Fone v. State
2017 WL 2438484
Md. Ct. Spec. App.2017Background
- John R. Fone was convicted by a Montgomery County jury of ten counts of distribution of child pornography based on ten images sent via Yahoo! Messenger on August 24, 2014; he was sentenced to concurrent five-year terms with five years supervised probation.
- Google reported to NCMEC on January 2, 2015 that a child-pornographic image had been attached to captainjrf@gmail.com; MCPD traced the IP to a Verizon account registered to Fone’s Germantown townhouse.
- On March 18, 2015 detectives with a warrant interviewed Fone at home; with consent they examined his basement laptop, located images and erotica, then seized the laptop and external drive after identifying a suspected child‑porn image.
- MCPD’s digital forensic examiner found ten child‑porn images on the laptop that were sent via Yahoo! Messenger on August 24, 2014; the laptop had accessed Fone’s Gmail and Flickr accounts and an external hard drive shortly before and after that session.
- Fone moved to suppress, arguing the warrant was based on stale information; the motion was denied (alternative good‑faith ruling). At trial the defense objected to limited expert-testimony disclosures but did not contemporaneously object to much of the testimony; Fone was convicted and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the warrant was invalid as based on stale information | Fone: Google’s tip did not state when the image was attached, so affidavit failed to show timeliness and probable cause was stale | State: digital images are not perishable; tip to NCMEC and investigator averments on collectors’ habits supported timeliness; alternately, officers relied in good faith | Court: Probable cause not stale (short gaps—3 months from tip, 7 months from distribution; officer expertise permitted inference image remained/recoverable). Alternatively, Leon good‑faith exception applies |
| Whether trial court abused discretion by allowing State expert to testify about account access before/after the transmission despite discovery objections | Fone: State failed to disclose specific gmail/Flickr access, so testimony should be excluded under discovery rules | State: expert disclosure and open‑file access (defense could inspect full IEF and hard‑drive copies) cured any notice issue; defense expert reviewed copies | Court: Issue not preserved (no contemporaneous objection). On merits, court did not abuse discretion because defense had access to materials and court found disclosure adequate |
| Sufficiency of evidence that Fone was the user who sent images | Fone: Others had access to device; no direct proof he was the user at transmission time | State: circumstantial evidence (frequent use of non‑passworded ‘John’ account, access to Fone’s Gmail/Flickr/external drive immediately before/after session, Fone’s admissions about using laptop and sexual interests) supported user inference | Court: Evidence sufficient — jurors could reasonably infer Fone was the user and that transmission occurred at his Maryland home |
Key Cases Cited
- United States v. Leon, 468 U.S. 897 (1984) (good‑faith exception to exclusionary rule)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality‑of‑the‑circumstances test for probable cause)
- United States v. Seiver, 692 F.3d 774 (7th Cir. 2012) (staleness less likely for computer files; passage of time alone rarely establishes staleness)
- Andresen v. State, 24 Md. App. 128 (1975) (staleness judged by reason and variables such as nature of crime, evidence persistence, and suspect’s habits)