                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-3354
                                    ___________

United States of America,                *
                                         *
             Plaintiff-Appellee,         *
                                         *   Appeal from the United States
      v.                                 *   District Court for the
                                         *   Eastern District of Arkansas.
Daniel Chrobak, also known as            *
Dan Chrobak,                             *
                                         *
             Defendant-Appellant.        *

                                    ___________

                             Submitted: April 19, 2002

                                   Filed: May 7, 2002
                                    ___________

Before BOWMAN, LAY, and RILEY, Circuit Judges.
                           ___________

LAY, Circuit Judge.

     Daniel Chrobak appeals his conviction for possession and transport in interstate
commerce of child pornography in violation of 18 U.S.C. § 2252. At trial, Chrobak
moved to suppress evidence obtained from his home, asserting a defective warrant.
The district court1 denied his motion, and Chrobak entered a plea of guilty


      1
       The Honorable Stephen M. Reasoner, United States District Judge, Eastern
District of Arkansas, presiding.
conditioned upon the outcome of this appeal pursuant to Federal Rule of Criminal
Procedure 11(a)(2). We affirm.

       On July 27, 1998, investigators from the New York State Attorney General’s
office observed a transmission of fourteen images on a newsgroup website known to
be frequented by child pornographers and pedophiles.2 This transmission contained
several images of undisputed child pornography. The sender of the images identified
himself as “Post@them.now.” The records of Post@them.now’s internet service
provider revealed the moniker was registered to one Daniel Chrobak of North Little
Rock, Arkansas. The New York authorities forwarded the images and their
information to the FBI in Arkansas.

       Special Agent Jill Hill, the coordinator of the FBI’s Crimes Against Children
office in Little Rock, Arkansas, received the information. Her superiors informed her
they wished to search Chrobak’s home on October 27, 1998, in conjunction with the
execution of search warrants nationwide against members of Pedo University.
Through Freedom of Information Act requests to the U.S. Post Office and Chrobak’s
telephone service provider, Agent Hill learned that Chrobak resided in a mobile home
on Old Tom Box Road in Jacksonville, Arkansas. She surveilled the address and
observed a vehicle registered to Chrobak parked out front.

      Agent Hill applied for a search warrant. She described the activities of the
New York Attorney General’s office. She recounted the evidence pointing to the
mobile home on Old Tom Box Road as Daniel Chrobak’s residence. She described
her training and experience in investigating child pornography and the sexual
exploitation of children. She described the images as “graphic files depicting minors
engaged in sexually explicit conduct,” and stated: “Your affiant reviewed the


      2
       The newsgroup members called themselves “Pedo University,” i.e. Pedophile
University.

                                         -2-
transmitted images and determined that they depict sexually explicit conduct
involving children under the age of 16.” She also stated that child pornographers
“almost always maintain and possess their materials in a place considered secure due
to its inherent illegality.” The magistrate judge issued a search warrant on the basis
of Agent Hill’s affidavit.

      On October 27, 1998, police executed the warrant at Chrobak’s residence.
Agents seized his computer, computer disks, and a three ring binder containing child
pornography. Forensic examination revealed the computer and disks contained
thousands of images of child pornography. The sole question we must address is
whether the search warrant for Chrobak’s home was valid.

                                          I.

       Chrobak asserts the magistrate judge failed to make an independent judicial
determination that the images were child pornography and, thus, not protected by the
First Amendment. To make this determination, the judge must either view the images
or rely on a detailed factual description of them. New York v. P.J. Video, Inc., 475
U.S. 868, 873-74 (1986). There is no dispute that the magistrate judge did not view
the images. The pertinent question is whether Agent Hill’s statements, “[y]our affiant
reviewed the transmitted images and determined that they depict sexually explicit
conduct involving children under the age of 16,” and “graphic files depicting minors
engaged in sexually explicit conduct,” were detailed enough.

       Chrobak argues they were not. He cites the Supreme Court’s obscenity
jurisprudence for the proposition that conclusory allegations by police that materials
are obscene are insufficient. See Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637
(1968). A warrant must be supported by affidavits setting forth specific facts in order
for the issuing magistrate judge to “focus searchingly on the question of obscenity.”
P.J. Video, 475 U.S. at 874 (quoting Marcus v. Search Warrant, 367 U.S. 717, 732

                                         -3-
(1961)). According to Chrobak, Agent Hill’s statement that the images graphically
depicted children engaging in sexually explicit conduct amounted to “personal
opinion” that did not specifically describe the images to allow a “searching” inquiry.

       We disagree. Agent Hill’s language is almost identical to the language of 18
U.S.C. § 2252 (“visual depiction involv[ing] the use of a minor engaging in sexually
explicit conduct”) for which Chrobak was convicted. Under United States v.
Koelling, 992 F.2d 817, 821 (8th Cir. 1993), particularity is satisfied when the
warrant describes material sought in the terms of the statute. Moreover, contrary to
Chrobak’s authority, Agent Hill did not simply allege the images were “obscene,” a
conclusion with which a magistrate judge might disagree. She described the graphic
content of those images: they depicted actual children engaged in sexually explicit
conduct. There are very few pictures of actual children engaged in sexual acts that
are not child pornography, id. at 822, so it is unlikely the magistrate judge would have
disagreed that the images constituted child pornography. This satisfies the standard
for search warrants, a “‘substantial basis for . . . conclud[ing]’ that a search would
uncover evidence of wrongdoing.” United States v. Horn, 187 F.3d 781, 785 (8th Cir.
1999) (quoting Jones v. United States, 362 U.S. 257, 271 (1960)).

                                          II.

       Chrobak also makes two arguments against a finding of probable cause. He
asserts someone else might have used his email address and Agent Hill performed an
insufficient investigation to prove otherwise. He also notes the images were
transmitted ninety-one days prior to execution of the warrant and asserts that evidence
was too stale to provide probable cause that images would be found in Chrobak’s
home at the time of the search.

       Again, we disagree. Probable cause means a “fair probability that . . . evidence
of a crime will be found in a particular place.” Id. at 785 (quoting Illinois v. Gates,


                                          -4-
462 U.S. 213, 238 (1983)). Further, “[t]he source and credibility of evidence in
support of a warrant request is considered in the totality of the circumstances analysis,
and a warrant is proper so long as the evidence as a whole creates a reasonable
probability that the search will lead to the discovery of evidence.” Id. at 786 (quoting
United States v. Humphrey, 140 F.3d 762, 764 (8th Cir. 1996)). Agent Hill
established a sufficient nexus between Chrobak and the internet moniker by providing
evidence that the name was registered to him. She also established a sufficient nexus
between the transfer and Chrobak’s house by providing evidence that he lived there
and that, in her experience, pedophiles maintain their child pornography in a secure
place.

       Chrobak’s staleness argument also falls short. There is no bright line test for
staleness. See Koelling, 992 F.2d at 822. Agent Hill provided credible testimony
from her professional experience that child pornographers generally retain their
pornography for extended periods. On this basis, a magistrate judge could find a fair
probability that Chrobak had child pornography at his home three months after the
intercepted transfer. The magistrate judge also had to consider that the information
had to pass from New York to Arkansas; Agent Hill had to independently verify the
content of the images, the sender, and Chrobak’s address; and Agent Hill had to
coordinate the warrant with the nationwide operation against Pedo University. We
hold the warrant was supported by probable cause.

      The judgment of the district court is AFFIRMED.3


      3
        Neither party has asserted the Supreme Court’s recent opinion in Ashcroft v.
The Free Speech Coalition, 535 U.S. __, 122 S. Ct. 1389 (2002), has any bearing on
this case. We believe it does not. The Court therein reaffirmed the validity of 18
U.S.C. § 2252. See Free Speech Coalition, 122 S. Ct. at 1397. Moreover, even if the
search warrant allowed seizure of some “virtual” child pornography, which the Court
held constitutionally protected, our holding in United States v. Koelling, 992 F.2d
817, 821-22 (8th Cir. 1993), supports our holding that the warrant was not invalid.

                                          -5-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                           -6-
