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This matter is before the Court on the Report and Recommendation of the

Magistrate Judge (“R&R”) [39] in which Magistrate Judge E. Clayton Scofield

considered Defendant Benjamin Sander’s (“Defendant” or “Sanders”) Perfected

Motion to Suppress Evidence Resulting from an Unlawful Search Warrant (the

“Suppression Motion”) [35].1 In the Suppression Motion2, Sanders seeks to

suppress a search of his home pursuant to a search warrant issued by a state

1 Defendant previously filed his Preliminary Motion to Suppress Evidence
Resulting from an Unlawful Search Warrant [32]. The Suppression Motion
supersedes the Preliminary Motion and the Preliminary Motion is thus denied as

2 Defendant also filed a Motion to Exclude Government Expert Testimony [30]
and a Motion for Daubert Hearing [31]. Defendant was given up to and including
March 21, 2013, to perfect these motions. Not having done so by the deadline set,
the Court considers these motions as abandoned, and they are denied as moot.

magistrate judge upon an affidavit presented by a Cobb County detective (the

“Affidavit”). Defendant claims that because the detective omitted material facts

from his Affidavit, the Affidavit does not provide probable cause to support

issuance of the search warrant. Magistrate Judge Scofield, in the R&R,

recommended that the Suppression Motion be denied.


The Affidavit at issue in this motion was prepared by Cobb County

Detective Calhoun who was investigating Defendant’s alleged creation and

possession of child pornographic images.3 The information in the Affidavit largely

was provided by a 16-year old victim of the Defendant. The victim told Detective

Calhoun that she had been sexually abused by Defendant and that Defendant had

posted photographs and videos of his abuse of her on the internet. The state

magistrate judge who considered the warrant application, including the Affidavit

supporting it, conducted a video conference with the detective who authored the

Affidavit. During the conference, Detective Calhoun advised the state magistrate

judge that the victim had stated to him that from the time of her fourteenth

birthday, in October 2009, until about October 12, 2011, the Defendant, her uncle,

3 The facts are set out in more detail in the R&R and, in the absence of an
objection, and the Court finding no plain error in them, the facts in the R&R are
adopted by the Court.


had molested her including by fondling, oral sex, and intercourse. The victim

advised that this sexual abuse occurred in Defendant’s home, where the victim then

had resided. During the video conference, Detective Calhoun also provided

information about the victim’s background.

The state magistrate judge, having received the information in the Affidavit,

as supplemented during the video conference, determined that there was probable

cause to issue a warrant to search Defendant’s home. The warrant was issued and

the home was searched. During the search, a variety of child pornographic

materials were seized, along with other evidence.

Magistrate Judge Scofield, based on the record in the case, determined that

the warrant was properly issued and recommended that the Suppression Motion be

denied. Defendant did not assert any objections to the R&R.


After conducting a careful and complete review of the findings and

recommendations, a district judge may accept, reject, or modify a magistrate

judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59;

Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A

district judge “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.”


28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh

consideration to those issues to which specific objection has been made by a

party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)

(internal citations omitted). With respect to those findings and recommendations

to which a party has not asserted objections, the Court must conduct a plain error

review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).



Probable Cause

Under the Fourth Amendment “no Warrants shall issue, but upon probable

cause.” U.S. Const. amend. IV. “Probable cause to support a search warrant exists

when the totality of the circumstances allow a conclusion that there is a fair

probability of finding contraband or evidence at a particular location.” United

States v. Brundidge,170 F.3d 1350, 1352 (11th Cir. 1999). “[T]he [warrant]

affidavit must contain sufficient information to conclude that a fair probability

existed that seizable evidence would be found in the place sought to be searched.”

United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (internal quotation

marks and citation omitted).

In determining whether probable cause exists:

The task of the issuing magistrate is simply to make a practical, common-
sense decision whether, given all the circumstances set forth in the affidavit


before him, including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a substantial
basis for . . . concluding that probable cause existed.

Id. at 238-39, 103 S. Ct. at 2332 (brackets and internal quotation marks omitted)

(citing Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960),

overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S.

Ct. 2547, 2549 (1980)).

The information supporting the government’s application for a search

warrant must be timely. See Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct.

138, 140 (1932) (“[I]t is manifest that the proof must be of facts so closely related

to the time of the issue of the warrant as to justify a finding of probable cause at

that time.”); United States v. Holt, 408 F. App’x 229, 234 (11th Cir. 2010); United

States v. Domme, 753 F.2d 950, 953 (11th Cir. 1985); United States v. Bascaro,

742 F.2d 1335, 1345 (11th Cir. 1984), abrogated on other grounds by United States

v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir. 2007)).

The staleness doctrine requires that the information supporting the

government’s application for a warrant show that probable cause exists at the time

the warrant issues. See United States v. Harris, 20 F.3d 445, 450 (11th Cir.1994).

Domme, 753 F.2d at 953 (11th Cir. 1985). There is no particular rule or time limit


for when information becomes stale. See Harris, 20 F.3d at 450. “Staleness is an

issue which must be decided on the peculiar facts of each case.” Bascaro, 742 F.2d

at 1345 (quoting United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978)); see

also Domme, 753 F.2d at 953 (“[S]taleness is an issue that courts must decide by

evaluating the facts of a particular case . . . .”).

The court may consider the maturity of the information, the nature of the

suspected crime (discrete crimes or ongoing conspiracy), habits of the accused,

character of the items sought, and nature and function of the premises to be

searched. Harris, 20 F.3d at 450; see also United States v. Hooshmand, 931 F.2d

725, 735-36 (11th Cir. 1991); Cauchon v. United States, 824 F.2d 908, 911 (11th

Cir. 1987); Bascaro, 742 F.2d at 1345-46. “In general, the basic criterion as to the

duration of probable cause is the inherent nature of the crime.” United States v.

Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983). The courts distinguish between

criminal activity which is protracted and continuous and that which is isolated.

Bascaro, 742 F.2d at 1345-46 (quoting Bastida v. Henderson, 487 F.2d 860, 864

(5th Cir. 1973)); see also Harris, 20 F.3d at 451.

“Stale information is not fatal where the government’s affidavit ‘updates,

substantiates, or corroborates the stale material.’” United States v. Green, 40 F.3d

1167, 1172 (11th Cir. 1994) (quoting Harris, 20 F.3d at 450 (11th Cir. 1994)).


Accord United States v. Magluta, 198 F.3d 1265, 1272 (11th Cir. 1999), vacated in

part on other grounds, 203 F.3d 1304 (11th Cir. 2000); United States v. Butler, 102

F.3d 1191, 1198 (11th Cir. 1997).

The Court has reviewed the R&R, the Affidavit, and the other information

that was available to the state magistrate judge to evaluate if probable cause existed

to support issuance of the warrant. The Court specifically considered the

Defendant’s argument that the information in the Affidavit and provided in the

video conference was stale and thus did not support the existence of probable


The Court finds that the information provided to the state magistrate judge

was not stale and did not prohibit a finding that probable cause existed for the

warrant to be issued. Here, the downloaded pictures and videos were represented

by the victim to have been made as a part of an ongoing course of alleged criminal

sexual molestation that ended only two months before the warrant was sought.

The alleged sexual molestation and the photographs of them were not isolated

events, but part of protracted, continual conduct. A person who takes photographs

or videos and loads them onto a computer device normally intends to retain them

as a record of the event or the memory for a period to extend well beyond when the

images are initially loaded on the device. The record here supports there was


probable cause that Defendant created and maintained in his home child

pornographic images, and that they were loaded and expected to be maintained on

a computer, and as a result the crime to which the Affidavit was addressed was,

based on the facts here, continuous and protracted. The Court determines that the

information upon which the search warrant was issued was not stale and provided

probable cause for the search warrant to be issued.

B. Good Faith exception

In United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 3420 (1984),

the Supreme Court held that evidence need not be suppressed when police obtain

the evidence through objective, good faith reliance on an initially valid warrant that

is later found to lack probable cause. “The ‘good-faith inquiry is confined to the

objectively ascertainable question whether a reasonably well trained officer would

have known that the search was illegal despite the magistrate’s authorization. In

making this determination, all of the circumstances . . . may be considered.’”

United States v. Taxacher, 902 F.2d 867, 871 (11th Cir. 1990) (quoting Leon, 468

U.S. at 922 n.23, 104 S. Ct. at 3420 n.23). Such circumstances may include

evidence “beyond the four corners of the affidavit.” United States v. Robinson,

336 F.3d 1293, 1297 (11th Cir. 2003); Martin, 297 F.3d at 1318-19.


A warrant affidavit violates the Fourth Amendment when it contains

omissions ‘made intentionally or with a reckless disregard for the accuracy of the

affidavit.’” Id. at 1326-27 (quoting United States v. Martin, 615 F.2d 318, 329

(5th Cir. 1980)). [O]missions that are not reckless, but are instead negligent, or

insignificant and immaterial, will not invalidate a warrant.” Madiwale, 117 F.3d at

1327 (citation omitted); see also United States v. Sims, 845 F.2d 1564, 1571 (11th

Cir. 1988) (“Insignificant and immaterial misrepresentations or omissions will not

invalidate a warrant.” (quoting United States v. Ofshe, 817 F.2d 1508, 1513 (11th

Cir. 1987))).

Having considered the R&R findings and the record in this matter, and even

assuming there was an absence of probable cause or evidence to support it in the

Affidavit - - which the Court finds there was not – the Court finds that the state

magistrate judge who issued the warrant acted in good faith reliance on the


Defendant next argues, without citation to anything in the record, that the

detective was aware of a number of facts that contradicted the reliability or

veracity of the information received from the victim. Defendant alleges that the

detective failed to inform the state magistrate judge of facts that would have

discredited the veracity and reliability of the alleged victim. As Defendant put it:


“There is no doubt that the magistrate judge would have wanted this information in

reaching its probable cause determination.” Defendant, however, has failed to

make a substantial preliminary showing that the affiant here knowingly and

intentionally made a false statement or omission with reckless disregard for its

truth, and that the false statement or omission was necessary for a finding of

probable cause.

The Affidavit and testimony supporting the search warrant are considered

presumptively valid and sufficient to support the good faith exception, see Franks,

438 U.S. at 171, 98 S. Ct. at 2684. 4 Even if the Affidavit were found to lack

probable cause to be issued, the Court finds the good faith exception applies.


Finding that Magistrate Judge Scofield did not plainly err in his

recommendation that probable cause existed to issue the warrant and that the Leon

good faith exception otherwise applies, the Court determines that the Suppression

Motion is required to be denied.

4 The Court determines further that, in the absence of a substantial preliminary
showing that Detective Calhoun knowingly and intentionally made a false
statement or omission in the Affidavit, Defendant is not entitled to a hearing under
Franks v. Delaware, 438 U.S. 154 (1978).



IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge E.

Clayton Scofield’s Report and Recommendation [39].

IT IS FURTHER ORDERED that Defendant’s Perfected Motion to

Suppress Evidence Resulting from an Unlawful Search Warrant (the “Suppression

Motion”) [35] is DENIED.

SO ORDERED this 30th day of July, 2013.