For a judge or magistrate to issue a search warrant, probable cause for the search must be first established. This is done within an affidavit filed in support of the request for the warrant. The affidavit must supply the facts supporting probable cause for a search. In the recent case of State v. Graves, E2011-02471-CCA-R3-CD (Tenn.Crim.App. 10-4-2012), a Defendant accused of attempted sexual exploitation of a minor argued that the affidavit supporting a search warrant did not establish probable cause because it failed to include the specific date on which the illegal activity described in the affidavit was alleged to have occurred. Mr. Graves pled guilty to the offense, reserving this issue for appellate review. Unfortunately for Mr. Graves, the Court of Criminal Appeals has ruled in his case that a specific date is not required.

Mr. Graves’ case arose after investigators were able to identify him as the Charter Cable subscriber assigned a specific IP (Internet Protocol) address which investigators determined was hosting video files alleged to depict child pornography. File sharing websites allow users to share files hosted on their computers with other users (and in return they can access files from other participants). Internet crimes investigators frequently use file sharing websites to search for illegal files hosted on the computers of participants. When they discover illegal files, they can often determine the IP address and Internet Service provider of the file host. They then can obtain from the Internet Service Provider the specific name and address of the subscriber assigned that IP address.

In Mr. Graves’ case, the affidavit in support of the search warrant did not specifically say when the investigation occurred or when specifically the files in question were identified as being hosted from the IP address later connected to him. However, the affidavit did note the date on which a subpoena was issued to Charter Cable requesting subscriber information. The trial court found this date, along with the other allegations, adequate to establish probable cause for issuance of the warrant. The Court of Criminal Appeals was only addressing the specific certified question of whether a specific date of the occurrence of the described illegal activity is necessary to establish probable cause. The Court concluded it is not.

If you have a question about a search warrant or what facts may establish probable cause for a search, contact The Lanzon Firm.