Staleness: A Dying Doctrine?

United States v. Carroll | 13-2600

May 2014

Bad facts make bad law. This was true in U.S. v. Carroll, No. 13-2600, which held that evidence more than five years old could support a finding of probable cause to search a home and computers within it.

The Indianapolis police obtained a search warrant for the home of Carroll, as well as all computers and other devices within it. The basis for the search warrant was the statement of a thirteen-year-old girl who reported that when she was eight – five years earlier – she had been molested and photographed naked by Carroll. Her story was memorialized in an affidavit by a detective and used to obtain a search warrant. The search turned up horrific images on Carroll’s computer, and when Carroll was charged, he filed a motion to suppress, arguing that the information in the affidavit was too stale (that is, old) to provide probable cause.

The trial court disagreed, as did the Seventh Circuit. The Court reaffirmed that “recency of information” is a factor bearing on the question of probable cause, but held that the five-year lag in Carroll was no obstacle for two reasons. The first reason is because the affiant (a police detective) peppered his affidavit with statements about “the behavior of child pornography collectors,” which included, among other things, a habit of “hoarding” (especially collectors who produce their own material).

The second reason is that the images were believed to have been placed on Carroll’s computer, and files on a computer do not disappear – even if someone attempts to delete them. The Court explained: “Staleness is highly relevant to the legality of a search for a perishable or consumable object, like cocaine, but it is rarely relevant when it is a computer file.” Furthermore, while the passage of time makes it more likely that a computer file will no longer be recoverable because of overwriting or destruction of the computer, rarely will these possibilities be “so probable as to destroy probable cause to believe that a search of the computer will turn up the evidence sought.”

The Court was careful to state that probable cause was present in this case for both reasons, not one alone. But it is hard to take comfort in that. The same logic applies to the business records of any company: companies “hoard” files and keep them on computers. Does that mean the Seventh Circuit would find probable cause to search a company’s offices and computers if a disgruntled employee reported that five years earlier a supervisor had executed a scheme to defraud the government through the creation of a series of false documents? Or is probable cause conceptualized differently in child pornography cases?