                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued February 14, 2007
                              Decided August 6, 2007

                                       Before

                         Hon. DANIEL A. MANION, Circuit Judge

                         Hon. DIANE P. WOOD, Circuit Judge

                         Hon. TERENCE T. EVANS, Circuit Judge


No. 06-2552                                     Appeal from the United States
                                                District Court for the Western
UNITED STATES OF AMERICA,                       District of Wisconsin
              Plaintiff-Appellee,
                                                No. 05 CR 179
      v.
                                                John C. Shabaz, Judge.
DUANE DOAN,
                Defendant-Appellant.


                                    ORDER

       Duane Doan was charged in a one-count information with knowingly
possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Doan filed a
motion to suppress evidence asserting that the affidavit in support of the search
warrant lacked probable cause AND that the good faith exception did not apply.
After the district court denied Doan’s motion, Doan conditionally pleaded guilty and
now appeals the denial of his motion to suppress. We affirm.
No. 06-2552                                                                     Page 2



                                          I.

       The investigation that led to Doan’s arrest commenced in New Jersey, where
the United States Attorney’s Office and various law enforcement agencies
conducted a joint investigation of Regpay, a third-party billing and credit card
aggregating company. In particular, Regpay provided billing services to various
websites including two child pornography websites, www.lust-gallery.com and
www.veiled.pages.com. Regpay records contained customer information data,
including a subscriber’s first and last names, street address, telephone number,
credit card information, and e-mail address. These records revealed that on April 7,
2003, and April 12, 2003, Duane Doan subscribed to the aforementioned websites
for the cost of $49.95 and $57.90, respectively. In the course of subscribing to these
sites, Doan provided his name, street address, credit card number, and e-mail
address.

        On September 20, 2004, Special Agent Steve Sutherland of the United States
Immigration and Customs Enforcement submitted an affidavit before a magistrate
judge in support of a search warrant for Doan’s home to search for materials related
to the sexual exploitation of children. In his affidavit, Sutherland asserted that
Regpay records revealed Doan’s subscriptions to www.lust-gallery.com and
www.veiled.pages.com, that Doan’s e-mail address had been used as recently as one
week before the submission of the affidavit, that Doan’s subscription address for
both sites was identical and matched his address in the white pages and on file with
the Wisconsin driver’s license bureau and the United States Postal Service, and
that a pickup truck registered to Doan was seen recently at that address. As to
www.veiled.pages.com, Sutherland stated that only child pornography was on this
site. In addition, Sutherland stated that based on his experience, sexually explicit
depictions of minors are produced almost exclusively for pedophiles, and that
individuals who collect sexually explicit depictions of minors “almost always
maintain and possess their materials in a place they consider secure and where the
materials are readily accessible. This is most frequently within the privacy and
security of their homes.” Also, in the margin of the affidavit, upon the inquiry of the
magistrate judge about whether Sutherland could quantify his written assertions,
Sutherland hand-wrote, “In my professional career I have discovered sexually
explicit child pornography that has been aged more than eighteen months.” Based
on the information presented in Sutherland’s affidavit, the magistrate judge issued
a warrant to search Doan’s home for computers and other materials.

     In searching Doan’s residence, law enforcement discovered and seized two
computers, a laptop computer, and a CD-R, among other evidence. A forensic
examination of the computers and the CD-R revealed thousands of images of
No. 06-2552                                                                    Page 3



children engaged in sexually explicit conduct and 2,200 of those images were of
children identified in the files of the National Center for Missing and Exploited
Children.

       On December 6, 2005, the government filed a one-count information charging
Doan with possessing a computer hard drive containing multiple depictions of
children engaged in sexually explicit conduct in violation of 18 U.S.C.
§ 2252(a)(4)(B). Doan filed a motion to suppress asserting that the information
leading to the search was stale, did not mention that he had actually downloaded
any child pornography, and did not mention whether the subscription activity or
any downloading took place at his home. Doan attached to his motion an affidavit
from a computer forensic expert, who concluded that Sutherland’s affidavit was
deficient because it failed to allege whether Doan had a computer at home, whether
Doan had logged on to a child porn website after April 12, 2003, and whether the
subscriptions had been renewed. The expert further opined that given web
accessibility available now it is unlikely that material would be saved for seventeen
months.

       The magistrate judge concluded that the sites to which Doan subscribed were
not forums for discussions regarding sex and child pornography protected by the
First Amendment, but rather were forums where users subscribed to purchase child
pornography. The magistrate judge further concluded that there is a reasonable
inference that “a subscriber who pays to join the inner sanctum of a site geared
explicitly and exclusively to child pornography would attempt to get his money’s
worth by downloading some images.” In the alternative, the magistrate judge
determined that the good faith doctrine for deficient warrants applied. Therefore,
the magistrate judge recommended denying Doan’s motion to suppress. The district
court adopted the magistrate judge’s report and recommendation. Doan waived his
right to an indictment and entered a conditional guilty plea, preserving his right to
appeal the denial of his motion to suppress. Doan now appeals.

                                         II.

       On appeal, Doan argues that there was no probable cause for the issuance of
a warrant because the information in the affidavit was stale. Doan further asserts
that the good faith exception to the exclusionary rule is inapplicable because no
reasonable officer could believe that seventeen-month-old information established
probable cause. The government responds that the affidavit established probable
cause to search Doan’s residence and that the information was not stale because
individuals who access child pornography websites typically keep downloaded
images in their homes and rarely dispose of images. Regarding the good faith
No. 06-2552                                                                   Page 4



exception, the government argues that it was reasonable for a well-trained officer
such as Sutherland to believe probable cause existed, thereby making the good faith
exception applicable. In reviewing Doan’s challenge to the denial of his motion to
suppress, “we review legal questions de novo and factual findings for clear error.”
United States v. DiModica, 468 F.3d 495, 498 (7th Cir. 2006) (citation omitted).

       “The Fourth Amendment permits the search of a person’s home only if there
is probable cause to believe that the authorities will recover the items subject to
seizure at the time they execute the warrant.” United States v. Newsom, 402 F.3d
780, 782 (7th Cir. 2005) (citation omitted). While there is no set definition for
probable cause, it exists for purposes of a search “where the known facts and
circumstances are sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found.” Ornelas v. United States, 517
U.S. 690, 696 (1996). Probable cause does not require an actual showing of criminal
activity, but a probability or substantial chance that evidence of criminal activity
will be found. United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (citations
omitted).

       “A magistrate’s determination of probable cause ‘is to be given considerable
weight and should be overruled only when the supporting affidavit, read as a whole
in a realistic and common sense manner, does not allege specific facts and
circumstances from which the magistrate could reasonably conclude that the items
sought to be seized are associated with the crime and located in the place
indicated.’” Newsom, 402 F.3d at 782 (citations omitted). “The age of information
contained in an affidavit is only one factor a judge considers, and it is less
important when the criminal activity in question is apparently continuous.” United
States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007). “Credibility of informants,
nexus to the searched premises and to illegal activity, and the age of the
information are all relevant considerations in this inquiry, but no single piece of
information need satisfy every relevant consideration before we may consider it.”
United States v. Wiley, 475 F.3d 908, 915 (7th Cir. 2007) (citation omitted).

       Looking at the totality of the information presented in the affidavit, we
conclude that probable cause did not exist. While Doan’s e-mail address was still
active and the physical address used in the website registration was his address at
time the warrant was sought, the information connecting Doan to child
pornography, Doan’s paid website subscriptions, was seventeen months old.
Though Sutherland amended his affidavit to include his experience of finding
eighteen-month-old images, the circumstances surrounding that experience is
unknown: the form of the images (on a computer, in print, on video, etc.) or the
manner in which they were obtained (via e-mail, downloaded from a website,
No. 06-2552                                                                    Page 5



scanned, etc.). Thus, Sutherland’s handwritten addition to his affidavit was
insufficient to cure any staleness concerns. We recognize that the age of the
information is only one factor to consider, Watzman, 486 F.3d at 1008, and that
collectors of child pornography tend not to dispose of images, but rather to keep
them, see Newsom, 402 F.3d at 783 (citations omitted). However, the age of the
information is not the only problematic aspect of the affidavit. The only information
contained in the affidavit connecting Doan to child pornography is two subscriptions
to child pornography websites. The affidavit does not set forth the duration of the
website subscriptions, the download capability accompanying those subscriptions,
the last date Doan accessed the websites, whether Doan downloaded images from
these sites, whether Doan owned a computer, or whether Doan had internet access
at his home. Because, in the absence of downloading, with the passage of time the
probability that child pornography will be found diminishes, a mere subscription
that is seventeen months old without additional facts or circumstances related
either to the individual subject of the warrant or to the agent’s experience of
discovering eighteen-month-old child pornography is insufficient to establish
probable cause. In other words, when aged information is minimal and when there
is no additional information about the individual beyond the seventeen-month-old
information, even taking the affidavit as a whole, there is no probable cause.

        We are not holding that a warrant with seventeen-month-old information
would per se lack probable cause. See United States v. Koelling, 992 F.2d 817, 822
(8th Cir. 1993) (“There is no bright-line test for determining when information is
stale . . . . Time factors must be examined in the context of a specific case and the
nature of the crime under investigation.”). “Probable cause is a fluid
concept—turning on the assessment of probabilities in particular factual
contexts—not readily, or even usefully reduced to a neat set of legal rules,” Illinois
v. Gates, 462 U.S. 213, 232 (1983). Therefore, the older the information is regarding
child pornography, the more necessary it is to include more detail concerning that
information and concerning the person who is the subject of the investigation.
Further, this is particularly important in the age where technology is advancing at
an ever-increasing rate. In the context such as child pornography, it is incumbent
upon law enforcement to provide as much information and facts as possible about
the nature and characteristics of the individual. For the older information it is
helpful to know the type of computer equipment and the internet access that an
individual might possess. Also, the length of time that has passed since his last hit
on a website, the duration and features of a subscription, and any other “specific
facts and circumstances” may, in the aggregate, justify a search. Newsom, 403 F.3d
at 782.
No. 06-2552                                                                     Page 6



       Even in the absence of probable cause, a warrant could “be saved by the good
faith exception.” United States v. Olson, 408 F.3d 366, 372 (7th Cir. 2005). We
review de novo the legal conclusion that a law enforcement officer reasonably relied
upon a subsequently invalidated search warrant. Wiley, 475 F.3d at 917 (citation
omitted). “An officer’s decision to obtain a warrant is prima facie evidence that he
or she was acting in good faith.” United States v. Koerth, 312 F.3d 863, 868 (7th
Cir. 2002). A defendant may rebut this evidence, if the issuing judge

      “wholly abandoned his judicial role” and failed to “perform his ‘neutral and
      detached function,’” serving “merely as a rubber stamp for the police” or [ ]
      the affidavit submitted in support of the warrant was “so lacking in indicia of
      probable cause as to render official belief in its existence entirely
      unreasonable.”

Olson, 408 F.3d at 372 (quoting United States v. Leon, 468 U.S. 897, 914, 923
(1984)).

       In his attempt to rebut Sutherland’s decision to obtain a warrant as evidence
of good faith, Doan contends that the magistrate judge was not neutral and
detached and that Sutherland’s position was unreasonable. As to the magistrate
judge, Doan argues that when the magistrate judge expressed concern about the
staleness of the information and directed Sutherland to handwrite that he had
personally observed child pornography that was eighteen months old, the
magistrate judge abandoned his neutral and detached role. Doan, however, did not
challenge the magistrate judge’s neutrality and detachment in either his motion to
suppress or his objections to the magistrate judge’s report and recommendation.
Therefore, this challenge is deemed forfeited, and we review only for plain error.
See United States v. Charles, 476 F.3d 492, 495 (7th Cir. 2007). In this case, the
magistrate judge did not simply rubber-stamp Sutherland’s affidavit and issue a
warrant, but challenged the government to provide additional information before
issuing a warrant. See Koerth, 312 F.3d at 868. Thus, rather than abrogating his
neutral and detached role, the magistrate judge properly acted as an independent
arbiter by probing possible staleness and questioning the affidavit.

       Doan also states that it was unreasonable for Sutherland to rely upon
information that was seventeen months old. In light of Sutherland’s experience that
the websites to which Doan subscribed are geared almost exclusively toward the
pedophile audience, that individuals who collect images usually do not discard
them, and that in his experience he had discovered child pornography that was
eighteen months old, it was not unreasonable for Sutherland to believe that the
facts asserted in his affidavit supported a probable cause finding. In addition,
No. 06-2552                                                                   Page 7



Sutherland identified Doan’s subscription to two child pornography websites.
Moreover, Doan fails to provide any citations to cases that would have instructed “a
reasonably well trained officer . . . that the search was illegal despite the judge’s
authorization.” Leon, 468 U.S. at 922 n.23. Accordingly, even in the absence of
probable cause, the good faith exception to the exclusionary rule applies, and we
affirm the district court’s denial of Doan’s motion to suppress.

                                         III.

        Viewing the affidavit in support of the warrant as a whole, we conclude that
it fails to establish probable cause. However, the good faith exception to the
warrant requirement applies because the agent reasonably relied upon the warrant.
Therefore, we AFFIRM the district court’s denial of Doan’s motion to suppress and
his subsequent conviction.
