The case is United States v. Boles, decided on January 25. The FBI learned about a website that featured child pornography. The FBI operated an undercover operation to snare people who accessed the website. The FBI saw that defendant accessed the website in September 2010, but nearly a year later the FBI applied for a search warrant even though they worried the application might be stale, "but it's worth seeing if the AUSA will go for it." The judge signed the warrant, the FBI found child pornography on the defendant's computers, he was found guilty, and now he claims the warrant violated the Fourth Amendment.
Even child pornography defendants have rights. The Court of Appeals (Chin, Wesley and Carney) notes the probable cause issue is a close one, but the Court does not resolve that question because it can uphold the conviction under the good-faith exception to the Fourth Amendment, an exception to the requirement that the police have a valid warrant to conduct a search. The Court says the officers were able to execute the warrant because a federal judge signed off on it.
the district court made an independent determination that the warrant was supported by probable cause, which it based primarily on: (1) Bolesʹs membership in Girls.Forumcircle.com and his postings of child erotica; (2) Bolesʹs visit to the FBI Undercover website using the unique code that was emailed to him; and (3) Bolesʹs prior conviction for possession of child pornography. Even assuming that these facts did not add up to probable cause, the existence of probable cause in this case is an exceedingly close question. Accordingly, the courtʹs finding of probable cause was not facially insufficient such that any reliance upon the warrant would be unreasonable.
Defendant also loses the appeal because "the representations in the affidavit here were not intentionally false, reckless, or grossly negligent such as to otherwise preclude the good faith exception." While the officers did wonder if the search warrant application might be stale because of the passage of time, "there was nothing inappropriate in their leaving the issue to the prosecutor and court to resolve. As this Court has repeatedly recognized, there is 'no bright‐line rule for staleness,' which depends 'on the basis of the facts of each case.'" "Even assuming the information was stale, the agents disclosed the information to a neutral and detached judge, who was made aware of the 'staleness issue' and the relevant facts and circumstances, but nevertheless issued the warrant. The agents cannot be said to have acted in bad faith by asking a judge to decide the question of staleness."