Opinion
No. CR-00 0109519
July 18, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS
By motion dated May 14, 2003, and pursuant to General Statutes § 54-33f and Practice Book § 41-12, the defendant, Lennard Toccaline, moves to suppress contraband and pornographic images obtained from his home as a result of a search and seizure warrant authorized on April 17, 2003. The defendant also seeks the return of seized property pursuant to Practice Book § 41-13. The defendant argues that the warrant is facially invalid and that no probable cause existed for the issuance of the warrant. The defendant cites, inter alia, the fourth amendment to the United States constitution and article first, § 7 of the constitution of Connecticut as support. The state filed a memorandum in opposition to the defendant's motion on June 18, 2003, and on July 8, 2003, the defendant filed a reply memorandum to the state's opposition. The matter came before this court at a hearing on July 9, 2003.
By way of background, on April 23, 2003, members of the Connecticut State Police Computer Crimes and Electronic Evidence Unit (CCEEU) executed a search warrant upon the defendant's residence in Ashford, Connecticut, as part of an ongoing child pornography investigation. The warrant sought permission to search the defendant's residence for evidence of child pornography in the form of electronic communications from email accounts that pertain to the purchase, production, promotion or dissemination of child pornography; evidence of electronic communications with the website Site-Key or usa-lolita.com and any credit card information; notation of any password (s) that may control access; any evidence of "child pornography;" its purchase, production, importation, promotion and or dissemination, by mail or by computer; visual depictions, other material or property that depict "child pornography"; devices used to create, view or store visual depictions of child pornography. The application alleged that the foregoing evidence constituted evidence of or that the defendant participated in the commission of the offense of "Possessing Child Pornography — 53a-196d." CT Page 8453-r
Pursuant to the warrant, the CCEEU seized various computer components, computer accessories, film and paperwork from the defendant's home. During the course of the search, the CCEEU discovered a small amount of marijuana and a pipe in one of the defendant's bedroom dresser drawers. Based on this discovery, the defendant was arrested and charged with violations of General Statutes §§ 21a-279 (c) and 21a-267 (a). To date, however, the defendant has not been charged with any criminal violations arising out of the seizure of the other items, which were the subject matter of the search warrant.
General Statutes § Sec. 21a-279 (c) provides in relevant part: "Any person who possesses or has under his control . . . less than four ounces of a cannabis-type substance . . . for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned."
General Statutes § 21a-267 (a) provides in relevant part: "No person shall use or possess with intent to use drug paraphernalia . . ."
"In the absence of a showing that the information contained in the warrant is false or misleading or that there is a material omission from the affidavit . . . a hearing on a motion to suppress is limited to a review of the four corners of the affidavit." State v. Rosario, 238 Conn. 380, 386, 680 A.2d 237 (1996). Thus, the relevant facts, averred to in the affidavit and upon which the judge relied to find probable cause supporting the issuance of the search warrant, are as follows.
On April 20, 2001, a police detective in Ohio filed a complaint with the National Center for Missing and Exploited Children (NCMEC) after he discovered a website containing child pornography. The NCMEC traced this site to a location in Dallas, Texas and notified the Dallas Internet Crimes Against Children Task Force (ICAC). Thereafter, on or about April 24, 2001, a detective at the ICAC embarked on an undercover investigation. By using an adult credit card verification service located in Santa Clara, California (Site-key), this detective was able to access the suspect website and download from it, graphic images of children in sexually explicit poses. During the course of this investigation and by using the same process, the detective also uncovered thirteen additional websites containing child pornography.
In February of 2002, a search warrant was issued by a Texas magistrate and executed on the premises of Site-key in Santa Clara, California. The search yielded a database containing the names of several thousand customers throughout the United States who used the service to purchase child pornography. The defendant's name was among them.
In November of 2002, the defendant's name and information, gleaned from the database, was forwarded to the CCEEU along with over one hundred names of other Connecticut residents. The database information revealed that in May or June of 2001, two different credit cards, traced to the defendant, were used to purchase access to the website, usa-lolita.com, described as "Best lolitas collection." The information from the database CT Page 8453-s also provided an email address, screen names, and a phone number that were all traced to the defendant's address in Ashford, Connecticut.
As defined in the affidavit, a screen name is the name a user chooses to use when communicating with others online.
On February 2, 2003, the CCEEU conducted a criminal history check, which revealed that the defendant had two first degree sexual assault convictions and was a registered sex offender. Further investigation revealed that the defendant was incarcerated for over two years in the early 1980s for his first conviction and he was reincarcerated on July 13, 2001, after losing the appeal of his second conviction. The defendant was again released from confinement on September 24, 2002, pending a new trial after his habeas petition was granted.
The defendant is not a registered sex offender in Connecticut or any other state, and no requirement exists for such registration since his 1999 conviction was vacated and he was freed from custody. See footnote 6.
See State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001).
See Toccaline v. Commissioner, Superior Court, judicial district of Hartford, Docket No. CV 02 0714816 (September 12, 2002, Rittenband, J.).
On April 16, 2003, detectives in the CCEEU, posing as prospective home buyers, met with a real estate agent for a tour of the defendant's home, which was for sale. The real estate agent informed the detectives that the defendant was living at the home with his wife and daughter. At the residence, the detectives observed a computer in the master bedroom. They also observed pictures of the defendant and male clothes in the bedroom.
In the affidavit, the affiants also discussed methods of transmitting pornography via computer, methods for hiding such information and police methods required to retrieve such information, based on their experience and training. The affiants also averred that persons involved in sending or receiving child pornography tend to retain it for long periods of time. Based on this evidence, the issuing judge found probable cause to believe that evidence gathered in the defendant's home including computer systems, correspondence, and video devices would contain evidence that the defendant participated in the commission of the offense of possessing child pornography in violation of General Statutes § 53a-196d.
General Statutes § 53a-196d states in relevant part: "A person is guilty of possessing child pornography when he knowingly possesses child pornography, as defined in subdivision (13) of section 53a-193"; pursuant to General Statutes § 53a-193, "Child pornography" means "any material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act."
"The law regarding probable cause and the standards for upholding the issuance of a search warrant are well established. We uphold the validity of [a search] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories." (Internal quotation marks omitted.) State v. CT Page 8453-t Buddhu, 264 Conn. 449, 459-60 (2003).
"Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred." (Emphasis added; internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 460. "The touchstone of the Fourth Amendment is reasonableness . . . The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." (Internal quotation marks omitted.) State v. McColl, 74 Conn. App. 545, 559, 813 A.2d 107 (2003).
"Probable cause to search exists if (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched . . . In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place . . . We view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause . . . In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge's] determination." (Internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 460.
It his motion, the defendant points out that the website, usa-lolita.com, which the affiants aver that the defendant accessed, is not one of the fourteen websites listed in the affidavit that the ICAC detective in Dallas confirmed to contain child pornography. The defendant also points out that there is no allegation in the affidavit that the defendant downloaded any illegal child pornography. The defendant argues that without any allegation that usa-lolita.com offered illegal child pornography or that the defendant downloaded illegal pornography, probable cause cannot be found in the application.
The state does not contest the defendant's assertions with respect to the lack of allegation and facts that disclose the content of usa-lolita.com. The state, however, argues that because the defendant's name was in Site-key's database and this list allegedly contained exclusively the names of people who used the service to purchase child pornography, it was reasonable to infer that usa-lolita.com is a child CT Page 8453-u pornography website. The state further argues that the magistrate could reasonably infer, based upon the use of the term "lolita" in usa-lolita.com and the fact that several of the listed websites containing child pornography were similarly named, that usa-lolita.com was a child pornography site.
In State v. Roesing, Superior Court, judicial district of Litchfield, Docket No. CR 00 103351 (July 19, 2001, DiPentima, J.), the defendant moved to suppress evidence of child pornography obtained from his home on the grounds that the search warrant did not contain sufficient facts for a determination of the probable location of the items sought. As in the present case, the search warrant was based, in part, on an investigation conducted by the Dallas, Texas police who had seized a website containing child pornography. The seizure included a customer listing of email addresses and credit card numbers used to purchase access, some of which were linked to the defendant. Unlike the present case, however, the affidavit stated that Roesing had responded to unsolicited emails sent to him by the Dallas Police, as part of a sting operation, and he had specifically requested them to send him child pornography. Roesing had also sent a money order to the police with a request to purchase such materials.
In Roesing, the court was troubled by the issue of probable cause. As the court stated, "[t]he warrant contains no facts for the issuing judge to reasonably infer that the defendant downloaded or ordered any material from the Texas website that was seized in December 1999. While there are sufficient facts set forth to infer that the defendant placed an order for child pornography in June 2000 from an undercover website, the warrant also alleges that the defendant cancelled the order. There are no facts from which the issuing judge could infer that the defendant actually received child pornography from the website operated by the state police." State v. Roesing, supra, Superior Court, Docket No. CR 00 103351. Ultimately, the court denied the defendant's motion to suppress. This denial, however, was based solely on the fact that in addition to alleging a violation of General Statutes § 53a-196d, the application also alleged that the evidence constituted a violation of attempted possession of child pornography pursuant to General Statutes § 53a-49.
General Statutes § 53a-49 (a) states in relevant part: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime."
No such allegation of attempted possession of illegal child pornography in violation of General Statutes § 53a-49 was made in the present application. While the state argues that the probable cause determination should not be limited to specific statutes set forth in the warrant, it cites no authority to support this assertion. As such, the court rejects the state's argument that the issuing judge could have drawn inferences CT Page 8453-v supporting a finding that the defendant had committed the offense of attempted possession.
With respect to the issuing judge's finding of probable cause that the defendant committed the offense of possession of child pornography, United States v. Perez, 247 F. Sup.2d 459, 474 (S.D.N.Y. 2003), is instructive. In Perez, the court determined that evidence that the defendant had merely subscribed to a website which contained child pornography was insufficient to permit a magistrate to make a determination that evidence of child pornography would be found in the defendant's home. Id., 481. As the court stated, "the affidavit contains nothing concrete to suggest that [the defendant] had transmitted or received images of child pornography." Id., 483. The court found that, "[i]n the context of this case, a finding of probable cause would not be reasonable. If the Government is correct in its position . . . then probable cause existed to intrude into the homes of some 3,400 (or even 6,000) individuals merely because their e-mail addresses were entered into the Candyman website [which contained illegal child pornography]. Without any indication that any of these individuals downloaded or uploaded or transmitted or received any images of child pornography, without any evidence that these individuals did anything more than simply subscribe, the Government argues that it had the right to enter their homes to conduct a search and seize their computers, computer files and equipment, scanners, and digital cameras. This cannot be what the Fourth Amendment contemplated. The context here is the internet, specifically, the use of the internet to trade child pornography. Law enforcement needs a certain amount of latitude to address those who would violate the child pornography laws and sexually exploit and abuse children. Just as there is no higher standard of probable cause when First Amendment values are implicated, however, there is no lower standard when the crimes are repugnant and the suspects frustratingly difficult to detect." (Emphasis in original.) Id., 484.
This court may employ federal precedent for guidance and analogy in making its determination, when the federal authorities are logically persuasive and well-reasoned. State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994).
The state attempts to distinguish Perez, arguing that the affidavit contained evidence beyond mere membership or subscription. Specifically, the state argues that evidence of the defendant's use of credit cards with Site-key, the disclosure of his email account, the description of usa-lolita.com as a "collection" of the "best lolitas," and the defendant's prior sexual assault convictions, were sufficient for the magistrate to infer that the defendant subscribed to the website in order to possess child pornography. The state further argues that the use of the term, "lolita" in the website domain name lends credence to this conclusion.
The state argues that the term "lolita," derived from the Nabokov novel of the same name, is often a code word for child pornography. See United States v. Grimes, 244 F.3d 375, 379 n. 7 (5th Cir. Tex. 2001).
While the affiants' failure to allege that the defendant actually CT Page 8453-w downloaded child pornographic material from the website to his computer's hard drive may not, in itself, render the warrant defective, the affidavit must present a substantial factual basis for the magistrate's conclusion that probable cause existed rather than mere suspicion or conjecture. See State v. Buddhu, supra, 264 Conn. 459. In United States v. Laufer, 245 F. Sup.2d 503, 509-11 (W.D.N.Y. 2003), the court affirmed a finding of probable cause based on an affidavit that alleged that the defendant subscribed to a website known to offer child pornography. Importantly, that affidavit explained how a viewer of the website must direct the computer several times to proceed, in the face of warnings and statements that hardcore images of child pornography would be received. Id., 510. The viewer must also select a payment plan, which promises to provide access to varying degrees of child pornography. Id. The defendant in Laufer used his credit card to purchase the "Platinum Plan" which promised the greatest access to child pornographic images and entitled him to download the browser, which would have enabled him to view images of child pornography. Id. Further, the affidavit explained how Platinum Plan members were able to download "zipped" files, which require an additional step to "unzip" and view the images, and any unzipped images would reside on such member's computer's hard drive, requiring a significant amount of storage space which was likely to be found only on a computer in a member's home. Id. Finally, the affidavit averred that the defendant had made three consecutive monthly payments for the Platinum Plan subscription for access to the website, which entitled him to receive illegal child pornography in the mail. Id., 511.
Based on the totality of this evidence, the court affirmed a finding of probable cause and denied the defendant's motion to suppress. Id. As the court stated, "[d]efendant's actions in making three consecutive monthly payments for the Platinum Plan subscription for access to the website are consistent with the conclusion that it is probable that Defendant thereafter accessed the Internet website and proceeded to download images which meet the legal definition of child pornography in violation of 18 U.S.C. § 2252 (a) (4) (B). The precautions and warnings associated with such access, taking a commonsense view of the facts, strongly imply that the accessed material was unlawful; otherwise the precautions and warnings as described in the affidavit would have been unnecessary as lawful conduct does not require such clandestine commercial arrangements. Further, because Defendant subscribed to the website for three months, he would have been entitled to receive the quarterly C.D. containing child pornography as advertised in the notice that was first displayed when Agent Hunt first accessed the website." Id.
Unlike the rich factual descriptions set forth in the affidavit in Laufer, the affidavit in the instant case is plagued with paucity. The CT Page 8453-x most compelling omission in the affidavit is that it is devoid of any evidence that the website, usa-lolita.com, even contained images of child pornography. The state concedes in its memorandum that, "[a]dmittedly, within the four corners of the affidavit, there is no allegation that usa-lolita.com is a child pornography website, or even a website which contains among other things, images of child pornography." Thus, the only nexus between the website that the defendant was alleged to have entered and the list of illegal sites in the affidavit, is the information from Site-key's database and the use of the name and description, "lolita."
With respect to Site-key, United States v. Perez, supra, 247 F. Sup.2d 459, is instructive. As the court stated, "[m]ere membership in an organization, without any other link to actual criminal activity, will support a finding of probable cause only where the organization is engaged in criminal activity to such an extent that it must be considered `wholly illegitimate.'" Id. As set forth in the affidavit, Site-key is once removed from the actual illegality, in that it was an adult verification company, which provided a payment service for the website that contained illegal child pornography. There is no averment or facts presented in the affidavit to support an inference that Site-key's operation was illegal or wholly illegitimate.
Regarding the information obtained from Site-key, the affidavit avers that, "[e]xecution of the warrant resulted in the seizure of a database of customers who used the online credit card verification service to buy access to child pornography." This statement is wholly conclusory and unsupported by any facts. As such, it must be rejected as a foundation for probable cause. See Nathanson v. United States, 290 U.S. 41, 44, 78 L.Ed. 159, 54 S.Ct. 11 (1933) ("we are dealing with a warrant to search a private dwelling . . . [that] went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts"); see also, Burnett v. State, 28 Fla.L. Weekly D 1179 (Fla.Dist.Ct.App.2d Dist. May 16, 2003) ("we must reject the wholly conclusory statements made here") (reversing convictions for possession of child pornography based on defective search warrant).
Thus, the inferential chain that the issuing judge would have had to follow in order to find probable cause, is that the defendant used two credit cards to purchase access to a website from an adult online verification service and this service was known to provide online verification to other website, which contained illegal child pornography. Without any averment or factual basis to demonstrate that the website, which the defendant bought access to, contained child pornography, the court finds that the inferential leap that the issuing judge would have to make to determine that the defendant possessed child CT Page 8453-y pornography in violation of General Statutes § 53a-196d, is simply too great, falling in the category of "mere suspicion or conjecture" as opposed to "belief" as required. State v. Buddhu, supra, 264 Conn. 460.
The court further finds that the averments that the website's domain name and description contained the word, "lolita" and that the defendant was a convicted sex offender, are insufficient to bridge the gap. With respect to the use of "lolita," in the recent United States Supreme Court case of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L.Ed.2d 403, 122 S.Ct. 1389 (2002), the court determined that the Child Pornography Prevention Act, 18 U.S.C. § 2251 et seq. (CPPA), abridges the first amendment right to freedom of speech. The CPPA sought to criminalize, inter alia, sexually explicit images that appear to depict minors but were produced without using any real children. The court found that a law that "prohibits a sexually explicit film containing no youthful actors, just because it is placed in a box suggesting a prohibited movie is substantially overbroad and in violation of the First Amendment." (Emphasis added.) Id., 535 U.S. at 258. As applied to the case at hand, just because the defendant subscribed to a website that suggested prohibited content does not, in itself, mean that the website contained illegal content.
While the term "lolita" and the defendant's prior convictions are certainly facts upon which the issuing judge could use to draw reasonable inferences, the court finds that these facts are insufficient to create a "belief" as required by the issuing judge to find probable cause. Without some modicum of proof that usa-lolita.com even contained illegal content, the court finds that an inference that the defendant possessed illegal pornography, which he downloaded from usa-lolita.com, calls for mere conjecture. As an illustration, it is as if a defendant, twice convicted for drug possession, was spotted by the police leaving an apartment, in a building in which fourteen other tenants had been discovered to be selling marijuana, and the tenant whom the defendant visited had a giant picture of a marijuana leaf mounted on his front door. Would it be reasonable for a judge to issue a search warrant to search the defendant's home across town for marijuana the next day, based on these facts? This court is of the opinion that the protections afforded to the citizens of this state and country under article first, § 7 of the constitution of Connecticut and the fourth amendment to the United States constitution, would not allow such an intrusion into the defendant's home.
Moreover, even if usa-lolita.com had been on the list of known child pornography websites set forth in the affidavit, it is unclear whether probable cause could be found based on the affidavit as presented. First, CT Page 8453-z the affidavit states that, " [a]lmost all of the opening webpages on these websites contain some images of children which were also found inside the website." (Emphasis added.) The affidavit further states that the defendant "used two different credit cards to access the website usa-lolita.com through the online credit card verification service, Site-Key." Nowhere does it aver that the defendant did anything more than access the opening webpage of the website, which may or may not have contained child pornography. See, e.g, United States v. Perez, supra, 247 F. Sup.2d 485 ("I do not believe . . . that subscription to such a service, without more, provides probable cause to believe that evidence of possession of child pornography will be found at the subscriber's home. One could subscribe, then, having seen the type of content of the site, simply never go back to the site, but also never go to the trouble of `unsubscribing.'. . . Without any evidence that child pornography had ever been received or that the web site had otherwise been accessed, I do not believe that probable cause would have existed." Citing United States v. Strauser, Docket No. 02CR82 CDP, slip op. at 6 (E.D.Mo. Sept. 4, 2002)).
Thus, despite viewing the information in the affidavit with great deference to the issuing judge's determination, this court finds that there was insufficient evidence that a fair probability existed that contraband or evidence of child pornography would be found in the defendant's home. It is undisputed that the affidavit does not contain any allegations that the site contained illegal child pornography, or that the defendant downloaded or actually received illegal child pornography. Without applying rigid analytical categories, the court finds that based on the lack of such allegations in the affidavit, combined with the paucity of the evidence set forth in the affidavit, the issuing judge's finding of probable cause was unreasonable.
Finally, the court will address the issue of staleness. "The determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable. . . . . Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis. Accordingly, we have refused to adopt an arbitrary cutoff date, expressed either in days, weeks or months, beyond which probable cause ceases to exist . . . Moreover, we have recognized that [i]f items of property are innocuous in themselves or not particularly incriminating and are likely CT Page 8453-aa to remain on the premises, that fact is an important factor to be considered in determining the staleness of a warrant . . . The likelihood that the evidence sought is still in place depends on a number of variables, such as the nature of the crime, of the criminal, of the thing to be seized, and of the place to be searched . . . [W]hen an activity is of a protracted and continuous nature the passage of time becomes less significant." (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Buddhu, supra, 264 Conn. 465-66.
The affidavit avers that the defendant's credit card transaction with Site-key to access usa-lolita.com occurred in May or June of 2001. The affidavit also avers that the CCEEU was notified of this information in November of 2002, when the portion of the database containing Connecticut residents was forwarded to them. The CCEEU conducted subsequent investigations to verify the defendant's address and criminal history in February of 2003 and in April the CCEEU entered the defendant's home and observed his computer.
Thus, when the search warrant was issued on April 17, 2003, at least twenty-two months had elapsed since the defendant allegedly accessed the website and at least seven months had elapsed since the CCEEU first received information of the defendant's accessing. Importantly, the affidavit also avers that the defendant was incarcerated on July 13, 2001, only one to two months after he allegedly accessed the website, and he remained incarcerated until September 24, 2002. Presumably, the issuing judge would have inferred that the defendant had no access to his home or computer while he was in jail.
The court, however, must also weigh the nature of the crime. See, e.g, Behrel v. State, 823 A.2d 696 (Md.Ct.Spec.App. 2003) (upholding a search warrant for a footlocker containing pornography issued in February 2001 pertaining to events that occurred, at the latest, in 1985). "The nature of the crimes alleged, that is . . . possession of child pornography here is such that the evidence sought `is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched.' United States v. Craig, 861 F.2d 818, 823 (5th Cir. 1988); see also United States v. Lacy, 119 F.3d 742, 745-46 (9th Cir. 1997), cert. denied, 523 U.S. 1101, 118 S.Ct. 1571, 140 L.Ed.2d 804 (1998). The allegations in this warrant allege the use of the computer and internet for access to child pornography. The various computer related devices including passwords are likely to be kept at the defendant's home for a period of time." State v. Roesing, supra, Superior Court, Docket No. CR 00 103351. The affidavit avers that persons involved in sending or receiving child pornography tend to retain it for long periods of time. Individuals who are interested in child pornography rarely destroy or delete the CT Page 8453-ab images they obtain.
Because of the nature of the crime as the sort that evidence can reasonably be expected to be kept for long periods of time, the court finds that the facts set out in the affidavit were not stale at the time the warrant was issued. Despite the exceedingly long span of time between when the defendant allegedly accessed the website and when the warrant was issued, as well as the fact that the defendant was incarcerated during a substantial portion of this time span, does not render the warrant stale. Accordingly, the court finds that the warrant is not facially defective on the ground of staleness.
"The Supreme Court has repeatedly declared that `[t]he Fourth Amendment embodies [the] centuries-old principle of respect for the privacy of the home,' Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), and has noted the `overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.' Id. quoting Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)." U.S. v. Perez, supra., 247 F. Supp.2d (Discussion, Section 3(d)). This protection afforded under the Fourth Amendment exists even when the alleged crime is so repugnant and difficult to detect and prosecute.
In conclusion, the affidavit failed to present a substantial factual basis for the magistrate's conclusion that probable cause existed for the crime of Possessing Child Pornography — 53a-196d. If an affidavit for a search warrant is defective, evidence obtained as a result of the subsequent search must be suppressed. See State v. Walczyk, 76 Conn. App. 169, 182, 818 A.2d 868 (2003). Accordingly, the defendant's motion to suppress all contraband and pornographic images obtained as a result of a search and seizure warrant authorized on April 17, 2003, is granted. The matter shall be set down for a hearing for a determination regarding the return of the defendant's property pursuant to Practice Book § 41-13.
Swienton, J.