IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter is before the Court on the Report and Recommendation of the
Magistrate Judge (“R&R”)  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”) .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 . 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 
and a Motion for Daubert Hearing . 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.
II. STANDARD OF REVIEW
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).
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
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
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 .
IT IS FURTHER ORDERED that Defendant’s Perfected Motion to
Suppress Evidence Resulting from an Unlawful Search Warrant (the “Suppression
Motion”)  is DENIED.
SO ORDERED this 30th day of July, 2013.