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A twenty-five day delay before an agent submitted a search warrant application to a Magistrate Judge to search a computer was not unreasonable in view of the totality of the circumstances

In U.S. v. Laist, FBI agents traced child pornography images to a computer used by Laist, a University of Georgia student. They paid a visit to the student’s residence to ask him for consent to view his computer. Laist then provided the agents with consent to look at the computer and gave the agent his username and password. The agent concluded that there was child pornography on the computer and asked Laist if he could take it to the FBI office for further analysis. The agent was convinced it contained child pornography. Laist gave consent of the agent to take the computer for further examination but asked for and received permission to copy documents he needed for school. The computer was taken on March 4, 2009, and on March 11, 2009, Laist’s attorney sent a letter revoking his consent. The letter was received on March 12, 2009. Once this notice was received, the FBI agent who seized the computer began the process of drafting a search warrant application by preparing the affidavit. The warrant affidavit and application were completed and submitted to the Magistrate judge on April 7, 2009, but the magistrate judge did not issue a warrant until April 13, 2009. Ultimately the agents found the computer contained child pornography images and Laist was charged in federal court with possession of child pornography.

The issue was whether it was reasonable for the FBI to wait 25 days to prepare the search warrant application while holding Laist’s computer based on probable cause. The 11th Circuit found the 25 day delay was not unreasonable. Laist’s possessory interest in the content of the computer was diminished for several reasons. First, Laist was able to remove whatever files he needed. And he had an opportunity to copy what he needed. Though he revoked consent he did not request additional files. Furthermore he admitted there was child pornography on the computer.

The government still obligated to diligently obtain a search warrant. The 11th circuit upheld the district court’s finding that the agents did act diligently by finding that the agent put the ball in motion the very first day he received notice Laist revoked his consent. The agent began writing the affidavit on the March 10 and submitted his first draft to the US attorney 10 days later. The court noted findings by the district court: that the agent put considerable effort into preparing the affidavit which contained valuable information about how theses crimes are committed such as an explanation of the peer-to-peer file sharing used to distribute the child pornography; that it contained extensive information about the defendant’s conduct including descriptions of how the Innocent Images National Initiative conducted several online undercover sessions; and that the affidavit did not contain a whole lot of boilerplate. In the weeks following the AUSA and the agent exchanged drafts. Furthermore, the investigation took a year and involved numerous agents. The government sufficiently showed diligence. Under the totality of the circumstances the facts show the government’s delay was reasonable.

In case you missed it, kindly read my previous post
The district court should have delayed the levy of a restitution lien by the United States on the defendant’s property where a party claims an interest in the property, November 30, 2012

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