* P ursuant to 5 TH C IR . R. 47.5, the Court has determ ined that this opinion should not be published and is not precedent except under the limit ed circumstances set fo rth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED November 28, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 05-60993 UNITED STATES OF AMERICA, Pl aint iffs - Appellee,

VERSUS J.J. STREETMAN Defendant -Appellant.
Appeal from the United States District Court For the Northern District of Mississippi
Before JONES, Chief Judge, DAVIS and GARZA, Circuit Judges. PER CURIAM: * Defendant J.J. Streetman entered a conditional guilt y plea to a charge of possession of child pornography , preserving his abilit y to appeal the district court’s denial of his mo tion to suppress th e evidence on which his charge was based. Because we conclude that the district court did not err in concluding that the warrant issued for the search was adequately supported by probable cause, we affirm. I. The affidavit supporting th e search warrant recites the fo llo wing: In November 200 2 ,2

Streetman and Madeline Caliguiro met over the int ernet. In the summer of 2003, Caliguiro and her eight-year-old daughter mo ved int o Streetman’s home in Corint h, Mississippi. Caliguiro discovered
com puter disks containing adult and child pornography in Streetman’s home in lat e December 2003. Around the same time, Caliguiro learned that Streetman had mo lested her daughter. Caliguiro and her daughter mo ved out of th e home in February 2004. Caliguiro took with her 24 diskettes and CDs th at contained images of child pornography
. On May 11, 2004 and June 1, 2004, FBI Special Agent P armalee obtained th e mat erial from Caliguiro th rough the Warren County Sheriff’s Office in Vicksburg, Mississippi. FBI Special Agent Quarka sought and obtained a search warrant on June 9, 2004. The agents who conducted th e search seized a com puter, 111 com

puter disks, and nine CD ROM disks, which contained hundreds of pornographic images of children, som e under the age of ten. Streetman filed
a m otion to suppress the evidence, which the district court denied. Streetman then ent ered a conditional guilty plea, preserving the suppression issue for appeal. II. Streetman argues th at th e district court erred in denying his mo tion to suppress. In reviewing
a district court’s denial of a suppression mo tion, this court accepts the district court’s factual findings unless they are clearly erroneous or influenced by an incorrect view of the law. U nited States v. Alvarez , 127 F.3d 372, 373 (5 th Cir. 1997. Legal conclusions are reviewed de novo . Id. This court gives great deference to the magistrate’s finding of probable cause. Unit ed States v. McKeever , 5 F.3d 863, 865 (5 th Cir. 1993). III. Streetman argues fir st th at th e district court erred because the info rmation in the affidavit was3

too stale to support a finding of probable cause. He notes that Caliguiro discovered the materials in December 2003 and removed them from Streetman’s house in February 2004. It is not clear when Caliguiro contacted th e sheriff or when the sheriff contacted the FBI, but Agent Parmalee received t he fir st portion of th e disks in May 2004. Streetman points to the six month delay bet ween December and May to support his argument th at the info rmation the magistrate relied on was stale. Alt hough generally info rmation given to a magistrate in an application fo r a search warrant must be timely and probable cause must be fo und to exist at the time the warrant issues, courts demand less current info rmation if th e affidavit shows a lo ngstanding, ongoing pattern of criminal activit y and th e evidence sought is of th e sort th at can be reasonably be expected to be kept fo r lo ng periods of time in t he place to be searched. McKeever , 5 F.3d at 866. Because th e crime charged in this case is possession of child pornography , it i s difficult to establish an ongoing pattern of criminal activit y. We agree wit h the district court however th at it is reasonable in today ’s time to presume that if a person has a computer from December to February, th at person will likely co nt inue to have th at com puter int o June. The affidavit submitted in support of th e warrant stated that electronic files o n computers can be stored for years and are retrievable
mo nt hs or years lat er even if th e user has “deleted” them . At least one circuit has found that
com puter files are of a ty

pe th at could be expected to be kept for long periods of time in the place to be searched. See U nit ed States v. Hay , 231 F.3d 630, 636 (9 th Cir. 2000), cert. denied, 534 U.S. 858 (2001)(6 mo nt h delay between transmission of pornographic images and application fo r warrant). Streetman also argues th at th e affidavit is lacking in th at it fails to show a connection between Streetman, his com

puter and th e pornography fo und by Caliguiro. A magistrate can use common
sense when determ

ining whether probable cause exists fo r the issuance of a search warrant. U nit ed4

States v. Byrd , 31 F.3d 1329, 1340 (5 t h Cir. 1994), cert. denied, 514 U.S. 1052 (1995). The magistrate co uld reasonabl y co nclude that the computer disks that were found in the room where Streetman maint ained an of fice th at housed his com puter had been created or v iewed on that
com puter. IV. Streetman also argu es that the affidavit was deficient because it failed to address the info rmant’s (Caliguiro’s) reliability. Before the Supreme Court’s decision in Illino is v. Gates , 462 U.S. 213 (1983), reviewing courts required that the warrant affidavit demonstrate both the info rmant's basis of knowledge and of fer som e indication of the info rmant's credibilit y or the reliabilit y of th e info rmation of

fered. U nit ed States v. Blo unt , 123 F.3d 831, 836 (5 th Cir. 1997)(en banc). In Gates , th e Supreme Court observed th at the "two-pronged" approach had become unduly rigid in it s application, and reiterated th at a simple "total it y of the circumstances" test was appropri ate for probable cause determ

inat io ns. 462 U.S. at 230-231; Unit ed States v. Blo unt , 123 F.3d 831, 835 (5th Cir. 1997). “When an average citizen tenders info rm ati on to th e pol ice, the police should be permitted to assume th at th ey are dealing wit h a credible person in t he absence of special circumstances suggesting that such might not be the case.” Blo unt , 123 F.3d at 836. The affidavit d oes contain some information that undermines Caliguiro’s credibility, particularly th e length of time between discovery of images and th at defendant mo lested her daughter and th e date she left his home and th en reported the images to the pol ice. However, the affidavit also includes oth er inf

orm ati on supporting her credibility. Caliguiro lived in the defendants home, and gave info rmation from her own knowledge including a description of the computer and it s lo cation in th e house. She also corroborated her story by producing the com puter disks th at contained th e5

child pornography
. Under the total it y o f t he circumstances, we agree with the district court that there is reasonable information in the affidavit to establish Caliguiro’s reliability. V. For the foregoing reasons, we find that the district court did not err in denying Streetman’s
mo tion to suppress. AFFIRMED.