State v. Green

[Cite as State v. Green, 2023-Ohio-501.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case
No. 21CA3760

vs. :

JUSTIN GREEN, : DECISION AND
JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Michael L. Benson, Chillicothe, Ohio, for appellant.

Jeffrey C. Marks, Ross County Prosecuting Attorney, and Pamela
C. Wells, Ross County Assistant Prosecuting Attorney,
Chillicothe, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 2-14-23
ABELE, J.

{¶1} This is an appeal from a Ross County Common Pleas

Court judgment of conviction and sentence. The trial court

found Justin Green, defendant below and appellant herein, guilty

of five counts of pandering obscenity involving a minor, in

violation of R.C. 2907.321.

{¶2} Appellant assigns the following error for review:

“THE TRIAL COURT ERRED IN DENYING THE
FEBRUARY 8, 2021 MOTION TO SUPPRESS FILED BY
DEFENDANT-APPELLANT, JUSTIN GREEN.”
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On April 1, 2020, Chillicothe Police Detective Christopher Fyffe

received a phone call from an individual who identified himself

as Agent Alex Harnish. Harnish stated that he worked with the

Internet Crimes Against Children task force and informed Fyffe

that he would be sending the detective some images depicting

minors from a website named Kik. Harnish indicated he would

send the detective a compact disk that contained the images, a

copy of a subpoena with subscriber information, and other data

to assist in the investigation.

{¶4} Shortly thereafter, Detective Fyffe received a compact

disk that contained subscriber information for an IP address.

This information identified appellant as the subscriber and

listed appellant’s street address, email address, and phone

number. The disk also contained four files, dated June 29,

2019, that each contained an image of possible underage females

photographed in various states of undress.

{¶5} On April 7, 2020, Detective Fyffe requested a warrant

to search appellant’s residence, which the trial court granted.

Two days later, the detective served the search warrant and

talked to the occupants, appellant and his girlfriend.

Appellant admitted that he had used Kik in the past, and his

girlfriend stated that appellant “has had a problem in the past
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with ‘chatting’ with young females on Kik.” As a result of the

search, the detective seized a cell phone and an Apple iPad.

Fyffe later applied for a warrant to search the electronic

devices, which the court also granted.

{¶6} A Ross County Grand Jury subsequently returned an

indictment that charged appellant with five counts of pandering

obscenity involving a minor, in violation of R.C. 2907.321.

{¶7} On February 8, 2021, appellant filed a motion to

suppress the evidence obtained from the searches of his

residence and electronic devices. Appellant alleged that the

search warrants were not based upon probable cause because the

search warrant affidavits were based upon hearsay and the

affidavits did not set forth the veracity and basis of knowledge

of the person who provided the detective with the information.

Appellant additionally argued that the information contained in

the affidavits was stale. He contended that nearly ten months

had elapsed since the alleged criminal conduct and, due to the

lapse of time, evidence of this criminal conduct was not likely

to be found at his residence or on his electronic devices at the

time that the detective applied for the search warrant.

{¶8} On March 21, 2021, the trial court held a hearing to

consider appellant’s motion to suppress the evidence. At the
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hearing, Detective Fyffe testified that on April 1, 2020 a

person who identified himself as Agent Alex Harnish with

Internet Crimes Against Children called the detective to inform

him that the agent would be sending in the mail some pictures

and documentation. The detective indicated he also exchanged

emails with the agent, but did not recall whether they exchanged

emails before or after he requested the search warrants. Fyffe

noted that Harnish’s email address ended with “ice.dhs.gov.”

{¶9} Detective Fyffe also explained that when he received

the information from Agent Harnish, it arrived in a certified

mail envelope. He did not recall, however, whether the envelope

contained a return mailing address. The detective further

testified that the information that Harnish sent him contained a

subpoena from Franklin County that was issued to Charter

Communications. Fyffe stated he does not know who prepared this

subpoena, but the subpoena did state that the subpoenaed

information should be sent to “Special Agent Anna Edgar of ICE,

with the Department of Homeland Security.”

{¶10} After hearing the evidence, the trial court overruled

appellant’s motion to suppress. Later, appellant entered no-

contest pleas to the five counts of the indictment.
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{¶11} On October 20, 2021, the trial court sentenced

appellant to serve 12 months in prison for each offense, that

the sentences for counts one and two to be served consecutively

to one another and the remaining sentences to be served

concurrently to the others. This appeal followed.

{¶12} In his sole assignment of error, appellant asserts

that the trial court erred by overruling his motion to suppress

evidence because, appellant contends, the search warrants were

not based upon probable cause. Appellant claims that the

information contained in the affidavits is not reliable and is

stale. Appellant argues that the search warrant affidavits did

not include any facts to indicate (1) why the information

purportedly obtained from Agent Harnish is reliable, or (2) that

Harnish is indeed who he stated he was. As such, appellant

believes that Harnish’s information should be treated the same

as an unidentified informant. Additionally, appellant argues

that the nearly ten-month-old information contained in the

affidavits did not make it probable that evidence of criminal

activity would be found at his residence, or on his electronic

devices, at the time that the detective applied for the search

warrant.
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{¶13} The appellee disputes appellant’s characterization of

Agent Harnish’s information and argues that information obtained

from other law enforcement officers may serve as a reliable

basis for issuing a search warrant. The state further disagrees

with appellant’s assertion that the nearly ten-month-old

information did not establish probable cause to believe that

evidence of child pornography would be located at his residence,

or on his electronic devices, when Detective Fyffe applied for

the search warrants.

STANDARD OF REVIEW

{¶14} Appellate review of a trial court’s ruling on a motion

to suppress evidence involves a mixed question of law and fact.

E.g., State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46

N.E.3d 638, ¶ 32; State v. Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Moore, 2013-Ohio-5506, 5

N.E.3d 41, ¶ 7 (4th Dist.). Appellate courts thus “‘must accept

the trial court’s findings of fact if they are supported by

competent, credible evidence.’” State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12, quoting Burnside at ¶

8. Accepting those facts as true, reviewing courts

“‘independently determine as a matter of law, without deference
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to the conclusion of the trial court, whether the facts satisfy

the applicable legal standard.’” Id., quoting Burnside at ¶ 8.

FOURTH AMENDMENT PRINCIPLES

{¶15} The Fourth Amendment to the United States Constitution

provides:

The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.

Article I, Section 14 of the Ohio Constitution contains

nearly identical language and provides the same protection as

the Fourth Amendment. E.g., State v. Banks-Harvey, 152 Ohio

St.3d 368, 2018-Ohio-201, 96 N.E.3d 262, ¶ 16, citing State v.

Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 12;

accord State v. Taylor, 4th Dist. Lawrence No. 15CA12, 2016-

Ohio-2781, ¶ 31; State v. Eatmon, 4th Dist. Scioto No. 12CA3498,

2013-Ohio-4812, ¶ 11.

{¶16} “The ‘basic purpose of [the Fourth] Amendment’ * * *

‘is to safeguard the privacy and security of individuals against

arbitrary invasions by governmental officials.’” Carpenter v.

United States, ___ U.S. ___, 138 S.Ct. 2206, 2213, 201 L.Ed.2d

507 (2018); accord Castagnola at ¶ 33, quoting Wolf v. Colorado,
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338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled

on other grounds, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (1961) (“‘The security of one’s privacy against

arbitrary intrusion by the police * * * is at the core of the

Fourth Amendment.’”). Moreover, “[i]n none is the zone of

privacy more clearly defined than when bounded by the

unambiguous physical dimensions of an individual’s home.”

Payton v. New York, 445 U.S. 573, 589, 100 S.Ct. 1371, 63

L.Ed.2d 639 (1980); accord Florida v. Jardines, 569 U.S. 1, 6,

133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (“[W]hen it comes to the

Fourth Amendment, the home is first among equals.”). “‘At the

Amendment’s “very core” stands “the right of a man to retreat

into his own home and there be free from unreasonable

governmental intrusion.”’” Collins v. Virginia, ___ U.S. ___,

138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018), quoting Jardines,

569 U.S. at 6, quoting Silverman v. United States, 365 U.S. 505,

511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Accordingly, “the

Fourth Amendment has drawn a firm line at the entrance to the

house. Absent exigent circumstances, that threshold may not

reasonably be crossed without a warrant.” Payton, 445 U.S. at

590; accord State v. Maranger, 2018-Ohio-1425, 110 N.E.3d 895, ¶

20 (2d Dist.) (citations omitted) (“[u]nless a recognized
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exception applies, the Fourth Amendment * * * mandates that

police obtain a warrant based on probable cause in order to

effectuate a lawful search.”).

STANDARD FOR ISSUING SEARCH WARRANT

{¶17} A search warrant may only be issued (1) upon probable

cause, (2) supported by oath or affirmation, and (3)

particularly describing the place to be searched and the person

and/or things to be seized. See King, 563 U.S. at 459 (the

Fourth Amendment allows a warrant to issue only when “probable

cause is properly established and the scope of the authorized

search is set out with particularity”); accord R.C. 2933.23;

Crim.R. 41. “The essential protection of the warrant

requirement of the Fourth Amendment * * * is in ‘requiring that

[the usual inferences which reasonable men draw from evidence]

be drawn by a neutral and detached magistrate instead of being

judged by the officer engaged in the often competitive

enterprise of ferreting out crime.’” Illinois v. Gates, 462

U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), quoting

Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92

L.Ed. 436 (1948).

{¶18} Accordingly, a search warrant “affidavit must set

forth particular facts and circumstances underlying the
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existence of probable cause, so as to allow the magistrate to

make an independent evaluation of the matter.” Franks v.

Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978). Moreover, the facts and circumstances set forth in the

“affidavit must provide the magistrate with a substantial basis

for determining the existence of probable cause.” Gates, 462

U.S. at 239. A search warrant affidavit need not, however,

comply with any “‘[t]echnical requirements of elaborate

specificity.’” Id. at 235, quoting Ventresca, 380 U.S. 102,

108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Instead,

[i]n determining the sufficiency of probable cause in an
affidavit submitted in support of a search warrant,
“[t]he 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.”

State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),

paragraph one of the syllabus, quoting Gates, 462 U.S. at 238-

239; accord Castagnola at ¶ 35 (“[T]he evidence must be

sufficient for the magistrate to conclude that there is a fair

probability that evidence of a crime will be found in a

particular place.”).
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{¶19} A search warrant affidavit thus must contain

“[s]ufficient information” to allow a magistrate or judge to

conclude that probable cause to search exists. Gates, 462 U.S.

at 239. A magistrate or a judge cannot simply ratify “the bare

conclusions of others.” Id. Therefore, “[i]n order to ensure

that such an abdication of the magistrate’s duty does not occur,

courts must continue to conscientiously review the sufficiency

of affidavits on which warrants are issued.” Id.

{¶20} A search warrant issued after a magistrate or judge

has independently determined that probable cause to search

exists will enjoy a presumption of validity. State v. Jones, 90

Ohio St.3d 403, 412, 739 N.E.2d 300 (2000), citing State v.

Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247 (1980); State v.

Parks, 4th Dist. Ross No. 1306, 1987 WL 16567 (Sept. 3, 1987),

*4; accord Franks, 438 U.S. at 171 (search warrant affidavit

presumed valid). Thus, “‘the burden is on a defendant who seeks

to suppress evidence obtained under a regularly issued warrant

to show the want of probable cause.’” United States v. de la

Fuente, 548 F.2d 528, 534 (5th Cir. 1977), quoting Batten v.

United States, 188 F.2d 75, 77 (5 Cir. 1951); accord Xenia v.

Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988), citing

de la Fuente (“[t]he burden of initially establishing whether a
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search or seizure was authorized by a warrant is on the party

challenging the legality of the search or seizure”); State v.

Hobbs, 4th Dist. Adams No. 17CA1054, 2018-Ohio-4059, ¶ 32; State

v. Wallace, 2012-Ohio-6270, 986 N.E.2d 498, ¶ 27 (7th Dist.) (a

defendant who “attacks the validity of a search conducted under

a warrant” carries “the burden of proof * * * to establish that

evidence obtained pursuant to the warrant should be

suppressed”).

{¶21} A court that is reviewing a defendant’s challenge to a

probable-cause determination in a search warrant must “accord

great deference to the magistrate’s” probable-cause

determination and must resolve “doubtful or marginal cases” “in

favor of upholding the warrant.” George, paragraph two of the

syllabus. Indeed, any “after-the-fact scrutiny by courts of the

sufficiency of an affidavit should not take the form of de novo

review.” Gates, 462 U.S. at 236. Thus, a reviewing court may

not “substitute its judgment for that of the magistrate by

conducting a de novo determination as to whether the affidavit

contains sufficient probable cause upon which that court would

issue the search warrant.” George at paragraph two of the

syllabus. Instead, a reviewing court’s duty “is simply to

ensure that the magistrate had a substantial basis for
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concluding that probable cause existed.” Id.; accord Gates, 462

U.S. at 238-39; Castagnola at ¶ 35. Additionally, reviewing

courts must refrain from interpreting search-warrant affidavits

“‘in a hypertechnical, rather than a commonsense, manner.’”

Gates, 462 U.S. at 236, quoting United State v. Ventresca, 380

U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Nevertheless, “a reviewing court may properly conclude that,

notwithstanding the deference that magistrates deserve, the

warrant was invalid because the magistrate’s probable-cause

determination reflected an improper analysis of the totality of

the circumstances, or because the form of the warrant was

improper in some respect.” United States v. Leon, 468 U.S. 897,

915, 104 S.Ct. 3405, 3416-17, 82 L.Ed.2d 677 (1984), citing

Gates, 462 U.S. at 238-239; accord State v. Jones, 143 Ohio

St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13 (“reviewing courts

must examine the totality of the circumstances”).

{¶22} Probable cause is “a fluid concept” that is “not

readily, or even usefully, reduced to a neat set of legal

rules.” Gates, 462 U.S. at 232. Rather, probable cause “deals

with probabilities and depends on the totality of the

circumstances.” Maryland v. Pringle, 540 U.S. 366, 371, 124

S.Ct. 795, 157 L.Ed.2d 769 (2003). The probable-cause standard
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“requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.” Gates at

243–244, fn.13. Thus, the probable-cause standard does not set

“a high bar.” Kaley v. United States, 571 U.S. 320, 338, 134

S.Ct. 1090, 188 L.Ed.2d 46 (2014); accord District of Columbia

v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 586, 199 L.Ed.2d 453

(2018).

SOURCE OF INFORMATION

{¶23} Appellant first alleges that the search warrant

affidavits did not establish probable cause because the

detective failed to ensure that the source of the information

contained in the affidavits (Agent Harnish) is a reliable

source. Appellant contends that the detective should have

independently verified that Harnish is indeed who he claimed to

be.

{¶24} We recognize that “‘[o]bservations of fellow officers

of the Government engaged in a common investigation are plainly

a reliable basis for a warrant applied for by one of their

number.’” State v. Henderson, 51 Ohio St.3d 54, 57, 554 N.E.2d

104 (1990), quoting United States v. Ventresca, 380 U.S. 102,

111, 85 S.Ct. 741, 13 L.Ed.2d 684, (1965) (footnote omitted).

Thus, Ohio courts generally have held that “a law enforcement
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official who obtains information during an official

investigation and divulges that information to another law

enforcement officer * * * is a credible source.” State v.

Herron, 2nd Dist. Darke No. 1404, 1996 WL 697021, *4; accord

State v. Revere, 2nd Dist. Montgomery No. 28857, 2022-Ohio-551,

¶ 24, citing United States v. Horne, 4 F.3d 579, 585 (8th

Cir.1993) (“[P]robable cause may be based on the collective

knowledge of all law enforcement officers involved in an

investigation and need not be based solely upon the information

within the knowledge of the officer on scene[.]”).” This

collective-knowledge doctrine permits officers to form probable

cause (or reasonable suspicion) based upon information that

another law enforcement officer provided. See, e.g., State v.

Wortham, 145 Ohio App.3d 126, 130, 761 N.E.2d 1151 (2nd

Dist.2001); United States v. Beck, 765 F.2d 146 (6th Cir.1985)

(the collective-knowledge doctrine typically applied in

determining probable cause to arrest “is equally applicable to a

search warrant”); accord United States v. Spears, 965 F.2d 262,

277 (7th Cir.1992) (“In determining whether probable cause

exists, a magistrate is entitled to regard an affiant’s fellow

law enforcement officers as reliable sources.”). Accordingly,

Ohio courts generally have upheld search-warrant affidavits that
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rely upon information that another officer provided. Revere,

supra; State v. Jones, 2nd Dist. Montgomery No. 23926, 2011-

Ohio-1984, ¶ 20; Herron, supra.

{¶25} In Revere, for example, the court upheld a search

warrant that relied upon information received from another

police department. In that case, a Middletown Police detective

contacted the Moraine Police Department to request a welfare

check at the defendant’s residence, the place where a missing

person had last been spotted. After officers visited the

residence, they sought and were granted a warrant to search.

During the search, officers discovered the deceased body of the

missing person.

{¶26} Subsequently, a grand jury returned an indictment that

charged the defendant with several criminal offenses. The

defendant later sought to suppress the evidence obtained as a

result, but the trial court denied his motion.

{¶27} After his conviction, the defendant appealed and

argued, in part, that the search warrant affidavit rested upon

unreliable hearsay evidence (i.e., the Middletown Police

detective’s statement that the missing person was last spotted

at his residence). The appellate court disagreed and stated:

“it is well settled that officers may rely on information
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received from other members of the law enforcement community if

the reliance is reasonable.” Revere at ¶ 24, citing Doran v.

Eckold, 409 F.3d. 958, 965 (8th Cir.2005). The court thus

determined that the trial court did not err by concluding that

the Middletown Police detective’s information was reliable and

by overruling the defendant’s motion to suppress.

{¶28} Similarly, in the case sub judice, Detective Fyffe

relied upon information that Agent Harnish, another law

enforcement officer, provided. We find nothing in the record to

suggest that the detective’s reliance was unreasonable. The

detective stated that he received the information via certified

mail shortly after he spoke with Harnish, that part of this

information included an investigative subpoena issued to the IP

provider that included the name of another agent and an email

address that ended with ice.dhs.gov. Fyffe stated that

Harnish’s email address also ended with ice.dhs.gov. Although

the detective could not recall whether he exchanged emails with

Harnish before or after he applied for the warrant, the

information that the detective received in the mail, including

the investigative subpoena that listed the name of a Special

Agent, her email address ending in ice.dhs.gov and her phone

number, shows that he reasonably relied upon the information.
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{¶29} Consequently, we disagree with appellant that the

search warrant affidavits did not contain sufficiently reliable

information to support probable cause to believe that a search

of his residence and electronic devices would uncover evidence

of criminal activity.

STALENESS

{¶30} Appellant also asserts that the facts contained in the

search-warrant affidavits were too stale to establish probable

cause to search his residence or his electronic devices.

Appellant points out that the affidavits reference images

downloaded in June 2019 – nearly ten months before Detective

Fyffe applied for the search warrants. Appellant claims that,

given the lapse of time, when the detective applied for the

search warrants, he did not have a reasonable basis to believe

that this evidence of alleged criminal activity still might be

found at his residence or on his electronic devices.

{¶31} “Probable cause must be determined as of the date the

warrant is requested.” State v. Goble, 2014-Ohio-3967, 20

N.E.3d 280, ¶ 11 (6th Dist.), citing State v. Sautter, 6th Dist.

Lucas No. L-88-324, 1989 WL 90630, *3 (Aug. 11, 1989). Thus,

“probable cause to search cannot be based on stale information

that no longer suggests that the item sought will be found in
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the place to be searched.” United States v. Shomo, 786 F.2d

981, 983 (10th Cir. 1986) (citation omitted); accord United

States v. Wagner, 951 F.3d 1232, 1246 (10th Cir. 2020); United

States v. Knox, 883 F.3d 1262, 1273, 1276 (10th Cir. 2018).

{¶32} “[T]he timeliness of the information contained in the

affidavit is an important variable.” Shomo, 786 F.2d at 984.

However, “probable cause is not determined simply by counting

the number of days between the facts relied on and the issuance

of the warrant.” Id. at 983–84 (citation omitted). Instead,

“[w]hether facts are ‘too stale’ to be of probative value must

be decided on a case-by-case basis.” Goble at ¶ 11, citing

Sautter at *3.

{¶33} “‘While there is no arbitrary time limit on how old

information can be, the alleged facts must justify the

conclusion that the subject contraband is probably on the person

or premises to be searched.’” State v. Jones, 72 Ohio App.3d

522, 526, 595 N.E.2d 485 (6th Dist.1991); accord State v.

Proffit, 5th Dist. Fairfield App. No. 07CA36, 2008-Ohio-2912,

2008 WL 2573265, ¶ 20 (“Although specific references to dates

and times are best, there is no hard and fast rule as to the

staleness issue”). “The affidavit must * * * contain some

information that would allow the magistrate to independently
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determine that probable cause presently exists - not merely that

it existed at some time in the past.” State v. Lauderdale, 1st

Dist. Hamilton No. C-990294, 2000 WL 209395, *1 (Feb. 18, 2000),

citing Sgro v. United States, 287 U.S. 206, 210, 53 S.Ct. 138,

77 L.Ed. 260 (1932).

{¶34} When reviewing whether information is too stale to

establish probable cause, courts may consider “the nature of the

criminal activity, the length of the activity, and the nature of

the property to be seized.” Shomo, 786 F.2d at 983–84

(citations omitted); accord State v. Reece, 3d Dist. Marion No.

9-17-27, 2017-Ohio-8789, ¶ 15, and State v. Jendrusik, 7th Dist.

Belmont No. 06-BE-06, 2006-Ohio-7062, ¶ 21 (listing factors more

specifically as “(1) the nature of the crime; (2) the criminal;

(3) the thing to be seized, as in whether it is perishable and

easily transferable or of enduring utility to its holder; (4)

the place to be searched; and (5) whether the information in the

affidavit relates to a single isolated incident or protracted

ongoing criminal activity”).

{¶35} For example, when “the property sought is likely to

remain in one place for a long time, probable cause may be found

even though there was a substantial delay between the occurrence

of the event relied on and the issuance of the warrant.” Shomo,
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786 F.2d at 984 (citations omitted). In other cases, like drug

cases where drugs are often sold or used promptly, information

that is months-old may well be stale. United States v.

Frechette, 583 F.3d 374, 378 (6th Cir.2009), citing United

States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir.2005)

(“[I]nformation of an unknown and undetermined vintage relaying

the location of mobile, easily concealed, readily consumable,

and highly incriminating narcotics could quickly go stale in the

absence of information indicating an ongoing and continuing

narcotics operation.”) (citations omitted). In cases involving

child pornography, however, months-old information may not be

stale “because the images can have an infinite life span.” Id.;

accord State v. Dixon, 10th Dist. Franklin No. 21AP-152, 2022-

Ohio-4532, ¶ 30, quoting State v. Eal, 10th Dist. No. 11AP-460,

2012-Ohio-1373, ¶ 22 (“‘child pornography collectors tend to

retain their collections for long periods of time helps prevent

otherwise dated information from becoming stale’”); State v.

Lowe, 2nd Dist. Montgomery No. 26994, 2017-Ohio-851, ¶ 13 (“In

cases of child pornography, we have held that the elapse of

substantial periods of time often do not render the information

in a supporting affidavit stale.”); Eal at ¶ 24 (“an issuing

magistrate * * * independently may notice that conduct involving
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child pornography is of a continuing nature.”); State v. Ingold,

10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 37 (“the

enduring quality of child pornography to the perpetrator”).

{¶36} In Frechette, for example, the court determined that

information that a defendant paid for a one-month subscription

to a child-pornography web site still supported probable cause

to believe that evidence of criminal activity would be located

at the defendant’s home even though officers executed the search

warrant 16 months after the defendant’s one-month subscription

ended. In analyzing the staleness factors, the court observed

that “child pornography is not a fleeting crime,” and “‘is

generally carried out in the secrecy of the home and over a long

period.’” Id., quoting United States v. Paull, 551 F.3d 516,

522 (6th Cir.2009). Additionally, “‘evidence that a person has

visited or subscribed to web sites containing child pornography

supports the conclusion that he has likely downloaded, kept, and

otherwise possessed the material.’” Id., quoting United States

v. Wagers, 452 F.3d 534, 540 (6th Cir.2006). Thus, unlike drug

cases in which drugs typically are quickly transferred or used,

“digital images of child pornography can be easily duplicated

and kept indefinitely even if they are sold or traded. In

short, images of child pornography can have an infinite life
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span.” Id. at 379, citing United States v. Terry, 522 F.3d 645,

650 fn. 2 (6th Cir.2008) (“Images typically persist in some form

on a computer hard drive even after the images have been deleted

and, as ICE stated in its affidavit, such evidence can often be

recovered by forensic examiners.”). The court thus concluded

that “‘the same time limitations that have been applied to more

fleeting crimes do not control the staleness inquiry for child

pornography.’” Id., quoting United States v. Paull, 551 F.3d

516, 522 (6th Cir.2009).

{¶37} Applying these factors led the Frechette court to

conclude that the 16-month-old information regarding the

defendant’s one-month subscription was not stale information.

The court therefore determined that the magistrate correctly

considered the information when deciding whether probable cause

supported issuing the search warrant.

{¶38} In the case sub judice, the search warrant affidavits

contained information that, nearly ten months earlier, appellant

had downloaded child pornography. Because these images may

exist forever and because perpetrators often hold on to the

images for long periods of time, we believe that the ten-month-

old information is not stale. Consequently, we do not agree

with appellant that the information contained in the search-
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warrant affidavits was too stale to support probable cause to

believe that his residence and electronic devices would contain

evidence of child pornography.1 The trial court, therefore, did

not err by overruling appellant’s motion to suppress the

evidence discovered upon executing the search warrants.

{¶39} Accordingly, based upon the foregoing reasons, we

overrule appellant’s assignment of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED.

1 Because we have determined that probable cause supported
issuing the search warrant, we do not consider the state’s
alternate argument that the good-faith exception applies.
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JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee
recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Ross County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.