              Case: 13-10040   Date Filed: 07/25/2013   Page: 1 of 5


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10040
                            Non-Argument Calendar
                          ________________________

                 D.C. Docket No. 1:11-cr-00208-WKW-TFM-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

LEE ANTHONY LOVVORN,


                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         ________________________
                                 (July 25, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

      Anthony Lee Lovvorn appeals the district court’s denial of his motion to

suppress evidence obtained from his computer during a search of his residence.
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Lovvorn’s wife, Julie Narbay, filed a complaint with Investigator Knowles of the

Coffee County Sheriff’s Office stating that Lovvorn had child pornography on his

home computer. Investigator Knowles interviewed Narbay and prepared a search

warrant application and affidavit which was presented, along with Narbay’s own

sworn affidavit, to a state judge who issued a search warrant for Lovvorn’s

residence. Investigator Knowles executed the search warrant and seized Lovvorn’s

computer, which forensic analysis found to contain approximately 9,000 images

and 125 videos of child pornography. Lovvorn argued in his motion to suppress

that the search warrant application and affidavit failed to establish probable cause

based in part on the staleness of the information from Narbay. He pleaded guilty

after his motion to suppress was denied, but reserved the right to the denial. Now

on appeal, we affirm the district court’s denial of Lovvorn’s motion to suppress.

      “A district court’s denial of a motion to suppress is a mixed question of law

and fact.” United States v. Frank, 599 F.3d 1221, 1228 (11th Cir. 2010). We

review factual findings for clear error, and we review de novo the district court’s

application of the law to those facts. Id. A district court’s determination of

probable cause is reviewed de novo. United States v. Butler, 102 F.3d 1191, 1198

(11th Cir. 1997).

      “Probable cause to support a search warrant exists when the totality of the

circumstances allow a conclusion that there is a fair probability of finding


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contraband or evidence at a particular location.” United States v. Brundidge, 170

F.3d 1350, 1352 (11th Cir. 1999) (per curiam). “[P]robable 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, 103 S. Ct. 2317, 2329 (1983). To determine whether probable

cause exists to issue a search warrant, the judge must “make a practical, common-

sense decision whether, given all the circumstances set forth in the affidavit before

him including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Id. at 238, 103 S. Ct. at 2332.

      “For probable cause to exist, however, the information supporting of the

government’s application for a search warrant must be timely, for probable cause

must exist when the magistrate judge issues the search warrant.” United States v.

Harris, 20 F.3d 445, 450 (11th Cir. 1994). In reviewing a staleness challenge, we

do not apply arbitrary time limitations, but instead review each case based on the

unique facts presented. Id. We may consider “the maturity of the information,

nature of the suspected crime . . . , habits of the accused, character of the items

sought, and nature and function of the premises to be searched.” Id.

      Here, the district court did not err in denying Lovvorn’s motion to suppress.

Investigator Knowles, a law enforcement officer with over four years of training


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and experience, prepared the search warrant application and affidavit based on his

first-hand conversation with Narbay, Lovvorn’s wife. According to Investigator

Knowles’s affidavit, Naraby stated that her husband owned a home computer that

contained child pornography, and that he sold child and adult pornography from

websites on his computer. She further stated that she had witnessed Lovvorn

viewing child pornography over the past several years, and that she had witnessed

him masturbating while viewing child pornography. She had even witnessed him

viewing child pornography when their minor child was present. These stated facts,

along with Narbay’s sworn affidavit confirming these facts, supported the state

judge’s conclusion that there was a fair probability child pornography would be

found on Lovvorn’s computer. See Brundidge, 170 F.3d at 1352.

      Moreover, and contrary to Lovvorn’s argument, the evidence in support of

the search warrant was not stale. The information presented to the state judge was

no more than nine to twelve months old, and at the time Investigator Knowles

presented the search warrant application and affidavit, he believed that the

information was no more than one day old. Narbay told Investigator Knowles that

Lovvorn looked at pornography throughout their marriage, and that every time she

saw him looking at pornography it was of young girls below the age of 18. Files

on a computer are less likely than other types of contraband to disappear over time

and can often be recovered even if they are deleted. See United States v. Sarras,


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575 F.3d 1191, 1197, 1203 (11th Cir. 2009) (describing how forensic investigators

recovered images of child pornography from a laptop hard drive that were

previously deleted). Based on the maturity of the information, the habits of the

accused, and the character of the items sought, the evidence in support of the

search warrant had not gone stale. Harris, 20 F.3d at 450.

      AFFIRMED.




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