In this case, Clyde Hoppert appealed the trial court's decision to deny his motion to suppress child pornography and child erotica obtained through warrants. Hoppert argued that the warrants were invalid because they were based on "stale" information. The Superior Court rejected Hoppert's arguments, holding that despite the nearly 9-month time frame, information obtained from Hoppert's prior internet service provider under a first warrant--which served as the basis for a second warrant for his home--was not stale. As a result, the Superior Court decided that the motion had been properly denied.
During an investigation in California, a detective contacted Pennsylvania police about a transfer of child pornography between an AOL account registered to Hopper's wife and an account in California. The California police obtained the name of the AOL subscriber and Pennsylvania police tracked the account holder to a new address through driving records. Hoppert had moved to the new address at some point after the child pornography had been sent. After viewing child pornography in the emails, Pennsylvania police were issued a search warrant for the full AOL account information. AOL provided usage data which showed that Hoppert's account was online when the emails containing child pornography were sent. Also, another user who received child pornography from Hoppert's email address was in Hoppert's AOL contact list. Police also learned that the account had been closed approximately three months prior to the date of the search. Using this information, police obtained a warrant for Hoppert's new address which yielded computers containing child pornography and AOL account information. Hoppert challenged the validity of the search warrants in a pre-trial Motion to Suppress which was denied. At trial, Hoppert was found guilty of dissemination and possession of child pornography.
Hoppert claims that the information underlying the warrants was stale, and thus, under Pennsylvania law, that the warrants were invalid. Specifically, Hoppert claims that there was no probable cause to believe AOL still held the account information after the account was closed. As a result, he claims this information is stale and this warrant invalid. Hoppert also claims that there was no probable cause to search his new residence--which he had moved to after the child pornography had been sent--because there was no nexus between the AOL account and the new residence and police had no independent probable cause to believe there was child pornography in his new home.
Pennsylvania courts look at the nature of the crime and the type of evidence in determining whether probable cause has become stale. The Court had found that probable cause became stale after seven weeks in a narcotics case, but had found that probable cause remained "fresh" for shoes worn in a bank robbery because shoes were less likely to be thrown away. As a general rule there must be a "fair probability" that the items will be at the location to be searched. Because child pornography is hard to obtain and dispose of and can be resurrected from hard drives if deleted, and because there was a "fair probability" that AOL had kept the data, the Court found that the six-month period between the email being sent and the first search warrant for AOL was not too long. The Court noted pragmatically that a different result would allow child pornographers to invalidate probable cause by changing ISPs frequently.
The Court found that the second warrant was valid once the link between Hoppert's old and new addresses was made by police. Because it was reasonable to believe that the images were still on Hoppert's personal computer and that he viewed them in the privacy of his home, there was sufficient probable cause for the warrant to search his house. The Court rejected Hoppert's argument that there was no proof he had opened or viewed the contents of the email before forwarding it.
This case allows probable cause to remain "fresh" over nine months or more in cases involving email and other transfers of electronic data. ISPs which maintain client data once the accounts are closed, increased cloud computing and online email storage, and the increased collection of location data by companies like Apple and Google will all lead to "fresh" probable cause being extended indefinitely. The Superior Court focuses on the nature of the crime--child pornography and exploitation--to determine that it is likely that the defendant here kept his hard-won contraband. But given user's ability to store or "archive" emails in perpetuity, the courts could easily extend this "freshness" to any crime committed over email. Email frauds like phishing, emailed threats or harassment, copyright infringement, or any email that discusses criminal activity could be used to bootstrap probable cause for months and even years, at least up until the statute of limitations forecloses prosecution.
As a final issue, the Court noted in a footnote that while standing had not been addressed by either side, the issue of expectation of privacy--which the Court says is the standard for standing to challenge the search of records--was important for future cases. (See Opinion, n. 3, pp. 9-10). The Court found that previous decisions had denied standing when telephone records were not in the defendant's name, but in a wife or girlfriend's name. Even when the phone in question was used primarily by the defendant, the fact that the records were not was determinative. Had the issue been raised in this case, because the AOL account was registered in Hoppert's wife's name, the Court would have held that Hoppert did not have an affected expectation of privacy and thus did not have standing to challenge the warrant. This restatement of the standing requirement--which amounts to a per se rule against standing if the defendant is not explicitly connected to the document or information seized--could lead to more streamlined arguments against standing.