## Facts

- Europol investigated an online child-pornography seller and obtained thousands of customer emails, forwarding roughly 10,000 emails involving U.S. citizens to the FBI.
- The FBI identified 45 emails between the seller and an account registered to William David Burkhart; the emails reflected purchases of videos depicting a 13-year-old girl in sexually explicit conduct, with the most recent email dated December 2, 2005.
- In April 2007, the FBI used an administrative subpoena to obtain subscriber information tying the email account to Burkhart and a McAlester, Oklahoma address.
- An agent used state motor-vehicle records to link Burkhart to two nearby addresses and sought separate search warrants for each.
- The warrant affidavit summarized the email evidence, included the last-contact date, and asserted based on investigator experience that child-pornography collectors typically retain materials for many years.
- On May 8, 2008, agents executed a warrant at one of the linked addresses and seized more than 400 DVDs containing child pornography.
- Burkhart was charged under 18 U.S.C. § 2252(a)(4)(B), pleaded guilty, and reserved the right to appeal the denial of his motion to suppress the seized evidence.

## Issues

1. Whether the affidavit’s information was too stale to establish probable cause because the last email evidence dated more than two years before the search.
2. Whether, if probable cause was lacking, the evidence was still admissible under the good-faith exception to the exclusionary rule.

## Decision

- The Tenth Circuit affirmed the denial of the motion to suppress.
- The court held that probable cause existed despite the delay, given the nature of child-pornography collecting and the repeated, incriminating communications.
- The court also held that officers acted with objective good faith in relying on a warrant issued by a neutral magistrate, so suppression was unwarranted even if probable cause were arguable.

## Legal Principles

- Probable cause is a practical, common-sense assessment of whether there is a fair probability that evidence will be found at the place to be searched, and a magistrate’s determination receives substantial deference.
- Staleness depends on the nature of the crime and the evidence sought; in child-pornography cases, evidence may remain timely because collectors commonly retain materials for extended periods.
- A warrant requires a reasonable nexus between suspected criminal activity and the location searched; that nexus may be shown circumstantially (including subscriber records, vehicle-registration data, and reasonable inferences about where collectors keep contraband).
- Under United States v. Leon, evidence obtained under a warrant is generally not suppressed when officers reasonably rely on it, absent recognized exceptions (e.g., materially false statements, abandonment of the judicial role, a bare-bones affidavit, or facial deficiency).

## Conclusion

The court upheld the search because the email evidence and collector-retention rationale supported probable cause despite a multi-year gap and because, in any event, the executing officers reasonably relied on a magistrate-issued warrant under Leon’s good-faith exception.


United States v. Burkhart, 602 F.3d 1202 (10th Cir. 2010)