United States v. Clayton , 68 M.J. 419 ( 2010 )

UNITED STATES, Appellee
v.
Charles J. CLAYTON, Lieutenant Colonel
U.S. Army, Appellant
No. 08-0644
Crim. App. No. 20070145
United States Court of Appeals for the Armed Forces
Argued November 17, 2009
Decided March 17, 2010
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and STUCKY, JJ., joined. RYAN, J., filed a dissenting opinion,
in which ERDMANN, J., joined.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain
Timothy W. Thomas (on brief); Major Grace M. Gallagher.
For Appellee: Major Adam S. Kazin (argued); Colonel Norman F.
J. Allen III and Lieutenant Colonel Martha L. Foss (on brief);
Lieutenant Colonel Francis C. Kiley.
Military Judge: Richard Gordon
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clayton, No. 08-0644/AR
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his conditional pleas, of
violating a lawful general order and possession of child
pornography, in violation of Articles 92 and 134, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934 (2006). The
sentence adjudged by the court-martial included confinement for
forty months and a dismissal. The convening authority approved
a sentence that included confinement for thirty-six months and a
dismissal, and provided the accused with seven days confinement
credit. The convening authority also waived automatic
forfeitures for a period of time with direction that the funds
be paid to the wife of the accused. The United States Army
Court of Criminal Appeals in a per curiam opinion amended the
Specification of Charge I with respect to the location of the
offense, affirmed the amended specification and the balance of
the findings, and affirmed the sentence. United States v.
Clayton, No. ARMY 20070145, 2008 CCA LEXIS 599, at *1 (A. Ct.
Crim. App. May 9, 2008) (unpublished).
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S
MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S
QUARTERS.
For the reasons set forth below, we affirm.
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I. BACKGROUND
The present appeal concerns a search conducted during a
child pornography investigation. Based upon information
provided by law enforcement personnel from the United States
Army Criminal Investigation Command (CID) agents, a military
magistrate authorized a search of Appellant’s quarters. The
information provided to the magistrate included details
concerning Appellant’s subscription to an Internet group formed
to discuss, share, and distribute child pornography, his
communication with the group, identifying data about his e-mail
account, and other related information. When the CID agents
conducted a search of Appellant’s quarters, they found a
personal computer and digital media that contained thousands of
images of child pornography, which formed the basis for the
charges at issue in the present appeal.
Prior to trial, Appellant moved to suppress the seized
evidence asserting a lack of probable cause for the search. The
military judge denied the motion. Appellant entered a plea of
guilty while preserving the right to appeal the military judge’s
ruling.
A. THE MILITARY JUDGE’S FINDINGS OF FACT
The following summarizes the military judge’s findings of
fact on the suppression motion, as well as information provided
to the magistrate by CID Special Agent (SA) Yolanda McClain, who
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was stationed in Kuwait and assigned investigative
responsibilities for the case. The events at issue occurred
during the period in which Appellant served as a mobilized
United States Army Reserve Officer in Kuwait. The initial
investigation was conducted by Senior Special Agent (SSA) Glen
Watson, an investigator with the Investigations Division of the
Office of Homeland Security Immigration and Customs Enforcement
(ICE). SSA Watson worked in the Child Exploitation Unit, where
his duties included investigating child pornography and
exploitation. In the course of his duties, SSA Watson
discovered an Internet child pornography website group on Google
entitled, “Preteen-Bestiality-and-Anything-Taboo.” During the
investigation, SSA Watson discovered a picture of child
pornography that had been posted on the site. He also found
several requests for various types of child pornography and
other requests for child exploitation.
SSA Watson contacted Google, informing them that a group
operating on a Google site had posted child pornography. SSA
Watson also requested information associated with the group’s
moderator and “approved members.” In response, Google shut down
the site. Google also provided ICE with a list identifying the
members of the “Preteen-Bestiality-and-Anything-Taboo” group by
subscriber notification category and e-mail address. The
membership list of the “Preteen-Bestiality-and-Anything-Taboo”
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group included an e-mail account bearing his name,
“charlesjclayton@yahoo.com.”
During the investigation, SSA Watson obtained information
from Google and Yahoo that identified Appellant as the owner of
the e-mail account bearing his name,
“charlesjclayton@yahoo.com.” In response to a subpoena, Yahoo
provided Appellant’s login name and an alternate e-mail address
associated with Appellant’s civilian employer.
SSA Watson used the information he gathered and an Internet
protocol address to ascertain that Appellant’s Yahoo account had
been accessed from a computer owned and operated by the United
States Army in Kuwait. Additionally, SSA Watson conducted an
Internet search and found an article entitled “Roads traveled in
Kuwait bring concern” by a “Lieutenant Colonel Charles CLAYTON.”
SSA Watson was able to identify Appellant as a subscriber
to the site who had asked the group’s moderator to provide him
with digest notification privileges. Specifically, Appellant
requested automatic transmission to his Yahoo account by e-mail
of up to twenty-five postings each day.
SSA Watson prepared a detailed report of his investigation,
which was forwarded through military channels to SA McClain. SA
McClain used this information to prepare a request for search
authorization, including a supporting affidavit.
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SA McClain summarized the results of SSA Watson’s
investigation in the affidavit. The affidavit described the
activities of “an internet group on Google called ‘Preteen-
Bestiality-and-Anything-Taboo.’” According to the affidavit,
members of the group used the website “to share child
pornography pictures, videos, and exploitation information
amongst themselves.” The affidavit stated that “[m]embership
logs . . . indicated that LTC CLAYTON requested a ‘Digest’ for
the [g]roup, in which he would receive daily e-mails that would
contain 25 of the postings to the [g]roup sent as a single e-
mail to his account . . . .” With respect to Appellant, the
affidavit stated that as a recipient of the digest, “it is
possible that he [Appellant] was the recipient of child
pornography directly to his Yahoo e-mail account . . . .”
The affidavit also stated that ICE recently had executed
two search warrants, resulting in the arrests of two members of
the group. One of the members, the moderator of the group,
confessed to “possessing a large quantity of child pornography.”
The other member, the individual who “actually uploaded the
child pornography to the [g]roup . . . also confessed and was
arrested.”
The affidavit stated that the government had furnished
Appellant with a laptop computer, providing the model and serial
number. SA McClain requested permission to search for media
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files concerning child pornography on the laptop, in Appellant’s
quarters, and in Appellant’s workspace.
On April 20, 2006, SA McClain met with the local military
magistrate and briefed him on the status of the investigation.
SA McClain provided the magistrate with the affidavit, the
search authorization request, and the ICE Report. SA McClain
and the magistrate were aware that Appellant lived in a single-
person room in Building 507, which had wireless Internet service
capability. The material provided by SA McClain to the
magistrate did not indicate how often Appellant accessed the
group site, nor did it indicate that he accessed the site from
his quarters or that he owned a personal computer.
Following the interview with SA McClain, the magistrate
reviewed the evidence and various sources of law. Later in the
afternoon, he approved SA McClain’s request to search
Appellant’s quarters.
B. THE MILITARY JUDGE’S CONCLUSIONS OF LAW
At trial, the military judge held that the magistrate had a
substantial basis for concluding that probable cause existed to
conduct the search, citing Illinois v. Gates, 462 U.S. 213(1983). In reaching this conclusion, the military judge gave
substantial deference to the magistrate’s finding that probable
cause existed to authorize the search, citing United States v.
Maxwell, 45 M.J. 423 (C.A.A.F. 1996).
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The military judge stated that the evidence, principally
from SSA Watson’s ICE Report and SA McClain’s affidavit,
established a fair probability that child pornography would be
found in Appellant’s personal quarters and media sources. The
military judge noted that the information was provided by an
experienced federal investigator from the Department of Homeland
Security who specialized in investigating child pornography and
child predators.
The military judge also concluded, in the alternative, that
the evidence was admissible under the good faith exception to
the exclusionary rule. See Military Rule of Evidence (M.R.E.)
311(b)(3)(C); United States v. Leon, 468 U.S. 897 (1984).
II. REVIEW OF PROBABLE CAUSE DETERMINATIONS
We review a military judge’s denial of a motion to suppress
for an abuse of discretion. United States v. Leedy, 65 M.J.
208, 212 (C.A.A.F. 2007). An abuse of discretion occurs when we
determine that the military judge’s findings of fact are clearly
erroneous or that he misapprehended the law. Id. at 213. In
addressing the granted issue, we consider whether the military
judge abused his discretion when he ruled as a matter of law
that there was a substantial basis for finding probable cause
existed under M.R.E. 315(f)(2). See id. at 212 (citing United
States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)). “[W]e review
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the legal question of sufficiency for finding probable cause de
novo using a totality of the circumstance test.” Id. (citing
United States v. Reister, 44 M.J. 409 (C.A.A.F. 1996)).
M.R.E. 315(f)(2) defines probable cause as “a reasonable
belief that the person, property, or evidence sought is located
in the place or on the person to be searched.” In United States
v. Macomber, 67 M.J. 214, 218 (C.A.A.F. 2009), we recently
summarized the framework for reviewing probable cause
determinations under M.R.E. 315.
The analysis focused on four key principles. First,
determinations of probable cause made by a neutral and detached
magistrate are entitled to substantial deference. Id. (quoting
United States v. Carter, 54 M.J. 414, 419 (C.A.A.F. 2001)).
Second, resolution of doubtful or marginal cases should be
largely determined by the preference for warrants, and “‘[c]lose
calls will be resolved in favor of sustaining the magistrate’s
decision.’” Id. (quoting United States v. Monroe, 52 M.J. 326,
331 (C.A.A.F. 2000)) (alteration in original). Third, “courts
should not invalidate [warrants] by interpreting [affidavits] in
a hypertechnical, rather than a commonsense, manner.” Id.(quoting Gates, 462 U.S. at 236) (alteration in original).
Fourth, the evidence must be considered in the light most
favorable to the prevailing party. Reister, 44 M.J. at 413.
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We also have observed that “probable cause determinations
are inherently contextual, dependent upon the specific
circumstances presented as well as on the evidence itself.”
Leedy, 65 M.J. at 213. In Leedy, we emphasized that “probable
cause is founded not on the determinative features of any
particular piece of evidence provided an issuing magistrate . .
. but rather upon the overall effect or weight of all factors .
. . .” Id.
In a particular case, the contextual circumstances may
involve the timing of the determination and the nexus between
the alleged criminal activity and the place searched. The
question of timing focuses on the information presented to the
search authority, as well as information known by the search
authority, at the time the decision to search was made. See
M.R.E. 315(f)(2); United States v. Cunningham, 11 M.J. 242, 243
(C.M.A. 1981). The question of nexus focuses on whether there
was a “fair probability” that contraband or evidence of a crime
will be found in a particular place. Leedy, 65 M.J. at 213
(quoting Gates, 462 U.S. at 238) (quotation marks omitted). The
nexus between the items to be seized and the place to be
searched need not be based on direct observation but can be
inferred from the facts and circumstances of a particular case.
See Unites States v. Lopez, 35 M.J. 35, 38-39 (C.M.A. 1992).
Determinative factors include the type of crime, the nature of
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the items sought, the extent of the suspect’s opportunity for
concealment, and normal inferences as to where a criminal would
likely hide the property. Id.; see United States v. Gallo, 55
M.J. 418, 422 (C.A.A.F. 2001).
III. DISCUSSION
A. THE MAGISTATE’S PROBABLE CAUSE DETERMINATION
A number of courts have observed that a person’s voluntary
participation in a website group that had as its purpose the
sharing of child pornography supported a probable cause
determination that child pornography would be found on the
person’s computer. See United States v. Gourde, 440 F.3d 1065,
1072-73 (9th Cir. 2006) (en banc); United States v. Martin, 426
F.3d 68, 74-75 (2d Cir. 2005); United States v. Froman, 355 F.3d
882, 890-91 (5th Cir. 2004); United States v. Hutto, No. 02-
5210, 84 F. App’x 6, 8 (10th Cir. 2003). These cases reflect a
practical, commonsense understanding of the relationship between
the active steps that a person might take in obtaining child
pornography from a website and retaining it for an extended
period of time on that person’s computer.
In the present case, the information provided to the
magistrate identified Appellant as a member of a website group,
“Preteen-Bestiality-and-Anything-Taboo.” The group used the
website to share child pornography and exploitation information.
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The moderator of the website group and the media manager had
been arrested and had confessed to possession and distribution
of child pornography. Appellant voluntarily joined the group
and specifically requested digest notification, which enabled
him to receive up to twenty-five postings sent in a single e-
mail automatically each day from the group to the e-mail account
bearing his name, “charlesjclayton@yahoo.com.” The e-mail
account bearing his name had been accessed by a government
computer in Kuwait. Appellant, who was stationed in Kuwait, had
been provided with a laptop computer by the Army.
In short, the magistrate had information indicating that
Appellant was a member of a group that shared Internet child
pornography. The information also indicated that Appellant had
requested e-mail transmissions from the group, that Appellant
used an e-mail account bearing his name to access the group, and
that the same e-mail address had been accessed from Kuwait. In
addition, the information indicated that Appellant possessed a
laptop computer in Kuwait. In view of the ease with which
laptop computers are transported from work to home and the ease
with which computer media may be replicated on portable devices,
the information provided to the magistrate was sufficient to
support a practical, commonsense decision by the magistrate that
there was a fair probability that contraband would be located in
Appellant’s quarters.
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Appellant contends that the information before the
magistrate was not sufficient to establish probable cause
because no evidence showed that he posted messages to the Google
site, participated in discussions, or uploaded or downloaded
child pornography. Appellant also notes that the evidence
before the magistrate did not indicate how long he belonged to
the group, how often he accessed the website, or whether he
received the digests he requested. He further notes that SA
McClain never followed up on a suggestion from SSA Watson that
she review his e-mail accounts to ascertain whether they
contained such information.
The foregoing matters all involve actions that could have
been taken to enhance the law enforcement investigation, as well
as questions appropriately addressed to the factfinder at the
court-martial in regard to whether the prosecution, at trial,
could meet the high standard of proof beyond a reasonable doubt.
The magistrate, however, was not required to resolve these
matters for purposes of making a probable cause determination
with respect to a search authorization. The information
presented to the magistrate regarding the activities of a
voluntary member of the “Preteen-Bestiality-and-Anything-Taboo”
web group was sufficient to support a search of his quarters.
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B. IMPACT OF ERRONEOUS INFORMATION IN AN AFFIDAVIT
Appellant also contends that the information provided to
the magistrate was tainted because SA McClain erroneously
informed the magistrate that child pornography had been located
on Appellant’s government computer. Applying the corrective
principle identified in United States v. Cowgill, after setting
aside the erroneous information in an affidavit, “‘there remains
sufficient content in the warrant affidavit to support a finding
of probable cause . . . .’” ___ M.J. ___ (9) (C.A.A.F. 2010)
(quoting Franks v. Delaware, 438 U.S. 154, 171-72 (1978)).
In testimony before the military judge during the
suppression hearing, SA McClain acknowledged that she had been
in error. She meant to say that the suspect was within the
command, not that they had located child pornography on
Appellant’s computer. SA McClain further testified that she
addressed this misstatement during her meeting with the
magistrate.
The military judge noted this misstatement in his findings
of fact:
Agent McClain stated in her affidavit that, “The
Camp Arifjan CID Office is currently conducting
the discovery of apparent child pornography
located within one of the [Government’s] . . .
computers and the suspected login user is LTC
Charles J. Clayton . . . .” This was not
correct. No apparent child pornography had been
located within a [Government] . . . computer
relating to LTC Clayton. Agent McClain later
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testified that she meant to say in the affidavit
that a military computer in Kuwait had accessed a
Yahoo account through a US Army server in Kuwait
and that LTC Clayton was a suspect because of his
membership in the [g]roup and his use of this
Yahoo account.
Although the military judge did not address expressly in his
findings of fact whether, or to what extent, the magistrate
considered SA McClain’s explanation, the military judge set
forth SA McClain’s experience and stated: “She appeared to be a
th[o]rough investigator who did things based on her CID training
and not out of malice or intent to take down a senior officer.”
In his conclusions of law, the military judge specifically
stated that “Agent McClain did not act with any ‘reckless’
disregard for the truth.” With respect to the magistrate’s
reliance on the affidavit, the military judge concluded that the
magistrate “did not in any sense abandon his judicial role, nor
was he a ‘rubber stamp’ for the government.” The military judge
added that “[t]he affidavit was based on information provided by
an experienced federal investigator, and it was not facially
deficient.” The military judge was in the best position to
observe the person presenting information that supplemented the
affidavit, assess credibility, and determine whether the
misstatement constituted a reckless disregard for the truth.
See United States v. Rogers, 67 M.J. 162, 166 (C.A.A.F. 2009)
(relying on the military judge’s assessment of information
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provided by a law enforcement agent in addition to the
information in the agent’s affidavit). Moreover, the military
judge’s findings of fact and conclusions of law demonstrate that
the erroneous statement did not constitute a significant element
of the probable cause equation. If we sever the erroneous
statement from the affidavit, the remaining information before
the magistrate, as set forth supra in Part I.A., was more than
adequate to demonstrate that the magistrate had a substantial
basis for finding probable cause to search Appellant’s quarters.
In view of our conclusion in that regard, we need not discuss
the military judge’s alternative holding under the good faith
exception.
IV. CONCLUSION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
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RYAN, J., with whom ERDMANN, J., joins (dissenting):
I cannot agree with the continued dilution of the
requirement that there be an actual, as opposed to an intuitive
or a hypothetical, nexus between the evidence sought and the
location to be searched. Compare United States v. Higgins, 557
F.3d 381, 390 (6th Cir. 2009) (finding no probable cause to
search suspect’s home because affidavit only stated that
informant had purchased contraband from suspect and did not
assert informant had ever been in suspect’s home), and United
States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005) (finding no
probable cause because “the defendant’s status as a drug dealer,
standing alone, [does not] give[] rise to a fair probability
that drugs will be found in his home”), with United States v.
Clayton, __ M.J. __ (12-13, 16) (C.A.A.F. 2010) (finding
probable cause to search suspect’s residence despite no evidence
linking child pornography to that location), United States v.
Macomber, 67 M.J. 214, 219-20 (C.A.A.F. 2009) (same), and United
States v. Gallo, 55 M.J. 418, 422 (C.A.A.F. 2001) (same).
Absent such dilution, the magistrate’s finding of probable cause
is not sustainable.
I. Probable Cause
“Probable cause to search exists when there is a reasonable
belief that the . . . evidence sought is located in the place .
. . to be searched.” Military Rule of Evidence (M.R.E.)
United States v. Clayton, No. 08-0644/AR
315(f)(2) (emphasis added); accord Illinois v. Gates, 462 U.S.
213, 238 (1983) (defining probable cause as “a fair probability
that contraband or evidence of a crime will be found in a
particular place” (emphasis added)). This definition
contemplates some nexus between the contraband or evidence
sought and the place the government wants to search. See United
States v. Hall, 50 M.J. 247, 250 (C.A.A.F. 1999).
In this case, a warrant was issued to search Appellant’s
barracks room for child pornography. In finding what it asserts
to be the required nexus here, the majority relies on the
following evidence:
1. That Appellant was a member of a Google Internet group
called “Preteen-Bestiality-and-Anything-Taboo.” __ M.J. at
__ (11-12).
2. That Appellant had specifically requested membership in
the group and his membership level provided him with a
single daily e-mail containing up to twenty-five new
postings to the group. Id. at __ (12).
3. That both child pornography and information regarding
child exploitation had been uploaded to the group in the
past. Id. at __ (11).
4. That the moderator and media manager of the group had
been arrested and confessed to possessing child
pornography. Id. at __ (12).
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5. That the e-mail account through which Appellant
received messages from the Google group “had been accessed
by a government computer in Kuwait,”1 the country in which
Appellant was stationed. Id.
6. That Appellant’s government computer was a laptop. Id.The majority also notes that wireless Internet access was
available in Appellant’s dormitory, though it is unclear whether
that factors into its probable cause analysis.2 Compare id. at
1
At this point the Government only knew that the account had
been accessed by way of a U.S. Army server in Kuwait. It had no
information regarding which computer had accessed the account.
The affidavit ambiguously asserted that “[t]he
charlesjclayton@yahoo.com account was accessed via Internet
protocol (IP) address 143.81.248.47 which was traced to a
computer that was owned and operated by the U. S. Army in
Kuwait.”
2
The affidavit presented to the magistrate contained no
information regarding wireless Internet access. And while both
the magistrate and the affiant were independently aware that
wireless access was available in the building, it is unclear
whether that information was discussed or considered during the
search authorization process -- the magistrate appears to have
known wireless Internet was available not because of information
presented in the course of reviewing the search authorization
request, but because he had been involved in soliciting the
contract for its installation and knew someone who used it. It
is therefore at least an open question whether it was proper for
him to consider this information in granting the search
authorization. See United States v. Leedy, 65 M.J. 208, 214
(C.A.A.F. 2007) (stating that our probable cause analysis
focuses on “the evidence as set out in the four corners of the
requesting affidavit . . . illuminated by factors such as the
veracity, reliability, and basis of knowledge of the individual
presenting the evidence”) (emphasis added) (citations and
quotation marks omitted); see also Whiteley v. Warden, Wyo.
State Penitentiary, 401 U.S. 560, 565 n.8 (1971) (“[A]n
otherwise insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant when
3
United States v. Clayton, No. 08-0644/AR
__ (7) (noting both affiant and magistrate were aware wireless
Internet access was available), with id. at __ (11-13)
(discussing magistrate’s probable cause determination without
noting availability of wireless Internet).
Nothing in these facts provided the magistrate with the
necessary nexus between the place to be searched -- Appellant’s
dorm room -- and the evidence sought. “The critical element in
a reasonable search is not that the owner of the property is
suspected of crime but that there is reasonable cause to believe
that the specific ‘things’ to be searched for and seized are
located on the property to which entry is sought.” Zurcher v.
Stanford Daily, 436 U.S. 547, 556 (1978) (abrogated by statute
on other grounds). But all these facts show is that there was
ample probable cause to believe Appellant had access to child
pornography. There is nothing to raise a reasonable belief that
such pornography would be in his quarters in Kuwait.
Though wireless Internet access was generally available in
Appellant’s building, the magistrate was not presented with any
evidence that Appellant signed up for such a connection or that
the wireless Internet connection was routed through the Army
server from which Appellant’s charlesjclayton@yahoo.com e-mail
address had been accessed. Cf. Macomber, 67 M.J. at 221 (Ryan,
he sought the warrant but not disclosed to the issuing
magistrate.”).
4
United States v. Clayton, No. 08-0644/AR
J., dissenting) (finding no probable cause in part because
affidavit contained no evidence accused actually owned a
computer or had Internet access in his room). Appellant could
have checked his personal e-mail at work, or at other locations
where deployed servicemembers access the Internet. Likewise,
the fact that his government-issued computer was a laptop did
not make it any more likely that he was storing child
pornography in his quarters, as opposed to somewhere else. Cf.
United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998)
(finding no probable cause to search suspect’s home because
contraband videotapes were delivered to a post office box and
“[his] home . . . was but one of an otherwise unlimited possible
sites for viewing or storage . . . . [and t]he . . . affidavit
provided no basis to either limit the possible sites or suggest
that [the suspect]’s home was more likely than the otherwise
endless possibilities”). The portability of both laptops and
the digital movies and images the Government sought here makes
any “commonsense” link to Appellant’s room exceedingly tenuous.
I dissented in Macomber because I did not believe the
evidence there provided a legitimate nexus to the appellant’s
dormitory room. 67 M.J. at 221-23 (Ryan, J., dissenting). But
the magistrate in that case at least had in front of him a
generic “pedophile profile,” which indicated that persons with a
sexual interest in children often store child pornography in
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their homes (and especially in their bedrooms). Here, the
magistrate was not presented with even this constitutionally
minimally relevant evidence.3
Further, the magistrate in Macomber at least knew that the
suspect had used his dormitory as the return address when
ordering child pornography through the mail. 67 M.J. at 219.
In this case, the only residence tied to child pornography was
Appellant’s residence in Georgia, the address associated with
the charlesjclayton@yahoo.com account.
The facts here do not approach even the low bar this Court
set in Gallo. In that case, child pornography had been found on
the appellant’s work computer and there was evidence that those
files had been accessed from or copied to a floppy disk, leading
the Court to reason that the floppy disk would likely be found
at the suspect’s home. 55 M.J. at 421-22; id. at 423 (Sullivan,
J., concurring). In this case there was no evidence that
Appellant had transferred pornography to media that he might
have taken to his quarters, and no computer under Appellant’s
control had yet been found to contain child pornography.
The Court today appears to champion the idea that there is
something de minimis about the Fourth Amendment’s requirements
when the thing sought by a search authorization or warrant is
3
I doubt anyone would be satisfied that an affidavit resting on
a generic “gang member” profile, for example, could fulfill the
requirements of the Fourth Amendment.
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child pornography. It is now effectively the case that signing
up for a website related to that topic -- expressing an interest
in it, from any location at all -- provides sufficient cause to
search one’s home or living quarters. __ M.J. at __ (12-13).
This reasoning requires three logical inferences: First, if the
suspect is a member of an Internet group related to child
pornography, he has access to a computer. Second, if he has
access to a computer, it is in his home or living quarters.
Third, membership in the group equates to downloading and
possessing child pornography. The first inference makes sense,
but the other two do not -- at least on the evidence presented
to this magistrate.
People access the Internet at work, Internet cafés, public
libraries, and myriad other places. The majority’s logic is not
and cannot be limited to one’s home. Once we have held that an
expressed interest in child pornography probably means you are
viewing and secreting it somewhere, it seems equally sustainable
to hold that the government is free to search for that
pornography anywhere. This comes dangerously close to reviving
the writs of assistance that were the impetus for enacting the
Fourth Amendment in the first place. See generally Boyd v.
United States, 116 U.S. 616, 625-26 (1886) (discussing the
history of unreasonable searches and seizures prior to
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United States v. Clayton, No. 08-0644/AR
independence and how they influenced the Framers’ view of the
Fourth Amendment).
It is true that we are not the first court to treat child
pornography this way. Clayton, __ M.J. at __ (11) (citing
United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006); United
States v. Martin, 426 F.3d 68 (2d Cir. 2005); United States v.
Froman, 355 F.3d 882 (5th Cir. 2004); United States v. Hutto, 84
F. App’x 6 (10th Cir. 2003)). But that others have joined our
adventures does not make the course any less a folly. The
better route is to continue to require, consistent with both
M.R.E. 315(f)(2) and Gates, 462 U.S. at 238, some nexus between
the items sought and the place the government wants to search.
Accord Higgins, 557 F.3d at 390; Frazier, 423 F.3d at 533.
II. The Good Faith Exception
Because I do not believe the magistrate had a substantial
basis for finding probable cause here, I must address the
exception to the exclusionary rule for good faith reliance on a
warrant, first announced by the Supreme Court in United States
v. Leon, 468 U.S. 897, 922 (1984), and codified for the military
justice system in M.R.E. 311(b)(3). Under this rule:
Evidence that was obtained as a result of an unlawful
search or seizure may be used if:
(A) The search or seizure resulted from an
authorization to search, seize or apprehend
issued by an individual competent to issue the
authorization under Mil. R. Evid. 315(d) or from
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a search warrant or arrest warrant issued by
competent civilian authority;
(B) The individual issuing the authorization or
warrant had a substantial basis for determining
the existence of probable cause; and
(C) The officials seeking and executing the
authorization or warrant reasonably and with good
faith relied on the issuance of the authorization
or warrant. Good faith shall be determined on an
objective standard.
I do not believe this exception saves the search here
because reliance on a warrant is not in good faith “[w]here the
magistrate was misled by information in an affidavit that the
affiant knew was false or would have known was false except for
his reckless disregard of the truth.” United States v. Carter,
54 M.J. 414, 420 (C.A.A.F. 2001) (citation and quotation marks
omitted). If government agents falsely or recklessly inform a
magistrate, courts cannot allow those same agents to paper over
their untruths with an exception meant to protect generally
blameless actors.
At least one other court has held that:
[T]he necessity of a nexus between the suspected criminal
activity and the particular place to be searched is so well
established that in the absence of such a connection, “the
affidavit and resulting warrant are so lacking in indicia
of probable cause as to render official belief in its
existence entirely unreasonable.”
Poolaw v. Marcantel, 565 F.3d 721, 734 (10th Cir. 2009) (quoting
United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir.
2005)). This is an argument that we have not yet addressed, but
it is apparent even under our already-existing case law that the
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United States v. Clayton, No. 08-0644/AR
good faith exception does not save the search authorization
here.
The affiant in this case knew that no pornography had been
discovered on any Army computer, let alone Appellant’s computer.
Despite this fact, she included in her affidavit a statement
unambiguously linking Appellant to already-discovered
pornography: “The Camp Arifjan CID Office is currently
conducting the discovery of apparent child pornography located
within one of the Coalition Forces Land Component Command
(CFLCC), CAKU, computers and the suspected login user is LTC
Charles J. CLAYTON.” Any reasonable law enforcement agent would
know that a linkage between a suspect and contraband would be
extremely important to a magistrate’s decision to issue a search
authorization. To indicate such a linkage without explaining to
the magistrate precisely what she claims to have meant -- that
the Criminal Investigation Command (CID) suspected “a person”
within CFLCC -- shows a reckless disregard for the truth of the
information before the magistrate,4 and CID therefore could not
rely on the search authorization in good faith. Cf. Wilson v.
Russo, 212 F.3d 781, 788 (3d Cir. 2000) (“[O]missions are made
with reckless disregard if an officer withholds a fact in his
4
This conclusion might be different if the false statement had
been made orally, where a slip of the tongue was possible, and
not in a written affidavit where the affiant could review the
language to make sure it said precisely what she wanted it to
say.
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United States v. Clayton, No. 08-0644/AR
ken that ‘any reasonable person would have known . . . was the
kind of thing the judge would wish to know.’” (quoting United
States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993))); United
States v. Cowgill, __ M.J. __ (12-13) (C.A.A.F. 2010) (plurality
opinion) (determining affiant acted with reckless disregard for
the truth where, when asked a question by the magistrate that
affiant did not know answer to, affiant gave magistrate what he
assumed to be correct answer (it was incorrect) without either
telling magistrate he was not sure or checking to make sure that
the answer was, in fact, correct).
III. Conclusion
I would reverse the United States Army Court of Criminal
Appeals. I respectfully dissent.
11