The opinion of the court was delivered by: Judge Thomas M. Rose
ENTRY AND ORDER OVERRULING ZAVAKOS'S MOTION TO SUPPRESS (Doc. #10)
Defendant George Zavakos ("Zavakos") is charged with one count of transportation of child pornography in violation of 18 U.S.C. §2252(a)(1)and one count of possession of material constituting or containing child pornography in violation of 18 U.S.C. §2252(a)(4)(B) and (b)(2). These charges stem, at least in part, from the search of a residence located at 5712 Marblehead Drive in Dayton, Ohio, and the search of a residence at 5133 Rosemont Boulevard in Dayton, Ohio.
Now before the Court is Zavakos's Motion To Suppress any evidence seized as a result of the search of the residence at 5712 Marblehead Drive. (Doc. #10.) The residence at 5712 Marblehead Drive was searched using a warrant issued by Magistrate Judge Michael R. Merz on January 19, 2005. This Warrant was executed on January 24, 2005.
Based upon the search of the residence at 5712 Marblehead Drive and conversations there with Zavakos's mother, a warrant was obtained to search a residence at 1533 Rosemont Boulevard. The second Warrant was issued by Magistrate Judge Michael R. Merz on January 24, 2005, and was executed on that same day.
The Court conducted a hearing on Zavakos's Motion To Suppress on March 30, 2006, at which the Government presented the testimony of one witness, FBI Special Agent Jeffrey L. Coburn ("SA Coburn"). Zavakos then attempted to file what appears to be a Memorandum In Support of his Motion To Suppress. However, this document was deleted by the Clerk's office. Zavakos's Counsel was instructed to resubmit the document, but he did not do so. Subsequently, the Government filed its response in opposition to Zavakos's Motion To Suppress. (Doc. #14). The time has run and Zavakos has not filed a reply memorandum. Zavakos's Motion To Suppress is, therefore, ripe for decision. The law as it pertains to Zavakos's Motion To Suppress will first be set forth followed by an analysis of the Motion.
THE RELEVANT LAW REGARDING MOTIONS TO SUPPRESS
The Fourth Amendment to the Constitution of the United States protects citizens from the unreasonable search of their property. The Fourth Amendment specifically provides that, "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Groh v. Ramirez, 540 U.S. 551, 557 (2004). In addition, the officer executing the search warrant must ensure that the search is lawfully authorized and lawfully conducted. Id. at 563. Finally, the defendant has the burden of proving that a search is unconstitutional. United States v. Carter, Case No. 91-1509, 1992 WL 102506 at *2 (6th Cir. Apr. 29, 1992).
Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion." United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999)(citing United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). Probable cause exists "when there is a 'fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003)(quoting United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)).
The Fourth Amendment requires only that the magistrate had a "substantial basis for. concluding" that a search warrant would uncover evidence of wrongdoing. United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000), cert. denied, 531 U.S. 907 (2000). Therefore, a magistrate's findings regarding probable cause should not be set aside unless arbitrarily exercised. United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996)(citing United States v. Pelham, 801 F.2d 875, 877 (6th Cir. 1986), cert. denied, 479 U.S. 1092 (1987)).
Affidavit Supporting Search Warrant
For a judge to be able to perform his or her official function regarding search warrants, the affidavit submitted as part of the request for the search warrant must contain adequate supporting facts about the underlying circumstances to show that probable cause exists for the issuance of the warrant. Smith, 182 F.3d at 477. Said another way, the affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause. Helton, 314 F.3d at 819 (quoting Illinois v. Gates, 462 U.S. 213 (1983)).
A court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation and if the supporting document accompanies the warrant. Groh, 540 U.S. at 557-58. Zavakos does not challenge the fact that the Applications and Affidavits in this case are incorporated into the Warrants.
When reviewing the sufficiency of a supporting affidavit, a "totality of the circumstances" approach is used. Allen, 211 F.3d at 972 (citing Gates, 462 U.S. 213). Also, the review is limited to the "four corners" of the affidavit. United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006), cert. denied, 2006 WL 1079063 (2006).
The affidavit is to be interpreted in a commonsense and realistic manner without placing technical requirements of elaborate specificity on it. United States v. Hatfield, 599 F.2d 759, 761 (6th Cir. 1979). Also, when reviewing the sufficiency of an affidavit, courts are to accord the judge's determination "great deference" and not engage in a de novo review. Allen, 211 F.3d at 972-73.
Finally, for probable cause considerations, "it is imperative that affidavits accurately reflect the facts of the particular situation at hand." Weaver, 99 F.3d at 1378. For example, statements by an affiant that are intentionally false or made with reckless disregard for the truth must be stricken before the probable cause consideration. United States v. Cummins, 912 F.2d 98, 100 (6th Cir. 1990).
In addition to the accuracy requirement, the affidavit must present facts regarding a presently existing situation. Since probable cause to search is concerned with facts relating to a presently existing situation, a problem arises when probable cause which once existed has grown stale. United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998), cert. denied, 525 U.S. 1086 (1999). Said another way, probable cause "cannot be based upon stale information that no longer suggests that the item sought will be found in the place to be searched." United States v. Shomo, 786 F.2d 981, 983 (10th Cir. 1986)(citing United States v. Haimowitz, 706 F.2d 1549, 1554-55 (11th Cir. 1983), cert. denied, 464 U.S. 1069 (1984)).
The standard of review for a determination of staleness is the same as the standard of review for determining the sufficiency of the affidavit. United States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001). Further, whether information contained in a affidavit is stale is determined on a case-by-case basis. Spikes, 158 F.3d at 923.
The question of staleness depends upon the nature of the crime and is not measured solely by counting the days between the events listed in the affidavit and the application for the warrant. Id. As a result, a number of factors may be considered to determine if the information contained in an affidavit is too stale to support a finding of probable cause. The factors are: (1) the character of the crime (chance encounter or regenerating conspiracy); (2) the criminal (nomadic or entrenched); (3) the thing to be seized (perishable and easily transferable or of enduring utility to its holder); and (4) the place to be searched (criminal forum of convenience or secure operational base). Greene, 250 F.3d at 480-81. "As these variables demonstrate, even if a significant period has elapsed since a defendant's last reported criminal activity, it is still possible that, depending upon the nature of the crime, a magistrate may properly infer that evidence of wrongdoing is still to be found on the premises." Spikes, 157 F.3d at 923 (referring to United States v. Greany, 929 F.2d 523, 525 (9th Cir. 1991).
Evidence of ongoing criminal activity will generally defeat a claim of staleness. Id. at 481. Further, "where the criminal activity occurred in a secure operational base, the passage of time becomes less significant." Greene, 250 F.3d at 480-81. (citing Spikes, 158 F.3d at 923). For example, in the case of drug dealers, evidence is likely to be found in the place where the dealers live. United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998), cert. denied, 126 S.Ct. 148 (2005). Also for example, images of pornography are "often stored on the user's hard drive for periods as long as eight or nine months." United States v. Roby, 27 Fed.Appx. 779, ...