegations contained in the affidavit and, more generally, the nature of digital technology, combined to establish probable cause to believe that images would be stored on computer and thus lawfully justified the search authorized here. The court is again persuaded by the argument advanced by the state.In the court's view, the contents of the affidavit and the reasonable inferences which could be drawn therefrom provided more than ample reason for the issuing judge to authorize the search of computers within the defendant's residence. The affidavit submitted in support of the warrant makes a number of references to digital photography and computers. Paragraph 11 of the warrant affidavit states in relevant part: "[I]t is a known fact that photographs that are taken with a digital camera are downloaded in computers or on a CD/Disk. That the photographs John Foran took of the 12 year old victim were taken with a digital camera." Furthermore, paragraph 7 states that the defendant told the minor that "he would be sending the photographs to modeling agencies on his computer." In addition, the minor's sister is reported in paragraph 9 of the affidavit to have told police that the defendant owned "some movie editing software," that he "makes movies on the computer [and] liked to do movie editing on the computer," and that he "has a video camera that can connect to the computer." Although the judge likely determined that the defendant never actually intended to send the minor's photographs to modeling agencies, these statements provided the judge a logical basis to conclude that the defendant knew that digital images could be downloaded to and stored in a computer, that he had the technology and know-how to do so, and that he had, in fact, downloaded and stored the types of images at issue here.
Indeed, even without these statements recounting the defendant's knowledge and experience with digital technology, the issuing judge would have been entitled to reasonably infer that images may have been downloaded to computer. In the court's view, digital technology has become sufficiently commonplace and its capabilities sufficiently well known to the general public so that this conclusion could be drawn from a defendant's possession of this type of equipment even where the affidavit lacks a specific recitation of a defendant's level of computer "literacy."
In challenging the last of these conclusions, the defendant makes much of the fact that the affidavit did not indicate that the minor had actually witnessed any images being downloaded to or being displayed upon a computer. But a finding of probable cause is in no sense dependant upon her having done so. Where the presence of certain items in a particular location can be reasonably inferred from events and circumstances, probable cause to search for those items may exist irrespective of whether the items sought have actually been seen in the location. "In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." Buddhu, 264 Conn. 460. In other words, "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing . . . [and] to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands." Id. at 463.
In light of these principles, the issuing judge here was entitled to conclude from the defendant's use of digital photography equipment and his possession, knowledge and prior use of computers, that the images sought by the warrant may have been stored by the defendant on a computer. Merely because the defendant can point to a possibility that the images in question may not have been stored in this fashion does not undermine this finding of probable cause or otherwise provide a sufficient basis for this court to second-guess and to overrule the issuing judge's contrary, yet wholly reasonable and logical, determination. Accordingly, the court finds that the search warrant properly authorized the search for and seizure of computers located within the defendant's residence, and that the defendant's challenge in this regard is without merit.
D OVERBREADTH
The final issue before the court is whether the warrant was overbroad. The defendant contends that the warrant was unconstitutionally overbroad in that it authorized police to conduct a search that extended to all computers, computer equipment, records, documents and materials within the defendant's residence. It is the defendant's claim that because the warrant affidavit specifically identified only a certain Compaq computer as possibly containing the images sought, and made no mention whatsoever of any other computers or equipment or of any other records, documents and materials, the warrant could lawfully authorize only the search for and of the Compaq computer. This court disagrees.
See note 2, supra, and its accompanying text.
As noted earlier, see note 3, supra, police did not locate a Compaq computer in their search of the defendant's residence. They did, however, locate and seize a Hewlett Packard computer which was later found to contain images of the nature sought by the warrant.
An overbreadth challenge implicates the particularity requirement of the fourth amendment. "The fourth amendment requires all warrants to particularly describ[e] the place to be searched, and the persons or things to be seized. The particularity requirement reflects two concerns . . . The first concern is the deterrence of general, exploratory rummaging in a person's belongings . . . The second concern is that the scope of a lawful search will be limited to the places in which there is probable cause to believe that [the items sought] may be found." (Internal quotation marks omitted.) State v. Jarrett, 82 Conn.App. 489, 499, 845 A.2d 476, cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). However, in addressing this particularity requirement, our Court has made clear that "the description of items to be seized in a warrant need only be as specific as the circumstances and the nature of the activity under investigation . . . In construing the terms of a warrant, the circumstances and nature of the activity under investigation dictate a practical margin of flexibility . . . Furthermore, when police search for an item, they are entitled to search any container that logically could hold the item sought." (Citations omitted; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 704, 759 A.2d 995 (2000).
Given the information known to the police and the nature of the images sought and the technology at issue, the warrant here was, simply put, as particular as it could be and thus as particular as the constitution required it to be. As explained earlier in this decision, the warrant established that there was probable cause to believe that the images sought would be within the defendant's residence. The warrant also established that the defendant had owned a Compaq computer, both at the time the minor was photographed and some weeks before the date of the affidavit. But contrary to the defendant's contention, the affidavit's reference to the defendant's ownership of the Compaq computer at these points in time did not mean that the images sought by the warrant could be contained only in that particular computer. Indeed, it was impossible for the police to know or even to surmise where the defendant would be storing the images at the time of the execution of the warrant — particularly given the ease with which digital information can be transferred from one device (such as a digital camera or computer hard drive) to another device (such as a disk or a hard drive in a different computer), and can be reproduced into a wholly different form or format (such as "traditional" photographs, compact discs and DVDs, to name just a few).
For this reason, the issuing judge was entitled to authorize the search for all images of child pornography, regardless of their format, which were located within the defendant's residence. Of course, it may have been reasonable to conclude, given the information police had at the time of the affidavit, that a Compaq computer would be located within in the defendant's residence and would be found to contain the images police were seeking. But it was equally reasonable to conclude that the images would instead be contained, or would also be contained, in whole or in part in other computers or data storage devices, or would exist in other formats altogether, in the residence. Under such circumstances, the warrant need not have been limited in its scope solely to a search of the Compaq computer. See State v. Montgomery, 254 Conn. 694, 704, 759 A.2d 995 (2000) ("when police search for an item, they are entitled to search any container that logically could hold the [type of] item sought").
In other words, as the court sees it, the defendant simply reads too much into the fact that the affidavit specified a particular brand of computer the defendant owned at one time. Granted, the specific make and/or model of a computer would be critical (and would limit the scope of the warrant) in a case where the computer itself, as opposed to its possible contents, was the evidence sought to be seized. So, for example, if the police had sought to seize the Compaq computer here because it was alleged to be stolen property, then the warrant could not have constitutionally authorized the seizure of any other computer.
But the significance of the instant affidavit's reference to the defendant's ownership of a Compaq computer was not, as the defendant argues, that the defendant owned a Compaq as opposed to, for instance, an HP, and that the images sought could only be found therein. Rather, this information was significant because it demonstrated to the issuing judge that the defendant, in fact, owned a computer and that as a result, he possessed the capability of storing the images there. Thus, the reference to the defendant's ownership of a computer served not to narrow the scope of the search (as the defendant asserts), but rather to expand the search to a type of "container" which may have been otherwise overlooked or, alternatively, considered beyond the purview of the warrant's authority.
Although Connecticut courts do not appear to have considered an overbreadth challenge in the particular context presented here, other courts have done so and have rejected such a claim. Most notable in this regard is United States v. Grimmett, 439 F.3d 1263 (10th Cir. 2006), a case which is discussed at some length in the State's Memorandum of Law, and which involves a factual scenario which mirrors in many important respects the facts of the case here. In Grimmett, an informant told police that she had viewed a video of child pornography being played on the defendant's computer, and that the defendant had expressed an interest in engaging in sexual relations with children. On the basis of this information, the police applied for and were issued a search warrant for the defendant's residence, authorizing the seizure of all computer hardware and software, all computer equipment and storage devices, and all other forms of media that contained images of child pornography, including but not limited to magazines, books, films and videocassettes. After execution of the warrant, police discovered over 1,500 images and nearly 150 movies of child pornography stored within the defendant's residence.
At trial, the defendant moved to suppress the evidence seized pursuant to the warrant on a number of grounds — among them that the warrant was overbroad in that "the issuing judge did not have probable cause to issue a warrant for more than the child pornography contained on his computer." Id. at 1270. In other words, the defendant claimed that "there was no probable cause to support a warrant for the seizure of videotapes and other non-computer related property." Id. The trial court disagreed and denied the motion to suppress.
On appeal, the Court of Appeals affirmed the trial court's ruling. The court held that even though the affidavit referred only to child pornography shown on computer, and was entirely silent as to the existence of any other images in any other "container" or format, "probable cause existed to search for child pornography present in the defendant's residence, regardless of the type of media in which it was contained. (Emphasis added.) Id. at 1268. On that basis, the appellate court rejected the defendant's claim of overbreadth, noting first, that the broad search for all computer related equipment was necessary given that such equipment is useful to the "production, communication, distribution and storage" of child pornography, id., at 1270, and second, that the scope of the search for non-computer related property was sufficiently circumscribed in the warrant to comport fully with constitutional requirements.
As in Grimmett, and as in other similar cases such as United States v. Upham, 168 F.3d 532 (1st Cir.), cert. denied, 527 U.S. 1011 (1999), and United States v. Lacy, 119 F.3d 742 (9th Cir. 1997), cert. denied, 523 U.S. 1101 (1998), the warrant at issue here expressly limited the extent of the search to the discovery of only one particular type of image — that is, child pornography. In doing so, the warrant clearly defined its parameters and was as particular as it could be, thereby prohibiting the general and exploratory search which runs afoul of the fourth amendment. Indeed, as in Upham, this court is persuaded that the search authorized here for all images of child pornography stored in any computer equipment and depicted in any media or format was "about the narrowest definable search and seizure reasonably likely to obtain the images [sought]," and "not inherently more intrusive than the physical search of an entire house for a weapon or drugs." Upham, 168 F.3d 535.
It is noteworthy that the defendant here cites no case — and certainly not one involving a search for child pornography — from any jurisdiction holding that a warrant like that in the instant case is overbroad. To the contrary, based upon this court's own research, it would appear that the vast majority of state and federal courts considering the issue have routinely and summarily dismissed claims of overbreadth in the context of warrants issued for the seizure of child pornography. See e.g., Annot. 84 ALR 5th 1, and cases cited therein.
In sum, there was probable cause in this case to believe that the defendant possessed certain images within his residence, but it was impossible to know precisely in what form the images would be found or in what types of containers the images would be stored. Under such circumstances, the issuing judge was entitled to reasonably conclude that the defendant may have possessed these images not only in the hard drive of the Compaq computer specifically referred to in the affidavit, but also in or upon any other computer, storage device, record or document within the residence. The warrant, therefore, "was as specific as the circumstances and nature of the activity under investigation permitted," State v. Jarrett, supra, 82 Conn.App. 499 — and, as such, was not constitutionally overbroad. Accordingly, the defendant's final claim must fail.
IV CONCLUSION
For all of the reasons set forth above, the defendant's motion to suppress is hereby denied.