*1 STATES, Appellee, UNITED MACOMBER, Airman First
Edward S.
Class, Force, Appellant. Air
No. 08-0072.
Crim.App. No. 36693. Appeals for
U.S. Court of
the Armed Forces.
Argued Oct. 24, 2009.
Decided Feb. *2 (UCMJ),
Military
§
Justice
10 U.S.C.
(2000),
military judge sitting
before
as a
general
pled guilty
court-martial. He
to re-
ceipt
of child
but contested a
separate specification alleging wrongful pos-
session of child
He was ulti-
mately convicted of both
ad-
offenses. The
judged
approved
sentence included a
discharge,
eigh-
bad-conduct
confinement for
months,
pay
teen
forfeiture of all
and allow-
pay grade
ances and reduction to
E-l. The
United States Air Force
of Criminal
Court
Appeals affirmed. United States v. Macom-
ber,
36693,
No.
ACM
CCA LEXIS
(A.F.Ct.Crim.App. Aug.
Prior to moved to evidence seized as a result of a search of his proba- dorm room based on a lack of military judge accepted ble cause. The stipulation agreed by parties fact military judge of the motion. The BAKER, J., opinion delivered the of the motion, concluding denied the that the search Court, EFFRON, C.J., in which ERD- had cause to authorize the STUCKY, JJ., RYAN, joined. MANN and Appellant challenges ruling in search. J., separate dissenting opinion. filed follow, this Court. For the reasons that we affirm.1 Appellant: Captain
For Tiaundra Sorrell (argued); Lieutenant Colonel Mark R. FACTS2 (on brief). Strickland (SA) February Special Agent Captain Gray Appellee: For Coretta Novlesky Immigration of the and Customs (argued); R. Colonel Gerald Bruce and Ma- (ICE) Minot, Agency Enforcement North (on brief); jor Major Matthew S. Ward Jere- by agency colleagues Dakota was notified my S. Weber. during a child website Appellant: Kimberly Amicus Curiae for operation “Operation Fal- takedown called (law student) Lynch (argued); M.J. Randall con,” Appellant por- a child was identified as Hodgkinson (supervising attorney), Mark nography website subscriber. The website (law student) (law and E. Lee Coulter Oliver “LustGallery.com known as Loli- Secret —A student) (on brief); Jejfrey D. Jackson —for during Opera- tas Archive” was dismantled University the Washburn School of Law. Falcon, tion and ICE recovered credit subscribers, relating card information to its Judge opinion BAKER delivered the including Appellant. Opera- As a result of Court. Falcon, Novlesky tion SA received a “Site pleas spec- listing website sub- Appellant entered mixed to two Index” ifications under Article Uniform Code of scribers located North Dakota. recitation, argument language with 1. Oral in this case was heard 2. The of this factual Law, University Topeka, modification, Washburn School of slight directly is taken from the Kansas, part "Project as Court's Out- stipulation agreed parties of fact Mahoney, reach.” See United States v. upon by military judge. relied (C.A.A.F.2003). practice 347 n. 1 This developed part public program as awareness of a federal court of operation to demonstrate the appeals military justice system. name, Inspector at her by his the items back to Griffin identified on this index address, number, telephone com- post box. The letter was undercover office card infor- e-mail account and credit mercial Guam, postmarked from indi- index lists: “Edward mation. envelope address on the as cated his return Macomber, 503, Minot, Dorm 211 Unit North AFB, Minot ND “Dorm Unit *3 (701) Dakota, 727-6236....” The evi- Inspector Appellant sent a 58705.” Griffin Appellant had accessed dence showed thanking him for his interest list and letter 18,2003. “LustGallery.com” April on describing fitting the available videos Novlesky subsequently obtained the SA along stated sexual interests with order jury relating Operation grand to twenty pricing dollars form the videos 'verify to the information Falcon order each. by colleagues. him He presented to his ICE 14, 2004, Inspector On June Griffin re- relating contacted the bank to the credit then pre-stamped a white business size en- ceived Appellant to in order card information linked velope envelope post- in the mail. The accuracy verify the of the information. to “Minot, by marked ND June 2004” with Appellant the address listed Because “LustGallery.com” signed up Macomber, for the when return address listed as “Edward military dormitory appeared to services be AFB, Dorm Unit Minot ND 58705.” address, Novlesky Appel- concluded that SA completed envelope contained order Air lant was a member of the Force stationed indicating Appellant’s request pur- form to (AFB). at Minot Air Force Base He contact- pornography chase videos titled two Special Investiga- Air ed the Force Office Sleepover” “IC-5 Mixed and “IN-9 Sweet (OSI) tion to share the information he had postal money A order was en- Sixteen.” verify Appellant’s identity and mili- and to forty payable amount closed for the dollars Novlesky tary status. SA met with OSI Eclipse purchaser to Films. The was listed Agent op- Special Patrick White to discuss Macomber, as “Ed Dorm Unit proceeding investigation with the tions for AFB, Minot ND 58705.” agents agreed Appellant, and the to conduct Novlesky joint investigation. recom- SA planned The law team a con- enforcement Inspector mended to OSI that Postal Rachel delivery package containing trolled of a target contacted to send a letter to Griffin be pornography by Ap- two videos ordered Appellant offering him child pellant. delivery, Prior to the controlled SA agreed Inspector OSI and Griffin was con- Inspector White coordinated with Griffin and brought part in as of the investi- tacted legal prepare the Minot office to an affidavit gation team. authority support of search for investigation, Inspector Pursuant to this dormitory application room. The for search sent a letter and a Interest Griffin “Sexual prepared authorization was for submission to Questionnaire” Eclipse from (Lt magistrate, the base Lieutenant Colonel Films, company purporting spe- a fictional Col) Although James Harrold. this was SA illegal pornography. cialize The corre- pornography White’s first child he re- spondence offered stated guidance ceived from fellow OSI with company “illegal” the film 'was and must specific experience pornogra- more in child kept in the “strictest confidence.” The phy Inspector provided cases. Griffin SA correspondence was sent to mail- profile relating White with ing at Dorm 211 on Minot AFB. individuals who view child duty to Guam at temporary who have a sexual interest children. She time, so the letter was forwarded to him postal inspectors prior conferred with other temporary duty at his location. advising SA White on the informa- completed questionnaire listing “teen tion in the affidavit. SA White discussed the “pre-teen among sex” and sex” his sexual experienced agents affidavit with other more buying interests and indicated his interest company. and his detachment commander. from the He mailed his office nography sexually in chil- SA White briefed the or those interested On June investigation Appel- on the into dren. It was also based on SA White’s train- ing attending Academy activities and him the affida- lant’s while OSI Appel- vit in of search Training the Federal Law Enforcement Cen- personal lant’s room and vehicle. during “typical ter which behavior of child Lt Col Harrold read the affidavit twice and pornographers” was described. The affidavit discussed its contents with SA White. SA stated: Lt
White told
Col Harrold that
pornographers
persons
with a
a known
was identified as
subscriber to
always
sexual attraction to children almost
through Operation
website
possess
maintain and
However, Lt
Falcon.
Col Harrold was not
photographs, maga-
materials
such as:
*4
Appellant
that
told
had accessed the website
films,
zines, negatives,
videotapes, graphic
18, 2003,
April
on
fourteen months earlier.
files,
lists,
image
correspondence, mailing
Ap-
Lt
Col Harrold was also informed
books,
tapes,
recordings
catalogs.
and
pellant
through
had identified himself
a sexu-
These materials are stored in a secure but
questionnaire
having
al interest
as
a sexual
within
accessible location
their immediate
“pre-teen
in
interest
“teen sex” and
sex” and
control,
privacy
security
such as
the
and
pornog-
had ordered two child
homes,
of their own
most
often
then-
raphy videotapes through
mail
un-
the
from
personal bedrooms.
Inspector
delivery
dercover
Griffin for
to his
granted authority
Lt
AFB,
Col Harrold
for the
address at Dorm
Minot
North
AFB,
search of Dorm
Room
Minot
operational
Dakota.
White
SA
discussed the
Appellant’s
ND
and the search of
delivery
plan
pack-
for the controlled
of the
Harrold,
Mirage. According
age
stipula-
Mitsubishi
to the
along
with Lt Col
with the
fact,
plans
probable
tion of
he based his
cause
alternative
the event that
finding “mainly
linking
the
did not return to his dorm room or
the
on
information
[Appellant]
pay-for
pornography
event he tried to leave the base with the
child
website,
package.
together
The affidavit
to Lt Col
with the information sub-
synopsis
Ap-
by [Appellant] indicating
Harrold listed
of each movie
mitted
his sexual
pellant
children,
synopsis,
had ordered.
the
both
correspondence
interest
in fairly graphic
movies were described
detail whereupon [Appellant]
listed his
featuring
engaged
as
children
in sexual acts.
attempting
pornogra-
to obtain
phy,
[Appellant]
fact that
ordered
request
based the
SA White
for search
through
two child
videos
authority
prior
actions
to his
mail.”
all
He considered
of this information
receipt
Eclipse
of the actual videos from
together
profile
with the
information from
Specifically,
request
Films.
experienced agents in the
field
showed
Appellant’s subscription
based on
por-
the likelihood that individuals with child
“LustGallery.com”
web-
nography usually keep
possession
close
address,
using
site
his dorm room
self-
keep
control of the
and often
it
proclaimed
engaged
children
in their homes and bedrooms.
sex,
attempt
and his
to order movies contain-
ing
the affidavit
While
day, Inspector
That same
Griffin and SA
expected
stated
SA White
to find
up
delivery
the controlled
White set
Eclipse
parcel addressed to
from
videos to
mail-
Films,
this was
the basis for the search
ing address at the Postal Service Center at
magis-
nor was it the reason the
agents
Minot AFB. The OSI
were aware
probable
trate found
cause.
delivery system
AFB
that the mail
on Minot
packages
picked up by
required that
dorm
“pedophile pro-
affidavit also included
at
center rather than
information was
residents
the service
file information.” This
Be-
Inspec-
discussion with
delivered to them their dorm rooms.
based on SA White’s
illegal
pornogra-
and included
cause of the
nature of child
tor Griffin
por-
phy,
necessary
agents
it was
for the
to main-
relative to individuals interested
probable
conduct a de novo determination
of or visual contact with
tain control
Therefore,
cause,
only to determine whether there is
all
package at
times.
contraband
supporting
in the record
Appel-
substantial evidence
agents conducted surveillance
OSI
21, 2004,
the war-
decision
issue
throughout
day on June
lant
Monroe,
rant.’” United States
Inspector
maintained visual
while
Griffin
(C.A.A.F.2000)
(quoting
Massachu-
package in the service center.
control of the
Upton, 466
setts v.
containing
picked up
package
(1984)).
2085, L.Ed.2d 721
and exited the
the child
videos
Two
outside the ser-
service center.
pref
the law’s
This standard reflects
by Appellant
he exited
center drove
as
vice
independent re
erence for warrants and for
him.
facility
photograph
in an effort to
by magistrates.
reviewing
“In
a deci
view
However,
camera flash went off when
for a
sion that
there was
cause
proceeded
they
picture. Appellant
took
search,
keep
we must
in mind that a determi
moments,
vehicle,
for a few
to his
sat inside
by a
nation of
cause
neutral
attempted
got
his vehicle and
then
out of
magistrate is entitled to substantial
detached
center,
package
the service
return the
Carter,
(citation
deference.”
marginal
largely
cases should be
determined
by
preference
for warrants and that
DISCUSSION
“[cjlose
calls will be resolved
favor
military judge’s
denial
We review
sustaining the
decision.” Mon
suppress
of a motion to
for an abuse of
(citation
roe,
quotation
52
at
M.J.
331
Leedy,
v.
65 M.J.
discretion. United States
Maxwell,
omitted);
marks
It is not a question presented technical but rather is is not whether one fact or based on practical cause, the factual and consider- another sufficient but wheth- everyday ations of life on which reasonable er the facts taken aas whole did so. men, prudent legal technicians, First, Appellant argues there was an insuf- requires act. Probable cause more than ficient nexus between the child pornography suspicion, something bare less than a possession discovered in his post at the office preponderance Thus, of the evidence. and his dorm room to cause to search presented support of a search his dorm argument room. The is based on need not be sufficient to a convic- apparent ground that the mail for dormi- tion, nor even to in- demonstrate that an tory residents was delivered to the Postal vestigator’s likely belief is more true than *6 opposed Service Center as to the individual false, specific there is no probability re- rooms; apprehended since quired, nor must the evidence lead one to center, the service it was unreasonable to probable believe that it is more than not infer that additional child would that present. duty contraband will be The be found in dorm his room. reviewing simply court is to make a practical, whether, common-sense decision The facts indicate stipu- otherwise. As given all the in circumstances set forth the lated, Appellant used his dorm address as affidavit ... probability there is a fair that the return in correspondence his contraband or evidence of a crime will be with the porno- when he ordered particular place. found in a graphic videotapes responding and when to Further, the questionnaire. sexual interest [PJrobable cause is founded not on the Appellant concedes that any only determinative features of this was his particular context, piece military address. In the mag- of evidence an the bar- issuing dormitory ... racks or often upon istrate but rather serves as the ser- the overall residence, weight effect or vieemember’s his or her presented of all factors home. to That magistrate. Appellant. the was true for Based on these facts, suggest common sense would a fan- (citations Leedy, 65 quotation M.J. at 213 probability any pornography Ap- that omitted). Finally, marks reviewing a “[i]n pellant might possess would be in located his ruling suppress, on a motion to we consider dorm room. light the evidence in the most favorable to (citation prevailing party.” Id. Appellant’s argument first nexus necessar- omitted); quotation marks United States ily Appellant’s to arguments leads additional Reister, (C.A.A.F.1996). 44 M.J. presented that the evidence magistrate did not a fair Appel- inference that ANALYSIS computer, lant a might owned on which he arguments pornography, makes four store child that or he fell with- challenging magistrate’s finding proba- generic pedophile profile presented to event, reasonably relied on view, Harrold Lt Col without magistrate. In that a sense inference inference, to the common there was no reason an such web- to an Internet member who subscribed his pornography would be stored believe dormitory listing as his address his correctly points out that site while room. computer computer, that a presented “pedo- owned
while SA White’s affidavit
likely
room.
be found
particular
the would
including and
phile profile,”
likely
store
pedophiles are
that
statement
final ar
That leads
residence, it
places of
pornography at their
that,
gument
to the extent
Ap-
expressly conclude or state
did not
cause was based on
finding
Indeed, while courts
pellant
profile.
fit the
web
subscription
pornographic
earlier
profiles to inform search
have relied on such
service,
stale. More
information was
determinations, clearly,
alone with-
over,
told
was not
because
person concerned
specific nexus to the
out
general
lag, the affidavit
is
of this time
of articulable facts
cannot
the sort
credibility. Timeliness
unreliable and lacks
necessary
to find
cause to search.
probable cause. United States
informs
(C.M.A.1992).
The
stipulated Lopez,
But that is not this case.
may diminish the likelihood
passage
of time
had subscribed
facts reflect
in the
is
will be found
pornography web service
that what
an Internet child
result,
place
searched.
Id. As
expressed
ongoing
an
to be
past, and that he
apprised of
magistrate should have been
present.
in the
in child
interest
“[wjhether
However,
lag.
too
questionnaire
this time
recently filled out a
He had
long period
elapsed
has
from the time
may
facts
documenting this interest. Such
until the search is au
generic
facts are obtained
may
place Appellant within a
many factors.”
Id.
pedophile pro-
depends
thorized
pedophile profile or a clinical
to,
include,
They may
are not limited
file,3
they certainly
ongoing
but
reflect
searched,
type of
location to be
Based on the
involved,
sense,
of the articles to
experience,
crime
the nature
law enforcement
common
seized,
law,
long the crime has been
military judge reasonably
and how
case
Leedy,
example,
we
probability
continuing.
that a
Id.
there was a fair
concluded
por
recognized
in the context of child
pornography,
person with an interest
expert’s expe
nography,
a law enforcement
ordered child
who has
magis
might reasonably inform a
present,
likely
store such
rience
past and in the
*7
whether,
how
judgment as to
and for
quantity
at a secure
trate’s
some
long,
pornographer might
retain
a
a child
private
For
servicemember
location..
However,
installation,
pornography.
65 M.J. at
residing
a
that means
room, barracks,
“relying upon exper
we also cautioned that
dormitory
or vehicle.
heavily,
expense
of hard
tise too
Appellant’s argument that
This also moots
facts,
open to
troubling
can
and is
only
presented
magis-
to the
evidence
abuse.” Id.
suggesting
might
that he
own a com-
trate
agent’s
have hard facts. The
puter
subscription
on his earlier
Here we
was based
that this was an investi-
service. As
affidavit established
an Internet
gation
possession
the unlawful
of child
parties recognize
arguments,
in their
into
The nature of the contraband
question
in this case is whether there
critical
highly portable,
sought
that it was
nexus to the dorm room to
was such
was sufficient
secreted,
pos-
agents
easily
and often stored
a
Once the
had
substantiate
search.
room,
variety
in a
of forms and on a
sessor’s home
probable cause to search the dorm
variety
The affidavit also indicated
authorized to search where
of media.
agents were also
Appellant had
reasonably
point
at some
subscribed
sought might
be locat-
the items
ed,
pornography website. But
computer was within
to a child
and therefore the
alone. This infor-
any
information did not stand
scope
of the search authorization.
point
decide in the context of
this case.
3. A
we need not
prompted
mation
to conduct a
presented
that the facts
magistrate
ruse that confirmed
in-
current
Special Agent White’s affidavit
briefing
terest
this contraband in the form of a
supported
prediction
that child pornogra-
questionnaire
sexual interest
and a subse-
phy had ever been Appellant’s
quent
delivery.
such,
controlled
As
it was
room, let alone was still
there
the time of
part of the total circumstances raising the
search,
I respectfully dissent.1
fair probability
present
had a
315(f)(2),
As defined in
finding
M.R.E.
of
as well
past
as a
sexual
or a
probable cause “encompasses showing a nex
children,
sexual attraction to
proba-
that he
place
us to the
to be searched.” United
bly possessed
pornography material,
Gallo,
(C.A.A.F.
States v.
and that it probably
kept
where he lived.
2001);
Gates,
see also
462 U.S. at
S.Ct.
(defining probable
cause as “a fair
DECISION
probability that contraband or evidence of a
record,
Based on this
we conclude that the
crime will be found
particular
in a
place")
military judge did not
in ruling
err
that the
added).
(emphasis
In this
the fact that
had substantial basis for finding Appellant had once accessed a
pornog
cause
this case. The
decision
raphy website was central to the magistrate’s
the United States Air Force Court of Crimi-
finding
cause to
Appel
search
Appeals
nal
is affirmed.
lant’s room. But
pro
the affidavit did not
vide sufficient
the in
RYAN, Judge (dissenting):
ference that this
access resulted in
It is undoubtedly
true that a
possessing child pornography, let alone that
finding of probable
paid
cause “should be
child pornography
room. The
great
Gates,
deference.”
Illinois
462 U.S.
merely
affidavit
stated
“had
213, 236,
103 S.Ct.
mitigate in cases “profile evidence” to pert reference “almost people profile, such According to this have done so we involving pornography, child pornogra- child possess always maintain to “bolster factors” were “other when there “in a secure them and store materials” phy pornogra- the child opinion as to where location, their which is within accessible appellant’s home.” in might be found phy control, privacy as in the such immediate Gallo, Gallo, the affidavit at 422. In homes, in most often security their own appel- request to search supporting the this on Reliance personal bedrooms.” their (1) appellant indicated that: lant’s home agree and I cannot problematic, is profile (2) the appel- pedophile; of a fit the do to ever need government all the that child and solicited advertised for lant had boilerplate is concerns nexus defeat (3) had been pictures pornography; the theoretical habits of language about the computer; and appellant’s work on the found “collector.” (4) upload- appellant had downloaded affidavit does the In this nowhere comput- his work from child ed fits the Appellant that conclude specifically however, Here, not there were suffi- er. Id. child possessed he profile because “collector” magistrate to allow “other factors” cient aor pornographer,” is a “child pornography, profile. rely on the to interest children.” a sexual “with person sup- assuming the evidence Finally, even interest indicated an Admittedly, Appellant Appellant previously that ported an inference re- when he viewing child critical fact pornography, the child possessed survey and an Eclipse Films sponded to supporting that inference —access when acquiring child prior to months fourteen website —occurred himto to be sent two videos he ordered application. This authorization search express desire mail. But an through the magistrate ei- disclosed to fact was not one’s delivered to have person. This omis- or in the affidavit ther in not itself does the future home passage of “the important because sion is pos- previously Appellant inference in the likelihood point results time some home, in that sessed longer [sought] will no be goods that the byis no means axiomatic anywhere else.3 It States Lo- original location.” United an interest expresses person who (C.M.A.1992). Although pez, 35 M.J. already pos- actually has owning something as a result majority states that thing is it, when that particularly sessed general is unrelia- affidavit in omission “the logical it is to infer While contraband. credibility,” they do find lacks ble and Macomber, ac- subscription gave website significant problem. this nei- the affidavit pornography, it true that stale- While cess M.J. at 220. the access nature of the part where depends informs the ther ness general we have sought, actual- indicates nor occurred people opinion that certain expert images possess ly any credited downloaded long pornography for tend to retain or elsewhere.4 room support the used to that access is Eclipse when Films matic instructed The fact that pornography: possessed package to him at dormi- video inference that to address the undoubtedly images tory nothing have than view would did more if *9 executed anticipatory warrant to be an cause for computer, case law his public our under on a brought package to his back once established ipso not have actions would facto 95-97, Grubbs, 126 S.Ct. U.S. at See 547 room. pornography. See possession of child offense support inference But it is does 1494. Navrestad, 66 M.J. 267-68 States United. pornography in already possessed child (C.A.A.F.2008)(holding appellant’s act his room. containing viewing files did not café amount computer at an Internet indicate the number Nor does affidavit appellant "lacked the domin- possession because LustGal- images Appellant viewed on the kind lery necessary of- to constitute” control ion and fense). about absence of information site. And the especially proble- occurred is where the access 223 time, Leedy, United States v. pellant’s 65 addition, M.J. dorm room. because (C.A.A.F.2007), 216 disagree I opin- sparse that the details the affidavit required accepted Here, ion should be made, this case. such leap to be and because the did not know agent how old the omitted information about when the was, information and therefore accessed, he could not website was the affidavit was “so assess whether it was reasonable him lacking in indicia of cause as to rely on the to determine that render official belief its entirely existence anywhere, evidence Leon, existed let alone unreasonable.” 468 at U.S. Appellant’s room. (quoting Illinois, S.Ct. 3405 Brown v. 590, 610-11, U.S. 95 S.Ct. 45 L.Ed.2d left, end, We are in the nothing with more (Powell, J., concurring in part)). The than the facts that disturbing has a simply affidavit failed to and fourteen from which a nexus between the items previously months paid had access web- sought and the location to be searched could site that contained it from an unknown com- be found. circumstances, Under these puter. Because these facts neither establish good 311(b)(3) exception faith of M.R.E. does a sufficient nexus between room Carter, not apply. See United States and the nor (C.A.A.F.2001) (acknowl- M.J. 421-22 reasonable belief that possessed 311(b)(3) edging that M.R.E. was intended to all, the magistrate’s incorporate good faith exception as out- conclusion that spe- would Leon). lined in cifically be found in room is less a “practical, decision,” Gates, common-sense I would reverse the Air Force Court of and more a Appeals Criminal and find military judge leap of faith. Such a leap does not reflect denying erred in the motion suppress required substantial basis to conclude in Appellant’s seized that there was Ap- cause to search room.