*1 STATES, Appellee, UNITED ALLEN, Lieutenant,
James M. First Force, Appellant. Air
No. 99-0788.
Crim.App. No. 32727. Appeals
U.S. Court
the Armed Forces.
Argued May Aug.
Decided
COX, S.J., opinion delivered CRAWFORD, C.J., Court, in which EFFRON, JJ., joined. SUL- GIERKE J., LIVAN, concurring in the opinion filed an result. Karen L. Hecker Appellant: Captain
For (argued); Ali- M. Rueth and Colonel Jeanne (on brief). Ruttenberg son Major Vaught Appellee: Harold M. For Dattilo, (argued); Anthony P. Lieu- Colonel Rodgers A and Ma- tenant Ronald Colonel brief). (on jor R. Rider Jennifer Judge opinion COX delivered the Senior the Court. con-
Contrary pleas, to his sodomy, by officer members of anal victed battery, speci- assault consummated two officer, unbecoming fications of conduct transporting receiving pornography- being sent was located an area which commerce, worked, soliciting four people although interstate area was prostitution, wife to commit in violation of accessible to ex- others. The 125,128,133, working Articles people Uniform Code cluded three of the four Justice, 925, 928, 933, Military §§ capable having USC area as *3 934, respectively. convening graphic largely and image, The au- because three those dismissal, thority persons present approved sentence a were the area at confinement, years’ remaining individual, appellant, time. and total forfeitures. The Appeals computer The Air Force Court of using Criminal admitted he been findings question affirmed the and sentence. to min- period a of about 15 day. “Super utes that He also .that admitted granted following review of the issues: Zippo” was his Internet Provider Access (IAP),1 possessed he and that “erotica” at
I. home. When asked if this included WHETHER THE MILITARY stammered, JUDGE pornography, then COMMITTED PREJUDICIAL ERROR agents asked by what the meant child. IN DENYING THE DEFENSE MO- private appellant’s Because was residence TION TO SUPPRESS. off-post, County agents OSI went to El Paso to enforcement have them obtain a
II. County search The El warrant. Paso affidavit, prepared an went a civilian WHETHER APPELLANT’S CONVIC- judge, and obtained a state warrant to search SODOMY, TION A PRIVATE FOR CON- appellant’s pornogra- home for child SENSUAL ACT BETWEEN APPEL- phy, appellant’s pertaining WIFE, documents LANT AND HIS MUST BE SET account, “Super identify Zippo” per- and to ASIDE AND IT DISMISSED SINCE controlling premises. agents sons OSI IS A VIOLATION OF APPELLANT’S accompanied County El Paso officer to CONSTITUTIONAL TO PRI- RIGHT appellant’s photos, home. Numerous com- VACY.
puters,
computer
pur-
discs
seized
were
suant to the warrant.
FACTS
judice
sub
The warrant in the case
autho-
1. Issue I
only
rized
a search of
residence.
31, 1996,
July
government
On
a
network
concerning
The
IAP
information
pass-
technician became
that files
concerned
agent,
account was
OSI
ing through
gov-
the network
onto
firewall
a
through
telephone
with the
conversation
computer might
ernment
contain attached manager
Zippo,” appellant’s IAP
“Super
graphic images
pornography.
When the
provider. Athough
agent
the OSI
did not
portion
technician
image,
examined a
of one
possess
requested appel-
a warrant when he
he
it
pornography.
concluded
involved child
“Super
lant’s
Zip-
account information from
reported
He
supervisor
incident
his
po,”
“specifically
he
asked
a search
whether
reported
who in turn
it
the Air
Force
subpoena
required.”
warrant or a
Af-
[was]
(AFOSI
Office of Special Investigations
counsel,
consulting
corporate
ter
with
OSI).
provider
The internet
service
was manager
Zippo”
agent
called the
“Super Zippo.”
indicated that based
advice from
counsel,
The OSI
revealed that
all
would
that
be needed
release
image
“lawyer
graphic
request.”
was
the records
was
ests;
(1)
(2)
(’ISPs’)
types
1. "There are two
of IAPs:
Online Ser-
Internet Service Providers
Worldnet,
Online,
Netcom)
('OSLs')(e.g.,
(e.g.,
Mindspring,
vice Providers
America
AT & T
Network)
Prodigy, CompuServe,
cheaper,
offer
package,
Microsoft
offer
more 'bare bones’
in-
e-mail,
access,
range
cluding
a full
access,
of online services in addition to Web
Web
software.”
basic
news,
e-mail,
entertainment,
including
Corp.,
U.S. v.
at
result of false to the state by statements al her act was underscored magistrate judge. court the men to allow of that she refused perform paid with to to have sex her of warrantless search Obviously, after act on her. this sexual “Super Zippo” internet account with encouraged to have being assaulted and the Amendment and violated Fourth husband, by her she with other men sex the Pri- Electronic Communications power him than bargaining less with had vacy Act. strangers. Due to she had with total hearing sup- After motion evidence on a to appel- pain experienced she whenever press the evidence seized from act, oc- sexual on one performed lant this “Super Zippo,” home and from videotape him to she did allow casion (1) He ruled that: denied motion. subject- promise stop exchange for his knowingly not and inten- the affidavit was Unfortunately, violation. ing her this tionally disregard or made reckless false with promise. honor not did (2) truth; for the there was cause to Unpub. op. at 19. (3) warrant; issue the search warrant (4) general; was not overbroad or too DISCUSSION scope did exceed of search not
warrant; (5) expectation there no of A. Standard Review type provided privacy admissibility involving Issues by Zippo” and it would have been discovered; (6) of discre inevitably “Super Zippo” are abuse evidence reviewed Johnson, poisonous information was not “fruit of tion. United States (7) tree”; Findings fact will be over Regula- violations Air Force clearly concerning they unless are erroneous tions coordination with United turned unsupported County, place the record of trial. United the location of be Richter, States v. potential searched and crime. See Mil. novo, 315(b)(2) (h)(4). Conclusions of law will be de reviewed R.Evid. El Paso and will not be overturned deci- warrant, unless the County sought he sion upon was based an erroneous view any requirement was not to coordi- law. Id. Attorney. nate with a United States As noted the court below: I
B. Issue Following appellant, their interview the »the AFOSI informed the local civilian in- 1. Whether the search warrant violates vestigators they the nature of crime 60.1, applied CFR to the AFOSI so, 6(c) investigating. did They according paragraph Regulation AFOSI testimony, ap- sworn because their .the m-82.2 pellant lived Additionally, off base. Falcon Appellant provisions relies jurisdiction AFB is a concurrent installa- support a claim that search was unlawful. tion; therefore, authorities the local Specifically, appellant assails OSI’s failure to case, jurisdiction over if the entire obtain the concurrence of a investigate chose the offenses al- Attorney obtaining before the warrant at *5 ____ leged issue. First, provisions do not confer a further contends that 28 protection upon appellant by vir enforceable 60, § applied by CFR to the AFOSI exclusionary tue of the Appellant’s rule. rea 6(c) paragraph Regulation of 124- AFOSI expectation privacy yields, sonable of not to requires the obtain the con- 82 AFOSI to police prosecutors, coordination between Attorney’s currence of the United States but compliance require with the warrant requesting Office before a civilian search ment of the Fourth The failure Amendment. request warrant. The AFOSI did the Attorney coordinate with United States Rather, in they merely warrant this case. prior obtaining by a warrant issued participated in a search conducted under competent Colorado state unrea is not auspices the of a civilian search warrant. sonable conduct law enforcement which Therefore, we find that 28 CFR 60.1 serves to violate of Fourth apply does not circumstances the under protections. Amendment See United States the search in which warrant this case was Guzman, 318, (2000)(Like the preclude does not the AFOSI Caceres, Supreme Court in United States v. agents’ participation in search. 1465, 99 S.Ct. 59 L.Ed.2d (1979), apply this Court refused to exclu (footnote omitted). the Unpub. op. at 7 sionary Department rule to a violation of a of agree. Defense or service directive record where the did not demonstrate that the limitations were Act, 2. the Whether Posse Comitatus “directly protection tied to the of individual §USC violated. was
rights.”). Appellant primary contends that
Second, purpose of military participation OSI was to aid the judge’s findings, El in supported testimony which were Paso officer the enforcement of Colora of involved, Therefore, agents participation show that do law. offi OSI OSI Instead, agents cers did not seek the warrant. in search of his home was in turned matters over to civilian of civil in law enforce furtherance laws and violation of having jurisdiction Act, ment prohibits Paso El the Posse Comitatus use provisions 2. appropriate These authorize federal law enforce- must obtain concurrence officers, AFOSI, including request ment Attorney’s seeking U.S. Office before a search the issuance of a search warrant and direct that warrant.” "military agents Department Defense child associated with civil “lolita” —a word military personnel for enforcement computer was pornography disagree. law. We —and im- graphic several used to download continuing consider Appellant fails ages; investigation. military in the criminal interest government be- A network technician 3. UCMJ, Appellant, to the image downloading graphic be- gan por military by receiving child violated accessed, looked observed what Ap nography government computer. on a females, juvenile found like two nude “probably” prohibited pellant had additional picture disgusting, discontin- at his This pornography child residence. image; downloading ued possessing pornography was crime of cognizable at all times under UCMJ computer government The user 4. military There virtue of status. through “SU- the internet accessed fore, independent we find that there an ZIPPO,” service; an on-line PER appel in the interest computer question government Thompson, lant. See United States identified, persons the four with (1991), denied, 1074, 112 cert. inter- access to the There L.Ed.2d 137 S.Ct. viewed, using appellant admitted fore, Comi there is no violation the Posse computer during the frame at time Act. tatus accessing the file issue but denied was a 3. Whether the warrant question; general warrant and not based initially being Appellant denied a mem- probable cause. service, on-line then later ber of “SU- admitted he was member provided
The affidavit
issue
ZIPPO,”
PER
and had
to the
pos
access
cause
believe that
*6
residence;
his
on-line service from
pornography in his
sessed contraband child
home.
cause is determined
the
Probable
Appellant
having
at
7.
admitted
erotica
circumstances,
totality
prac
of the
and is a
residence,
any
if
but when asked
tical,
v.
common sense decision.
Illinois
children, stam-
the material contained
Gates,
213,
2317,
462
76
103
U.S.
S.Ct.
asked,
you
mered
“What do
mean
and
(1983).
L.Ed.2d 527
Deference is accorded
children?”
judge
making
magistrate
probable
or
cause
reasonably
ap-
shows that
This information
Upton, 466
determination. Massachusetts v.
pellant
pornography
accessed child
727, 732-33,
2085,
104
L.Ed.2d
U.S.
S.Ct.
duty,
on
access
his on-line server while
had
(1984);
Gates,
v.
supra.
Illinois
There
residence,
at his
to the same service
requirement
higher
is no
for a
standard of
residence,
at his
and was evasive
erotica
probable
protected
cause for material
home.
possessing
pornography
child
at
about
Amendment;
showing
First
is a
that there
Thus, appellant’s computer equipment and
sought
probability
fair
is
material
materials,
printed
such as discs or
associated
is
New
Vid
obscene
sufficient.
York v. P.J.
evidence
graphics, would be or would contain
eo, Inc.,
868,
1610,
S.Ct.
material.
find “sub-
of this contraband
L.Ed.2d 871
support
in the record” to
stantial evidence
decision to issue the warrant.”
See
“the
in the affi
information contained
Monroe,
States v.
amply supports probable cause under
davit
(2000), quoting
Upton, 466
Massachusetts v.
totality
the circumstances:
728,104
2085.
U.S. at
S.Ct.
1. The
AFB
Falcon
firewall detected
being
graphic images
on the
Similarly,
accessed
met
the warrant
issued
computer net-
necessary
from the base
requirements
specificity.
internet
for
work;
B” to the actual warrant
lists
“Attachment
items
to search
follows:
those
computer
2. A base
was used to access
denominated,
images
part, by
Photographic
the word
of nude children.
area
1.
pertaining
establishing by
2.
pre-
to the on-line
has the burden of
Documents
“Super Zippo.”
ponderance
allegation
service
of the evidence the
knowing
falsity
and
intentional
reck-
diaries,
any
Correspondence,
3.
other
disregard
less
truth.
If
the de-
writings,
tape
computer
recordings,
burden,
prosecution
meets
fense
its
files,
relating
or letters
nude
proving by preponder-
burden
has the
juveniles,
photographs
internet loca-
evidence,
of the
ance
with the false infor-
material,
tions for
of such
such
or lists
aside,
remaining
mation set
that the
infor-
files.
presented
authorizing
mation
to the
books,
magazines,
tapes,
Video
is sufficient to
If
establish
cause.
items,
may
other
which
contain nude
burden,
prosecution
does not meet its
images of children.
objection
granted
shall
or motion
be
unless
search is otherwise lawful under
consisting
Items of indicia
of articles of
rules.
personal property tending to establish
identity
persons
light
findings
In
of fact entered
premises
control
at ...
located
military judge, it is clear that the defense did
Colorado,
County,
including,
El Paso
showing
its
“knowing
not meet
burden of
to, digitally
but not limited
stored files
falsity
disregard
intentional
or reckless
disks or hard drives.
Delaware,
the truth.” See Franks
98 S.Ct.
Mil.R.Evid. Manual Courts- seq., §§ et (1995 2510 or because had a Martial, ed.), provides: United States privacy Fourth Amendment interest in the If False statements. makes defense information. preliminary showing substantial that a issue, government agent included a false state- In to decide we must order this first knowingly intentionally ment and or with determine where the information obtained “Super disregard Zippo” reckless for the truth from within the falls contin- presented authorizing information to the uum of information available com- officer, allegedly if puter technologies. and false statement and telecommunication cause, necessary finding provides analyze is to a The ECPA a framework defense, upon request, question: entitled I Act shall be this Title is entitled hearing. to a hearing, “Interception At the defense of Communications and Relat-
409 stored transactional rather is limited to Matters”; II is entitled but Title Act ed provided log format without records and Electronic Communica- “Stored Wire Access”; accompanying and Ti- text. Records tions Transactional Registers III of the Act is entitled “Pen tle cus- found internet The Hambrick court ECPA, Trap Trace Devices.” and expectation of to have no reasonable tomer 99-508, No. 100 1848 Pub.L. Stat. personal supplied to privacy in information knowingly re- customer an IAP because the The from “Su information obtained address, name, num- credit card vealed per Zippo” was electronic data stored ber, telephone IAP and number identify Zippo” log “Super in the form of a F.Supp.2d employees. at 508. its 55 date, user, time, internet detailed between at issue lies somewhere information by appellant over address of accessed sites information at issue type of subscriber Hence, it Title several months. falls within issue and the communications at Hambrick 2703(c) regulates II ECPA. Section in Maxwell. other governmental to a access “record to a or cus pertaining information subscriber type of We need not decide what (not including the con tomer of such service privacy interest attaches to the information communications____)” 18 USC tents case, however, agree with in this because we 2703(c)(1)(A). ECPA, § the re- Under have judge that a warrant would require a records does lease such inevitably very same been obtained upon a They also be warrant. released 311(b)(2); Nix v. records. See Mil.R.Evid. on court order issued the “reasonable 2501, Williams, 81 S.Ct. grounds believe” standard under Kozak, (1984); v. L.Ed.2d 377 United States 2703(d). (d). 2703(c)(1)(B) § § 18 USCA (CMA 1982). In this light Although court neither a warrant nor a holding, we not determine whether need obtained, exclusionary order was there no information was otherwise admissible. See rule relief 2703. See under 314(e) 316(f). (k); Mil.R.Evid. (W.D.Va. Hambrick, F.Supp.2d agent appellant admit- The OSI was aware 1999); Kennedy, United States “Super provider. Zippo” that was his IAP ted (D.Kan.2000). F.Supp.2d If Con- Zippo” up He also knew showed that gress exclusionary had to have intended to the ac- records related apply, provision rule have it would added a by appellant at cessed from III similar the one found under Title agent appellant’s military work station. statute, wire, oral, concerning intercepted “Super Zippo” if a was re- asked warrant 18 USC electronic communications. See quired, corporate informed 2518(10). §§ management that none counsel advised Although remedy suppression un- is not a agent needed. The relied that infor- ECPA, II der Title must deter- courts *8 pursue mation and did not a warrant. There mine within a constitutional framework nothing upon support a claim that is which subjective expecta- an a whether accused has information not have would otherwise privacy society willing of rec- tion that is that the in this case been officers in ognize type of information obtained. acting complete good were with other than question in v. We tackled this States United relying upon Zippo’s” faith in asser- Maxwell, (1996). we found There they authority tion that had the to release expectation privacy a limited of in e-mail without a warrant. the records LAP.3 messages sent or Thus, importantly, analysis, agent in Max- in the asked Most what was at issue final possession in person of of the information to well the treatment communications. communications, police. This case not involve turn it over to the This was done does differently in E-mails the ECPA the disclosure of electronic communications are treated under storage storage system depending upon long in an how remain in electronic communications 2703(a) (regulating days). § than 180 with an See 18 USCA for more less IAP. freely voluntarily. posses- in part, were a that his visited of the pattern sion information did not demand that a former Such a wife. falls outside produced required. warrant be and none was that in ambit of conduct could be considered circumstances, marriage Under these is no of purposes there sei- furtherance for zure which could be result determining said to be the of a whether the be statute should import constitutional violation of grounds. such as to invalidated on constitutional In rule, play any into bring exclusionary emphasize regard, wheth- that we that not we are statutory or engaged subjective er a court-made rule. See Mil. a evaluation 314(e). rather, quality marriage; R.Evid. our consider-
ation is focused on the reasonable inferences that be drawn from the record concern- II ISSUE charged the nature in the acts Appellant alleges that conviction immediately context that surrounded their engaging sodomy for anal awith former commission. is right wife a violation of his fundamental Air decision the United States engage private consensual sexual relations Appeals Force Criminal Court is affirmed. regulation without interference and government. disagree. We SULLIVAN, Judge (concurring in the “The extent to which the constitutional result):
right privacy prohibits prosecution a sexual relations within relationship a marital prejudicial There no error when important questions. raises constitutional military judge appellant’s denied motion however, Any right, such constitutional must suppress appellant’s evidence seized from relationship activity bear reasonable that Super home Zippo. Regarding and from supportive furtherance of or warrant obtained the local civilian relationship.” interests of the marital Unit enforcement officials to Thompson, ed States 47 MJ 379 home, was no violation there of the Posse (1997), denied, cert. 118 S.Ct. Act, Thomp- Comitatus see United States v. (1998). 1523, 140L.Ed.2d 675 (CMA son, 1991), totality 218MJ and the mag- of the circumstances establish that the charged sodomy note that the acts of istrate had sufficient not govern- discovered of a result determine that cause existed. See ment into marital Monroe, United MJ 326 activities, brought but were to the attention Appellant does not have a rea- constitutional by appellant’s of authorities wife dur- former expectation privacy sonable in the records ing the pornography investigation, who Super Zippo. obtained from See United on the 'seized occasion to initiate discussion Maxwell, States v. concerning pattern with authorities Furthermore, the Electronic Communication husband, abuse her included Privacy require does suppression Act charged acts. comply provisions, failure to with its absent The facts of this case it clear make that right. violation aof constitutional 18Cf. appellant’s acts were not in furtherance of 2703(c); Thompson, USC United States v. marriage. Regardless whether supra; Thompson, States v. F.2d prove would facts have been sufficient to (11th Cir.1991). beyond a reasonable doubt granted The other issue involves Article *9 they engaged sodomy, clearly forcible UCMJ, 10 USC which states: charged demonstrate that acts do not (a) protection Any warrant constitutional because person chapter to this support- were not “in engages copulation furtherance of in unnatural carnal oppo- ive of the interests relation- marital with another of the same or Instead, ship.” graphically Id. guilty the facts site sex with an animal is pattern Penetration, depict degradation deper- sodomy. slight, however sonalization, sodomy complete which the acts sufficient to the offense.
(b) sodomy Any person guilty anal sex is a violation of the statute. found Cf. punished shall be as a court-martial Thompson, MJ 378 United States direct. military, In the seems any type sodomy remains crime. Just as this Court has held that Article clear — written, apply I will continue to the law heterosexual, prohibits private, consensual Henderson, excep- mention marital sex, which makes no of a oral see United States (1992), today MJ 174 so holds too tion. Court