Petition for Writ of Certiorari — Clayton v. United States

Supreme Court, U.S.

FILED

091532 JUN 14 2010

IN THE OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

CHARLES CLAYTON, LIEUTENANT COLONEL,

UNITED STATES ARMY,

Petitioner.

Wi

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals for the

Armed Forces

PETITION FOR WRIT OF CERTIORARI

MARK 'PELLITOCCI WILLIAM EB. CASSARA

Colonel, Umited States Army Appellate Counsel

Chief, Defense Appellate Division Counsel of Record

PO Box 2688

JONATHAN POTTER vans, Georgia 30809

Lieutenant Colonel, 707-860-5769

United States Army weassaral@comeast.net

Senior Appellate Counsel,

Defense Appellate Division JESS ROBERTS

Captain,

TIMOTHY ‘THOMAS United States Army,

Major, United States Army Appellate Counsel

Appellate Counsel Defense Appellate

Defense Appellate Division Division

Counsel for Petitioner

QUESTION PRESENTED

WHETHER PETITIONER'S FOURTH

AMENDMENT RIGHT TO BE FREE FROM

UNREASONABLE SEARCHES AND SEIZURES

WAS VIOLATED WHEN A MILITARY JUDGE

FOUND PROBABLE CAUSE TO SEARCH

PETITIONER'S QUARTERS DESPITE ‘A

COMPLETE ABSENCE OF EVIDENCE THAT

PETITIONER HAD DOWNLOADED OR

POSSESSED ANY CHILD PORNOGRAPHY AND

WHERE THERE WAS NO NEXUS OF ANY TYPE

BETWEEN CHILD PORNOGRAPHY AND THE

LOCATION SEARCHED

rTABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED .

STATUTE INVOLVED.

MANUAL FOR COURTS-MARTIAL

PROVISION INVOLVED i

STATEMENT OF THE CASE

YPPENDIX A - United States Army ©

Criminal Appeals Decision

APPENDIX B - United States Court of Appeals ft

1

Cl

1e Armed Forces Deectston

TABLE OF AUTHORITIES

United States Weber, 923 F.2d ]

(9th Cir. 1990)

CONSTITUTION, STATUTES, AND RULES

FOR COURTS-MARTIAL: Page(.

U.S, CONST. amend. I\ 1, 12,13,22,28,24,25

lO ULS.C. § 867(a)(3) (2005)

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Manual for Courts-Martial 311(b)i3)(C)(2005) 19

Manual for Courts-Martial 315(f\(2)(2005

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES CLAYTON, LIEUTENANT COLONEL

United States Army, Petitioner,

THE UNITED STATES OF AMERICA, Respondent

On Petition for a Writ of Certiorar1

To the United States Court of Appeals for the

Armed Forces

PETITION FOR WRIT OF CERTIORARI

The petitioner, Charles Clayton. respectfully

prays that a writ of certiorari issue to review the

decision of the United States Court of Appeals for the

\rmed Forces in this case.

OPINIONS BELOW

The opinion of the United States Army Court of

Criminal Appeals is unpublished (Appendix A). The

decision of the United States Court of Appeals for the

at 68 M.J. 419 (C.A.A.F

Armed Forces is reported

2010) (Appendix B).

JURISDICTION

The judgment for the Court of Appeals for the

Armed Forces (CAAF) was entered on March 17,

2010. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1259(3), the United States

Court of Appeals for the Armed Forces having

reviewed this case pursuant to Article 67(a)(3),

Uniform Code of Military Justice (UCMJ); 10 U.S.C.

§ 867(a)(3).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fourth Amendment to the

United States Constitution:

The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated; and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched and the persons

or things to be seized.

STATUTE INVOLVED

This case also involves Articles 92 and 134, UCM;

lO U.S.C. §§ 892 and 934. These sections are

provided below:

10 U.S.C. § 892 (2005)

Any person subject to this chapter who-

(1) violates or fails to obey any lawful

general order or regulation;

(2) having knowledge of any other

lawful order issued by a member of the

armed forces, which it is his duty to

obey, fails to obey the order;

(3) is derelict in the performance of his

duties, shall be punished as a court-

martial may direct.

10 U.S.C. § 934 (2005)

Though not specifically mentioned in

this chapter, all disorders and neglects

to the prejudice of good order and

discipline in the armed forces, all

conduct of a nature to bring discredit

upon the armed forces, and crimes and

offenses not capital, of which ‘persons

subject to this chapter may be guilty,

shall be taken cognizance of by a

general, special, or summary court-

martial, according to the nature and

degree of the offense, and shall be

punished at the discretion of that court.

MANUAL FOR COURTS-MARTIAL

PROVISION INVOLVED

MANUAL FOR COURTS-MARTIAL, UNITED

STATES, MIL. R. EVID. 315(f/)(2) provides in

relevant part:

(2) Probable cause determination.

Probable cause to search exists when

there is a reasonable belief that the

person, property, or evidence sought is

located in the place or on the person to

be searched. A search authorization

may be based upon hearsay evidence in

whole or in part. A determination of

probable cause under this rule shall be

based upon any of the following:

(A) Written statement

communicated to the authorizing

officer;

(B) Oral statements

communicated to the authorizing official

in person, via telephone, or by other

appropriate means of communication; or

(C) Such information as may be

known by the authorizing official that

would not preclude the officer from

acting in an impartial fashion. The

Secretary of Defense or the Secretary

concerned may prescribe’ additional!

requirements.

MANUAL FOR COURTS-MARTIAL, UNITED

STATES, MIL. R. EVID. 311(b)(3)(C) provides in

relevant part:

(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.

STATEMENT OF THE CASE

Procedural History

On February 13, 2007, petitioner was tried by a

military judge sitting as a general court-martial at

Fort McPherson, Georgia. The military judge

convicted petitioner, pursuant to his conditional!

pleas, of violating a lawful general order and

wrongful possession of child pornography, in

violation of Articles 92 and 1384, UCMJ; 10 U.S.C. §§

892 and 934. The military judge sentenced

petitioner to confinement for forty months and a

dismissal. Pursuant to the terms of the pretrial

agreement, the convening authority approved only

thirty-six months confinement, but otherwise

approved the adjudged sentence. ‘The convening

authority also credited petitioner with seven days of

confinement credit.

In a per cumam opimon dated May 9, 200%, the

Army Court of Criminal Appeals (ACCA) amended

the Specification of Charge | regarding the location

of the offense, affirmed the amended specification

and the balance of the findings, and affirmed the

entence. On June 16, 2008, petitioner filed a

petition for prant of review with the CAAI and filed

i supplement to the petition on duly 381, 2008. On

\ugust 7, 200%, respondent filed an opposition to the

petition without formal bnefing

WHETHER TH MILITARY JUDGI

MRRED IN DENYING APPELLANT'S

MOTION TO SUPPRESS THile

MVIDENC Te SHAH) ROM

APPELLANTS QUARTERS

The CAAE rendered its opirmon on March 17, 2010

affirming the decision of ACCA in a 4-2 decision

The CAAF held that the military judge did not err in

denying petitioner motion to suppre eviden

eyzed trom pevlilioner quarles

Yoent

(on overn ber | ZuUU00. .2weniol Opecial

(SSA) Galen Watson. of the Department of Homeland

Security lmmivration and Custom enforcement

di covered I) Internet child

pornography website group on Google entitled “Pre-

Teen Bestiality and Anything Taboo” (Group). He

reviewed various postings to the Group, including

one picture of child pornography and _= several

requests for various types of child pornography and

child exploitation.

SSA Watson informed Geogle that a_ group

operating on a Google website had posted child

pornography. SSA Watson also requested

information associated with the Group’s moderator

and “approved members.” Google immediately shut

down the website on November 15, 2005. Pursuant

to a subpoena, Google provided ICE with a list of

names and Internet addresses of approximately 130

members of the Group on February 16, 2006. The

membership list included the e-mail address of

“charlesjclayton@yahoo.com.”

SSA Watson obtained information from Google

and Yahoo identifying petitioner as the owner of the

e-mail account bearing his name. SSA Watson

discovered that petitioner's Yahoo account had been

accessed via Internet Protocol (IP) and traced to a

computer owned and operated by the U.S. Army in

Kuwait. He learned that petitioner was a leutenant

colonel in the U.S. Army Reserve serving in Kuwait

and that he had a residential address in Alpharetta.

Georgia.

On March 8, 2006, SSA Watson prepared a

detailed report of his investigation (ICE Report) and

forwarded it to the Criminal Investigation Command

8

(CID) Headquarters in Baghdad, Irag, and then to

Kuwait. for further investigation.

SSA Watson found no eriminal conduct by

petitioner, as per his ICE Report. [lis investigation

showed only that, at some unknown time, petitioner

registered for membership with the Group.

On April 18. 2006, CID Special Agent (SA)

Yolanda McClain received SSA Watson’s detailed

ICE Report. She spoke with SSA Watson tour or five

times regarding the facts and = status of the

investigation. She verified that petitioner was

assigned to Kuwait as a Safety Officer, the location

of petitioner's quarters, and that he had recently

departed for Hawaui for two weeks leave.

SA McClain drafted an affidavit and request for

search authorization to search petitioner's work

computer and his room for a personal computer and

any media storage devices. Most of the information

in the two-page request for search authorization was

taken verbatim from SSA Watson’s ICE report. In

an e-mail exchange with SA McClain, SSA Watson

told her that it was possible that petitioner had

received child pornography through the Group, but

that it was impossible to determine how many times

he accessed the Group’s website.

SA McClain’s affidavit stated that; “|t]he Camp

Arifjan CID Office is currently conducting the

discovery of apparent child pornography located

within one of the Coalition Forces Land Component

Y

Command (CFLCC) CAKU computers and_ the

suspected login user is [Lieutenant Colonel (LTC)]

Charles J. Clayton The affidavit also stated

c

that “[mJembership logs . . . indicated that LTC

Clayton requested a ‘Digest’ for the Group, in which

Hr

he would receive daily e-mails that would contain 25

of the postings to the Group sent as a single e-mail to

his account

SA McClain’s affidavit also stated that ICE had

recently executed two search warrants, resulting in

the arrests of the Groups moderator and media

manager.

After coordinating with the CFLCC Safety Office.

CID conducted a search of petitioner's work area.

His government-issued laptop was seized, as well as

various DVDs and CDs. Sometime later. these items

were sent to Germany for further investigation by

CID computer analysts. who uncovered no

incriminating evidence. The results of CID’s

analysis of the evidence seized from petitioner's

workspace were not known for several weeks.

On April 20. 2006, SA McClain met with Major

(MAJ) Lyons, the local military magistrate. She

showed the magistrate her affidavit, the search

authorization request, and SSA Watsons ICE

Report. Both SA McClain and the = military

magistrate knew that petitioner resided in Building

507, which had wireless Internet access, but this fact

was not presented in the affidavit. ‘The material]

provided by SA McClain to the military magistrate

LO

did not indicate how often petitioner had accessed

the Group, if ever, nor did it indicate that he

accessed the website from his quarters, or that he

owned a personal computer.

The military magistrate reviewed the evidence,

principally the ICE Report and SA McClain’s

affidavit. Later that afternoon, the military

magistrate approved the search authorization.

SA MeClain searched petitioner's quarters in

Building 507. SA McClain discovered and seized

three computers, 536 CDs and DVDs, three external

hard drives, and other pieces of computer media. A

search of the digital media revealed suspected child

pornography images and videos, among other things.

On October 19, 2006, petitioner filed a timely

motion to suppress the evidence seized in his

quarters. Petitioner argued that there was no

probable cause for the search authorization.

Respondent filed a response vn November 1, 2006.

On January 9, 2007, the military judge conducted a

pre-trial hearing on the motion to suppress. SSA

Watson, SA McClain, and MAJ Lyons testified.

SA McClain testified that she wrote the following

in her affidavit: “The Camp Aritjan CID Office is

currently conducting the discovery of apparent child

pornography located within one of the Coalition

Forees Land Component Command (CFLCC) CAKU

computers and the suspected login user is LTC

Charles J. Clayton.” She testified that she meant to

11

say in her affidavit that a mihttary computer in

Kuwait had accessed a Yahoo account through a U.S.

Army server in Kuwait and that petitioner was a

suspect because of his membership in the Group and

his use of this Yahoo account.

SA McClain also testified that, based on her CID

and law enforcement training, discussions with other

CID agents, and prior experience with four or five

Kuwait-based investigations regarding child

pornography, she was aware that suspects who

collect child pornography usually store the images on

various media devices. She testified that SSA

Watson told her about the arrests of the Group

moderator and media manager.

The military judge denied petitioner's motion to

suppress and issued written findings of fact and

conclusions of law. The military judge concluded

that the military magistrate had a substantial basis

for concluding that probable cause existed to conduct

the search, citing ZJllinots v. Cates, 1462 U.S. 213

(1983). The military judge gave substantial

deference to the magistrate’s finding that probable

cause existed to authorize the search. The military

judge found that SSA Watson’s ICE Report and SA

MeClain’s affidavit established a fair probability that

child pornography would be found in petitioner's

quarters and media sources. The military judge also

concluded, in the alternative, that the evidence was

admissible under the good taith exception to the

exclusionary rule.

Lz

Petitioner entered into a pretrial agreement with

the convening authority, agreeing to plead guilty,

with exceptions. to the charged offenses. The

pretrial agreement preserved petitioner's motion to

suppress for appeal. Petitioner was convicted and

sentenced on February 13, 2007.

REASONS FOR GRANTING THE WRIT

Petitioner's constitutional right to be secure in his

quarters against an unreasonable search without

probable cause was violated. There was no probable

cause to search petitioner's quarters and media

sources because there was no actual nexus between

the evidence sought and the place to be searched.

SUMMARY OF ARGUMENT

The Fourth Amendment requires a nexus between

the evidence sought and the location to be searched.

The trial judge and the appellate court erred when

they upheld the military magistrate’s ruling despite

the complete absence of the presentation to the

military magistrate of any information

demonstrating the required nexus. Petitioner's

subscription to an Internet group that advertises

child pornography, without more, is insufficient to

support probable cause to search a suspect's

residence. Should this Court affirm the decision of

the lower appellate court, servicemembers may be

subjected to search and seizure based solely on

associations or memberships without any evidence

that a crime has been committed. The CAAF found

13

probable cause despite there being no evidence that

petitioner ever accessed the Group following his

initial subscription, or, that if he did, he aecessed the

Group from his quarters, that he downloaded any

child pornography to his personal computer, or that

he stored any images in his quarters. In doing so,

the CAAF established a dangerous precedent—if an

individual subscribes to an Internet group and that

group is alleged to have an illegal purpose, the

government has prebable cause to obtain a warrant

to search the subscriber’s home even when there is

no particularized evidence that the subscriber visited

the Internet group subsequent to subscription or

participated in the group’s functions 1n any manner.

Because the CAAF failed to make an individualized

assessment of petitioner's participation, or lack

thereof, the CAAF’s holding violates the Fourth

Amendment's’ protection against unreasonable

searches and seizures.

ARGUMENT

All Americans, including petitioner, have a

fundamental right to be free from “rash and

unreasonable interferences with privacy and from

unfounded charges of crime.” SBrinegar v. United

States, 338 U.S. 160, 176 (1949); see also Wilson. v.

Layne, 526 U.S. 603, 610 (1999) (“The Fourth

Amendment embodies this centuries-old principle of

respect for the privacy of the home.”); Brown. uv.

Texas, 443 U.S. 47, 51 (1979) (“A central concern [is]

to assure that an individual’s reasonable

expectation of privacy is not subject to arbitrary

14

invasions solely at the unfettered discretion of

officers 1n the field.”).

“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 (1978

(abrogated by statute on other grounds). “|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.”

Pooiaw v. Marcantal, 565 F.3d 721, 734 (10th Cir.

2009) (quoting United States v. Gonzalez, 399 F.3d

1225, 1231 (10th Cir. 2005)).

In illinois v. Gates, this Court explained that

“probable cause is a fluid concept—turning on the

assessment of probabilities in particular factual

contexts—not readily, or even usefully, reduced to a

neat set of legal rules.” 462 U.S. 213, 232 (1983).

“The task of the issuing magistrate or judge is simply

to make a practical common-sense decision whether,

given all the circumstances set. forth in the affidavit

before him, . . . there is a fair probability that

contraband or evidence of a crime will be found in a

particular place.” Id. at 238 (emphasis added). In

other words, there must be a nexus between the

contraband or evidence sought and the place to be

searched. See Id. Military Rule of Evidence

(M.R.E.), 315(f)(2) recognizes this 1eXus

requirement, defining 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.”

The military magistrate relied principally on SSA

Watson’s ICE Report and SA McClain’s affidavit to

determine that probable cause existed to search

petitioner's quarters and media storage devices.

Examination of these documents reveals that there

was no nexus between the evidence sought and

petitioner’s quarters.

‘SSA Watson’s ICE Report explained how SSA

Watson identified petitioner as a_ suspect but

provided no evidence that petitioner had committed

any offense. SSA Watson had perused several

months of postings to the Group, many of which were

photocopied and included in the ICE Report. Not one

of these postings mentioned petitioner, was

addressed to him, nor sent by him. The ICE Report

stated that SSA Watson contacted Google the day he

discovered the Group and that Google promptly shut

down the Group. SSA Watson documented that, two

months after contacting Google, he summoned

Google to provide a membership list, which included

petitioners Yahoo e-mail address. SSA Watson

requested that Yahoo inform him who had registered

petitioner's Yahoo e-mail address, when the address

had been most recently accessed, and from which IP

address. SSA Watson determined that petitioner

was the apparent registered owner of the e-mail

16

address; that he used the Yahoo account most

recently via an IP address owned by the U.S. Army

in Kuwait; that he opened the e-mail account from

an IP address in Alpharetta, Georgia; and that

petitioner was likely a servicemember.

SSA Watson’s ICE Report failed to state that

appellant had possessed or downloaded any child

pornography. The ICE Report also failed to state

that though it was possible that petitioner had

received child pornography through the Group, it

was impossible to determine how many times, if any

other than requesting a digest, petitioner had

accessed the Group. The ICE Report also failed to

state that SSA Watson had advised SA McClain to

subpoena Yahoo to determine how many times

petitioner had accessed the Group. Notably, SSA

Watson’s ICE Report did not contain a profile of child

pornography collectors.

SA McClain’s’ one-and-a-half-page affidavit

summarized her experience with “several computer

crimes,” including child pornography. She explained

how SSA discovered the “Pre-teen Bestiality and

Anything ‘T'taboo” Group and how she _ identified

petitioner as a member. She concluded by stating

that the moderator and media manager of the Group

had been arrested and confessed to possessing a

quantity of child pornography.

SA McClain’s affidavit failed to inform the

military magistrate that SSA Watson had advised

her to subpoena Yahoo to determine how many times

petitioner had accessed the Group. The affidavit also

failed to provide any information that petitioner had

downloaded any child pornography from the Group

or that he participated in any discussions, chats, or

other activities as a Group member, save for his

request to receive a digest. SA McClain failed to

inform the magistrate that there had been no

activity on the Group website for months as it had

been shut down by Yahoo six months earlier. She

had no evidence that petitioner received any digests

or that, if he did, the digests contained child

pornography. There was no evidence that petitioner

used the wireless Internet access available in

Building 507.

Not only did SA McClain’s affidavit fail to

establish a nexus between the possession of child

pornography and petitioner’s quarters, the affidavit

contained a false statement. Though SA McClain

wrote that petitioner apparently possessed child

pornography on his government issued computer,

this statement was false. No child pornography had

been located on a CFILLCC computer issued or used by

petitioner.

In holding that probable cause to search

petitioner's quarters exists, the CAAF added a fact

not presented to or considered by the military

magistrate. The CAAF wrote:

In view of the ease with which laptop

computers are transported from work to

18

home and the ease with which compute:

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.

United States v. Clayton, 68 MJ. 419, 424-25

(C.A.A.F. 2010).

The CAAF held that the magistrate was not

required to resolve matters such as whether

petitioner posted messages to the Group, uploaded or

downloaded child pornography, how long petitioner

had belonged to the Group, how often petitioner had

accessed the website, or whether he received the

digests he requested for purposes of a probable cause

determination. /d. at 425. Such actions “could have

been taken to enhance law enforcement

investigations as well as questions appropriately

addressed to the factfinder at a court-martial in

regard to whether the prosecution, at trial, could

meet the high standard of proof beyond a rcasonable

doubt.” Jd.

The CAAF severed SA McClain’s erroneous and

misleading statement from the = affidavit after

concluding that the military magistrate did not

consider it significant for the probable’ cause

equation Id. at 426. The CAAF held that the

remaining information was “more than adequate to

19

demonstrate that the mavistrate had a substantial

basis for finding probable cause to search Appellant's

quarters.” Id. After severing the misleading

statement, the CAAF chose not to consider the

military judge's alternative holding under the good

faith exception to the exclustonary rule a See

M.R.E. 811(b)(3)(C); United States v. Leon, 468 U.S.

O97 (1984)

The CAAF relied upon cases from other courts in

which “a person’s” voluntary) participation ino 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.” Clayton, 68 M.J. at

424 (citing United States v. Gourde, 440 F.3d 1065,

1072-73 (9th Cir. 2006) (en banc); United States ov.

Martin, 126 F.3d 68, 74-75 (2d Cir. 2005); United

Stules v. Froman, 355 F.8d 882, 890-91 (5th Cir

2004); United States v. Hutto, 84 Fed. Appx 6, 8

(10th Cir. 2003)). According to the CAAF, “[t]hese

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.”

Clayton, 68 M.J. at 424

The cases cited by the CAAK majority are

inapposite to the instant case In Gourde, that

defendant paid $19.95 per month for over two

months to access a website containing child

pornography images. 440 F.3d at 1067-68. [le likely

2\)

paid by credit’ card and completed a multi-step

process to enter his personal and — financial

Information on the website It is reasonable to

assume that an individual who pays for a service 4

more likely to use that service in order to maximize

the return on the investment than an individual who

merely checks on a “subscribe” button. See rd. at

1070. Gourde did not become a member by accident

or by a chick of the computer mouse button. Jd

The affidavits in Gourde, Marttn, and froman,'

all listed a behavioral profile of child pornography

collectors and detasled the use of computers and

other media storagve devices by such collectors. 440

E.3d at 1068: 426 F.3d at 72: 355 F.3d at 8&9

Neither SSA Watson's ICE Report nor SA McClain’

affidavit’ contained a behavioral profile of child

pornography collectors or details regarding the use of

computers and other media storaye devices by such

collector: In Gourde, Martin, and lrroman, the

Investigator sought to link those defendant

suspected possession of child pornoyvraphy — to

characteristics common to such perpetrator In

petitioner's case, there was no such attempt to

characterize him as a collector of child pornography

or to explain how such collectors store and maintain

depictions of child pornopraphy

The Ilutto court issued a very brief decimion that did not

discuss the contents of the affidavitin question OUnited Stat

Vv. Hutto, 41 ked. Appx 6 (10th Cir, 2003). The atfidavit in

Hlutto was the same as the affidavits oa Marten and lroman, a

all three causes resulted from an investigation: bye all oe pecial

AYE nt Leanne y

21

In the petitioner’s case, two of the CAAF judges

dissented from the majority’s holding. Clayton, 68

M.J. at 426 (Ryan, J. and Erdmann, J., dissenting.)

The dissenting judges recognized that other circuit

courts had reached similar conclusions as_ the

majority, “({b]ut 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.” Id. at 428.

(citations omitted.)

The dissenters rejected the majority’s reasoning

because the military magistrate was not presented

with any evidence that petitioner had signed up for

wireless Internet service in his barracks or that the

wireless Internet connection was routed through the

Army server from which petitioner’s Yahoo e-mail

address had been accessed. Jd. at 427. Judge Ryan,

who authored the dissent, reasoned that petitioner

could have checked his personal e-mail at work or at

other locations where deployed servicemembers

access the Internet. /d. She disagreed with the

majority’s reasoning that, because petitioner's

government issue computer was a laptop, it was

more likely that he stored child pornography in his

quarters, as opposed to another location. Jd. She

wrote, “[t]he portability of both laptops and the

digital movies and images the Government sought

here makes any ‘commonsense’ link to Appellant's

room exceedingly tenuous.” Jd.

Judge Ryan believed that the CAAI’s decision

had diluted 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.” Jd. at 426. She wrote:

The [CAAF] 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

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 lhving quarters. . .. 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. 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 revising the

writs of assistance that were the

impetus for enacting the Fourth

Amendment in the first place.

id. at 428. (citation omitted).

Judge Ryan's analysis does not stand alone, but is

supported by decisions from both the Second and the

Ninth Circuits. In two recent cases, the Second

Circuit held that the defendants’ memberships in

online child pornography ec-groups were sufficient to

establish probable cause for obtaining search

warrants of their computers and homes. See United

States v. Coreas, 419 F.3d 151 (2d Cir. 2005): United

States v. Martin, 426 F.3d 68 (2d Cir. 2005). The

cases were factually similar, but Coreas was decided

by a different panel than in Martin. The Coreas

panel unanimously agreed with Judge Pooler’s

dissent in Martin that the evidence was insufficient

to establish probable cause where the government

failed to demonstrate that Martin had downloaded

child pornography and that the corrected affidavit

supported only the inference that he had used legal,

text-based functions of the website outside the

purview ot prohibited activity. Coreas. 419 F.3d. at

159. The Coreas panel upheld that defendant's

conviction only because of the precedent established

by Martin. Id.

24

In United States v. Weber, the court held that the

trial court should have suppressed the evidence of

child pornography seized pursuant to a_ search

warrant. 923 F.2d 1338 (9th Cir. 1990). Regarding

the logical leaps the trial court took to determine

that probable cause existed, the Court reasoned:

But with each succeeding inference, the

last reached 1s less and less likely to be

true. Virtual certainty becomes

probability, which merges into

possibility, which fades into chance.

The Fourth Amendment requires a “fair

probability” that the items searched for

will be found.”

Id. at. 1344-45 (citation omitted).

The CAAF’s holding appears to reflect society's

disgust with child pornographers and _= sexual

predators. Such disgust with those who prey upon

the most innocent members of our society is

understandable, but this disgust should not permit

an end run around the Fourth Amendment. Though

the Group may have provided a forum for a

repugnant viewpoint, this does not alone support an

inference of criminal conduct. Coreas, 419 F.3d at

156. The Coreas court stated that a “person's mere

propinquity to others independently suspected of

criminal activity does not, without more, give rise to

probable cause to search... .” Jd. (quoting Ybarra

v. Illinois, 444 U.S. 85, 91 (1979)). See United States

v. Brown, 951 F.2d 999, 1003 (Sth Cir. 1991) (ruling

25

that individual police officer's membership in a

corrupt police unit was not sufficient for probable

cause without further proof that the officer actually

participated in illegal activities); United States vu.

Rubio, 727 F.2d 786, 793-94 (9th Cir. 1984) (holding

that membership in Hell’s Angels, without more, was

not sufficient for probable cause without

particularized allegation that the individual

participated in the organization’s criminal activity).

The majority suggests that because the Group's

moderator and media manager confessed to

possessing child pornography. then petitioner must

have possessed child pornography.

The CAAF majority erroneously attempts to

create the required nexus between petitioner and

legal activity by appealing to “commonsense.”

Clayton, 68 M.J. at 424. The majority is correct that

a military magistrate presented with a warrant may

“make a practical, common sense decision,” but that

decision must be based on the “circumstances set

forth in the affidavit.” Gates, 462 U.S. at 238. Here,

the affidavit fails to establish a_ sufficient nexus

between petitioner and possessing child

pornography. Respondent only offered evidence that

petitioner clicked on a button to subscribe to the

Group. As the Coreas court concluded, “[t}he notion

that, by this act of clicking a button, [the defendant]

provided probable cause for the police to enter his

private dwelling and rummage through [his] various

personal effects seems utterly repellent to core

purposes of the Fourth Amendment.” 419 F.8d. at

156.

A subscription to an Internet group that

advertises child pornography, without more, is

insufficient to support probable cause to search a

suspect's residence. Without the need for a nexus

between the illegal activity and the place to be

searched, one can imagine that the CAAF would find

probable cause where an = individual’ might

mistakenly click a “subscribe” button in a pop-up ad

on a website, or where a concerned parent subscribed

to an Internet group to better understand the

potential threats to his or her children, or where an

individual subscribes to such a website for legitimate

research purposes. Should the CAAF holding stand,

servicemembers may be subjected to searches and

seizures based solely on association or membership

without any evidence that these servicemembers

have committed a crime.

Sap i

CONCLUSION

WHEREFORE, petitioner respectfully requests

that this Court grant his petition.

Respectfully submitted,

MARK TELLITOCCI WILLIAM FE. CASSARA

Colonel, United States Army Appellate Counsel

Chief,

Defense Appellate Division

JONATHAN POTTER

Lieutenant Colonel,

United States Army

Senior Appellate Counsel,

Detense Appellate Division

TIMOTHY THOMAS

Major, United States Army

Appellate Counsel

Defense Appellate Division

Counsel of Record

PO Box 2688

Evans, GA 30809

107-860-5769

wcassaral@comcast

net

JESS B. ROBERTS

Captain,

United States Army

Appellate Counsel

Defense Appellate

Division

Counsel for Petitioner

APPENDIX A

UNITED STATES ARMY COURT

OF CRIMINAL APPEALS

UNITED STATES, Appellee

Lieutenant Colonel Charles J. CLAYTON

United States Army, Appellant

Appeal from the Army Court of Criminal Appeals

Decided May 9 2OOS

Betore: Holden, Hoffman and Sullivan. Judges

2a

SUMMARY DISPOSITION

Per Curiam:

This case 1s before us for review under Article 66,

Uniform Code of Military Justice, 10 U.S.C. §866

[hereinafter UCMJ]. We find error in the findings of

the court-martial as described below.

In the Specification of Charge Il, appellant was

charged with violation of lawful general orders by,

inter alia, wrongful possession of adult and child

pornography at Camp Arifjan and Camp Doha,

Kuwait, in violation of Article 92, UCMJ. Appellant's

providence inquiry does not support his plea to the

Camp Doha situs. Accordingly, we set aside the

finding of guilty to and dismiss only so much of the

Specification of Charge I as states, "and at or near

Camp Doha, Kuwait" and affirm the finding of guilty

to the specification as amended.

The remaining findings of guilty are affirmed. We

have considered the assignments of error and find

them to be without merit. Reassessing the sentence

on the basis of the error noted, the entire record, and

applying the principles of United States v. Sales, 22

M.J. 305 (C.M.A. 1986) and United States v. Moffeit,

including Judge Baker's concurring opinion, 63 M..J.

40,43 (C.A.A.F. 2006), the court affirms the

sentence.*

ao

oe

As

ee)

FOR THE COURT

/ls/ MALCOM H. SQUIRES

* On 1 May 2008, we denied a defense motion for an 11 June

2008 oral argument, which claimed "{counsel] needs the

requested time to complete his previously scheduled active duty

training and to properly prepare for oral argument." This court

previously granted appellant's "Motion for Expedited Review"

in this case, which averred "neither claim [assignment of error]

is novel or unusually complex." Consistent with appellant's

request for expedited review and our superior court's mandate,

we issued a decision as expeditiously as possible while

safeguarding appellant's rights under Article 66, UCMJ. See

United States v. Moreno, 63 M.J. 129, 1385 (C.A.A.F. 2006)

(reviewing claims of post-trial and appellate delay using the

four-factor analysis in Barker v. Wingo, 407 U.S. 514 (1972)):

see also United States v. Finch, 64 M.J. 118, 125 (C.A.A.F. 2006)

(noting appellant's request for expedited review in evaluating

appellant's claim of dilatory post-trial processing).

APPENDIX B

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

No. 08-0644

UNITED STATES, Appellee

Charles J. CLAYTON, Lieutenant Colonel,

U.S. Army, Appellant

Appeal from the Army Court of Criminal Appeals

Argued November 17, 2009

Decided March 17, 2010.

Before: 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.

Chief Judge EFF RON 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 o f

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 tncluded 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

HRRED IN DENYING APPELLANT'S

MOTION TO SUPPRESS TH

EVIDENCE SEIZED rROM

APPELLANT'S QUARTERS.

; e on

Ror the reasons set. forth below. we affirm

lL 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’,

quarters. The information provided to the mapistrate

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

CMD) agents conducted a search of Appellant's

quarters, they found a personal computer and digital

media that contained thousands of tmages of child

pornography, which formed the basis for the charge

at issue in the present appeal

Prior to tral, 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 nght to appeal the military judge's ruling

A. THE MILITARY JUDGE'S FINDINGS OF FAC’

The following summarizes the military judge'

findings of fact on the suppression motion, as well a

information provided to the mapistrate by CID

Special Agent (SA) Yolanda McClain, who wa

stationed in Kuwait and assipned investipative

responsibilities for the case. The events at issue

occurred during the period tn which Appellant served

as a mobilized United States Army Reserve Officer in

Kuwait. The initial investigation was conducted by

Semior Special Agent (SSA) Glen Watson, an

investigator with the Investigations Division of the

Office of Homeland Security Tmuinivration and

Customs Inforcement (ICH) . SSA Watson worked in

the Child Exploitation Unit, where dia dutie

Included oinvestagating child pornography — and

exploitation, In the course of his duties, SSA Watson

discovered an Internet child) pornopvraphy website

group on Google entitled, "Preteen Bestiality and

Anything-Taboo.” During the investigation, SSA

Watson discovered a picture of child) pornopraphy

that had been posted on the site. He also found

several request for various types oof child

pornography and other — request for child

exploitation

SSA Watson contacted CGrogle, informing them

thatoa pvroup operating on a Groople site lad 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 [Ch with a list

identifying the members of the "Preteen Bestiality

and-Anything-Taboo" group by subseriben

notification cateyory and e-mail addres: The

membership list of the "Preteen Bestiality and

Anything-Taboo" 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

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-

Ya

Taboo." According to the affidavit, members of the

croup used the website "to share child pornography

pictures, videos, and exploitation information

amongst themselves." The affidavit stated that

"[mJembership 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 « hil

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 eoapents 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 files

concerning child pornography on the laptop, in

\ppellant's quarters, and in Appellant's workspace

On April 20, 2006, SA MeClain 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

MeClain and the magistrate were aware that

Appellant hved 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 ae \ppellant's quarters

B. THE MILITARY JUDGE'S CONCLUSIONS OF

LAW

\t trial, the mulitary judge held that the

magistrate had a substantial basis tor concluding

that probable cause existed to conduct the search,

citing /llinois v. Gates, 462 U.S. 2138, 103 S.Ct. 2317,

16 L.Ed.2d 527 (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

Vaxwell, 45 M.J. 406, 423 (C.A.A.F. 1996)

(he military judge stated that the evidence,

principally from SSA Watson's ICE Report and SA

MeClain's affidavit, established a fair probability

that child pornography would be found in Appellant's

personal quarters and media sources. The military

udge 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 Slates v. Leon, 468 U.S. 897. 104 S.Ct. 3405.

82 L.Ed.2d 677 (1984).

Il. 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. Jd. 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 () (2). See td. at 212 (citing United States v.

Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)). “[We] review

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 (T) (2) detines probable eause as <3

reasonable belief that the person, property. or

evidence sought is located in the place or on the

12a

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. /d. (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

"Te]lose calls will be resolved in favor of sustaining

the magistrate's decision. /d. (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." /d. (quoting Gates, 462 U.S. at 2386, 103

S.Ct 2317)) (alteration in original) . Fourth, the

evidence must be considered in the lhght most

favorable to the prevailing party. Reister, 44 M.J. at

413,

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.

l3a

[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, 108 S.Ct. 2317)) (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

United States v. Lopez, 35 M.J. 35, 38-39 (C.M.A.

1992). Determinative factors include the type of

crime, the nature of the items sought, the extent of

the suspect's opportunity for concealment, and

normal inferenees 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).

It. 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

l4a

computer. See United States v. Gourde, 440 F.3d

1065, 1072-73 (9th Cir. 2006) (en bane); 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, 84 Fed. Appx. 6, 8

(0th 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. 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 email 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 tn Appellant's quarters.

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

betore 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 fact finder at the

court-martial in regard to whether the prosecution,

16a

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.

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 .... "68 M. J. 388, 392 (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 testified that she

meant to say in the affidavit that a

military computer in Kuwait had

accessed a Yahoo account through a

U.S. Army server in Kuwait and that

LTC Clayton was a suspect because of

his membership in the group 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 thorough 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 mayvistrate's reliance

l&a

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 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 |.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.

HT. CONCLUSION

The decision of the United States Army Court of

Criminal Appeals is affirmed.

19a

RYAN, J., with whom KRDMANN, 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 he 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, 428

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, 68 M.J. at 424-26 (©

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 1s not

sustainable.

|. 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.) 3815 (f) (2) (emphasis added):

accord Illinois v. Gates, 162 U.S. 213, 238 (1983)

(defining probable cause as "a fair probability that

ZWU2

contraband or evidence of a crime will be found in a

particular place" (emphasis added)). This definition

contemplate ; some nexus between the contraband o}

evidence sought and the place the government want

to search. See United States v. Hall, 50 M.J. 247, 250

(CA.A.T. 1999)

In thi Case a Warrant Wa | ued to earch

Appellant's barracks room for child pornography. In

finding what it asserts to be the required nexus here

the majority rehes on the following evidence

That Appellant Waa a member of a C007 le

Internet group called "Preteen-Bestiality-and

\nything-Taboo." 68 M.J. at 424-25

Pa That Appellant nad pecihically reque fed

membership in the group and his membership level

provided him with a single daily e-mail contaiming

up to twenty-five new postings to the group. /d

3. That both child pornography and information

regarding child exploitation had been uploaded = to

the group in the past. /d. at 424

1. That the moderator and media manaver of the

group had been arrested and conte ed 10 possessing

child pornography. /d. at 424-25

) That thie c-mall account Lnrougn Which

Appellant received messages from the Google proup

"had been accessed by a povernment computer in

YdAa

their homes (and especially in their bedrooms). Here,

the magistrate was not presented with even this

constitutionally minimally relevant evidence.*

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; td.

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

| doubt anvone would be satistied that an affidavit resting on

i veneric "yang member" profile, for example, could fulfill the

requirements of the Fourth Amendment

20a

Amendment's requirements when the thing sought

by a search authorization or warrant is. 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. 68 M.J. at 424-25. 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, uf

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 lbraries, 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 US. 616, 625-26 (1886)

(discussing the history of unreasonable searches and

seizures prior to independence and how they

influenced the Framers’ view of the Fourth

Amendment)

?6a

It is true that we are not the first court to treat

child pornography this way. Clayton, 68 M.J. at 424-

25 (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.

Appx. 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

me cp cy

JDO.

Il. The Good Faith Exception

Because | do not believe the magistrate had a

substantial basis tor tinding probable cause here, |

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 a

eae

ila

search warrant or arrest warrant issued

by competent civilian authority:

(3) 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 "[wthere the magistrate was misled by

information in an affidavit that the affhant knew was

false or would have known was false except for his

reckless disregard of the truth." United States vu.

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

eenerally 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

29a

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 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.2¢ Zon, 1235 (8th Cir.

1993)): United States v. Cowgill, 68 M.J. at 392-923

(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, 1p fact. correct).

lll. Conclusion

| would reverse the United States Army Court ol

Criminal Appeals. 1 respectfully dissent.

‘This conclusion might be different if the false statement had

been made orally, where a slip of the tongue was possible, and

not ina written affidavit where the affiant could review the

language to make sure it said precisely what she wanted it to

Say.