Robb, S.J.
William Sloan appeals his conviction of three counts of child molesting, challenging the admission of evidence seized from his home pursuant to a search warrant. Sloan contends 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 sufficient nexus between him and the alleged criminal activity. We conclude the affidavit sufficiently established probable cause for the issuance of a search warrant for Sloan’s residence, and we affirm.
…
Sloan argues that admission of the evidence was improper because the search warrant used to seize the evidence was not supported by probable cause. He asserts the warrant was invalid because it failed to inform the issuing court of the possibility that someone other than himself, on a device not belonging to him, could have used his Wi-Fi to connect to the internet and offer the file containing images of child pornography. Sloan further claims that, because of this possibility, any nexus between himself or a device at his residence and the criminal activity was insufficient to support a search warrant.
…
On appeal, Sloan claims Detective Swisher erroneously omitted from his affidavit the material information that “he did not know whether the device from which the video was downloaded was inside [Sloan’s] house, outside the house, or even on the property.” Appellant’s Br. p. 18. In other words, Sloan asserts the detective should have informed the issuing court of the possibility that someone other than Sloan 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.
…
Here, Sloan makes no attempt to establish that Detective 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. This notion is sheer speculation that lacks any factual underpinning.
We are not alone in our assessment of this theory; other courts have also considered and rejected this argument. Most notably, in People v. Hayon, 62 N.Y.S.3d 754, 760 (N.Y. Sup. Ct. 2017), the defendant was charged with 94 counts of possession of a sexual performance by a child. The authorities executed three search warrants and seized computers and other devices containing child pornography from both the defendant’s home and office. He moved to suppress the evidence, claiming the warrant application was deficient “because it failed to explain to the court the ‘realistic possibility’ that someone other than defendant, such as a ‘neighbor, a visitor or someone outside the premises’ could have used defendant’s unsecured IP address . . . .”3 Id. (emphasis added)…. see also U.S. v. Featherly, 846 F.3d 237 (7th Cir. 2017) (defendant challenged affidavit by claiming it contained deliberate falsehood that kept issuing judge from considering possibility that someone else in trailer park had connected to his modem without his knowledge and used his internet connection to share child pornography; court noted that while unknown user conceivably could connect to another’s modem through unsecured wireless network, record did not reflect that defendant had such a network and held that connection between IP address and modem at internet subscriber’s residence was sufficient to justify search).
Likewise, the record here does not reflect whether Sloan’s internet connection was unsecured but given the facts and determination in both Hayon and Featherly, it is of no moment. The affidavit did not need to exclude every hypothesis of Sloan’s innocence to establish sufficient probable cause for the warrant; 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. Crabtree, 199 N.E.3d at 415. Sloan has failed to establish the detective omitted any material fact that would have left probable cause in doubt.
…
Sloan acknowledges that Detective Swisher’s affidavit established a nexus between the downloaded file and his IP address and between his IP address and his residential address. Appellant’s Br. p. 18. However, based on the chance that someone else accessed his internet connection to make the file available, he asserts the affidavit failed to establish a nexus between the file and any person or device at his address. Id. at 18-19. We thus restate the question posed here as whether identification of a specific IP address that is being used to make child pornography available and the physical address to which the IP address is linked creates a sufficient nexus to support a search warrant for that physical address, despite the possibility that an individual other than the subscriber may have been using the IP address. As with Sloan’s related first argument, this Court has not yet addressed this precise question. However, several federal and state courts have had occasion to do so and have rejected it.
…
More recently, in Commonwealth v. Martinez, 71 N.E.3d 105 (Mass. 2017), the defendant appealed from his conviction of possessing child pornography. Martinez challenged the affidavit supporting a search warrant, claiming the police needed to do more to link him to the place to be searched and the items to be seized before a valid warrant could issue. He argued the authorities did not determine whether the internet connection at the apartment used a wireless router, and, if so, whether the wireless network required a password. As a result, it was possible that “someone other than the subscriber, located at a different physical address, was ‘joyriding’ on an unsecured wireless network based out of the apartment.” Id. at 113.
In its decision, the court included a helpful explanation of the evolution of the internet as it relates to the ability to link an individual to internet activity:
In the early days of the Internet, when a residential Internet subscriber went online using only a home computer connected to a hard-wired Internet connection, there was a very strong correlation between an IP address assigned to a subscriber and a particular computer. Now, however, many subscribers use a wireless Internet router, which allows multiple devices within the range of the router to connect to the Internet simultaneously. To the outside world, all of these devices will share a single public IP address—the one that the ISP has assigned to its subscriber. . . . As a result, the correlation between an Internet subscriber’s assigned IP address and any one particular Internet-enabled device may often be weaker than it once was. However, the correlation between an IP address and a physical address can still be strong, at least when the ISP has verified its assignment of a particular IP address to a subscriber at a specific physical address at a specific point in time.
Id. at 107-08 (internal citations omitted).
The court acknowledged that, from a “technological standpoint,” if an internet subscriber sets up an unsecured wireless internet network, a computer outside of the physical address could access the internet and share child pornography using the subscriber’s IP address. Id. at 114. Nevertheless, the court found Martinez’s argument missed the mark… The court also clarified that probable cause does not require a showing of certainty that evidence of criminal activity will be found at a particular location nor does it require a showing that any and all possibilities of finding the evidence elsewhere have been excluded. Id. at 115 (quoting Commonwealth v. Anthony, 883 N.E.2d 918, 926 (Mass. 2008)).
…
The fundamental question is whether there was a substantial basis from which the warrant-issuing judge could conclude there was a fair probability that evidence of the crime of child pornography would be found in Sloan’s residence. We emphasize here that probable cause deals with probabilities, not certainties. See Keeylen, 14 N.E.3d at 871 (“‘Probable cause is only a probability or substantial chance of criminal activity, not a certainty that a crime was committed.’”) (quoting Suarez v. Town of Ogden Dunes, Ind., 581 F.3d 591, 596 (7th Cir. 2009)). Despite the possibility that an individual other than Sloan may have used the account, the circumstances here establish a fair probability that Sloan, the subscriber, committed this 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.
The trial court did not err by admitting the evidence seized from Sloan’s residence pursuant to the search warrant because the affidavit supporting the warrant sufficiently established probable cause for its issuance.
Affirmed.
Altice, C.J., and Brown, J., concur.