UNITED STATES, Appellee, v. David A. LEEDY, Airman First Class, U.S. Air Force, Appellant.
No. 06-0567. Crim.App. No. 35939.
U.S. Court of Appeals for the Armed Forces.
Argued March 14, 2007. Decided June 22, 2007.
65 M.J. 208
For Appellant: Major John N. Page, III (argued); Lieutenant Colonel Mark R. Strickland and Captain Christopher S. Morgan (on brief).
For Appellee: Major Matthew Ward (argued); Colonel Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, Major Kimani R. Eason, and Captain Jamie L. Mendelson (on brief); Colonel Gary F. Spencer.
Amicus Curiae for Appellant: Carey Scheible (law student) (argued); Robert B. Harper (supervising attorney), Neal Hamilton (law student)(on brief) for the University of Pittsburgh School of Law.
Judge BAKER delivered the opinion of the Court.
Appellant was an Airman First Class (A1C) assigned to Kunsan Air Base, Korea. Before a general court-martial composed of members Appellant pleaded not guilty to possessing and/or receiving child pornography in violation of
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT‘S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT‘S COMPUTER WHERE THE AFFIDAVIT IN SUPPORT OF THE SEARCH DID NOT CONTAIN ANY DESCRIPTION OF THE SUBSTANCE OF THE IMAGES SUSPECTED TO DEPICT “SEXUALLY EXPLICIT CONDUCT.”
The granted issue raises the question of when, if at all, can computer file titles, absent further description of file contents, serve as probable cause to search for child pornography. We conclude that the military judge did not err in denying Appellant‘s motion to suppress. Admissible evidence must be obtained based upon a valid search authorization or, in the absence of such authorization, must be consistent with one of the recognized exceptions to the requirement. In this case, we find that the authorization was proper as there was a substantial basis for the issuing magistrate to conclude that there was a fair probability that evidence of child pornography would be found on Appellant‘s computer.
BACKGROUND
While stationed at Kunsan Air Base, Appellant lived with a roommate, A1C Winkler. Both Appellant and A1C Winkler owned
On March 14, 2003, at least one month later, A1C Winkler reported his suspicions to the base Air Force Office of Special Investigations (AFOSI) Detachment and was interviewed by the detachment commander, Special Agent (SA) Spring, and another investigator. Following the interview, the investigators took the information to the Chief of Military Justice at the base to discuss whether probable cause existed to authorize a search of Appellant‘s computer. The Chief of Military Justice felt that probable cause existed and the detachment commander prepared an affidavit requesting search authorization. The affidavit was presented on March 14, 2003, to the base military magistrate. The magistrate provided the authorization and a search was executed by AFOSI agents. Investigators searched Appellant‘s computer and found pornographic files (video clips and still photos), more than thirty of which depicted sexually explicit acts involving minors.
At trial, Appellant moved to suppress all evidence obtained as a result of the search of his computer. The military judge held an
Further, the investigating officer made no effort to corroborate the informant‘s suspicions, or to provide the magistrate with examples of the pornography in question (which, Appellant argues, has regularly been required in such cases). The investigators also admitted that they had no evidence that Appellant exhibited any of the “characteristics” of those who possess child pornography.
Finally, Appellant argued that not only was the authorization inappropriate, the “good faith” exception to authorization was unavailable for two reasons. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Carter, 54 M.J. 414 (C.A.A.F.2001). First, the authorization was facially deficient, because it relied on a “bare bones” affidavit. See Carter, 54 M.J. at 422 (finding by implication that a bare bones affidavit is one in which, inter alia, sources of information are not identified, and conflicts and gaps in evidence are not acknowledged); United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.1996) (reliance on affidavit unreasonable because magistrate acted as rubber stamp by approving “bare bones” affidavit based solely upon uncorroborated anonymous tip). Second, on appeal, Appellant argued that the magistrate did not perform his duties in a neutral and detached manner. Appellant contends that the magistrate misunderstood his role, which was to protect individual liberties, not, as the magistrate said in the Article 39(a) hearing, to “make sure if we‘re accusing somebody that the evidence will be there.” According to Appellant, instead of undertaking the necessary critical examination of the facts, the magistrate chose simply to defer to the criminal investigator.
The Government demurred, arguing that even if the evidence presented did not create a certainty that contraband was to be found, under prevailing constitutional law enough was presented to the magistrate for him to make a proper determination of probable cause. Under the totality of the circumstances there was a substantial basis upon which the magistrate could have found probable cause. Moreover, the magistrate was properly detached and independent in his dealings with the AFOSI; the magistrate scrutinized the affidavit and questioned the investigator, raising the issue of the potential inaccuracy of the informant‘s suspicions, and his concern regarding the identity of the “14-year-old Filipino girl” file as legally “child pornography.”
The military judge weighed these arguments and made the following factual findings.
- A1C Winkler and Appellant were roommates and each had his own computer. Appellant‘s computer was set up such that no one in the room would be able to see the monitor without being directly in front of the screen.
- At some time in early to mid-February 2003 A1C Winkler accidentally bumped Appellant‘s computer, deactivating Appellant‘s screensaver and revealing the contents of the computer‘s desktop.
- A1C Winkler saw the Windows Media Player program open on the desktop and noticed that there were several file names listed in the player.
- One file name that A1C Winkler remembers was “14 year old Filipino girl“, and though A1C did not remember the name of any other files, he recalled that some mentioned ages and some mentioned acts. A1C Winkler became concerned that these files included child pornography.
- On March 14, 2003, A1C Winkler reported his suspicions to the AFOSI.
Based on these facts, the military judge agreed with the magistrate‘s determination that “there was probable cause to believe that evidence ... was reasonably likely to be found in the accused‘s ... personal computer.”
Both Government and Appellant made the same arguments before the Air Force Court of Criminal Appeals, which found that the “evidence presented to the magistrate was sufficient to permit a person of reasonable caution to conclude that contraband would be found on the appellant‘s computer.” Leedy, ACM 35939.
Appellant renews his arguments before this Court. For the reasons stated below, we concur with the military judge and the lower court‘s conclusions and affirm.
DISCUSSION
We recognize that there are competing standards of review at play in this case. The specified issue refers to the denial of a motion to suppress, a decision we review for an abuse of discretion. United States v. Rader, 65 M.J. 30, 32 (C.A.A.F.2007); United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F.2002). However, we review the legal question of sufficiency for finding probable cause de novo using a totality of the circumstances test. United States v. Reister, 44 M.J. 409, 413 (C.A.A.F.1996) (holding that
We start by examining whether the magistrate had a “substantial basis” for determining that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). It follows that where a magistrate had a substantial basis to find probable cause, a military judge would not abuse his discretion in denying a motion to suppress.
The threshold for probable cause is subject to evolving case-law adjustments, but at its core it requires a factual demonstration or reason to believe that a crime has or will be committed. As the term implies, probable cause deals with probabilities. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). It is not a “technical” standard, but rather is based on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. Probable cause requires more than bare suspicion, but something less than a preponderance of the evidence. Thus, the evidence presented in support of a search need not be sufficient to support a conviction, nor even to demonstrate that an investigator‘s belief is more likely true than false, United States v. Burrell, 963 F.2d 976, 986 (7th Cir.1992); there is no specific probability required, nor must the evidence lead one to believe that it is more probable than not that contraband will be present. Bethea, 61 M.J. at 187. “The duty of the reviewing court is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238; see also Bethea, 61 M.J. at 187 (holding that the standard is a “flexible, common-sense” one) (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (holding that probable cause to search exists when the facts and circumstances are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed).
With the Court‘s common sense standard of probable cause in mind, it follows that probable cause determinations are inherently contextual, dependent upon the specific circumstances presented as well as on the evidence itself. Indeed, probable cause is founded not on the determinative features of any particular piece of evidence provided an issuing magistrate — nor even solely based upon the affidavit presented to a magistrate by an investigator wishing search authorization — but rather upon the overall effect or weight of all factors presented to the magistrate.
Though there are no “specific ‘tests’ [that must] be satisfied” to find a substantial basis for probable cause, Gates, 462 U.S. at 231, our case law
Probable Cause
The question presented in this case is straightforward albeit compound: did A1C Winkler‘s description of the file titles on Appellant‘s computer as presented in SA Spring‘s affidavit, when assessed through the lens of the circumstances under which the magistrate came to know this information — including SA Spring‘s experience investigating child pornography and the magistrate‘s own, independent analysis of the facts — provide a “substantial basis” for the magistrate to conclude that there was a fair probability that child pornography would be found on Appellant‘s computer?
SA Spring‘s affidavit consisted of two primary sections. The first section provided SA Spring‘s background and expertise in the area of child pornography. The second section addressed specific facts and circumstances supporting the request to search Appellant‘s computer, providing background information regarding Appellant‘s and A1C Winkler‘s room, their relationship, computer arrangements, and Internet use. Paragraph D contained the facts, or absence of facts, on which the search authorization hinges.
D. Approximately one month ago (between the end of Jan 03 and the middle of Feb 03), Winkler was working at his computer when he inadvertently bumped [Appellant‘s] computer. According to Winkler, [Appellant] routinely leaves his computer on, and when he bumped it, [Appellant‘s] screen saver turned off. Winkler then observed what he believed to be the computer program “Windows Media Player” open on [Appellant‘s] computer. Winkler observed what he described as a “play list” for the program. Based upon personal experience, I know that Windows Media Player is a computer program that can be used to play various computer files, including digital video files. I also know, based upon my personal experience, that a “play list” is a list of recently “played” or accessed files. Winkler stated that he observed several titles in the play list that he believed described pornographic files. Winkler remembered seeing a file with the title “three black guys and one white girl” among others. Winkler also saw a file titled “14 year old Filipino girl” in the same play list as the other file titles.
Appellant argues that based on the material provided in this affidavit probable cause is lacking. There is no evidence that the file names observed by A1C Winkler were titles of video, as opposed to audio files and no evidence in the record that A1C Winkler, or anyone else, had ever observed Appellant viewing pornography, to say nothing of child pornography, on his computer or anywhere else.5
Yet, as the Government notes, the title “14 year old Filipino girl” does not appear in isolation. SA Spring‘s affidavit states that
In his Essential Findings of Fact the military judge found that A1C Winkler noticed a list of files displayed on the Windows Media Player (on the computer desk top) that led him to believe that A1C Leedy had child pornography on his computer. One file name that he remembered was “14 year old Filipino girl.” He did not clearly remember the name of any other files, but did recall that some mentioned ages and some mentioned acts.
Despite these findings, Appellant makes a colorable argument that this evidence when viewed in the abstract might be insufficient to establish a substantial basis to find probable cause to search for child pornography. Such a substantial basis would, after all, be based almost entirely on the existence of a single file. As interpreted by Appellant, such a conclusion is unwarranted as it derives from insufficient evidence which leaves too many gaps in SA Spring‘s knowledge to find probable cause. Such a gap could only be filled, according to Appellant, if there was a detailed description of the contents of the files in question.
Moreover, Appellant is correct in arguing that courts have generally relied on photographic descriptions of pornography before finding probable cause to search for pornography. See, e.g., United States v. Brunette, 256 F.3d 14 (1st Cir.2001) (holding that appending a sample of the offending material to a warrant request was preferable). Indeed, the parties cite to only one case in which an appellate court has upheld probable cause to search for child pornography based on titles alone.6
From a Constitutional perspective, the shortcoming in Appellant‘s argument is that he focuses almost exclusively on the title “14 year old Filipino girl” as the predicate for probable cause. It is evident that as is the case with many digital file titles found on the Internet or on one‘s personal computer, the title could be innocent. Consider the file name “Lolita,” which on its own could as easily reference an English term paper, a discussion of teacher-student relations, or contain adult or child pornography. Likewise, in a vacuum, the title “Teen Angel” could as likely reference a popular 1960s song as it could be a video file containing child pornography. Similarly, a listing of any number of rap song titles might suggest images of violence and pornography, but not in fact visually convey those images when played. The point certainly is made.
However, in the current case, Appellant‘s file title “14 year old Filipino girl,” does not appear in isolation. Consequently, the title alone is not the sole predicate fact. As an initial factor, it is included on a sequential play list alongside titles that A1C Winkler understood to identify sex acts7 and which the military judge concluded referenced sex acts.
Moreover, and critically, none of these facts are abstract pieces of evidence, but rather are properly viewed in context, through the professional lens in which they were presented to the magistrate. The magistrate had the benefit of the affiant‘s professional experience in investigating child
SA Spring‘s training and experience shed important light on the facts presented and addressed the magistrate‘s concerns on several measures. First, in regard to the potentially benign nature of the file title in question, SA Spring indicated A1C Winkler believed that the sorts of titles surrounding the “14 year old Filipino girl” were indicative of titles associated with child pornography.
Second, SA Spring‘s experience addressed the magistrate‘s concerns that A1C Winkler‘s allegations might be stale, given the month (or more) that had elapsed between A1C Winkler‘s discovering of the files and his reporting to AFOSI. In the first part of his affidavit, SA Spring stated that staleness concerns are usually misapplied in child pornography cases given that in his experience individuals who enjoy child pornography are invariably “collectors,” almost always keeping their material permanently.9 The one month lag alone was thus not likely to render A1C Winkler‘s statement inaccurate. Moreover, even if the offending file had been erased in the interim, from experience SA Spring was aware that trained computer forensic examiners can usually find digital files on hard drives even if users have deleted them.
We acknowledge that relying upon expertise too heavily, at the expense of hard facts, can be troubling and is open to abuse. However, such blind faith reliance is not present here, either by SA Spring or the magistrate. It is evident that SA Spring did not simply rest on his training, passively filtering any evidence through his experience. SA Spring was actively skeptical about A1C Winkler‘s claims and did not immediately accept his concerns as legitimate. When A1C Winkler presented his information to the AFOSI, SA Spring performed an in-depth interview of the airman to assess his credibility. SA Spring questioned the airman about whether there was an ulterior motive behind his report and clearly established the limits of what was known and what was not. It was
The constitutional propriety of SA Spring‘s behavior also comports with common sense. After all, if a sample of the child pornography or a detailed description of the contents of the pornographic image were required as predicate to search for child pornography, law enforcement would be left in an untenable position: a substantial basis for finding probable cause to search for the contraband would only be available after the contraband had already been discovered. Direct evidence of the very material sought would be needed and “[t]here is no requirement ... that an affidavit present conclusive proof by direct evidence that the crime has been committed before a search warrant can issue.” Eichert, 168 Fed.Appx. at 152.
This is not to say that law enforcement officers should not include specific detail where such detail is available to substantiate search requests. An affidavit that demonstrates that a subject has viewed child pornography and describes that pornography is more likely to substantiate probable cause than one that does not. However, the Constitution does not, and common sense cannot, necessarily require such detail in order to properly find probable cause.
Case law is evolving as is our understanding of child pornography. Child pornography is not new, but its proliferation on the Internet is a recent phenomenon raising new, and in some cases challenging, questions of law. The Supreme Court has repeatedly directed reviewing courts to apply common sense and practical considerations in reviewing probable cause determinations. In that context, a different legal picture emerges. In an earlier era an investigator, magistrate, or court might not have thought a file titled “14 year old Filipino girl” warranted investigation, even when surrounded by titles suggesting graphic pornography. Today, applying our own common sense understanding, informed as it is by recent years which have seen many cases of child pornography, with the facts of such cases increasingly involving computers and digital files, we conclude that the gloss SA Spring applied to Appellant‘s file titles was well founded. There is more than a fair probability that a list of files referencing sex acts that also includes a file referencing a fourteen-year-old child will result in the discovery of child pornography.10
Neutral and Detached Magistrate
We next address Appellant‘s argument that the military magistrate in this case failed in his duty to act in a neutral and detached manner. Appellant does not challenge the independence and structure of military search approval generally, but rather asserts that in this case the magistrate was a “rubber stamp” for SA Spring‘s request. However, the record suggests the contrary.
The base magistrate was Colonel (Col) Byers who was the Mission Support Group commander at Kunsan Air Base and had more than two decades of experience in the Air Force. There is no evidence that the magistrate had any generalized proclivity towards simply conceding search requests to investigators. In fact, shortly before he reviewed the search request at issue here, Col Byers had been involved in “a number of probable cause determinations” including at least one case where he declined authorization until the government provided additional predicate information.
Moreover, in the current case, the magistrate evidently closely read the affidavit, and
Mirroring the analysis required from Gates and our own cases, the magistrate acted in light of his own investigation of the facts, and paid heed to the circumstances in which he learned of the facts (including the substantial professional history of the affiant). It was only then that the magistrate expressed confidence in SA Spring‘s affidavit and was convinced that the requirements for probable cause had been met.13 On these facts, we conclude that the magistrate was neither unmindful of his duties nor was he insufficiently detached from the requesting investigator. See, e.g., United States v. Cravens, 56 M.J. 370, 373, 376 (C.A.A.F.2002) (in which this Court adopted the military judge‘s finding that a magistrate appropriately fulfilled his role as a neutral and detached magistrate, and that his decision was clearly his own after he asked responsible questions, considered the views of the investigators and judge advocate advisor and only then made his decision).
DECISION
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
ERDMANN, Judge (concurring in the result):
I respectfully disagree with the majority‘s conclusion that the magistrate had a substantial basis for determining that probable cause existed. Because I believe that the good faith exception applies to this case, however, I concur in the result.
I agree with the majority that we review the magistrate‘s determination that probable cause existed by examining the facts known to the magistrate at the time of his decision and by analyzing the manner in which the facts became known to the magistrate. The magistrate must be provided sufficient information to make an independent determination about the existence of probable cause under the totality of the circumstances. United States v. Monroe, 52 M.J. 326, 331 (C.A.A.F.2000) (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)).
Here, the facts known to the magistrate were presented through the affidavit of SA Spring and indicated the following: Leedy‘s roommate, Winkler, informed SA Spring that Leedy‘s computer was positioned in such a way as to preclude others from directly observing his monitor; Leedy told Winkler that he downloads files from the internet; and Winkler observed the play list on Leedy‘s Windows’ Media Player and believed several titles described pornographic files. Two file titles were named in the affidavit, “three black guys and one white girl” and “14 year old Philipino girl.”
Even considering that these facts were filtered through the expertise of SA Spring when presented to the magistrate, I believe they fall short of demonstrating a fair probability that child pornography would be found on Leedy‘s computer. Two of the facts — that Leedy‘s computer monitor was positioned for privacy and that Leedy downloads internet files — are such common occurrences of innocent daily activity that they add very little, if anything, to a common-sense analysis of probable cause. I do not believe that what remains — the two file titles and the unexplained belief of Leedy‘s roommate that other file titles were pornographic — is enough to justify the search of an individual‘s personal computer for child pornography. Although the standard for probable cause does not necessarily require that the illegal images be attached or described, a common-sense approach demands more concrete information than what was provided here to establish a fair probability that evidence of a crime will be found. See Monroe, 52 M.J. at 331-32. An investigator‘s expertise may add value in certain instances, but the scarce facts of this case establish an underlying deficiency that reliance on an investigator‘s experience and training cannot overcome.
In this regard, the majority relies on a finding by the military judge that Winkler “did not clearly remember the name of any other files, but did recall that some mentioned ages and some mentioned acts.” If the magistrate did in fact have this information before him, the case for probable cause is stronger. However, this information was not included in SA Spring‘s affidavit and there is no evidence that these specific details were presented to the magistrate. Rather, this fact was part of Winkler‘s statement to AFOSI, which the majority correctly excluded from consideration because the magistrate did not review that statement. The AFOSI statement, nevertheless, was presented to the military judge for his consideration on the motion to suppress the results of the search. To the extent that the military judge relied on that statement, he erred. For this reason, the fact that Winkler recalled seeing unnamed titles that mentioned ages and acts is not part of this court‘s consideration.
Although I do not believe probable cause existed, I nevertheless concur in the result because I would find that the good faith exception applies in this case. The good faith exception, which is contained in
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 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.
See also United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).
In its application, the good faith exception is notably broad where, as here, there is no evidence of law enforcement misconduct. In United States v. Leon, the Supreme Court explained that the Fourth Amendment itself
In the ordinary case, an officer cannot be expected to question the magistrate‘s probable-cause determination or his judgment that the form of the warrant is technically sufficient. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. . . . Penalizing the officer for the magistrate‘s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.
Consistent with this precedent, this court has previously determined that:
“Substantial basis” as an element of good faith examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization. In this context, the second prong of
Mil.R.Evid. 311(b)(3) is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a “substantial basis” for determining the existence of probable cause.
United States v. Carter, 54 M.J. 414, 422 (C.A.A.F.2001).
With this backdrop, I conclude that the good faith exception applies in this case. The facts here raise no issue under
Notes
I have been a Special Agent with the Air Force Office of Special Investigations (AFOSI) since March 1994. I received training to be a Special Agent at the United States Air Force Special Investigations Academy ... I have been assigned as the Detachment Commander of AFOSI Det 613, Kunsan AB (KAB), Korea since 28 Jun 2002. Prior to this assignment I was an instructor and course manager at the United States Air Force Special Investigations Academy for three years. In that capacity, I was responsible for development of course curriculum for both entry level and advanced training, including curriculum development for blocks of instruction dealing with the sexual abuse and exploitation of children. . . . During my time as a Special Agent, I have participated in and supervised numerous criminal investigations involving the sexual abuse and exploitation of children. I have the following education and training specific to investigations into the sexual abuse and exploitation and children:
- In 1994, I received basic instruction at the Special Investigations Academy that included analysis of persons involved in exploitation of children, their habits and common practices.
- In 1996, I received advanced instruction at the Special Investigations Academy that included analysis of persons involved in the exploitation of children, their habits and common practices.
- I hold a Masters of Forensic Science degree from the George Washington University. Specifically, I received graduate level instruction on the investigation of crimes involving the exploitation of children, to include trafficking in child pornography and traits and characteristics of persons involved in such activities.
- As an instructor at the Special Investigations Academy from 1999-2002, I have attended numerous lectures and classes concerning the sexual abuse and exploitation of children.
D. These people rarely, if ever, dispose of their sexually explicit materials and often tend to maintain vast collections of such imagery
F. These people go to great lengths to conceal and protect from discovery, theft, and damage their collections of illicit materials ...
I. The Internet is frequently used to find, access, download, sell and/or trade sexually explicit images of children.
My concern was how do you know that [the file] would be pornographic ... in nature and [SA Spring] said because of other titles that [A1C] Winkler recollected seeing. . . . And based on the discussions with [A1C] Winkler that [SA Spring] felt that those titles would indeed lead to some type of picture or video ... of a pornographic nature.