UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4084


UNITED STATES OF AMERICA,

                  Plaintiff -    Appellee,

             v.

RALPH D. DAVIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:07-cr-00254-TSE-1)


Submitted:    January 15, 2009                Decided:   February 27, 2009


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Chuck
Rosenburg, United States Attorney, Andrew McCormack, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ralph D. Davis was indicted on one count of Receipt of

Child    Pornography,     in     violation           of     18       U.S.C.    §   2252A(a)(2)

(2006)     (“Count     One”),      one       count         of        Possession        of   Child

Pornography, in violation of 18 U.S.C. § 2252A(a)(4)(B) (2006)

(“Count Two”), and one count of Possession of a Firearm by a

Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) (2006)

(“Count Three”).        Davis pled guilty to Count One, the district

court dismissed Count Two, and Davis was convicted by a jury on

Count Three.      The district court sentenced Davis to 120 months’

imprisonment      on     Count     One,        to         run        concurrently       with     a

sixty-month sentence imposed for Count Three.                               On appeal, Davis

alleges that the district court erred in denying his motion to

suppress    evidence     seized       in   a       search       of    his     house    conducted

pursuant to a warrant.

            Davis      first    contends           the     affidavit          supporting       the

search warrant “contains misstatements which were intentionally

or recklessly made by the Agent to mislead the magistrate judge

into finding probable cause.”                  Where an affiant, in obtaining a

search    warrant,      included       “‘a     false        statement          knowingly       and

intentionally, or with reckless disregard for the truth,’” and

the false statement was necessary to the probable cause finding,

“the    warrant   is    void    and    the         fruits       of    the     search    must    be

suppressed.”      United States v. Gary, 

, 327 (4th Cir.

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2008) (quoting Franks v. Delaware, 438 U.S 154, 171-72 (1978)).

The defendant must provide affidavits or statements of witnesses

to   support    this   showing,    and      must   allege     more   than   mere

negligence or mistake.        United States v. Tate, 

, 454

(4th Cir. 2008).       “The burden of making the necessary showing is

thus a heavy one to bear.”        

made by the

defendant is adequate to warrant a Franks hearing is a question

of law subject to de novo review.             

Davis failed

to show that the affiant knowingly and intentionally made any

false statements, this argument fails.                 Moreover, the district

court   correctly      denied   Davis’        motion    to   suppress   because

probable cause existed to search Davis’ home.                 See Illinois v.

Gates, 

, 238 (defining probable cause as “a fair

probability that . . . evidence of a crime will be found in a

particular place”).

            Davis   asserts     that    the    information     supporting   the

search warrant was stale.          “A valid search warrant may issue

only upon allegations of facts so closely related to the time of

the issue of the warrant as to justify a finding of probable

cause at that time.”        United States v. McCall, 

,

1335-36 (4th Cir. 1984) (internal quotation marks and citation

omitted).      “The vitality of probable cause cannot be quantified

by simply counting the number of days between the occurrence of



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the facts supplied and the issuance of the affidavit.”                               

quotation marks and citation omitted).

             Other    circuits       have     found   that     child     pornographers

keep their contraband for a long time; information a year old is

not stale as a matter of law in child pornography cases.                              United

States v. Newsom, 

, 783 (7th Cir. 2005); see also

United    States     v.    Lacy,     

,     745     (9th    Cir.      1997)

(upholding search warrant based on information ten months old

because “the [agent] explained that collectors and distributors

of   child      pornography    value       their    sexually    explicit        materials

highly, ‘rarely if ever’ dispose of such material, and store it

‘for     long    periods’     in    a    secure     place,     typically        in     their

homes.”); United States v. Harvey, 

, 1322-23 (3d Cir.

1993)     (concluding       that     a   warrant      was     not    based      on    stale

information, in part because those who collect child pornography

tend to keep it); United States v. Rabe, 

, 996 (9th

Cir.    1988)     (upholding       warrant    despite       two-year    delay        between

original        seizures    and     warrant      because      more     recent        letters

indicated that pornographic material was still being kept by the

defendant).        Guided by this body of authority, we conclude the

district court properly found the warrant did not contain stale

information.

             Finally, Davis argues that the evidence seized from

his home must be suppressed because the search occurred before

                                             4
daylight hours, in violation of Rule 41 of the Federal Rules of

Criminal Procedure.        Rule 41(e)(2)(A)(ii), Fed. R. Crim. P.,

requires that a search warrant be executed during the daytime

unless otherwise authorized by the warrant.                  The Rule defines

daytime as “between 6:00 a.m. and 10:00 p.m. according to local

time.”     Fed. R. Crim. P. 41(a)(2)(B).              However, even if the

search occurred a few minutes before 6:00 a.m., suppression is

not    warranted    as    a    remedy       for   such      non-constitutional

violations.      See United States v. Hurwitz, 

, 472 &

n.6 (4th Cir. 2006).

            Accordingly, we affirm the district court’s judgment.

We    dispense   with   oral   argument     because   the    facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                                      AFFIRMED




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