Appellate Law

CA1: A cache problem

By S. COTUS

US v. Morales Aldahondo, No. 06-2533.  In a child pr0n case, the First hold that a Franks hearing regarding the staleness (three years) of material obtained reached an acceptable conclusion.  There is a little problem with the Court?s logic.  Look at this paragraph, complete with cites:

As earlier recounted, both the warrant application before the magistrate and the testimony presented to the district judge provided considerable support for the government's position that customers of child pornography sites do not quickly dispose of their cache. This is not a new revelation. See Ricciardelli, 998 F.2d at 12 n.4 [(1st Cir. 1993)]("[H]istory teaches that collectors prefer not to dispose of their dross, typically retaining obscene materials for years.?). Accord, e.g., United States v. Irving, 452 F.3d 110 (2d Cir. 2006) (two years); United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (five years).

A cache is different than a collection.  A ?cache? in cyber-speak is a portion of a hard drive that keeps images in case you want to view them again.  While most users know how to delete their cache (usually to free up space), most users do not use the cache as a means to access images, as the computer will likely delete them when it figures it needs more space. 

Moreover, most users have little or no control over what goes into their cache. If you go to a website, whatever pictures there will be in your cache.   Making this a bit more complicated is the fact that there is an affirmative defense under 18 USC 2252(c), for someone that inadvertently comes across an ?illegal? image to destroy it. Most people would figure that they never ?had? an image in the first place, so they have complied with 2252 by simply not looking at the webpage anymore.

Whatever the case, the First concludes that ? In our view, the testimony of the government?s knowledgeable witness, combined with the weight of authority, defeats appellant's staleness argument. Thus the district court did not err when it denied Morales's motion to suppress.?  It seems that the First is confusing human ?cache? of things with a computer?s ?cache? of images.  Maybe the First didn?t understand this, or maybe they are just reaching to help the government.

Finally, the First says it wasn?t an abuse of discretion to let the jury see some of the photos.

Full post as published by Appellate Law and Practice on April 24, 2008 (boomark / email).