Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten
Appellate Court Holds Child Pornography Search Warrant Established Nexus and Did Not Rely on Stale Information and Police Relied on It in Good Faith
In People v. Parlier, 2023 IL App (4th) 220091, the Fourth District Appellate Court held that a child pornography search warrant did not rely on stale information, that it established a nexus between the offenses and a search of the defendant’s residence, and that the police could rely in good faith on the warrant.
In Parlier, a detective submitted a search warrant in 2018 to search a Mackinaw residence and a Dodge Journey SUV for computers, cell phones, digital media, and other requested items for a child pornography and sexual assault investigation on the defendant. 2023 IL App (4th) 220091 at ¶¶14 – 15.
The probable cause facts were based on interviews conducted by the detective with a 17-year-old female who described how the defendant made her play the piano nude from when she was 5 or 6 until she was a freshman in high school and that he made her try on a chain-mail bikini; another interview with the defendant in which he admitted to sexually assaulting another minor when the minor was 14 – 16 in his vehicle or in his apartment; and an interview with another minor who described being sexually assaulted between seventh grade and her freshman year of high school by the defendant in his apartment and that those assaults were often recorded. 2023 IL App (4th) 220091 at ¶¶8 – 10.
The police initially executed a separate search warrant for another residence that they believed belonged to the defendant, but that residence was vacant. The police later received an anonymous tip that the defendant was driving a Dodge Journey SUV, which they located and learned was registered to his brother. 2023 IL App (4th) 220091 at ¶¶11 – 12.
The defendant’s mother-in-law also told police that the defendant was now living on Deer Lane in Mackinaw. The police located a vehicle registered to the defendant’s wife parked outside a Deer Lane residence. 2023 IL App (4th) 220091 at ¶13.
The police executed the search warrant and found a computer in the Deer Lane residence that contained child pornography files. 2023 IL App (4th) 220091 at ¶20. The trial court denied the defendant’s motion to quash and suppress the search warrant and later found the defendant guilty of child pornography and predatory criminal sexual assault of a child. 2023 IL App (4th) 220091 at ¶¶18, 25.
The appellate court rejected the defendant’s argument that the search warrant was stale. The appellate court determined that the 17-year-old minor’s allegations were as recent as 2 years before, and as long ago as 12 years before, her interview. The appellate court next concluded that the second victim’s allegations were as recent as 5 years before, and as long ago as 8 years before, her interview. 2023 IL App (4th) 220091 at ¶¶36 – 37.
First, the appellate court stated that it was reasonable to conclude that the defendant’s conduct occurred more recently based on the first victim’s allegation that he made a chain-mail bikini, which was unlikely to occur when she was 5. 2023 IL App (4th) 220091 at ¶39.
Second, the appellate court noted that the detective was allowed to rely on federal precedents in good faith. The appellate court noted the Tenth Circuit Court of Appeals’ opinion in United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005), in which the Tenth Circuit stated that child pornography collectors were unlikely to destroy their images because of the difficulty in obtaining them and would thus maintain their collections for significant periods. 2023 IL App (4th) 220091 at ¶40.
The Parlier court also relied on United States v. Ramsburg, 114 Fed.Appx. 78, 79 – 80 (4th Cir. 2004), in which the Fourth Circuit Court of Appeals said on a child pornography search warrant case that staleness becomes less appropriate when the illegal instruments tend to be retained and most child pornography collectors rarely dispose of their collections, and United States v. Carroll, 750 F.3d 700, 704 (7th Cir. 2014), which held that a child pornography search warrant for the defendant’s residence and devices was not stale when a defendant photographed a minor’s genitals five years earlier because of the well-known hoarding habits of child pornography collectors. 2023 IL App (4th) 220091 at ¶¶41 – 42.
The Parlier court also recognized that the Fifth District stated in People v. Jaynes, 2014 IL App (5th) 120048, 11 N.E.3d 431, 381 Ill.Dec. 800, that staleness is more relevant for perishable items but is rarely relevant for computer files. 2023 IL App (4th) 220091 at ¶45. Therefore, the court concluded that the officers could not be faulted for relying on the issuing judge’s determination that the complaint information was not stale. 2023 IL App (4th) 220091 at ¶46.
The court next held that the complaint established a nexus for a search of the defendant’s residence. The court found that an ordinary person would have more than a hunch that a person lived at a certain address after being informed from an apparently reliable source (like the defendant’s mother-in-law) and seeing that person’s spouse’s car parked on that street (as in this case). The court noted that it would be natural to assume that a person lived at that address because people tend to park where they live and tend to live with their spouses and that probable cause does not require certainties nor need to rule out other possibilities. 2023 IL App (4th) 220091 at ¶50.
The court rejected the defendant’s argument that the detective had an insufficient basis for averring that the defendant would have converted old camcorder recordings into digital formats, that he still possessed the camcorder recordings, or that those recordings would be found on Deer Lane. 2023 IL App (4th) 220091 at ¶53. The court stated that it was a commonsense assumption that child pornography would be kept in the residence of the target and the police could rely in good faith on the issuing judge’s determination that there was a nexus with the residence. 2023 IL App (4th) 220091 at ¶55.
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