2nd Cir. Says Child Porn Evidence Can’t Be Tossed

     (CN) – A huge amount of child pornography found in a New York man’s home cannot be suppressed because the search warrant was based on a “stale” incident, the 2nd Circuit ruled.
     Government agents found more than 1,000 files of child porn at the home of Buffalo resident James Raymonda, more than nine months after someone accessed child-porn files from his IP address.
     Raymonda was identified by Time Warner Cable after the San Diego Cyber Crimes Unit discovered the downloads during an investigation.
     Special Agent Adam Ouzer of the Department of Homeland Security asked for a search warrant.
     In his affidavit, he stated that “individuals who have a sexual interest in children” often hoard images of child porn, “retaining pictures, films, photographs, negatives … and videotapes for many years.”
     While Homeland Security agents searched Raymonda’s house, he admitted that he had viewed child pornography online.
     Raymonda was ultimately indicted on four charges of knowingly possessing child pornography and one charge of knowingly receiving child pornography.
     He asked the court to suppress the evidence found in his home, stating that the search warrant was not supported by probable cause.
     A magistrate judge agreed, citing a lack of evidence that Raymonda had a general interest in child pornography or that he had saved the images to his hard drive.
     The magistrate also called Ouzer’s affidavit “grossly negligent” and said he should have known about the staleness of the nine-month-old IP logs.
     U.S. Circuit Judge Gerard Lynch, writing on behalf of a majority of the three-judge panel, agreed with Raymonda that the evidence presented by Ouzer was not sufficient to identify him as a child-porn collector.
     “Far from suggesting a knowing and intentional search for child pornography, in short, the information in Agent Ouzer’s affidavit was at least equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window,” Lynch wrote.
     However, despite the lack of probable cause, Lynch stated that the evidence should not be suppressed because Ouzer acted in good faith.
     “Agent Ouzer did not recklessly or even carelessly include false information in his affidavit, but rather genuinely believed that the GET requests revealed that Raymonda ‘clicked’ to view the thumbnail images,” the judge wrote.
     But U.S. Circuit Judge Denny Chin filed a dissenting opinion, describing Ouzer’s conduct as “grossly negligent.”
     “The evidence showed that the agent submitted a false and misleading affidavit to obtain the warrant, in conscious disregard of the truth and in heedless indifference to the defendant’s Fourth Amendment rights,” Chin wrote.

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