Search warrants for an illicit collection of images suspected of being stored on a computer never expire because the photos can always be retrieved, Maryland’s second highest court has held in upholding a Germantown man’s conviction for distributing child pornography.
The possibility for image retrieval – even if “erased” – sets searches for stored electronic information apart from warrants for a “perishable” item, such as an illegal drug, which do go “stale” because cocaine and the like are used or sold but generally not kept, the Court of Special Appeals said.
In its 3-0 decision, the court rejected John R. Fone’s argument that the search warrant for his laptop was invalid because officers waited too long – more than two months – to seek the warrant after being told he likely possessed child pornography. By that time, the factual underpinning for probable cause, and thus the warrant, was stale, Fone argued through counsel.
But the Court of Special Appeals said child pornography stored on computers has a “potentially infinite lifespan” because the images cannot be permanently erased. Federal courts outside Maryland have also held that a five-year span between tip and application for a search warrant does not render the warrant stale, the appellate court added.
In Fone’s case, the National Center for Missing and Exploited Children told the Montgomery County Police Department’s Child Exploitation Unit on Jan. 2, 2015, that Google had reported child pornography attached to an email on an account it administers with the address [email protected] The unit’s subsequent investigation of the center’s tip led it to apply for and obtain a search warrant for Fone’s townhouse March 18, 2015.
Officers seized Fone’s laptop, which the police department’s Electronic Crimes Unit examined. Investigators found 10 images of child pornography that had been sent to an unknown third party, according to the court’s opinion.
Fone was charged with 10 counts each of possession and distribution of child pornography, but prosecutors chose not to pursue the possession counts.
Fone’s pretrial motion to suppress the search of the laptop was rejected by a Montgomery County Circuit Court judge, who said the warrant was not stale. In May 2016, a jury found Fone guilty of distribution and he was sentenced to 50 years in prison, with the sentence suspended in favor of five years’ supervised probation.
The Court of Special Appeals, in upholding the warrant and conviction, said a computerized image is essentially a “collector’s item (that) even if deleted can be recovered.”
Judge Deborah S. Eyler wrote the court’s reported opinion earlier this month. She was joined by Judges Kevin F. Arthur and Alan M. Wilner, a retired jurist sitting by special assignment.
Fone’s attorney, Atchuthan Sriskandarajah, said the trial and appellate courts should have deemed the warrant invalid in that it was based on information provided by a private company, Google, without any significant investigation by the police.
“Law enforcement did not due its due diligence,” said Sriskandarajah, of Sris Law Group PC in Rockville. “They said, ‘OK, we’ve got this tip. Let’s move forward.’”
He said no decision has been made regarding an appeal to the Court of Appeals.
The Court of Special Appeals rendered its published decision in John R. Fone v. State of Maryland, No. 962 September Term 2016.