Search and Seizure: Alleged ‘stale’ search for child abuse material upheld

The court rejected the defendant’s argument that probable cause based on his January 2019 online activities had grown stale by the time state officers executed their search warrant in November of that year. The consensus among courts, including this one, is that “even a substantial delay” between suspect online activity involving child sexual abuse material and the issuance of a search warrant “doesn’t render the underlying information stale.”

Background

Andrew David Krueger was convicted of receipt and possession of child sexual abuse material. Krueger challenges the district court’s denial of his motion to suppress evidence discovered on his electronic devices pursuant to a search warrant.

Staleness

Krueger claims that probable cause based on his January 2019 online activities had grown stale by the time state officers executed their search warrant in November of that year. To be clear, Krueger does not dispute that his January 2019 activities established probable cause that child sexual abuse material would be found then on his electronic devices. Instead, he argues that by November 2019, eleven months later, there was no longer a reasonable basis for believing incriminating evidence would be found on the devices.

When it comes to child sexual abuse material the consensus among courts, including this one, is that “even a substantial delay” between suspect online activity and the issuance of a search warrant “doesn’t render the underlying information stale.” That is so for two primary reasons.

First, there is the “widespread view” that collectors of child sexual abuse material value that material highly, so rarely dispose of it and instead “store it for long periods in a secure place, typically in their homes.” Second, there is the fact that “digital media files persist for a long time,” and that even if a defendant deletes a file “from a hard drive or other computer media, a computer expert is still likely to retrieve . . . [it] through scientific examination of the computer.”

According to Krueger, however, there is no factual basis here for believing he is actually a collector who values child sexual abuse material, rather than someone who encountered such material inadvertently and would have immediately expunged it. The court disagrees.

According to the affidavit in support of the warrant application, Krueger’s January 2019 encounters with illicit activity occurred not once on a single afternoon, but repeatedly, over four days. They included the downloading and uploading, on multiple occasions, of full images of minors engaged in sexually explicit conduct. And Krueger’s use of the BitTorrent peer-to-peer network would have required the taking of “elaborate steps to access illegal content,” making it “possible to infer that [he] is a collector . . . actively seeking [] out [images] to satisfy a preexisting predilection.” And even if Krueger did not seek to hoard child sexual abuse material as a collector, and instead tried to delete that material back in January 2019, it still could have been retrieved during an expert forensic search after Krueger’s devices were seized 11 months later.

In sum, the magistrate judge who issued the federal warrant in this case had a substantial basis – indeed, two substantial bases – for concluding that a search of the contents of Krueger’s devices as of their seizure in November 2019 would uncover evidence of wrongdoing.

Delay

Krueger’s second argument is that the delay between the seizure of his devices in November 2019 and the federal warrant application in September 2022 is obviously outside what could be considered reasonable under the Fourth Amendment. But in this unusual case, the time taken by federal authorities to obtain a federal warrant had no effect on the length of the seizure in question.

Krueger’s devices were seized by state police officers pursuant to a state warrant in November 2019, and then retained in state custody throughout both the state and federal phases of these criminal proceedings. Nothing about the federal warrant – allowing a search of copies of the devices’ contents, while the devices themselves remained with the state – had anything to do with the length of time for which Krueger was deprived of a possessory interest in his devices. Any purported “delay” by police officers working in a federal capacity had no effect on the length of the seizure of Krueger’s devices by the state, and thus could not have caused or contributed to an unreasonable seizure of Krueger’s property.

Affirmed.

United States v. Krueger, Case No. 24-4328, July 25, 2025. 4th Cir. (Harris), from EDVA at Alexandria (Brinkema). Cadence Alexandra Mertz for Appellant. Rachel Lieber Rothberg for Appellee. VLW 025-2-283. 13 pp.