Full opinion text
MEMORANDUM-DECISION AND ORDER MUNSON, Senior District Judge. Now before the court are omnibus pretrial motions in this case concerning the receipt, transmission, and possession of computer images of child pornography. The government and defendant consented to the court deciding these motions on submission. Doe. 33. The following constitutes the court’s memorandum-decision and order in this matter. I. BACKGROUND Defendant is charged in the first superseding indictment, Doc. 30, with twenty-three counts of receiving by computer transmission sexually explicit images of children, in violation of 18 U.S.C. § 2252(a)(2). Counts 24-48 accuse defendant of sending such images by computer, in violation of 18 U.S.C. § 2252(a)(1). Count 49 charges him with possession of three or more visual images of child pornography, punishable under 18 U.S.C. § 2252(a)(4). Finally, the government seeks forfeiture of defendant’s computer system. This prosecution is the product of a comprehensive operation conducted by the Federal Bureau of Investigation known as “Innocent Images.” The interest of federal law enforcement officers in the flow of child pornography over the Internet was evidently piqued by the much-publicized case involving the abduction of a ten-year old Maryland boy. See Ex. E att’d to Def.’s Notice of Motion, Doc. 22, at 10-11. Bureau agents investigating the matter discovered that computer on-line services were being used to entice children into sexual encounters with adults, and that child pornography was being distributed regularly by computer. The Baltimore office of the FBI subsequently spearheaded an investigation wherein law enforcement agents would sign on to computer services and attempt to identify traffickers of image files containing child pornography. Evidence against defendant in the case at bar originated from the Florida Department of Law Enforcement. Ex. F att’d to Def.’s Notice of Motion, Doc. 22, at 14-17. A special agent of that department and a confidential informant signed on to the America OnLine service (“AOL”) in an undercover capacity and obtained image files depicting children engaged in explicit sexual conduct. An individual using the screen names “Josh6979” and “JoMil5” was involved in the receipt and transmission of over 100 child pornography images between August 1, 1994 and April 9, 1995. The individual’s AOL account number was also learned. A federal grand jury issued a subpoena to AOL’s headquarters in Virginia to discover information about the subscriber corresponding to that account number and to the pertinent screen names. On March 30,1995 AOL identified the subscriber as the defendant. Id. at 17. Further investigation confirmed that a computer equipped with a modem was located in defendant’s home in Marcellus, New York. Id. at 18-20. On September 13,1996 federal agents executed search warrants at 125 homes and businesses in furtherance of Innocent Images. One home searched was Michael Lamb’s. During the execution of the search he was interviewed. Defendant made potentially incriminating statements and wrote out and signed a statement. See Ex. A att’d to Def.’s Notice of Motion, Doc. 22. A search of the hard drive on defendant’s computer revealed that it contained many child pornography image files. Adult pornographic materials were also found at defendant’s house, along with marijuana. Defendant was later indicted and arrested. II. DISCUSSION Defendant seeks omnibus pretrial relief in the following particulars: dismissal of the indictment on the grounds that the statute at issue is unconstitutionally overbroad, is over-broad as applied, is void for vagueness, and violates principles of substantive and procedural due process; motion for a pretrial evidentiary hearing to determine whether the images in the indictment are of actual children; suppression of evidence seized pursuant to the warrant executed to search AOL’s Virginia offices; suppression of evidence seized pursuant to the warranted search of his home; dismissal of counts 6, 9, and 32 as impossible; exclusion of adult pornography from being offered at trial; exclusion of the use of prior bad acts at trial; discovery of the government’s role in the transmission and creation of the images at issue; individually sequestered voir dire; exclusion of any contemplated expert testimony on pedophilia; disclosure of any Federal Rule of Evidence 404 or 609 material the government intends to introduce at trial; and dismissal of the indictment based on the government’s “outrageous conduct.” Defendant has withdrawn his motion to suppress his statements to the FBI as violative of the Fifth Amendment. However, he has also moved to exclude the statements as a fruit of the allegedly unconstitutional search of his home. The government cross-moves for reciprocal discovery. The requested relief is discussed below. A. Constitutionality of Statute Any facial challenge to a statute must naturally begin with the language of the law itself: (a) Any person who— (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; (2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce by any means including by computer or through the mails, if— (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; [or] (4) ... (B) knowingly possesses 3 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if— (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii) such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. 18 U.S.C. § 2252(a)(1), (2), & (4)(B). Defendant challenges the statute he is charged under as unconstitutionally over-broad and vague. As these arguments are legally intertwined, the court treats them together. See Local 189 Int’l Union of Police Ass’ns v. Barrett, 524 F.Supp. 760, 765 (N.D.Ga.1981). The court then briefly addresses defendant’s claim that the rule in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) permits an individual to possess child pornography in the privacy of his home. The substantive and procedural due process challenges to the statute are addressed at the end of this section. 1. Overbreadth and Vagueness A statute is overbroad under the First Amendment when in addition to proscribing activities which may properly be forbidden, it also sweeps within its coverage activity protected by the guarantee of free speech. E.g., Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903-04, 84 L.Ed. 1213 (1940); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The overbreadth doctrine is powerful in free expression cases, as the movant need not demonstrate that his or her conduct was protected, as long as the court is persuaded that the statute infringes upon an unacceptable level of activity privileged under the First Amendment. See Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951). Only a statute that is substantially or facially overbroad however will be struck in its entirety. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). Defendant contends that the statute in question strikes indiscriminately at categories of expression that cannot be punished consonant with the First Amendment. Defendant also raises the related doctrine of vagueness. A statute will be held void for vagueness if the proscribed activity is so unclearly defined that persons of common intelligence must necessarily guess at it meaning and differ as to its application. Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127-28, 70 L.Ed. 322 (1926). Laws that are overbroad and/or vague share common vices. First, the essentially unfettered discretion granted to police officers in applying them leads to selective enforcement. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983) (vagueness;- statute struck because it vested “virtually complete discretion” in the police); Kunz, 340 U.S. at 295, 71 S.Ct. at 315-16 (overbreadth; “no appropriate standards” to guide officials). Second, uncertainty as to just what is prohibited chills the speech rights of the citizenry. See Arnett v. Kennedy, 416 U.S. 134, 231, 94 S.Ct. 1633, 1682, 40 L.Ed.2d 15 (1973) (Marshall, J., dissenting) (overbreadth); John E. Nowak & Ronald D. Rotunda, Constitutional Law § 16.9, at 1001 (5th ed. 1995) (vagueness). This is so because “[wjhen one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.’ ” Keyishian v. Board of Regents, 385 U.S. 589, 603-04, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). In the instant matter, defendant argues that the definition of the prohibited materials, that is, visual depictions involving the use of minors engaging in sexually explicit conduct, is too vague for the statute to stand. This court finds New York v. Ferber, 458 U.S. 747, 773, 102 S.Ct. 3348, 3363, 73 L.Ed.2d 1113 (1982), to be determinative of defendant’s facial challenge. The Supreme Court in that case upheld New York State’s child pornography law against an over-breadth argument. Id. at 766-74, 102 S.Ct. at 3359-64. Justice White writing for the majority considered Ferber “the paradigmatic case of a ... statute whose legitimate reach dwarfs its arguably impermissible applications.” Id. at 773, 102 S.Ct. at 3363. Situations in which the statute would quash forms of expression with serious literary, artistic, or scientific merit were predicted to “amount to no more that a tiny fraction of the materials within the statute’s reach.” Id. The New York statute is not'different from the federal statute in any way relevant to the overbreadth argument. For instance, the definition of sexually explicit conduct at 18 U.S.C. § 2256(2) is virtually indistinguishable from the definition of sexual conduct at New York Penal Law § 263.00(6), as. demonstrated more fully infra. And the number of courts that have upheld the various provisions of the Protection of Children Against Sexual Exploitation Act of 1977, 92 Stat. 7 (codified as amended at 18 U.S.C. §§ 2251-2259) against overbreadth arguments—most of them with reference to Ferber—is growing. E.g., United States v. Knox, 32 F.3d 733, 751-52 (3d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 897, 130 L.Ed.2d 782 (1995); United States v. X-Citement Video, Inc., 982 F.2d 1285, 1287-89 (9th Cir.1992), rev’d on other grounds, — U.S. —, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); American Library Ass’n v. Barr, 956 F.2d 1178, 1190 (D.C.Cir.1992); United States v. Wolf, 890 F.2d 241, 246 (10th Cir.1989); United States v. Reedy, 845 F.2d 239, 241 (10th Cir.1988) (ruling in Ferber “not distinguishable” from challenge to federal statute), cert. denied, 489 U.S. 1055, 109 S.Ct. 1318, 103 L.Ed.2d 587 (1989); United States v. Rubio, 834 F.2d 442, 452 (5th Cir.1987) (New York statute “equivalent” to federal statute); United States v. Smith, 795 F.2d 841, 848 n. 7 (9th Cir.1986) (federal statute “almost identical” to New York law approved in Ferber), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987); United States v. Langford, 688 F.2d 1088, 1092 (7th Cir.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2433, 77 L.Ed.2d 1319 (1983); United States v. Long, 831 F.Supp. 582, 586-87 (W.D.Ky.1993); United States v. Tolczeki, 614 F.Supp. 1424, 1429-30 (N.D. & E.D.Ohio 1985); United States v. Andersson, 610 F.Supp. 246, 249 (N.D.Ind.1985) (New York statute “very similar” to federal law), aff’d, 803 F.2d 903 (7th Cir.1986), cert. denied, 479 U.S. 1069, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); United States v. Maday, No. 88-CR-145E, 1989 WL 103666, at *2 (W.D.N.Y. Sept. 6, 1989). Add this court to the list. In support of his argument that the law reaches conduct that cannot constitutionally be proscribed, defendant observes that the statute fails to make explicit exceptions for possession of child pornography by law enforcement officers, prosecutors, the court, or a jury. The argument is specious for two reasons. Obviously, neither the court nor a juror is subject to prosecution for possession of contraband if it is being examined as evidence at trial, and it is a sophistry to suggest that because possession of contraband is illegal, a law enforcement officer may not seize it or an assistant U.S. attorney may not present it as evidence in a prosecution. But these privileges do not arise from any of the protections of expression embodied in the First Amendment. They are rather incidents of the special functions these persons perform in our justice system. Therefore, defendant—who is not a judge, juror, prosecutor, or law enforcer—may not take advantage of the liberal standing rules accorded free speech overbreadth cases. See Ferber, 458 U.S. at 767, 102 S.Ct. at 3359-60 (“The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the court.”). And secondly, defendant has failed to show how the omission of explicit exceptions for the types of persons enumerated results in any substantial overbreadth. The court rejects the inconceivable notion that the number of times the government will seek to prosecute a juror for possessing in the jury room child pornography that has been admitted into evidence during a child pornography case will amount to any more than an infinitesimal fraction of all child pornography cases, if indeed it ever happens. Defendant also raises the contention that the federal law is unconstitutionally overbroad because it does not explicitly except materials with serious literary, artistic, scientific, or educational value from its sweep. However, the availability of an unconstitutional-as-applied defense substitutes for the lack of these express affirmative defenses. It is true that Justice O’Connor’s concurrence in Ferber suggested .that the First Amendment does not protect even materials with the above-mentioned redeeming attributes. Id. at 774-75, 102 S.Ct. at 3363-64. But the concurrences of Justices Brennan, Marshall, and Stevens all maintained that materials otherwise proscribed by the law that have serious literary, artistic, scientific, or educational merit are protected by the First Amendment. Id. at 776-77, 778, 102 S.Ct. at 3364-65, 3365-66. More importantly, the majority opinion itself states that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. 458 U.S. at 774, 102 S.Ct. at 3363 (quoting Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2917-18). At least one reported case holds that the United States may punish persons trafficking in materials covered by the Protection of Children Act that do possess redeeming social and scientific qualities. Stanley v. United States, 932 F.Supp. 418, 420-21 & n. 3 (E.D.N.Y.1996). In so ruling, Senior Judge Turrentine noted that “Congress rejected a proposed affirmative defense for serious literary, artistic, scientific, social or educational value to prosecution under the child pornography laws.” Id. at 421. For support, the district court then cited to the legislative history accompanying the Child Protection Act of 1984, 98 Stat. 204 (which amended the 1977 Protection of Children Act in light of Ferber). However, the Stanley opinion neglected to consider the testimony of a Justice Department official contained in the same report on the subject of the affirmative defense: Even in the absence of the affirmative defense provided in H.R. 2432, a defendant may take the position that the application of the child pornography statute to his ease is unconstitutional and falls within the “tiny fraction of the materials within the statute’s reach” which the Court recognized should receive constitutional protection. 458 U.S. at 772-74, 102 S.Ct. at 3363. Thus, the' affirmative defense provision (which was not in the New York statute approved in Ferber) is unnecessary. H.R.Rep. No. 536, 98th Cong., 2d Sess. 13 (1983), reprinted in 1984 U.S.C.C.A.N. 492, at 504 (testimony of Mark M. Richard, Dep. Ass’t Att’y Gen.). Thus the fact that the affirmative defense was rejected could have just as easily meant that Congress acknowledged that some small amount of material literally covered by the statute was nonetheless protected by the guarantee of free speech, rendering the express defense redundant, of perhaps overly generous compared to what stands behind the First Amendment’s aegis. In any event, it is the judiciary’s role to survey the frontier of the First Amendment, and this court declines to join the singular opinion of the Eastern District of New York that the uneonstitutional-as-applied defense is absolutely unavailable in a federal child pornography prosecution. Possible examples of when such a prosecution would be constitutionally impermissible are contained in the Ferber concurrences of Justices O’Connor, 458 U.S. at 775, 102 S.Ct. at 3364 (National Geographic photographs of other cultures) and Stevens, id. at 778, 102 S.Ct. at 3365-66 (state legislative committee considering child pornography law and group of research scientists studying human behavior). As another example, this court presumes that Special Agent Ken. Lanning, who according to the affidavits in the search warrants in this ease is an expert in the field of child pornography and pedophilia, could not be subject to prosecution consonant with the First Amendment for violations of this statute, even if he literally transgressed its boundaries in the writing of his book, Child Pornography and Sex Rings. It appears that defendant in this case may well advance the argument that his possession of child pornography was pursuant to research he was undertaking in his capacity as a psychiatrist at the Auburn Correctional Facility. See Ex. A att’d to Lewis Aff., Doc. 22, at 3. This as-applied defense must await trial, where the factfinder can evaluate the credibility of defendant’s proffered explanation. The court turns now to the vagueness argument. Defendant argues in the first instance that the statute lends itself to arbitrary enforcement by investigators because “[t]he statute criminalizes child photographs of a type and kind dependent upon the prurient sensibilities of law enforcement.” Def.’s Mem.Law., Doc. 23, at 6. Moreover, it “does not define the offense well enough to let ordinary people know what is prohibited.” Id. at 7. To evaluate these arguments, we look to the definitional section of the Protection of Children Act: (2) “sexually explicit conduct” means actual or simulated— (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person; 18 U.S.C. § 2256(2). Now let us compare the definitional component of the New York statute approved in Ferber. “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Ferber, 458 U.S. at 751, 102 S.Ct. at 3351; see also N.Y. Penal Law § 263.00(3) (McKinney 1989) (same). The High Court in Ferber agreed that “the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed.” 458 U.S. at 764, 102 S.Ct. at 3358. They went on to hold that the New York Penal Law’s definition of sexual conduct comports with that principle. Id. at 765, 102 S.Ct. at 3358-59. Since the federal statute is notably more specific than New York’s, this court cannot hold that the Protection of Children Act fails to adequately tell the citizenry what is outlawed. For the same reason, the federal statute provides ample guidance for law enforcement officers. Lastly, defendant argues that the statute, in prohibiting the trafficking of visual depictions of child pornography “by computer,” 18 U.S.C. §§ 2252(a)(1), (a)(2), & (4)(B), is vague in its application to the technology of transmitting image files over AOL. From the affidavits in this, matter and its experience, with another Innocent Images case, this court understands that computer distribution of child pornography begins with a regular photograph, film, or videotape. A photograph or still from a film or videotape can be scanned or transferred to a computer by a number of technological means, including digital cameras, flatbed scanners, and video capture cards. The images are converted into one of three image file formats, identified by a three-letter suffix following the period after the filename: GIF, JPG, or ZIP. These files can then be transmitted over a modem to other computers. Another program known as a viewer is required to display the image files as actual pictures on the monitor, although viewers may be incorporated into other software. Defendant argues that the GIF, JPG, and ZIP files are not visual depictions within the meaning of the statute. The definitional section of the Protection of Children Act says of the term “visual depiction” only that it includes “undeveloped film and videotape.” 18 U.S.C. § 2256(5). However, the definition does not exclude other media. Obviously, developed photographs would be covered. In fact, this court believes that the explicit reference to media of a type that requires additional steps and equipment before the images they contain can be viewed supports the proposition that Congress intended to sweep the type of transmission at issue here within the ambit of the statute. It is true that the GIF, JPG, and ZIP files are not visual depictions themselves—they are computer data stored on diskettes or other media, requiring software and a computer to view the images within. But videotape is not itself a visual depiction either. Images are recorded magnetically on a reel of plastic tape coated with iron oxide, requiring a videotape player and television set to view them. The United States Air Force Court of Criminal Appeals addressed a similar challenge in reviewing the ease of a colonel convicted by general court-martial of four specifications of service-discrediting conduct. United States v. Maxwell, 42 M.J. 568 (AF.Ct.Crim.App.1995), review granted, 44 M.J. 41 (C.A.A.F.1996). One specification alleged violations of 18 U.S.C. § 2252, and another charged violations of the federal obscenity statute, 18 U.S.C. § 1465. Id. at 573. The officer had apparently transmitted child pornography over AOL., At the time of the crime, the obscenity statute read in pertinent part: Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene,' lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette; drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be [fined or imprisoned or .both], 18 U.S.C.A. § 1465 historical and statutory notes (Supp.1996). The defendant argued that he was denied the Due Process of Law under the Fifth Amendment because the statute failed to put him on notice that transmitting obscenity by computer could be criminally prosecuted—one of the vices of a vague statute. The military court rejected this argument, holding that [t]he use of the terms “transports,” “distribution,” “picture,” “image,” and “electrical transcription” leads us to the inescapable conclusion the statute is fully applicable to the activities engaged in by appellant____ It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end. 42 M. J. at 580. Maxwell was cited with approval in another case under the obscenity statute (before it expressly punished computer transmission, see supra note 6). United States v. Thomas, 74 F.3d 701 (6th Cir.1996), pet. for cert. filed, 64 U.S.L.W. 3839 (1996). The defendants in Thomas contended on appeal that the obscenity statute did “not apply to intangible objects like the computer GIF files at issue” in that case, and also that “Congress did not intend to regulate computer transmissions such as those involved” in that matter. Id. at 706. The first argument is particularly relevant for our purposes. Defendants in Thomas maintained they could not be prosecuted for modem transmittal of- the ' image files “because transmission of the GIF files at issue ... involved an intangible string- of 0’s and l’s which became viewable images only after they were decoded by a[ ] ... computer.” Id. at 706-07. The Sixth Circuit was unconvinced, and criticized defendants for unduly focusing on the means by which the GIF files were transferred rather than' the fact that the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location. Id. at 707. That observation may be imported to this matter. As for the second argument in Thomas, the Sixth Circuit concurred with the Air Force Court of Criminal Appeals in Maxwell that transmission by computer fell squarely in the conduct covered by the obscenity law. Id. at 708-09. It bears pointing out that both these opinions interpreted a statute which, at that time, did not explicitly mention the word “computer” as nevertheless punishing the trafficking of obscenity by computer. In light of that fact, this .court would be remiss to hold that the child pornography statute, which at present and at the time of the conduct alleged in the indictment did expressly prohibit transmission of the subject material “by computer” does not apply to transmission of GIF files over a modem, which can then be converted to visual depictions of children engaged in sexually explicit conduct on a computer monitor screen on the other end of a telephone line. The use of the words “by computer” are sufficient to cover this conduct. Congress was no more required to explain in-intricate detail the technology of sending pictures over the Internet than it was to explain the chemical process of developing film into photographs. This court will not indulge in metaphysical hair-splitting to rule that “by computer” does not give constitutionally, adequate notice that defendant’s alleged activity in this case is prohibited. A survey of the reporters unearths the following cases finding various elements of the Protection of Children. Act sufficiently clear that average people -could understand what is prohibited; unsurprisingly,. some of the same eases belying the proposition that the Act is unconstitutionally overbroad also reject the vagueness argument. E.g., United States v. Colavito, 19 F.3d 69, 71-72 (2d Cir.), cert. denied, — U.S. —, 115 S.Ct. 634, 130 L.Ed.2d 540 (1994); United States v. X-Citement Video, Inc., 982 F.2d 1285, 1287-89 (9th Cir,1992), rev’d on other grounds, — U.S. —, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); United States v. Arvin, 900 F.2d 1385, 1388 (9th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 672, 112 L.Ed.2d 664 (1991); United States v. Wolf, 890 F.2d 241, 246 (10th Cir.1989); United States v. O’Malley, 854 F.2d 1085, 1087 (8th Cir.1988); United States v. Reedy, 845 F.2d 239, 241 (10th Cir.1988), cert. denied, 489 U.S. 1055, 109 S.Ct. 1318, 103 L.Ed.2d 587 (1989); United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir.), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987); United States v. Freeman, 808 F.2d 1290, 1293 (8th Cir.), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987); United States v. Smith, 795 F.2d 841, 846 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987); United States v. Long, 831 F.Supp. 582, 587 (W.D.Ky.1993); United States v. Tolczeki, 614 F.Supp. 1424, 1426 (N.D. & E. D.Ohio 1985); United States v. Andersson, 610 F.Supp. 246, 249-50 (N.D.Ind.1985), aff’d, 803 F.2d 903 (7th Cir.1986), cert. denied, 479 U.S. 1069, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); United States v. Nemuras, 567 F.Supp. 87, 89 (D.Md.1983), aff’d, 740 F.2d 286 (4th Cir.1984); United States v. Carroll, No. Crhn.A. 92-10131-2,1992 WL 333958, at *2 (D.Mass. Oct. 14, 1992); United States v. Maday, No. 88-CR-145E, 1989 WL 103666, at *2 (W.D.N.Y. Sept. 6, 1989); cf. United States v. Marquardt, 949 F.2d 283, 286 (9th Cir.1991) (prepubeseent enhancement in sentencing guidelines not vague). The vagueness and overbreadth arguments are without merit. 2. Simple Possession In another First Amendment argument, defendant points to Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) for the proposition that the Constitution forbids the punishment of mere possession of child pornography in one’s own home. Stanley of course dealt with possession of obscenity, not child pornography. And the Supreme Court expressly held that simple possession of child pornography may be punished consonant with the Constitution in Os-Some v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Defendant attempts to distinguish Osborne by observing that the Ohio statute at issue there, unlike the New York law in Ferber or the federal law here, made explicit exceptions for certain “bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose[s].” Id. at 106, 110 S.Ct. at 1694. However, the Court suggested that a statute without express exceptions, like the New York law, also could proscribe mere possession. See id. at 114 n. 11, 110 S.Ct. at 1699 n. 11. The availability of the unconstitutional-as-applied defense undoubtedly solves any trouble here, as explained more fully supra. S. Substantive Due Process Defendant’s next constitutional challenge to the statute appears to be based neither in overbreadth nor vagueness. Defendant argues that prosecution of end-users of child pornography does not advance the legislative interests underlying the Protection of Children Act. See Def.’s Mem. Law, Doe. 23, at 8. Statutes regulating categories of expression that are essentially unprotected by the First Amendment, such as child pornography, will pass muster if they are content-neutral within the entire category, and if they satisfy the rationality analysis of the Due Process Clause. See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Ferber itself establishes that child pornography is a minimally protected category. 458 U.S. at 764, 102 S.Ct. at 3358. And the R.AV. majority opined that Ferber held the child pornography statute at issue there did not censor a particular literary or political theme. R.A.V., 505 U.S. at 384, 112 S.Ct. at 2543 (quoting Ferber, 458 U.S. at 763, 775, 102 S.Ct. at 3357-58, 3364). Since this court has already noted the substantial similarity of the expression proscribed in the New York statute and the federal law, we hold that the Protection of Children Act does not discriminate based upon content within the minimally protected category of child pornography. From that point, it is easy to conclude that, consonant with substantive due process, the Protection of Children Act is rationally related to a legitimate government interest. See Ferber, 458 U.S. at 756-57, 102 S.Ct. at 3354-55 (interest in protecting children is “compelling,” not merely legitimate); id. at 759, 102 S.Ct. at 3355-56 (distribution of child pornography related to welfare of children in two ways); id. at 760, 102 S.Ct. at 3356 (drying up market for child pornography helps reduce production). If defendant is arguing that the Protection of Children Act is ineffective at curtailing the production of child pornography, his argument is best addressed to the Congress, not this court. For the purposes of disposing of defendant’s argument, it is enough to conclude that the Act punishes trafficking in an entire category of minimally protected speech, and that the law is rationally related to the government’s legitimate interest in stemming the flow of child pornography in interstate commerce. Jp. Procedural Due Process Defendant makes one other stab with the due process spear, this time with its procedural end. He argues the Protection of Children Act punishes wholly passive conduct which the average member of the community would not realize was illegal, in violation of the notice principles in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Lambert was a completely different case. There, the Supreme Court invalidated a conviction based on a Los Angeles municipal code section which required all convicted felons staying in Los Angeles for five days or more, or who visited Los Angeles five times in a 30-rday period, to register with the police chief. In contradistinction, the possession and distribution of child pornography is an activity which the average person would think unlawful. Moreover, the conduct defendant is charged with is not wholly passive, but rather involves transmission over the computer and possible solicitation of downloads from like-minded individuals. The enforcement of the federal child pornography law does not violate of the notice requirements of due process. In sum, the court declines to hold the Protection of Children Act unconstitutional under the First Amendment or the Due Process Clause of the Fifth Amendment. Defendant’s overbroad-as-applied defense must await trial. B. Pretrial Evidentiary Hearing Defendant argues the government must prove that the minors depicted in the images the government will introduce against him are actual children. To this end, he proposes a pretrial evidentiary hearing pursuant to Criminal Procedure Rule 12(b) and Evidence Rule 104. The United States does not dispute that “the indictment and the statute require the government to prove that the depictions are of actual minors.” Gov.’s Response, Doc. 31, at 4. This court agrees. “Minor” is defined in the Protection of Children Act as “any person under the age of eighteen years.” 18 U.S.C. § 2256(1). Thus, a cartoon character, a computer-animated image, a person eighteen or over who appears to be a minor, or an image of of an adult “doctored” by computer or other means to appear younger are not covered by the statute. Although the welfare of children might well be served by prohibiting, for instance, the traf.ficking of child pornography cartoons, it does not appear that Congress intended such a result. See, e.g., S.Rep. 438, 95th Cong., 2d Sess. 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40, 43 (finding that use of children as the subjects of pornographic materials is very harmful to both the children and the society as a whole). Requiring the government to pre-prove that the children depicted are real in an evidentiary hearing before the court is another matter. Criminal Procedure Rule 12(b) provides that “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” The italicized language points out the flaw in defendant’s request. The question of whether the images are of actual children under eighteen is an element of the crime that the government must prove at trial, and as such is part of the general issue of guilt. Defendant may be asking the court to set ground rules for proof of this element-by requiring expert testimony on the age of the persons depicted, for example. There is one rule: the government must prove every element of the crime beyond a reasonable doubt. Beyond that, the court declines to tell the United States how to prosecute its case. See United States v. Nolan, 818 F.2d 1015, 1016-18 (1st Cir.1987). If the proof fails as a matter of law with respect to any element, the defendant may make the appropriate motion at the end of the government’s case-in-chief. C. Search of AOL's Offices Defendant moves to suppress the evidence relating to his AOL account seized from AOL’s headquarters in Vienna, Virginia pursuant to a search warrant issued by Magistrate Judge W. Curtiss Sewell of the Eastern District of Virginia on September 12, 1995. This warrant was to search not only records at AOL corresponding to defendant, but to 77 other suspected child pornography traffickers as well. See Attach, to Gov.’s Response, Doc. 31; Ex. E att’d to Def.’s Mem. Law, Doc. 23. Initially, the court observes that this particular warrant was signed on the same day Magistrate Judge Gustave J. DiBianco of this district issued the search warrant for Michael Lamb’s home in Marcellus, New York. It appears that federal agents executed both of the searches on the following day, Wednesday, September 15, 1995. Because the searches were contemporaneous, whatever evidence of crime was unearthed by the AOL warrant could not have contributed to the probable cause determination to issue the Lamb search warrant, contrary to defendant’s assertion that “[t]he material seized and searched as a result of the Virginia warrant was the direct predicate for seeking the warrant against Mr. Lamb from Magistrate DiBianco.” Def.’s Mem.Law, Doc. 23, at 14. However, since the government may still introduce evidence secured through the AOL warrant at trial, the court will decide the motion. Defendant contends that the search violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. We consequently start with the familiar prrneiples of probable cause. First, it is “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Whether it exists in particular circumstances is a decision influenced by “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 175, 69 S.Ct. at 1310. 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, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). When a district judge is asked to find error in a magistrate’s prior determination that a warrant should issue, Gates provides further guidance: The task of the issuing magistrate is simply to make a practical, common-sense decision, whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed. Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (I960)). Thus, the level of this court’s scrutiny is not de novo. Id. 462 U.S. at 236, 103 S.Ct. at 2331. The magistrate had before him a 57-page affidavit with numerous attachments from Special Agent David Roden of the Baltimore FBI office. Agent Roden has been an FBI agent since 1984. He consulted with Special Agents Lanning, a child pornography expert, and Pollitt, a computer crimes expert. It is true, as defendant points out in his challenge to the search of his home, Def.’s Mem.Law., Doc. 23, at 24, that the affidavit contains a large section of boilerplate language, namely the hearsay information from Agents Lanning and Pollitt. The court suspects this standard language was grafted into every affidavit connected to the Innocent Images operation. However, agents need not reinvent the wheel for every application. The boilerplate section is helpful and relevant as background for these sorts of cases, and is accompanied by ease-specific information. The information relating to defendant in the AOL warrant consists of the following. Paragraph 47(a) identifies the person using account number 082-9841-009 and screen name Josh6979 as a participant in more than 50 transmissions of child pornography involving over 100 distinct images. Paragraph 48(b) relates that AOL revealed, pursuant to a grand jury subpoena, that the defendant used that account number and screen name. The next paragraph informs the judicial officer that a court ordered dialed number recorder (DNR) indicated that calls were placed from Michael Lamb’s telephone to numbers associated with AOL. This last paragraph, 48(c), presents a slight discrepancy. The AOL affidavit lists defendant’s telephone number in August of 1995 as (402) 571-7921, a Nebraska phone number. Turning to the search warrant for defendant’s home, the affidavit of Special Agent Tim Dwyer states that the DNR established in August of 1995 was on the number corresponding to Michael Lamb’s Marcellus home, (315) 673-4656. The court believes, however, that it has resolved the ambiguity. Turning back a few pages in the AOL warrant, to paragraph 41(c), it appears that the Nebraska number is also listed for another Innocent Images suspect. A search of on-line telephone records confirms that the Nebraska number is assigned to a person living in Omaha with the same name as the targeted individual in paragraph 41(c). From this information, the court assumes a clerical or typographical error was made. Perhaps the agent or attorney composing the affidavit was doing so with a word processing program on a computer. He or she may have copied paragraph 41(c) and “pasted” it at paragraph 48(c), then edited it to make the relevant changes—though omitting to change the phone number. Since neither defendant nor the government noticed the apparently inadvertent error, the court will' not give it undue attention. It does not deprive the warrant of probable cause. Cf. Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978) (in challenge to warrant, “[a]llegations of negligence or innocent mistake are insufficient”). Doubtless, the affidavit could have set forth the fact that a DNR revealed that Michael Lamb was calling AOL numbers, without actually listing the numbers, and it would have sufficed in the context of this warrant. Harmless mistakes can be made, but agents should be careful that in utilizing the labor-saving advantages of word processing over the typewriter, they do not sacrifice accuracy. Other specific information relating to defendant was included in attachment B-38 to the affidavit. That attachment contained an electronic “paper trail,” explained more fully below, listing all the subscribers who received a child pornography image file, “JJ. ZIP,” originating from the person using screen name Josh6979. The attachment also included a representative sampling of the files defendant was allegedly transmitting. The specific information must then be blended with the general information regarding the Innocent Images investigation to see if the available facts logically led to the conclusion that evidence of child pornography trafficking would be found at AOL’s headquarters. The magistrate first learned that information relating to child pornography trafficking in the AOL warrant was obtained by one or more of four sources: concerned citizens who complained to the FBI or AOL about child pornography on the service, FBI agents signed on in an undercover capacity who obtained child pornography, Special Agent Doug Rehman of the Florida Department of Law Enforcement and his confidential informant, and court-ordered intercepts of electronic * communications. Attach, to Gov.’s Response, Doc. 31, at 13-15. The magistrate also was informed that the image files these sources obtained were accompanied by mail messages. Id. at 16. Each mail message lists the screen name of the AOL subscriber who first uploaded the image file onto the computer system, the screen name of the subseriber(s) to whom it was forwarded, the date and time of the transmission, and the title of the image file. Additionally, the mail message indicates the screen name of the AOL subscriber to whom the first recipient subsequently forwarded the image file, the date and time of that transmission, and the title of the file transmitted. In this manner, the screen name of each recipient and forwarder of a particular image, as well as the date and time of each transmission, is documented continuously until the document came into the possession of one of the four sources. Id. at 16-17. So each depiction of children engaged in sexually explicit conduct that came into the possession of law enforcement was accompanied by a convenient electronic “paper trail.” From these paper trails, it was discovered that the person using the Josh6979 screen name was involved in numerous transmissions. Id. ¶¶ 48(a) to (e). A grand jury subpoena to AOL revealed that the screen name was defendant’s. A DNR on his home number confirmed he subscribed to AOL. The magistrate was presented with one such paper trail corresponding to an image file, “JJ.ZIP”, which indicated defendant transmitted the file in March of 1995. He was also provided with the images in that file—“a series of pictures of a boy appearing to be eight years old in various masturbation and other sexually suggestive poses,” along with a sampling of other images. Gov.’s Response, Doe. 31, at 8. Defendant objects that the magistrate should have seen all the images he allegedly transmitted, but the agent affirmed that the samples were representative of the whole. Since the judicial officer may rely on hearsay statements when approving search warrants, e.g., Fed.R.Crim.P. 41(e)(1), this objection is of no moment. Magistrate Sewell need not have viewed every file, but could have relied on the agent’s assurance that the images he was presented with were typical of the lot. E.g., United States v. Espinoza, 641 F.2d 153, 163-64 (4th Cir.), cert. denied, 454 U.S. 841, 102 S.Ct. 153, 70 L.Ed.2d 125 (1981); Commonwealth v. Dane Entertainment Sens., 389 Mass. 902, 452 N.E.2d 1126, 1130 (1983); People v. Hobbs, 59 Ill.App.3d 793, 17 Ill.Dec. 83, 89, 375 N.E.2d 1367, 1373 (1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1547, 59 L.Ed.2d 795 (1979). From this information, it was no great leap to conclude that evidence of the crime of child pornography trafficking was likely stored in the computer records of AOL in Virginia. On that issue, defendant alleges fault with the scope of evidence sought by the warrant. The Fourth Amendment mandates warrants “particularly describing the place to be searched, and the persons or things to be seized.” Defendant asserts that the latter element of the particularity requirement has not been met in the instant matter. Particularity in identifying the items sought is required to prevent general searches such as were practiced by royal revenue officers in the colonies prior to the Revolution. See Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 528-29, 29 L.Ed. 746 (1886). It also sharply curtails the discretion of the executing law enforcer, since the magistrate alone delineates what is to be seized pursuant to the warrant and what must be ignored. See Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) (particularity requirement “prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”). Lastly, particularity prevents “the issuance of warrants on loose, vague, or doubtful bases of fact.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931). This is related to the requirement of probable cause. If there is indeed probable cause to believe the fruits or instrumentalities of crime are to be found in a particular place, the warrant applicant should be able to explain to the magistrate with some specificity what those items are. Cf. In re Grand Jury Proceedings, 716 F.2d 493,497-98 (8th Cir.1983) (holding not particular a warrant authorizing seizure of items not related to crime being investigated). The list of items sought in the AOL warrant is attached as Schedule A. First, the agents seek the seizure of floppy diskettes containing electronic mail messages sent to and received by the seventy-eight individuals targeted in the warrant. The affidavit gives a sufficient basis for the seizure of these items. The following excerpts are illuminating: America Online[ ] offer[s] their subscribers the ability to communicate publicly or privately with each other in real time in the form of “chat rooms.” Contact with others in this online format can be either very open and anonymous, in front of everyone else who happens to be in the same room at the same time, or very private and personal in the form of person to person instant messages. The open and anonymous communication allows the user to locate others of similar inclination and still maintain their anonymity. Once contact is established, it is then possible to send text messages and graphic images to a trusted conspirator. ' Attach, to Gov.’s Response, Doe. 31, at 7-8. The magistrate later learns that the communication can be “either in real time if the other subscribers are simultaneously on line, or via electronic mail.” Id. at 9. Image files can be attached to the e-mail messages. Id. at 9-10. The Innocent Images investigation “identified numerous individuals who use the computer to openly solicit child pornography from other users of the particular bulletin board service.” Id. at 11. After child pornography transmissions have occurred, “these individuals often put each other on their mailing list and send future images in the hopes of further trades.” Id. at 12. Also pertinent to whether stored e-mail messages of the seventy-eight individuals are relevant to the trafficking of child pornography is the following information: Many of the electronic mail messages which accompanied the images themselves refer to the nature of the images (i.e. child pornographic images) and the relationship between AOL subscribers who regularly trade in child pornography. The electronic mail messages contain statements such as: ‘You like these and I will be doing some more real soon. I like the young ones but do prefer 14-16/. The dicks you know.” (ATTACHMENT B(17)). ‘You absolutely must DownLoad this file! It’s a very young ‘Ashley performing for the camera. I estimaté her age to be about 12 years old and she does have small bikini tan lines on her chest but is almost totally flát-chested and she is hairless.” (ATTACHMENT B(18)). Id at 17. From this information Magistrate Sewell could have determined that the e-mail messages were instrumentalities of the crime in that they are used by child pornography traffickers to locate and communicate with other persons of like mind. The messages are also evidence of the crime in that they sometimes describe the images they accompany in transmission. The warrant was not too broadly drafted in including these messages within its scope. Schedule A also seeks “[a]ll stored files in original format in individual files” and any printouts of the same. There was probable cause to believe that some of those files were image files containing the forbidden depictions. Although the language does not limit investigators to seizing image files only or image files of child pornography only, the actual content of a computer file usually cannot be determined until it is opened with the appropriate application software on a computer. The agents who were tasked to obtain account records related to seventy-eight individuals were not obligated to identify the contents of computer files on AOL’s premises. United States v. Kimbrough, 69 F.3d 723, 728 (5th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996). Because there was probable cause to believe that stored files in the accounts of the suspects contained evidence of the crime, viz. the depictions of child pornography themselves, the warrant properly authorized the search and seizure of these particular items. Schedule A next seeks log files of the sign-on activity of the seventy-eight suspects. The times that defendant was logged on to AOL is evidence of crime. The sign-on logs could corroborate the information in the electronic paper trails regarding which dates transmission occurred on. The schedule also seeks the suspects’ business records in AOL’s possession, including actual names, all screen names those suspects use, all account numbers, methods of payment, and address and phone records. The actual names obviously are evidence of who are perpetrating the crimes. It is important that the warrant seek all screen names and account numbers because, as the affidavit relates, subscribers generally have multiple screen names on their account____ To avoid detection, it is not uncommon for these individuals to discard previously used screen names and continue their activities under new screen names and newly created profiles. Attach, to Gov.’s Response, Doc. 31, at 12. Address and phone records help locate the perpetrators, and confirm other evidence regarding the identities of the traffickers. Billing and payment information is conceivably necessary because “subscribers sometimes provide AOL with fictitious account information, such as nonexistent addresses or false telephone numbers.” Id. Billing information may assist investigators in locating the suspects when telephone and address information proves to be false. All of the items sought are relevant to the crime and potentially evidence or instrumentalities thereof. They are sufficiently particular that the executing agents knew what they were looking for. This final challenge to the AOL warrant must be dismissed. In sum, the motion to suppress evidence obtained by the warranted search of AOL’s offices in Vienna, Virginia is denied. The court proceeds to the Fourth Amendment challenge to the search warrant for defendant’s house in Marcellus, New York. D. Search of Defendant’s Home Of course, the same canons of law set forth in the preceding section apply with equal force to defendant’s motion to suppress evidence seized from his home on September 13, 1995. The court therefore will not reiterate the principles of probable cause or particularity. With regards to the search warrant executed at his home, defendant argues that the information supplied to Magistrate DiBianco was stale, that the affidavit contained boilerplate language rendering it not particular, and that the affidavit was sullied by false and misleading statements. In a supplemental filing, Doe. 39, defendant refers the court to' the report-recommendation of a magistrate from the Southern District of Florida. In that matter—apparently another Innocent Images case—Magistrate Judge Ann E. Vitunac recommended that the district court grant the defendant’s motion to suppress evidence recovered pursuant to a search warrant of his home. To date, the district court has not acted upon that report-recommendation. The doctrine of staleness applies when information proffered in support of a warrant application is so old that it casts doubt on whether the fruits or evidence of a crime will still be found at a particular location. When determining whether information is stale' or not, the judicial officer must not only consider the age of the information, but the nature of the evidence sought. Some kinds of evidence are more evanescent than others. Some contraband, like, narcotic drugs, are consumable. Other evidence, like an illegal firearm, is more apt to remain in one place for extended periods. As one court put it, “[t]he hare and the tortoise do not disappear at the same rate of speed.” Andresen v. Maryland, 24 Md.App. 128, 331 A.2d 78, 106 (1975), aff’d, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). The staleness contention is simply that investigators did not search defendant’s house until September 13,1995 while the last known transmission of child pornography involving defendant occurred on April -5, an elapsed period of over five months. The affidavit before Magistrate DiBianco contained hearsay information from FBI Special Agent Lanning, an expert in this field, that collectors of child pornography rarely dispose of materials they obtain and “almost always maintain and possess their material ... in the privacy and security of their homes or some other secure location.” Ex. F att’d to Def.’s Notice of Motion, Doc. 22, at 2-3. The magistrate also had evidence that defendant accessed his AOL account from a computer at his Marcellus home. In addition to the DNR which indicated phone calls to AOL numbers from defendant’s home and the information yielded by the grand jury subpoena, Special Agent Tim Dwyer had subpoenaed phone records for defendant’s home number. Id. at 19. At least one number defendant had called twice in January of 1995 was a computer data line. A. ruse phone call by Agent Dwyer on September 6, 1995 elicited from defendant that one computer was located in his house arid that it was used to access AOL. Furthermore, Agent Roden, who was responsible for the affidavit supporting the AOL warrant, informed Agent Dwyer that defendant was Still actively using his AOL account in September of 1995 under a different screen name, id. at 20, although it appears that the more recent usage did not involve transmittal of child pornography. From this information, the magistrate could have found probable cause that evidence of crime would be found at defendant’s home. The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time. E.g., United States v. Harvey, 2 F.3d 1318, 1322-23 (3