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Search Warrant – Staleness – Computerized Child Pornography Purchase 2+-Years Earlier

State v. Dennis M. Gralinski, 2007 WI App 233
For Gralinski: Martin Kohler; Craig Powell, PFR filed 10/5/07


¶26      Gralinski next contends that the warrant was invalid because it was based on stale information such that no inference could be drawn that the items sought in the warrant would be located in his home two and one-half years after the membership to the Regpay website was purchased. He bases his argument on his contention that the affidavit did not demonstrate a pattern of actual and ongoing possession of child pornography by him. We disagree with Gralinski and conclude that the concept of staleness is not a bar to probable cause under the circumstances of this case.

¶30      Just as the court in Multaler found that the issue of staleness in that case depended, in part, upon the tendencies of serial killers to collect and retain items evidencing their crimes, id., ¶40, here, the issue of staleness depends, in part, upon the tendencies of collectors of child pornography, as detailed in the special agent’s affidavit. Gralinski does not contest the special agent’s description of the habits of collectors of child pornography in the affidavit supporting the search warrant. In this regard, the affidavit provided “that individuals who are involved with child pornography are unlikely to ever voluntarily dispose of the images they possess, as those images are viewed as prized and valuable materials.” Given the specific factual information obtained when Regpay’s customer databases were seized that Gralinski’s credit card had been used to purchase a membership to sites containing child pornography, it was reasonable for the magistrate to infer that Gralinski downloaded visual child pornography from the website s to his computer. [5]

¶31      Because possession of child pornography on one’s computer differs from possession of other contraband in the sense that the images remain even after they have been deleted, and, given the proclivity of pedophiles to retain this kind of information, as set forth in the affidavit supporting the request for the search warrant, there was a fair probability that Gralinski’s computer had these images on it at the time the search warrant was issued and executed. …

The court rejects a vagueness challenge that the statute fails to provide fair notice that written communications are within its ambit, ¶18: the meaning of “verbal” as associated with words and not merely oral is sufficiently established to “give persons of ordinary intelligence fair notice that it prohibits written communication.” The court, however, leaves open the question of whether the statute covers distribution of a “story on the Internet to a broad audience rather than to a specific person the defendant knew or reasonably should have known was a minor,” ¶18 n. 5.

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