State of Texas v. Joshua Cotter
360 S.W.3d 647
Tex. App.2012Background
- State appeals suppression order suppressing evidence from a September 1, 2009 search warrant.
- Indictments in 2009 (February 24, 2009 offense) and 2010 (February 24, 2010 offense) against Cotter for online sexual exploitation of a minor and possession of child pornography.
- Cotter moved to suppress arguing the warrant was issued on stale and insufficient information.
- Affidavit by Officer John Blais tied a screen name pimpinainteasy2009@live.com to Cotter via IP addresses and later to Cotter’s residence.
- Investigations traced IPs to Microsoft and Suddenlink; Suddenlink records identified Cotter’s Amarillo address and Suddenlink account started in 2008.
- August 31, 2009, officer observed vehicles at Cotter residence; magistrate issued September 1, 2009 warrant; items seized including a computer and child pornography.
- Appellate standard of review requires four-corners analysis of the affidavit and totality of circumstances for probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the affidavit establishes probable cause | State contends sufficient facts show fair probability. | Cotter contends affidavit lacks probable cause and is stale. | Yes; magistrate could reasonably infer probable cause. |
| Whether information was stale | State contends ongoing, continuing communications negate staleness. | Cotter argues time lapse breaks link to evidence. | Not stale; information supported ongoing access to evidence. |
| Whether tying screen name to Cotter via IP and providers is sufficient | State relies on Microsoft/Suddenlink records tying screen name to Cotter’s residence. | Cotter challenges inferential leaps from screen name to possession at residence. | Sufficient under totality-of-circumstances. |
Key Cases Cited
- Illinois v. Gates, 462 U.S. 213 (1983) (totality-of-the-circumstances probable cause standard)
- Rodriguez v. State, 232 S.W.3d 55 (Tex.Crim.App. 2007) (defer to magistrate if substantial basis for probable cause)
- Ramos v. State, 934 S.W.2d 358 (Tex.Crim.App. 1996) (probable cause under four-corners approach)
- Amador v. State, 221 S.W.3d 666 (Tex.Crim.App. 2007) (appellate review deferential to magistrate's determination)
- Kennedy v. State, 338 S.W.3d 84 (Tex.App.—Austin 2011) (staleness depends on activity type and time elapsed)
- McLain v. State, 337 S.W.3d 268 (Tex.Crim.App. 2011) (probable cause requires substantial basis for finding fair probability)
- Taylor v. State, 54 S.W.3d 21 (Tex.App.—Amarillo 2001) (distinguishes when screen name is not clearly linked to individual)
- McKissick v. State, 209 S.W.3d 205 (Tex.App.—Houston [1st Dist.] 2006) (continuous/persistent nature of criminal activity affects staleness)
- Wise v. State, 223 S.W.3d 548 (Tex.App.—Amarillo 2007) (avoid hyper-technical readings of affidavits)