Mehring v. State

884 N.E.2d 371, 2008 Ind. App. LEXIS 721, 2008 WL 1723589
CourtIndiana Court of Appeals
DecidedApril 15, 2008
Docket49A05-0706-CR-337
StatusPublished
Cited by36 cases

This text of 884 N.E.2d 371 (Mehring v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mehring v. State, 884 N.E.2d 371, 2008 Ind. App. LEXIS 721, 2008 WL 1723589 (Ind. Ct. App. 2008).

Opinions

OPINION

FRIEDLANDER, Judge.

In this interlocutory appeal, Brian Mehring appeals the trial court’s denial of his motion to suppress evidence in a case in which he was charged with four counts of Child Exploitation,1 each a class C felony, and nine counts of Possession of Child Pornography,2 each a class D felony. Mehring presents the following restated issue for review: Did the trial court err in denying Mehring’s motion to suppress?

We affirm.

On May 4, 2005, FBI Agent Michael Gordon, who was working in the FBI’s New Orleans office, entered a “file sharing network” on the internet known as “Lime-Wire peer to peer.” Appellant’s Appendix at 39. The facts of what Agent Gordon discovered on this file sharing network and the subsequent acts of the police investigation are best described in the search warrant affidavit filled out by Detective Kurt Spivey of the Indianapolis Police Department’s “Core Vice Unit”, id., when he applied for a warrant to search Mehring’s apartment and computer:

... [Agent Gordon] located several digital images which were available and were downloaded from IP Address 65.29.77.5. The downloads contained the images of prepubescent females in a state of nudity, with the focus on the genital area. The images appear to be produced for sexual arousal. After iden[374]*374tifying the images as illegal child pornography, he tracked this IP Address and identified the Internet Service Provider (ISP). He sent an administrative subpoena to Bright house [sic] Networks, Inc., requesting information for the before mentioned IP Address. The subpoena return indicated the IP Address in question belonged to Brian Mehring at 732 Lockfield Court Apt B, Indianapolis, Indiana, at the specific date and time of the download. On 06-27-05, FBI Agent Michael Gordon reassigned this case to FBI Agent Dorian Deligeorges of the FBI Indianapolis Field Office. On 10-04-05 Agent Delig-eorges requested assistance from the Indianapolis Police Department to pursue a local level investigation and/or prosecution. On 10-05-05, I [Detective Spi-vey] approached the residence and found it to be vacant. Further investigation showed that Brian Mehring had relocated to 896 Blake Street, Apartment “B” which is also in the Lockfield Gardens Apartment Complex. On 03-09-06 at 23:45 hours, Patrolman Terry Snyder of the Indianapolis Police Department approached apartment 896-B, which had the name “Mehring” on the mailbox. He then knocked on the door under the ruse of a fake 911 call and positively identified Brian Mehring by name and date of birth. Through my training and experience, I know collectors of Child Pornography to go to great lengths to store, preserve and protect their collections. This is due to the illegal nature of said collection, contributing to the difficulty in obtaining and/or pornography, [sic] again contributing to the preservation of these collections for long periods of time. It is believed that the personal computer of Brian Mehring possesses the illegal child pornography received by Agent Gordon. It is also probable that this computer is located at 896 Blake Street, Apartment “B”.

Id. at 39-40.

On March 23, 2006, Detective Spivey used this information to apply for and obtain a search warrant of Mehring’s residence for “[a]ny and all materials, supplies, devices used to produce, transport, develop, promote, store, distribute or display child pornography and/or child exploitation.” Id. at 38. The police executed the search warrant that same day and recovered several computers, computer towers, hard drives, and digital media, some of which contained images of child pornography.

Based on the evidence obtained from the search warrant, the State charged Mehr-ing with four counts of class C felony child exploitation and nine counts of class D felony possession of child pornography. In January 2007, Mehring filed a motion to suppress, arguing that the search of his residence was unreasonable and unconstitutional under the Fourth Amendment to the United States Constitution and article 1, section 11 of the Indiana Constitution. Mehring argued that the search warrant should not have been issued because it was based on stale information. Mehring also argued that there was a lack of probable cause supporting the warrant because the search warrant affidavit did not allege facts that would establish a fair probability that evidence of a crime would be found at his residence. In regard to the probable cause argument, Mehring argued, among other things, that there were insufficient facts from which the magistrate could determine that the images obtained from Mehring’s IP address were illegal child pornography or determine that the Brian Mehring at the 896 Blake Street address was the same Brian Mehring as at the 732 Lockfield Court address.

[375]*375On April 24, 2007, the trial court issued an order denying Mehring’s motion to suppress. The trial court’s order, which concluded that the warrant was supported by probable cause3 and that the information in the warrant was not stale, provided, in relevant part:

# ⅜ * * *
5. The affidavit told the magistrate that several “digital images” were downloaded from a particular computer IP address in a file sharing network. The downloads were described as “images of prepubescent females in a state of nudity, with the focus on the genital area. The images appear to be produced for sexual arousal.” In a practical, nontechnical point of view, any reasonable person would interpret this to mean that there were photographs of naked preteen girls and their genitals available from this IP address. The magistrate could reasonably conclude that child pornography may be located at the place and in the storage of the computer with that IP address. Further, the physical address of the location of the computer was sufficiently corroborated by the affi-ant, through the name on the mailbox and ruse of Officer Snyder to verify the residence as that of Brian Mehring.
6. The fact that the images were downloaded ten months before the warrant issued does not necessarily vitiate the probable cause. While information given to the magistrate must be timely, timeliness is not determined by a specific measure of time. “... (O)ur courts have not established a precise rule as to how much time may elapse between the obtaining of the facts upon which the search warrant is based and the issuance of the warrant (cite omitted) ... Accordingly, probable cause is not determined by merely counting the number of days between the occurrence of the facts relied upon and the warrant’s issuance ... Instead, the staleness of the information must be judged by the facts and circumstances of each case.” Breitweiser [v. State, 704 N.E.2d 496] at 499.
7.The federal courts have dealt extensively with the issue of staleness and computer transmissions of pornography. The very nature and characteristics of computer storage are such that one cannot make comparisons with those cases involving easily movable and destroyable items such as drugs. While the legal principles remain the same, the circumstances are distinguishable. In U.S. v. Lacy, 119 F.3d 742

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Bluebook (online)
884 N.E.2d 371, 2008 Ind. App. LEXIS 721, 2008 WL 1723589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mehring-v-state-indctapp-2008.