# Petition for Writ of Certiorari — Clayton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1043

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2114%3A1. Public record. Not legal advice.