NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us
SJC-12829
COMMONWEALTH vs. ROBERT GUASTUCCI.
Middlesex. March 5, 2020. - October 14, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.1
Obscenity, Child pornography. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Search and Seizure, Computer, Probable cause, Affidavit. Evidence, Information stored on computer. Practice, Criminal, Motion to suppress.
Indictments found and returned in the Superior Court Department on February 15, 2018.
A pretrial motion to suppress evidence was heard by John T. Lu, J., and a conditional plea of guilty was accepted by him.
The Supreme Judicial Court granted an application for direct appellate review.
Benjamin L. Falkner for the defendant. Gabriel Pell, Assistant District Attorney, for the Commonwealth.
1 Chief Justice Gants participated in the deliberation on this case prior to his death. 2
GAZIANO, J. On March 15, 2017, an unknown computer user
uploaded an image of child pornography to an Internet-based
communication service that is designed to share files and "chat"
with others. After receiving a tip from the National Center for
Missing and Exploited Children (NCMEC), police tracked the
specific computer address by which the device had connected to
the Internet to the defendant's house in Tyngsboro, and an
account owned by his wife. Seven months after the alleged
illegal activity, on October 18, 2017, a State police trooper
obtained a warrant authorizing a search of all computer systems
and digital storage devices located within the residence for
evidence of child pornography. Following execution of the
search warrant, the defendant's laptop computer and a "flash"
drive were seized; the defendant subsequently was indicted on
two counts of possession of child pornography, in violation of
G. L. c. 272, § 29C, as a result of images found on these
devices.
At issue in this appeal is whether the information in the
search warrant affidavit was too stale to establish probable
cause to believe that evidence of child pornography would be
found on computers or digital storage devices at the time of the
search, seven months after the Internet activity with one
specific image. A Superior Court judge denied the motion to
suppress after finding that the seven-month period was "less 3
than ideal, but . . . a tolerable amount of delay." The
defendant subsequently entered a conditional guilty plea to both
charges, see Commonwealth v. Gomez, 480 Mass. 240, 252 (2018),
and we allowed his petition for direct appellate review.
Because we conclude that there was sufficient evidence for a
magistrate to have found probable cause, we affirm.
1. Background. a. Investigation and warrant application.
On October 18, 2017, State police Trooper Christopher MacDonald
applied for a warrant to search computers and digital storage
devices located within a single-family house in Tyngsboro. In
support of the warrant application, McDonald submitted a ten-
page affidavit and an attached exhibit. The exhibit described,
in general terms, the investigation of child pornography that
has been distributed over the Internet and stored in a suspect's
computer. The affidavit and exhibit then stated the following.
On March 16, 2017, electronic service provider Skype.com
(Skype) filed a report with NCMEC of a suspected incident of
possession or distribution of child pornography.2 Skype is a
2 The National Center for Missing and Exploited Children (NCMEC), among other functions, operates a "CyberTip line" that the public may use to report suspected instances of Internet- related child exploitation. Pursuant to 18 U.S.C. § 2258A(a)(1)(A), Internet service providers are required to report suspected child pornography to NCMEC "as soon as reasonably possible." In its role as a clearing house for this type information, NCMEC forwards these tips to Federal and State law enforcement agencies. See 18 U.S.C. § 2258A(c)(1)-(3). 4
Web-based application that provides its customers with video
communication and voice call services, as well as "chat"
services where typed messages are exchanged interactively.
Skype users also may use the platform to exchange digital images
and video files. According to the information reported by
Skype, a computer user with a "screen name" of "live:
boullett_1" at a particular Internet Service Protocol (IP)
address uploaded a digital image believed to be child
pornography on March 15, 2017. At a date not specified in the
affidavit, NCMEC forwarded the information contained in the tip
to the State police computer crimes unit.
On May 5, 2017, pursuant to an administrative subpoena
issued by the Massachusetts Attorney General's Office, the
internet service provider (ISP) provided records for its
subscriber at that IP address. The ISP identified the
subscriber, as of March 15, 2017, as the defendant's spouse,
with a service address in Tyngsboro. The Internet account,
which had been created in August of 2007, listed three user
names; none of these matched the Skype screen name "live:
boullett_1" that had been used to upload the image.
On September 27, 2017, McDonald viewed the digital image
uploaded to Skype and confirmed that it depicted child
pornography. That day, he queried the registry of motor
vehicles for vehicles and driver's licenses registered at the 5
street address in Tyngsboro. He found three listed drivers:
the defendant, his spouse, and their child. On October 11,
2017, MacDonald conducted surveillance of the single-family home
and "was unable to locate any open unprotected wireless networks
within the vicinity of the residence."
In addition to the facts involving this investigation,
MacDonald's affidavit included generalized information about
possession of child pornography. He averred that "[t]hose who
have possessed and/or disseminated child pornography have an
interest or preference in the sexual activity of children" and
are "likely to keep secreted, but readily at hand, sexually
explicit visual images depicting children. . . . These
depictions tend to be extremely important to such individuals
and are likely to remain in the possession of or under control
of such an individual for extensive time periods."
He further averred that, in the event an individual with an
interest in child pornography were to delete a file, it could be
possible to recover that evidence from the computer's hard drive
or temporary storage "months or years" after it had been
deleted. The ability to recover deleted files depends upon many
factors, including whether temporary files have been overwritten
by new data; whether the hard drive has been damaged; and
whether the computer user effectively encrypted the data. 6
The search warrant was issued, and police executed the
warrant on October 19, 2017. The search yielded a laptop
computer and a flash drive, both owned by the defendant, which
contained images of child pornography.
b. Prior proceedings. A grand jury returned indictments
charging the defendant with two counts of possession of child
pornography, in violation of G. L. c. 272, § 29C. The defendant
moved to suppress the evidence seized from the laptop computer
and the flash drive on the ground that the affidavit failed to
establish probable cause to search his home because it was based
on stale information. A Superior Court judge denied the motion.
The judge endorsed the motion as follows: "[A]fter hearing this
motion is denied because an uploader on this online platform is
in a different position than a downloader or uploader on
platforms like icloud or Dropbox, March to October is less than
ideal but is a tolerable amount of delay and digital files are
often kept on computers for years. Also, the appellate case[s]
point toward this result."
On November 13, 2018, with the Commonwealth's assent (and
with the judge's acceptance), the defendant tendered a
conditional guilty plea to both counts of possession of child
pornography. He then filed a notice of appeal, and we allowed
his motion for direct appellate review. 7
2. Discussion. Under the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights, a search warrant may issue upon a showing of probable
cause. Commonwealth v. Anthony, 451 Mass. 59, 68 (2008). "For
probable cause to arise, the facts contained in an affidavit,
plus the reasonable inferences that may be drawn from them,
must allow the magistrate to determine that the items sought
are related to the criminal activity under investigation, and
that they reasonably may be expected to be located in the
place to be searched at the time the search warrant issues"
(quotations and citation omitted). Commonwealth v. Martinez,
476 Mass. 410, 415 (2017). See Commonwealth v. Long, 482 Mass.
804, 809 (2019) (probable cause means substantial basis to
believe evidence of criminal activity may reasonably be expected
to be located in place searched "at the time the search warrant
issues" [citation omitted]). "Facts asserted in the affidavit
must be closely related in time to the issuance of the warrant
in order to justify a finding of probable cause . . . ."
Commonwealth v. Connolly, 454 Mass. 808, 814 (2009).
"Whether a search warrant is supported by probable cause is
a question of law that we review de novo" (quotations and
citation omitted). Commonwealth v. Vasquez, 482 Mass. 850, 866
(2019). Review of a probable cause determination is limited to
the four corners of the warrant affidavit and any attachments 8
thereto. Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). In
determining whether probable cause exists, "we deal with
probabilities. These are not technical; they are the factual
and practical considerations of everyday life on which
reasonable and prudent men [and women], not legal technicians,
act." Commonwealth v. Hason, 387 Mass. 169, 174 (1982), quoting
Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus, we
view consider the statements in the warrant affidavit in a
"commonsense manner," Commonwealth v. O'Day, 440 Mass. 296, 299
n.4 (2003), and consider the warrant affidavit "as a whole,
without overly parsing or severing it, or subjecting it to
hypercritical analysis" (quotations and citation omitted).
Perkins, supra.
In addition, we are mindful that the probable cause inquiry
is "not a high bar" (citation omitted), District of Columbia v.
Wesby, 138 S. Ct. 577, 586 (2018), and that probable cause "does
not require definitive proof of criminal activity," Anthony, 451
Mass. at 69. "And officers need not 'rule out a suspect's
innocent explanation for suspicious facts' to obtain a warrant"
(citation omitted). United States v. Chavez, 423 F. Supp. 3d
194, 205 (W.D.N.C. 2019).
The defendant does not dispute that the image viewed by
police constituted child pornography or that it was uploaded
from a computer at his house on the date alleged. Moreover, the 9
defendant does not contest that the statements in the warrant
affidavit would be sufficient to establish probable cause that
the image was uploaded from his computer to the Skype service.
Nor does he claim that someone else accessed his computer and
uploaded the image. Thus, the primary issue we must address is
whether the passage of seven months between the alleged upload
and the application for a search warrant rendered the warrant so
stale that it lacked probable cause.
The defendant argues that the upload of a single image of
child pornography is not enough, standing alone, to justify
issuing a warrant to search his computer seven months later. He
contends that there was nothing in the search warrant affidavit
to suggest that the individual who uploaded the image was a
collector of child pornography, such that the image would be
likely to be retained on the laptop rather than being deleted at
some point over a fairly lengthy period of time. The
Commonwealth responds that, to the contrary, because the target
of the search warrant deliberately uploaded an image of child
pornography to Skype, a service which is designed for online
conversations, chats, and sharing of files, there was probable
cause to believe that the individual who uploaded the image "was
interested in [child pornography] enough to retain the uploaded
file." While the delay of seven months may be at the outer
limit in these circumstances, we conclude, as did the motion 10
judge, that the information in the warrant affidavit was not
stale when the warrant was filed.
Because of the highly fact-intensive nature of the inquiry,
it is not possible to formulate a bright-line test for
staleness. See Commonwealth v. Atchue, 393 Mass. 343, 349
(1984), quoting Sgro v. United States, 287 U.S. 206, 211 (1932)
(timeliness of facts is "determined by the circumstances of each
case"). See also Connolly, 454 Mass. at 814, citing
Commonwealth v. Cruz, 430 Mass. 838, 843 (2000). We typically
measure the timeliness of information supporting a search
warrant by considering two factors: (1) the nature of the
criminal activity under investigation; and (2) the nature of the
item to be seized. Commonwealth v. Matias, 440 Mass. 787, 792-
793 (2004); Cruz, supra.
As to the nature of the criminal activity under
investigation, with crimes such as possession of narcotics,
which are "readily consumed or distributed, . . . probable cause
to search for them rapidly dwindles with the passage of time,"
and an affidavit concerning a tip about a single drug
transaction that took place several months earlier would not
serve to establish probable cause (quotations and citation
omitted). See Matias, 440 Mass. at 792-793. See also
Commonwealth v. Reddington, 395 Mass. 315, 322-323 (1985).
Where an affidavit contains information indicating ongoing or 11
protracted criminal activity, however, the question is
different, and "time is of less significance" (citation
omitted). Commonwealth v. Vynorius, 369 Mass. 17, 25 (1975).
See, e.g., Commonwealth v. Alvarez, 422 Mass. 198, 205 (1996)
(affiant observed series of drug transactions at suspect's
apartment, including transaction one and one-half weeks before
seeking warrant, and individual who said he had purchased drugs
from suspect the previous day was arrested on day before warrant
affidavit was filed containing that information); Connolly, 454
Mass. at 817 (information was not stale where defendant was said
to engage in repeated drug sales); Commonwealth v. Murphy, 95
Mass. App. Ct. 504, 510-511 (2019) (affidavit provided
"powerful" evidence of ongoing theft ring).
With respect to the second factor, the nature of the item
to be seized, the inquiry is related and also proceeds along two
distinct lines. Information concerning an item that is
perishable, readily disposable, or transferrable might not
establish probable cause even a few days later. See, e.g.,
Commonwealth v. Wade, 64 Mass. App. Ct. 648, 651-652 (2005)
(information from confidential informant that he had been
purchasing cocaine from suspect who was sitting in his vehicle,
and last had done so five days previously, did not establish
probable cause that drugs would still be in vehicle five days
later); Commonwealth v. Rodriguez, 49 Mass. App. Ct. 664, 669 12
(2000) (information about single instance of possession three
days before issuance of warrant, without more, might not have
established probable cause).
On the other hand, an item that is durable, of enduring use
to its holder, and not inherently incriminating might reasonably
be found in the same location several weeks later. See
Commonwealth v. Gray, 465 Mass. 330, 346-347 (2013); Matias,
440 Mass. at 792-793; Commonwealth v. Burt, 393 Mass. 703, 716
(1985). See e.g., Commonwealth v. Beliard, 443 Mass. 79, 84-85
(2004) (six week old information concerning firearm was not
stale where "there was no evidence that the weapons sought by
the warrant had been used in any other crime, or that the
defendant . . . knew that the weapons had been identified to the
police thereby stripping them of their continued utility");
Commonwealth v. Blye, 5 Mass. App. Ct. 817, 818 (1977)
(seemingly innocuous stolen household goods were likely to be
retained for longer periods of time).3
3 Of course, that an object is durable and useful alone is not sufficient to infer that information in the warrant is not stale. This, again, is a context-specific inquiry dependent on all the circumstances set forth in the affidavit. See, e.g., Commonwealth v. Hart, 95 Mass. App. Ct. 165, 168 (2019) (confidential informant's tip that, sixty days before application for warrant, defendant had kept semiautomatic weapon on floor in bedroom, without more, was stale, even though firearms are durable and "not likely to be consumed or destroyed" [citation omitted]). Contrast Commonwealth v. James, 424 Mass. 770, 778-779 (1997) (affidavit indicating knives had been used in recent crimes and routinely were carried by 13
In addition, the timeliness of the information in a search
warrant depends on the ability of the police to examine an item
and to detect relevant evidence of the commission of a crime at
a prior time. Something that is inherently incriminating, in
some circumstances, might establish probable cause well after
the commission of the crime. See United States v. Contreras,
905 F.3d 853, 858-859 (5th Cir. 2018) (discussing forensic
computer analysis of deleted child pornography files). Cf.
Commonwealth v. Tavares, 484 Mass. 650, 652 (2020) (twelve years
after murder police recovered evidence of blood stains on floor
boards); Commonwealth v. Keown, 478 Mass. 232, 235-236 (2017)
(police searched defendant's computer one year after spouse's
death and recovered search queries "antifreeze death human" and
"poison recipe").
To our knowledge, no reported Massachusetts appellate
decisions have addressed the issue of staleness in the context
of a search for evidence of child pornography. Courts in other
jurisdictions, however, have observed that "the determination of
staleness in investigations involving child pornography is
unique" (citation omitted). United States v. Raymonda, 780 F.3d
105, 114 (2nd Cir. 2015). This observation is based on the
particular suspects was not stale eighteen days after crimes took place, where knives were to be expected to be kept at home and were not inherently incriminating). 14
belief that individuals who are interested in child pornography
are likely to collect and retain such images in the privacy of
their own homes. See United States v. Irving, 452 F.3d 110, 125
(2d Cir. 2006) (because "images of child pornography are likely
to be hoarded by persons interested in those materials in the
privacy of their homes," evidence that such persons possessed
child pornography in past supports reasonable inference that
they retain those images -- or have obtained new ones -- in
present [citation omitted]). See also United States v.
Vosburgh, 602 F.3d 512, 528 (3d Cir. 2010) (collectors of child
pornography are unlikely quickly to discard images of child
pornography because of difficulty and risk involved in obtaining
them); United States v. Frechette, 583 F.3d 374, 378 (6th Cir.
2009) (possession of child pornography is not typically "a
fleeting crime"); United States v. Morales-Aldahondo, 524
F.3d 115, 119 (1st Cir. 2008) (customers of child pornography
sites do not quickly dispose of their cache). Accordingly, the
same time limitations that have been applied to "more fleeting
crimes do not control the staleness inquiry for child
pornography" (citation omitted). Frechette, supra.
This does not mean that a person accused of possessing or
disseminating child pornography is, in effect, precluded from
challenging a search warrant on the grounds of staleness because
of a de facto presumption. Nor does it suggest that the 15
government is not bound by the requirements of the Fourth
Amendment and art. 14 when seeking evidence related to
allegations of possession of child pornography. Every
investigation, including the possession and distribution of
child pornography, has a shelf life. See Vosburgh, 602 F.3d at
529 ("We do not hold, of course, that information concerning
child pornography crimes can never grow stale"). The United
States Court of Appeals for the Second Circuit is one of the few
appellate courts to have examined the question of the collector
inference in search warrants seeking evidence of child
pornography, and to have developed a more nuanced analysis. The
court has explained, "Crucially, however, the value of that
inference [that an individual who is interested in child
pornography will retain images of child pornography for lengthy
periods of time] in any given case depends on the preliminary
finding that the suspect is a person 'interested in' images of
child pornography." Raymonda, 780 F.3d at 114. See United
States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (generalized
allegations about propensity of collectors of child pornography
to hoard images is relevant to probable cause determination only
if there is indication in affidavit that suspect was inclined to
do so); United States v. Coreas, 419 F.3d 151, 156 (2d Cir.
2005) (alleged child pornographer's proclivities are relevant
only if there is probable cause to believe that suspect is 16
collector of child pornography). We are persuaded that this
distinction is critical and adopt this important qualification
on the inferences that can be drawn in cases involving child
pornography with respect to the length of time that an image
containing child pornography is likely to be retained in an
individual's computer or other electronic device.
We therefore must consider what constitutes evidence of an
"interest in" child pornography sufficient to trigger an
inference that the target of a search warrant is a collector and
likely to retain such images, adequate to establish that a
search warrant affidavit is not stale. As the United States
Court of Appeals for the Second Circuit discussed, there are
several factors that could support a reasonable inference that a
suspect is a collector of child pornography: an admission or
other evidence identifying the individual as a pedophile; paid
subscriptions to child pornography sites or participation in
peer to peer file sharing; and a past history of possessing or
receiving child pornography. Raymonda, 780 F.3d 105 at 114-115,
and cases cited. In addition, in some circumstances, a
reasonable inference that a suspect is "interested in" child
pornography might be drawn based on a single incident of
possession or receipt of child pornography where, for example,
the images were obtained through "a series of sufficiently
complicated steps" suggesting a "willful intention to view the 17
files," or where the suspect redistributed the file to others.
See id. at 115.
Thus, an inference that an individual is a collector of
child pornography "proceed[s] from circumstances suggesting that
[the suspect] accessed those images willfully and deliberately,
actively seeking them out to satisfy a preexisting
predilection." Id. Importantly, it excludes circumstances,
even involving multiple images, where "the suspect's brush with
child pornography was a purely negligent or inadvertent
encounter, the residue of which was long ago expunged." Id. In
Raymonda, for example, the search warrant affidavit alleged
that, nine months earlier, a computer user at a specified IP
address associated with the defendant's home accessed seventy-
six thumbnail images of child pornography over a period of
seventeen seconds. Id. at 117 & n.4, 120. The user did not
download the images, or even click on the thumbnails to open
them and view full-sized images. Id. at 117. The court
concluded that there was not probable cause the images would
still be on the computer because "[i]t was necessary to show
that [the suspect] accessed [child pornography] in circumstances
sufficiently deliberate or willful to suggest that he was an
intentional 'collector' of child pornography, likely to hoard
those images -- or acquire new ones -- long after any automatic
traces of that initial incident had cleared." Id. See Falso, 18
544 F.3d at 121 (no probable cause where affidavit was
inconclusive as to whether suspect actually gained access to
child pornography website and there was no indication that he
viewed or downloaded images).
Here, the defendant contends that the affidavit did not
establish any "propensity-raising circumstances" so as to
trigger an inference that he would have stored images of child
pornography in his computer for seven months. As the defendant
asserts, the affidavit does not allege that the defendant is an
admitted or known pedophile, paid for access to child
pornography, had a history of possessing or receiving
pornographic images, or used sufficiently complicated steps to
access the image in question. Nonetheless, we do not agree with
the defendant's contention that there was no information in the
affidavit suggesting that the person who uploaded the image
redistributed that file to another person.4 To the contrary, the
affidavit alleged that the computer user, who had a Skype
account and used the screen name "live: boullett_1," uploaded an
4 The defendant also argues that the affidavit "offered no information or evidence from which the magistrate could have inferred that the particular computer or device from which the photograph was uploaded still existed." As more time passes between the upload and the search, he argues, it becomes more likely that the computer was replaced with a newer model. While, as time goes on, it is indeed more likely that a computer or other electronic device will have been replaced, seven months is not outside the realm of probability. 19
image of child pornography to an Internet chat, talk, and file-
share service. As the motion judge noted, the use of Skype, a
service that is designed for communication and file sharing, was
significant, and is substantively different from, potentially
inadvertently, storing (technically, "uploading")5 a file to a
cloud storage service such as "iCloud" or "Dropbox."
Given the facts as asserted in the warrant affidavit, which
would have required multiple, intentional steps to place the
image in a file-sharing service, it would have been unlikely
that the suspect negligently or inadvertently stumbled upon the
5 The key to the distinction lies in the degree of intentionality demonstrated by the user, which may depend on the software used. For certain software, as here, the inference that an upload implies intentional possession may be warranted. See United States v. Bynum, 604 F.3d 161, 166 (4th Cir. 2010). The advent of cloud computing, however, cautions against applying this inference blindly. See Riley v. California, 573 U.S. 373, 397 (2014) ("Cell phone users often may not know whether particular information is stored on the device or in the cloud"). A computer user who, intentionally or inadvertently, places a file in a cloud storage service may have intentionally acquired that file and stored it on his or her computer, or may have inadvertently saved it to cloud storage through browsing an innocuous webpage. See United States v. Bosyk, 933 F.3d 319, 346 (4th Cir. 2019) (Wynn, J., dissenting). "Cloud" services often automatically back up data with no intentional action by the user. See Comment, Child Pornography Statutes and the Cloud: Updating Judicial Interpretations for New Technologies, 57 Hous. L. Rev. 727, 748 (2020) ("If a device uploads or backs up visual depictions by default, it is not clear that the user 'knowingly' transported the visual depictions"). See also Williams vs. Apple, Inc., U.S. Dist. Ct., No. 19-CV-04700, slip op. at 2 (N.D. Cal. Mar. 27, 2020) (quoting Apple terms of service: "When iCloud is enabled, your content will be automatically sent to and stored by Apple"). See, generally, Svenson, Backup in the Modern Law Firm, 94 Mich. B.J. 54 (2015). 20
image and, "horrified by what he saw," promptly closed the
window and deleted it. Contrast Raymonda, 780 F.3d 105 at 117.
Therefore, on the facts asserted in the warrant affidavit here,
it was reasonable for the magistrate to infer that the computer
user "live: boullett_1" possessed a digital image of child
pornography, intentionally accessed this image, and distributed
it to another person by uploading the file to Skype. Compare
People v. Donath, 357 Ill. App. 3d 57, 67 (2005) ("Uploading is
sending something from your computer 'up' to someone else's
computer. . . . Because the defendant uploaded and distributed
the images, it is reasonable to infer that defendant possessed
[child pornography] somewhere in his home, either on his
computer or some electronic media storage device"). See also
United States v. Schesso, 730 F.3d 1040, 1045 & n.2 (9th Cir.
2013) (act of uploading child pornography to file-sharing
network, distinguished from "onetime accidental download or
inadvertent receipt" of image, connected defendant to profile of
collector of child pornography); United States v. Bynum, 604
F.3d 161, 165 (4th Cir. 2010) (probable cause to search existed
based on allegation individual uploaded suspected child
pornography to Internet).6
6 The defendant based his argument in this court on Fourth Amendment and art. 14 grounds. As the defendant points out, in general, art. 14 provides "more substantive protection to criminal defendants than does the Fourth Amendment in the 21
The defendant's primary argument before the motion judge
was that suppression was required based on the reasoning of the
United States Court of Appeals in Raymonda, 780 F.3d 105 at 114-
117. Because the defendant did not raise the propensity issue
before the motion judge, the argument is waived. See
Commonwealth v. Dew, 478 Mass. 304, 309 (2017). "We nonetheless
review to determine whether there was a substantial risk of a
miscarriage of justice." Id. 309-310. For the reasons
discussed, there was no abuse of discretion in the judge's
conclusion that the information supporting the search warrant
was not stale, and established probable cause to search the
defendant's laptop and electronic storages devices for evidence
of child pornography on the date that the warrant was issued.
Order denying motion to suppress affirmed.
determination of probable cause." Commonwealth. v. Upton, 394 Mass. 363, 373 (1985). See Commonwealth v. Alexis, 481 Mass. 91, 98-99 (2018), and cases cited. We have not, however, been called upon to extend additional protections under art. 14, beyond those provided by the Fourth Amendment, to the staleness inquiry in a case involving child pornography, and we discern no reason to address the issue in this case, where the defendant raises it for the first time on appeal.