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A Greenwood police detective sufficiently established probable cause for a search warrant for a man’s home where the man was suspected of downloading child pornography, the Court of Appeals of Indiana affirmed Friday in upholding the man’s conviction on child molesting charges.
According to court records, in 2019, Brian Swisher, a detective with the Greenwood Police Department, was assigned to the Investigations Division, where he dealt with internet crimes against children. The detective used software on a computer in his office that allowed him to monitor downloads associated with child pornography.
Through the use of that software, Swisher discovered an IP address offering a file that appeared to contain child pornography. He downloaded and viewed the file to confirm his suspicion.
The detective then determined the IP address was registered to AT&T in Greenwood, and the account was in William Sloan’s name.
Prior to Swisher moving forward with his investigation, he was notified that another officer and a representative from the Indiana Department of Child Services were going to Sloan’s residence to respond to an allegation of molestation against Sloan by his stepdaughter.
Concerned about the destruction of evidence, the detective prepared and submitted a probable cause affidavit to obtain a search warrant for Sloan’s residence.
The warrant was issued, and the residence was searched. Evidence seized during the search included two videos of Sloan engaged in sexual activity with his stepdaughter.
The state convicted Sloan in Johnson Superior Court on three counts of child molesting.
At trial, the videos were admitted over Sloan’s objection.
He appealed the propriety of the admission of the videos.
Sloan contended the trial court erred by admitting the evidence because the probable cause affidavit supporting the warrant omitted a material fact and did not establish a link between him and the alleged criminal activity.
The Court of Appeals disagreed with Sloan and affirmed, finding the affidavit sufficiently established probable cause for the issuance of a search warrant for Sloan’s residence.
Senior Judge Margret Robb wrote the opinion for the appellate court.
Sloan requested a hearing for the purpose of determining the truthfulness of certain statements in Swisher’s affidavit, specifically the time of the download of the suspect file.
He also moved to suppress all the evidence seized from his home as a result of the search warrant.
Following a hearing, the trial court denied Sloan’s motions, and the evidence was admitted at trial over his objection.
According to Robb, Sloan asserted the detective should have informed the issuing court of the possibility that someone other than himself could have accessed his internet connection and made the child pornography file available for download.
“This appears to be the first occasion for this Court to address this specific issue,” Robb noted.
Robb then wrote that Sloan made no attempt to establish that Swisher engaged in a deliberate falsehood or a reckless disregard for the truth when he failed to include the information in his affidavit.
“Further, we cannot agree with Sloan’s suggestion that the possibility that some unidentified individual was conceivably able to access his internet connection and offer the download is a ‘material fact’ that is crucial to the determination of probable cause,” she wrote. “This notion is sheer speculation that lacks any factual underpinning.”
The affidavit did not need to exclude every hypothesis of Sloan’s innocence to establish sufficient probable cause for the warrant, Robb added. Rather, it needed to demonstrate to the issuing judge that, given all the circumstances, there was a fair probability that evidence of a crime would be found in a particular place, she wrote, citing Crabtree v. State, 199 N.E.3d 410, 415 (Ind. Ct. App. 2022).
According to the COA, the probable cause affidavit was thoroughly detailed and provided ample evidence to conclude that probable cause existed for the issuance of the warrant to search Sloan’s residence.
The appellate court concluded that, despite the possibility that an individual other than Sloan may have used the account, the circumstances established a fair probability that Sloan, the subscriber, committed the act and that evidence of the illegal activity would be found in his home.
“We therefore hold that facts establishing illegal internet activity associated with a particular IP address and assignment of the IP address at the time in question to a particular internet subscriber at a specific physical address provide a nexus between the illegal activity and the physical address sufficient to establish probable cause for a warrant to search the residence at the physical address,” Robb concluded.
Chief Judge Robert Altice and Judge Elaine Brown concurred.
The case is William S. Sloan v. State of Indiana, 22A-CR-2250.
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