United States v. Morgan, No. 16-1525 (8th Cir. 2016)
Annotate this CaseAfter defendant plead guilty to one count of production of child pornography and one count of attempted production, he appealed the denial of his motion to suppress and his sentence. Defendant argues that the information in the search warrant was stale, and thus the warrant lacked probable cause, because police did not apply for the warrant until 75 days after identifying his IP address and 51 days after associating it with him. The court concluded, however that periods much longer than 75 or 51 days have not rendered information stale in computer-based child-pornography cases. Here, the affidavit established a fair probability of finding evidence on defendant's computers. The court also concluded that defendant had no reasonable expectation of privacy in his cell-phone screen once he made it visible to the public by displaying it in the presence of a detective. The court also concluded that defendant consented to the photographs of his tattoo and thus the district court correctly denied the motion to suppress the photographs of the tattoos. The court also concluded that the district court did not err by applying a four-level sentencing enhancement under USSG 2G2.1(b)(4) for an offense involving materials displaying sadistic or masochistic conduct or other depictions of violence. Finally, the district court did not err by imposing a five-level enhancement under USSG 4B1.5(b) for prohibited sexual conduct. Accordingly, the court affirmed the judgment.
Court Description: Benton, Author, with Loken and Gruender, Circuit Judges] Criminal case - Criminal law and sentencing. 75-day delay in issuance of search warrant did not render the information stale in this computer-based child-pornography case as collectors of these materials tend to retain the images for long periods of time; defendant had no reasonable expectation of privacy in his cell-phone screen after he made it visible by publicly displaying it the presence of a detective; defendant agreed to lift his sleeve to permit a photo of a distinguishing tattoo, and the motion to suppress the photo was properly denied; no error in imposing a four-level enhancement under Guidelines Sec. 2G2.1(b)(4) for possession of materials displaying sadistic content as any image depicting the penetration of a minor's vagina is per se sadistic under this court's cases; district court correctly ruled that attempted production of child pornography is a crime under Chapter 110 of Title 18 and it did not err in imposing a five-level enhancement under Guidelines Sec. 4B1.5(b).
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