United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued February 14, 2007

Decided August 6, 2007

Before

Hon. DANIEL A. MANION, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 06-2552

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DUANE DOAN,

Defendant-Appellant.

Appeal from the United States

District Court for the Western

District of Wisconsin

No. 05 CR 179

John C. Shabaz, Judge.

O R D E R

Duane Doan was charged in a one-count information with knowingly

possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Doan filed a

motion to suppress evidence asserting that the affidavit in support of the search

warrant lacked probable cause AND that the good faith exception did not apply. 

After the district court denied Doan’s motion, Doan conditionally pleaded guilty and

now appeals the denial of his motion to suppress. We affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-2552 Page 2

I.

The investigation that led to Doan’s arrest commenced in New Jersey, where

the United States Attorney’s Office and various law enforcement agencies

conducted a joint investigation of Regpay, a third-party billing and credit card

aggregating company. In particular, Regpay provided billing services to various

websites including two child pornography websites, www.lust-gallery.com and

www.veiled.pages.com. Regpay records contained customer information data,

including a subscriber’s first and last names, street address, telephone number,

credit card information, and e-mail address. These records revealed that on April 7,

2003, and April 12, 2003, Duane Doan subscribed to the aforementioned websites

for the cost of $49.95 and $57.90, respectively. In the course of subscribing to these

sites, Doan provided his name, street address, credit card number, and e-mail

address. 

On September 20, 2004, Special Agent Steve Sutherland of the United States

Immigration and Customs Enforcement submitted an affidavit before a magistrate

judge in support of a search warrant for Doan’s home to search for materials related

to the sexual exploitation of children. In his affidavit, Sutherland asserted that

Regpay records revealed Doan’s subscriptions to www.lust-gallery.com and

www.veiled.pages.com, that Doan’s e-mail address had been used as recently as one

week before the submission of the affidavit, that Doan’s subscription address for

both sites was identical and matched his address in the white pages and on file with

the Wisconsin driver’s license bureau and the United States Postal Service, and

that a pickup truck registered to Doan was seen recently at that address. As to

www.veiled.pages.com, Sutherland stated that only child pornography was on this

site. In addition, Sutherland stated that based on his experience, sexually explicit

depictions of minors are produced almost exclusively for pedophiles, and that

individuals who collect sexually explicit depictions of minors “almost always

maintain and possess their materials in a place they consider secure and where the

materials are readily accessible. This is most frequently within the privacy and

security of their homes.” Also, in the margin of the affidavit, upon the inquiry of the

magistrate judge about whether Sutherland could quantify his written assertions,

Sutherland hand-wrote, “In my professional career I have discovered sexually

explicit child pornography that has been aged more than eighteen months.” Based

on the information presented in Sutherland’s affidavit, the magistrate judge issued

a warrant to search Doan’s home for computers and other materials.

In searching Doan’s residence, law enforcement discovered and seized two

computers, a laptop computer, and a CD-R, among other evidence. A forensic

examination of the computers and the CD-R revealed thousands of images of
No. 06-2552 Page 3

children engaged in sexually explicit conduct and 2,200 of those images were of

children identified in the files of the National Center for Missing and Exploited

Children.

On December 6, 2005, the government filed a one-count information charging

Doan with possessing a computer hard drive containing multiple depictions of

children engaged in sexually explicit conduct in violation of 18 U.S.C.

§ 2252(a)(4)(B). Doan filed a motion to suppress asserting that the information

leading to the search was stale, did not mention that he had actually downloaded

any child pornography, and did not mention whether the subscription activity or

any downloading took place at his home. Doan attached to his motion an affidavit

from a computer forensic expert, who concluded that Sutherland’s affidavit was

deficient because it failed to allege whether Doan had a computer at home, whether

Doan had logged on to a child porn website after April 12, 2003, and whether the

subscriptions had been renewed. The expert further opined that given web

accessibility available now it is unlikely that material would be saved for seventeen

months. 

The magistrate judge concluded that the sites to which Doan subscribed were

not forums for discussions regarding sex and child pornography protected by the

First Amendment, but rather were forums where users subscribed to purchase child

pornography. The magistrate judge further concluded that there is a reasonable

inference that “a subscriber who pays to join the inner sanctum of a site geared

explicitly and exclusively to child pornography would attempt to get his money’s

worth by downloading some images.” In the alternative, the magistrate judge

determined that the good faith doctrine for deficient warrants applied. Therefore,

the magistrate judge recommended denying Doan’s motion to suppress. The district

court adopted the magistrate judge’s report and recommendation. Doan waived his

right to an indictment and entered a conditional guilty plea, preserving his right to

appeal the denial of his motion to suppress. Doan now appeals.

II.

On appeal, Doan argues that there was no probable cause for the issuance of

a warrant because the information in the affidavit was stale. Doan further asserts

that the good faith exception to the exclusionary rule is inapplicable because no

reasonable officer could believe that seventeen-month-old information established

probable cause. The government responds that the affidavit established probable

cause to search Doan’s residence and that the information was not stale because

individuals who access child pornography websites typically keep downloaded

images in their homes and rarely dispose of images. Regarding the good faith
No. 06-2552 Page 4

exception, the government argues that it was reasonable for a well-trained officer

such as Sutherland to believe probable cause existed, thereby making the good faith

exception applicable. In reviewing Doan’s challenge to the denial of his motion to

suppress, “we review legal questions de novo and factual findings for clear error.” 

United States v. DiModica, 468 F.3d 495, 498 (7th Cir. 2006) (citation omitted). 

“The Fourth Amendment permits the search of a person’s home only if there

is probable cause to believe that the authorities will recover the items subject to

seizure at the time they execute the warrant.” United States v. Newsom, 402 F.3d

780, 782 (7th Cir. 2005) (citation omitted). While there is no set definition for

probable cause, it exists for purposes of a search “where the known facts and

circumstances are sufficient to warrant a man of reasonable prudence in the belief

that contraband or evidence of a crime will be found.” Ornelas v. United States, 517

U.S. 690, 696 (1996). Probable cause does not require an actual showing of criminal

activity, but a probability or substantial chance that evidence of criminal activity

will be found. United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006) (citations

omitted). 

“A magistrate’s determination of probable cause ‘is to be given considerable

weight and should be overruled only when the supporting affidavit, read as a whole

in a realistic and common sense manner, does not allege specific facts and

circumstances from which the magistrate could reasonably conclude that the items

sought to be seized are associated with the crime and located in the place

indicated.’” Newsom, 402 F.3d at 782 (citations omitted). “The age of information

contained in an affidavit is only one factor a judge considers, and it is less

important when the criminal activity in question is apparently continuous.” United

States v. Watzman, 486 F.3d 1004, 1008 (7th Cir. 2007). “Credibility of informants,

nexus to the searched premises and to illegal activity, and the age of the

information are all relevant considerations in this inquiry, but no single piece of

information need satisfy every relevant consideration before we may consider it.”

United States v. Wiley, 475 F.3d 908, 915 (7th Cir. 2007) (citation omitted). 

Looking at the totality of the information presented in the affidavit, we

conclude that probable cause did not exist. While Doan’s e-mail address was still

active and the physical address used in the website registration was his address at

time the warrant was sought, the information connecting Doan to child

pornography, Doan’s paid website subscriptions, was seventeen months old. 

Though Sutherland amended his affidavit to include his experience of finding

eighteen-month-old images, the circumstances surrounding that experience is

unknown: the form of the images (on a computer, in print, on video, etc.) or the

manner in which they were obtained (via e-mail, downloaded from a website,
No. 06-2552 Page 5

scanned, etc.). Thus, Sutherland’s handwritten addition to his affidavit was

insufficient to cure any staleness concerns. We recognize that the age of the

information is only one factor to consider, Watzman, 486 F.3d at 1008, and that

collectors of child pornography tend not to dispose of images, but rather to keep

them, see Newsom, 402 F.3d at 783 (citations omitted). However, the age of the

information is not the only problematic aspect of the affidavit. The only information

contained in the affidavit connecting Doan to child pornography is two subscriptions

to child pornography websites. The affidavit does not set forth the duration of the

website subscriptions, the download capability accompanying those subscriptions,

the last date Doan accessed the websites, whether Doan downloaded images from

these sites, whether Doan owned a computer, or whether Doan had internet access

at his home. Because, in the absence of downloading, with the passage of time the

probability that child pornography will be found diminishes, a mere subscription

that is seventeen months old without additional facts or circumstances related

either to the individual subject of the warrant or to the agent’s experience of

discovering eighteen-month-old child pornography is insufficient to establish

probable cause. In other words, when aged information is minimal and when there

is no additional information about the individual beyond the seventeen-month-old

information, even taking the affidavit as a whole, there is no probable cause. 

We are not holding that a warrant with seventeen-month-old information

would per se lack probable cause. See United States v. Koelling, 992 F.2d 817, 822

(8th Cir. 1993) (“There is no bright-line test for determining when information is

stale . . . . Time factors must be examined in the context of a specific case and the

nature of the crime under investigation.”). “Probable cause is a fluid

concept—turning on the assessment of probabilities in particular factual

contexts—not readily, or even usefully reduced to a neat set of legal rules,” Illinois

v. Gates, 462 U.S. 213, 232 (1983). Therefore, the older the information is regarding

child pornography, the more necessary it is to include more detail concerning that

information and concerning the person who is the subject of the investigation.

Further, this is particularly important in the age where technology is advancing at

an ever-increasing rate. In the context such as child pornography, it is incumbent

upon law enforcement to provide as much information and facts as possible about

the nature and characteristics of the individual. For the older information it is

helpful to know the type of computer equipment and the internet access that an

individual might possess. Also, the length of time that has passed since his last hit

on a website, the duration and features of a subscription, and any other “specific

facts and circumstances” may, in the aggregate, justify a search. Newsom, 403 F.3d

at 782.
No. 06-2552 Page 6

Even in the absence of probable cause, a warrant could “be saved by the good

faith exception.” United States v. Olson, 408 F.3d 366, 372 (7th Cir. 2005). We

review de novo the legal conclusion that a law enforcement officer reasonably relied

upon a subsequently invalidated search warrant. Wiley, 475 F.3d at 917 (citation

omitted). “An officer’s decision to obtain a warrant is prima facie evidence that he

or she was acting in good faith.” United States v. Koerth, 312 F.3d 863, 868 (7th

Cir. 2002). A defendant may rebut this evidence, if the issuing judge

“wholly abandoned his judicial role” and failed to “perform his ‘neutral and

detached function,’” serving “merely as a rubber stamp for the police” or [ ]

the affidavit submitted in support of the warrant was “so lacking in indicia of

probable cause as to render official belief in its existence entirely

unreasonable.” 

Olson, 408 F.3d at 372 (quoting United States v. Leon, 468 U.S. 897, 914, 923

(1984)). 

In his attempt to rebut Sutherland’s decision to obtain a warrant as evidence

of good faith, Doan contends that the magistrate judge was not neutral and

detached and that Sutherland’s position was unreasonable. As to the magistrate

judge, Doan argues that when the magistrate judge expressed concern about the

staleness of the information and directed Sutherland to handwrite that he had

personally observed child pornography that was eighteen months old, the

magistrate judge abandoned his neutral and detached role. Doan, however, did not

challenge the magistrate judge’s neutrality and detachment in either his motion to

suppress or his objections to the magistrate judge’s report and recommendation.

Therefore, this challenge is deemed forfeited, and we review only for plain error. 

See United States v. Charles, 476 F.3d 492, 495 (7th Cir. 2007). In this case, the

magistrate judge did not simply rubber-stamp Sutherland’s affidavit and issue a

warrant, but challenged the government to provide additional information before

issuing a warrant. See Koerth, 312 F.3d at 868. Thus, rather than abrogating his

neutral and detached role, the magistrate judge properly acted as an independent

arbiter by probing possible staleness and questioning the affidavit. 

Doan also states that it was unreasonable for Sutherland to rely upon

information that was seventeen months old. In light of Sutherland’s experience that

the websites to which Doan subscribed are geared almost exclusively toward the

pedophile audience, that individuals who collect images usually do not discard

them, and that in his experience he had discovered child pornography that was

eighteen months old, it was not unreasonable for Sutherland to believe that the

facts asserted in his affidavit supported a probable cause finding. In addition,
No. 06-2552 Page 7

Sutherland identified Doan’s subscription to two child pornography websites.

Moreover, Doan fails to provide any citations to cases that would have instructed “a

reasonably well trained officer . . . that the search was illegal despite the judge’s

authorization.” Leon, 468 U.S. at 922 n.23. Accordingly, even in the absence of

probable cause, the good faith exception to the exclusionary rule applies, and we

affirm the district court’s denial of Doan’s motion to suppress.

III.

Viewing the affidavit in support of the warrant as a whole, we conclude that

it fails to establish probable cause. However, the good faith exception to the

warrant requirement applies because the agent reasonably relied upon the warrant. 

Therefore, we AFFIRM the district court’s denial of Doan’s motion to suppress and

his subsequent conviction.