United States v. Leedy

65 M.J. 208, 2007 CAAF LEXIS 828, 2007 WL 1815404
CourtCourt of Appeals for the Armed Forces
DecidedJune 22, 2007
Docket06-0567/AF
StatusPublished
Cited by79 cases

This text of 65 M.J. 208 (United States v. Leedy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leedy, 65 M.J. 208, 2007 CAAF LEXIS 828, 2007 WL 1815404 (Ark. 2007).

Opinions

Judge BAKER

delivered the opinion of the Court.

Appellant was an Airman First Class (A1C) assigned to Kunsan Air Base, Korea. Before a general court-martial composed of members Appellant pleaded not guilty to possessing and/or receiving child pornography in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). Appellant was convicted and sentenced to a bad-conduct discharge, confinement for eight months, total forfeiture of all pay and allowances, and reduction to airman basic. The convening authority reduced the confinement to seven months and approved the remainder of the sentence. The Air Force Court of Criminal Appeals affirmed the findings and the sentence. United States v. Leedy, ACM 35939 (A.F.Ct.Crim.App. Feb. 28, 2006) (unpublished). Upon Appellant’s petition we granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S COMPUTER WHERE THE AFFIDAVIT IN SUPPORT OF THE SEARCH DID NOT CONTAIN ANY DESCRIPTION OF THE SUBSTANCE OF THE IMAGES SUSPECTED TO DEPICT “SEXUALLY EXPLICIT CONDUCT.”1

The granted issue raises the question of when, if at all, can computer file titles, absent further description of file contents, serve as probable cause to search for child pornography. We conclude that the military judge did not err in denying Appellant’s motion to suppress. Admissible evidence must be obtained based upon a valid search authorization or, in the absence of such authorization, must be consistent with one of the recognized exceptions to the requirement. In this case, we find that the authorization was proper as there was a substantial basis for the issuing magistrate to conclude that there was a fair probability that evidence of child pornography would be found on Appellant’s computer.

BACKGROUND

While stationed at Kunsan Air Base, Appellant lived with a roommate, A1C Winkler. Both Appellant and A1C Winkler owned [211]*211computers that were proximate to one another in their room. Appellant’s computer was situated to preclude observation of the monitor by others in the room. On an occasion in January or February 2003, Appellant’s computer was on while Appellant was not present. A screensaver activated on his computer was set to automatically disengage when the computer’s mouse moved. While working on his computer, A1C Winkler bumped Appellant’s computer. The screensaver disengaged and A1C Winkler subsequently observed a program running on Appellant’s computer that he recognized as Windows Media Player, an application used to play digital audio and video files. The program was not playing any files but did display a play list with titles of recently accessed files. These titles led A1C Winkler to believe that many of the files were sexually explicit; further, A1C Winkler felt that based on their titles at least one of the files likely depicted child pornography.

On March 14, 2003, at least one month later, A1C Winkler reported his suspicions to the base Air Force Office of Special Investigations (AFOSI) Detachment and was interviewed by the detachment commander, Special Agent (SA) Spring, and another investigator. Following the interview, the investigators took the information to the Chief of Military Justice at the base to discuss whether probable cause existed to authorize a search of Appellant’s computer. The Chief of Military Justice felt that probable cause existed and the detachment commander prepared an affidavit requesting search authorization. The affidavit was presented on March 14, 2003, to the base military magistrate. The magistrate provided the authorization and a search was executed by AFOSI agents. Investigators searched Appellant’s computer and found pornographic files (video clips and still photos), more than thirty of which depicted sexually explicit acts involving minors.

At trial, Appellant moved to suppress all evidence obtained as a result of the search of his computer. The military judge held an Article 39(a)2 session to litigate the matter, during which Appellant argued the magistrate did not have probable cause to issue the authorization. Appellant contended that the probable cause standard was not met for several reasons: A1C Winkler was unknown to AFOSI and had no track record of providing any information to the office; the only evidence A1C Winkler provided the magistrate was stale (over a month had elapsed between A1C Winkler seeing Appellant’s files and his report to AFOSI); no one had ever seen any pornography of any sort on Appellant’s computer; the sole direct link between Appellant and child pornography was the title of a file: “14 Year Old Filipino Girl”3, and there was nothing in the title, nor in A1C Winkler’s description of the other files, that necessarily suggested lasciviousness or portrayals of “sexually explicit conduct”. On appeal, Appellant also noted that the application Windows Media Player can play both video and audio files and there was nothing in the file titles provided by A1C Winkler that indicated that the potentially offending files were visual rather than audio (federal law only criminalizes “visual depiction” of child sex acts). See 18 U.S.C. § 2252(a) (2000).

Further, the investigating officer made no effort to corroborate the informant’s suspicions, or to provide the magistrate with examples of the pornography in question (which, Appellant argues, has regularly been required in such cases). The investigators also admitted that they had no evidence that Appellant exhibited any of the “characteristics” of those who possess child pornography.

Finally, Appellant argued that not only was the authorization inappropriate, the “good faith” exception to authorization was unavailable for two reasons. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); United States v. Carter, [212]*21254 M.J. 414 (C.A.A.F.2001). First, the authorization was facially deficient, because it relied on a “bare bones” affidavit. See Carter, 54 M.J. at 422 (finding by implication that a bare bones affidavit is one in which, inter alia, sources of information are not identified, and conflicts and gaps in evidence are not acknowledged); United States v. Wilhelm, 80 F.3d 116, 121-22 (4th Cir.1996) (reliance on affidavit unreasonable because magistrate acted as rubber stamp by approving “bare bones” affidavit based solely upon uncorroborated anonymous tip). Second, on appeal, Appellant argued that the magistrate did not perform his duties in a neutral and detached manner. Appellant contends that the magistrate misunderstood his role, which was to protect individual liberties, not, as the magistrate said in the Article 39(a) hearing, to “make sure if we’re accusing somebody that the evidence will be there.” According to Appellant, instead of undertaking the necessary critical examination of the facts, the magistrate chose simply to defer to the criminal investigator.

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Cite This Page — Counsel Stack

Bluebook (online)
65 M.J. 208, 2007 CAAF LEXIS 828, 2007 WL 1815404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leedy-armfor-2007.