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HomeMy WebLinkAboutCP-21-CR-0000724-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0724-2010 : : JOHN RANSOM : IN RE: OMNIBUS PRETRIAL MOTIONS FOR RELIEF BEFORE HESS, P.J. OPINION AND ORDER In this case, the defendant has filed omnibus pretrial motions for relief in the nature of a motion to suppress evidence, and in the nature of a motion for pretrial writ of habeas corpus. Because we sustain the first motion, we need not consider the second. We can distill the facts in this case to a salient few. In October of 2008, Les Freehling, a detective from the Cumberland County District Attorney’s Office obtained a search warrant seeking subscriber information for what turned out to be the defendant’s computer. The computer had been identified as offering to share files, some of which were identified as child pornography. No actual images were observed. The defendant’s computer was monitored for almost a year during which no further illicit activity was noted. Nonetheless, on October 7, 2009, more than eleven and a half months after the investigation was initiated, a search warrant was issued. A search was conducted, and charges 1 were filed. During the December 2010 suppression hearing in this case, Detective David Smith candidly admitted that language in his affidavit in support of the search warrant issued for the 1 While the undersigned is less computer literate than many players in this case, it appears that none of the computer images which are the subject of the instant prosecution relate to the computer activity in October of 2008. Ransom home, specifically, “I know that those individuals who engage in child pornography never delete or get rid of photographs or images they acquire,” was an incorrect statement of fact. He indicated that the word “rarely” should have appeared instead of the word “never.” In short, and to his credit, Detective Smith did not dispute that the search warrant affidavit contained a misstatement of fact. We are constrained to conclude that the misstatement, though arguably inadvertent, was material. A search warrant based on a knowing or deliberate misstatement of material fact must 2 be rendered invalid. Commonwealth v. Cameron, 664 A.2d 1364 (Pa.Super. 1995). A non- deliberate or inadvertent misstatement of material fact should be disregarded and a suppression court should then consider the existence or non-existence of probable cause based on the remaining content of the affidavit. Commonwealth v. Scavincky, 359 A.2d 449, 452-53 (Pa.Super. 1976). Materiality, in fact, may be determined by deleting the misstatement from the affidavit and seeing whether the remaining averments state enough to allow the issuing authority to find probable cause. Commonwealth v. Yucknevage, 390 A.2d 225, 227 (Pa.Super. 1978). When the language concerning deletion is stricken from the affidavit of probable cause in this case, the issuing authority is left with no reason to believe that the sought-after evidence would be present after eleven and a half months. The extreme delay in the issuance of the search warrant presents as an even more acute problem when we consider the fact that the defendant’s computer had been monitored for almost a year prior to the issuance of the warrant and no illicit activity had been detected. 2 We do not address the issue of whether, where an officer should have known of the misstatement, the misstatement is, of necessity, “knowing.” 2 Where omissions are the basis for a challenge to an affidavit of probable cause, the Superior Court has articulated the following test: “(1) whether the officer withheld a highly relevant fact within his knowledge, where any reasonable person would have known that this is the kind of thing a judge would wish to know; and (2) whether the affidavit would have provided probable cause if it had contained a disclosure of the omitted information.” Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa.Super. 2004). We decline to invalidate the search warrant in this case, notwithstanding the serious nature of the omission in the affidavit, for that reason. The fact that there had been no unlawful file-sharing activity for almost a year would, of course, be the kind of thing that a judge would wish to know in a case like this. Moreover, it would bear directly on the question of whether there was probable cause to believe that evidence of the possession of child pornography would be present on the date the warrant was executed. There has been no showing, however, that Detective Smith was even aware of the monitoring which had occurred during the eleven and a half months prior to his obtaining the warrant. It cannot be said, therefore, that he “withheld” this information. Nonetheless, the omission in the search warrant underscores the problem that existed in this case when the investigation changed hands. Simply 3 put, the information supporting probable cause had grown stale. ORDER th AND NOW, this 15 day of February, 2011, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is SUSTAINED and evidence seized 3 The staleness of the information becomes further complicated by the fact that, when the investigation was initiated, there was no actual child pornography which could be downloaded or viewed. 3 from the defendant pursuant to the search warrant issued in this case is SUPPRESSED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Christylee Peck, Esquire Sr. Assistant District Attorney John Abom, Esquire For the Defendant :rlm 4 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0724-2010 : : JOHN RANSOM : IN RE: OMNIBUS PRETRIAL MOTIONS FOR RELIEF BEFORE HESS, P.J. ORDER th AND NOW, this 15 day of February, 2011, the omnibus pretrial motion of the defendant in the nature of a motion to suppress evidence is SUSTAINED and evidence seized from the defendant pursuant to the search warrant issued in this case is SUPPRESSED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Christylee Peck, Esquire Sr. Assistant District Attorney John Abom, Esquire For the Defendant :rlm