                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 11a0531n.06
                                                                                          FILED
                                           No. 09-6109                               Aug 02, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


United States of America,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR
                                                       )    THE MIDDLE DISTRICT OF
Joseph Gillman,                                        )    TENNESSEE
                                                       )
       Defendant-Appellant.                            )


Before: BOGGS and SILER, Circuit Judges; VAN TATENHOVE, District Judge.*

       SILER, Circuit Judge. Joseph Gillman pleaded guilty to transporting, receiving and

possessing child pornography. He appeals the district court’s denial of his motions to suppress. For

the following reasons, we AFFIRM.

                                        BACKGROUND

       On December 16, 2006, police accessed a peer-to-peer internet file-sharing network and

observed a subject using the Internet Protocol (“IP”) address “69.138.63.81” possess and share a

video depicting the sexual exploitation of a minor. Comcast Cable Communications confirmed that

the IP address was assigned to Joseph Gillman, who resided at 950 Needham Drive in Smyrna,

Tennessee.




       *
        The Honorable Gregory Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 09-6109
United States v. Gillman

       Over five months later, on June 7, 2007, Detective Brett Kniss drafted a search warrant and

affidavit seeking authority to search Gillman’s residence and computer for child pornography. In

the affidavit, Kniss described his training and experience, how computers and the internet are used

to traffic child pornography, and the likelihood that such videos would be saved and stored by

computer users. Kniss explained how police obtained child pornography from Gillman’s IP address

and stated that Gillman “lives” at the 950 Needham Drive address. A state judge issued a search

warrant on June 7.

       On June 8, Kniss and four other officers arrived at Gillman’s residence, told him they were

conducting an investigation and asked to come inside. Once allowed inside, Kniss told Gillman he

was not under arrest and would not be arrested that day. Kniss did not inform Gillman of his

Miranda rights, mention the search warrant or tell him he was free to leave. During a thirty-minute

conversation, Gillman admitted to viewing and sharing child pornography and told the officers they

would find child pornography saved on his computer’s hard drive. He never asked the officers to

leave or stop questioning him at any time.

       Kniss asked for Gillman’s consent to search his computer and residence, but Gillman refused.

Kniss then produced the search warrant and told Gillman he was free to leave, but Gillman remained

and continued talking to Kniss for an additional fifty minutes. During the ensuing search, an officer

discovered marijuana and arrested Gillman after informing him of his Miranda rights.

       Officers seized a computer, external hard drive, twelve CDs and thirty-one floppy disks

containing child pornography. Gillman was charged with transporting, receiving and possessing

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1); 18 U.S.C. §§

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No. 09-6109
United States v. Gillman

2252A(a)(2)(A) and (b)(1); and 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(1). Gillman filed motions to

suppress his statements to the officers and the evidence seized from his residence and computer. The

district court denied his motions and Gillman pleaded guilty to all three charges, reserving the right

to appeal the district court’s denial of his suppression motions.

                                           DISCUSSION

A. Standard of Review

       When reviewing the denial of a suppression motion, we review the district court’s findings

of fact for clear error and its conclusions of law de novo, United States v. Gross, 550 F.3d 578, 582

(6th Cir. 2008), but give “great deference” to a magistrate’s probable cause determination, United

States v. Terry, 522 F.3d 645, 647 (6th Cir. 2008) (internal citation omitted).

B. The Search Warrant

       Gillman argues that the IP address was not itself a sufficient nexus between the sharing of

child pornography and his residence because it was possible he used a wireless internet

router—something that would have allowed anyone nearby to access the internet and share child

pornography through his IP address.

       Probable cause must exist for the issuance of a warrant. United States v. McPhearson, 469

F.3d 518, 524 (6th Cir. 2006). A magistrate must decide that “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” Terry, 522 F.3d at 648

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (emphasis added).

       In United States v. Hinojosa, 606 F.3d 875, 885 (6th Cir. 2010), we held that a sufficient

nexus between illegality and a defendant’s residence was created where an affidavit established that:

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United States v. Gillman

(1) child pornography was transferred to police from a specific IP address; (2) that IP address was

registered to the defendant’s residential address; and (3) the defendant actually lived at that address.

We rejected the defendant’s argument that the IP address alone was an insufficient nexus despite the

possibility that IP addresses are not always accessed at their registered residential addresses. Id.

(citing United States v. Lapsins, 570 F.3d 758, 767 (6th Cir. 2009); United States v. Wagers, 452

F.3d 534, 540 (6th Cir. 2006)).

        Thus, under Hinojosa, the IP address here established a sufficient nexus connecting the

sharing of child pornography to Gillman’s residence and computer. Gillman is correct—he could

have used a wireless network and someone else could have accessed that network and shared child

pornography. This possibility, however, does not negate the fair probability that child pornography

emanating from an IP address will be found on a computer at its registered residential address.

Terry, 522 F.3d at 648.

        Gillman also argues that the information in Kniss’s affidavit was stale because the warrant

was executed five months after police observed child pornography shared through his IP address.

Stale information cannot be used in a probable cause determination. United States v. Frechette, 583

F.3d 374, 377 (6th Cir. 2009). Whether information in an affidavit is stale depends on the “inherent

nature of the crime.” Id. at 378 (quoting United States v. Spikes, 158 F.3d 913, 923 (6th Cir 1998)).

In Frechette, we held that child pornography “is not a fleeting crime” and is generally carried out “in

the secrecy of the home and over a long period.” Id. Child pornography can have an “infinite life

span” because files containing child pornography “can be easily duplicated and kept indefinitely even

if they are sold or traded.” Id. at 378–79 (citing Terry, 522 F.3d at 650 n.2). Further, even after its

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No. 09-6109
United States v. Gillman

deletion, child pornography can still be discovered on a computer’s hard drive. Terry, 522 F.3d at

650 n.2.

         Thus, the information in Kniss’s affidavit was not stale when he sought the search warrant.

Citing Gillman’s driver’s license and vehicle registration, Kniss’s affidavit stated that Gillman

“lives”—as he had throughout the entire investigation—at the 950 Needham Drive address. Given

the nature of child pornography, and our prior decisions upholding warrants despite similar delays,

the almost six-month delay in obtaining a search warrant for Gillman’s residence did not result in

its staleness. See United States v. Lewis, 605 F.3d 395, 401 (6th Cir. 2010) (not stale after seven

months); Lapsins, 570 F.3d at 767 (not stale after nine months); Terry, 522 F.3d at 650 n.2 (not stale

after five months). As a result, the district court did not err by denying Gillman’s motion to suppress

evidence obtained through the search warrant.

C. Gillman’s Statements

         Gillman argues that the district court erred by refusing to suppress his statements to police

because, under Miranda v. Arizona, 384 U.S. 436 (1966), he was in custody once police arrived at

his residence.

         Miranda’s protections against self-incrimination only arise once a defendant is “in custody.”

Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (internal quotation marks omitted).

A suspect is in custody where there has been a formal arrest or restraint on freedom of movement

to the degree associated with a formal arrest. United States v. Swanson, 341 F.3d 524, 529 (6th Cir.

2003).



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No. 09-6109
United States v. Gillman

       Until law enforcement discovered his marijuana, Gillman was never in custody. An in-home

encounter between police and a citizen is generally non-custodial. United States v. Panak, 552 F.3d

462, 466 (6th Cir. 2009). Gillman was questioned for eighty minutes, and we have refused to find

a defendant in custody during interrogations of similar length. See Panak, 552 F.3d at 467 (forty-

five to sixty minutes); United States v. Crossley, 224 F.3d 847, 862 (6th Cir. 2000) (less than sixty

minutes), United States v. Mahan, 190 F.3d 416, 420 (6th Cir. 1999) (ninety minutes). During his

questioning, Gillman sat unrestrained and was told he was not (and would not be) under arrest. See

United States v. Salvo, 133 F.3d 943, 951 (6th Cir. 1998) (“[F]reedom of movement, coupled with

[the officer’s] statement to [the defendant] that he was not under arrest, is compelling evidence that

[the defendant] was not in custody.”). That Gillman was arrested when officers discovered his

marijuana does not make his questioning custodial. As a result, the district court did not err by

denying Gillman’s motion to suppress his statements to police.

       AFFIRMED.




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