UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4084

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

RALPH D. DAVIS, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior 

District Judge. (1:07-cr-00254-TSE-1) 

Submitted: January 15, 2009 Decided: February 27, 2009 

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Chuck 

Rosenburg, United States Attorney, Andrew McCormack, Special 

Assistant United States Attorney, Alexandria, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Ralph D. Davis was indicted on one count of Receipt of 

Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2) 

(2006) (“Count One”), one count of Possession of Child 

Pornography, in violation of 18 U.S.C. § 2252A(a)(4)(B) (2006) 

(“Count Two”), and one count of Possession of a Firearm by a 

Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (2006) 

(“Count Three”). Davis pled guilty to Count One, the district 

court dismissed Count Two, and Davis was convicted by a jury on 

Count Three. The district court sentenced Davis to 120 months’ 

imprisonment on Count One, to run concurrently with a 

sixty-month sentence imposed for Count Three. On appeal, Davis 

alleges that the district court erred in denying his motion to 

suppress evidence seized in a search of his house conducted 

pursuant to a warrant. 

 Davis first contends the affidavit supporting the 

search warrant “contains misstatements which were intentionally 

or recklessly made by the Agent to mislead the magistrate judge 

into finding probable cause.” Where an affiant, in obtaining a 

search warrant, included “‘a false statement knowingly and 

intentionally, or with reckless disregard for the truth,’” and 

the false statement was necessary to the probable cause finding, 

“the warrant is void and the fruits of the search must be 

suppressed.” United States v. Gary, 528 F.3d 324, 327 (4th Cir. 

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2008) (quoting Franks v. Delaware, 438 U.S 154, 171-72 (1978)). 

The defendant must provide affidavits or statements of witnesses 

to support this showing, and must allege more than mere 

negligence or mistake. United States v. Tate, 524 F.3d 449, 454 

(4th Cir. 2008). “The burden of making the necessary showing is 

thus a heavy one to bear.” Id. Whether the showing made by the 

defendant is adequate to warrant a Franks hearing is a question 

of law subject to de novo review. Id. at 455. As Davis failed 

to show that the affiant knowingly and intentionally made any 

false statements, this argument fails. Moreover, the district 

court correctly denied Davis’ motion to suppress because 

probable cause existed to search Davis’ home. See Illinois v. 

Gates, 462 U.S. 213, 238 (defining probable cause as “a fair 

probability that . . . evidence of a crime will be found in a 

particular place”). 

 Davis asserts that the information supporting the 

search warrant was stale. “A valid search warrant may issue 

only upon allegations of facts so closely related to the time of 

the issue of the warrant as to justify a finding of probable 

cause at that time.” United States v. McCall, 740 F.2d 1331, 

1335-36 (4th Cir. 1984) (internal quotation marks and citation 

omitted). “The vitality of probable cause cannot be quantified 

by simply counting the number of days between the occurrence of 

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the facts supplied and the issuance of the affidavit.” Id. at 

1336 (internal quotation marks and citation omitted). 

 Other circuits have found that child pornographers 

keep their contraband for a long time; information a year old is 

not stale as a matter of law in child pornography cases. United 

States v. Newsom, 402 F.3d 780, 783 (7th Cir. 2005); see also

United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) 

(upholding search warrant based on information ten months old 

because “the [agent] explained that collectors and distributors 

of child pornography value their sexually explicit materials 

highly, ‘rarely if ever’ dispose of such material, and store it 

‘for long periods’ in a secure place, typically in their 

homes.”); United States v. Harvey, 2 F.3d 1318, 1322-23 (3d Cir. 

1993) (concluding that a warrant was not based on stale 

information, in part because those who collect child pornography 

tend to keep it); United States v. Rabe, 848 F.2d 994, 996 (9th 

Cir. 1988) (upholding warrant despite two-year delay between 

original seizures and warrant because more recent letters 

indicated that pornographic material was still being kept by the 

defendant). Guided by this body of authority, we conclude the 

district court properly found the warrant did not contain stale 

information. 

 Finally, Davis argues that the evidence seized from 

his home must be suppressed because the search occurred before 

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daylight hours, in violation of Rule 41 of the Federal Rules of 

Criminal Procedure. Rule 41(e)(2)(A)(ii), Fed. R. Crim. P., 

requires that a search warrant be executed during the daytime 

unless otherwise authorized by the warrant. The Rule defines 

daytime as “between 6:00 a.m. and 10:00 p.m. according to local 

time.” Fed. R. Crim. P. 41(a)(2)(B). However, even if the 

search occurred a few minutes before 6:00 a.m., suppression is 

not warranted as a remedy for such non-constitutional 

violations. See United States v. Hurwitz, 459 F.3d 463, 472 & 

n.6 (4th Cir. 2006). 

 Accordingly, we affirm the district court’s judgment. 

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

AFFIRMED