                       UNITED STATES, Appellee

                                    v.

                  David A. LEEDY, Airman First Class
                       U.S. Air Force, Appellant

                              No. 06-0567

                         Crim. App. No. 35939

       United States Court of Appeals for the Armed Forces

                        Argued March 14, 2007

                        Decided June 22, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and STUCKY and RYAN, JJ., joined. ERDMANN, J., filed an
opinion concurring in the result.

                                 Counsel

For Appellant: Major John N. Page, III (argued); Lieutenant
Colonel Mark R. Strickland and Captain Christopher S. Morgan (on
brief).

For Appellee: Major Matthew Ward (argued); Colonel Gerald R.
Bruce, Lieutenant Colonel Robert V. Combs, Major Kimani R.
Eason, and Captain Jamie L. Mendelson (on brief); Colonel Gary
F. Spencer.

Amicus Curiae for Appellant: Carey Scheible (law student)
(argued); Robert B. Harper, Esq. (supervising attorney), Neal
Hamilton (law student)(on brief) – for the University of
Pittsburgh School of Law.


Military Judge:    Dawn R. Eflein



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Leedy, No. 06-0567/AF


    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(unpublished).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

1
  We heard oral argument in this case at the University of
Pittsburgh School of Law, Pittsburgh Pennsylvania, as part of
the Court’s “Project Outreach.” See United States v. Mahoney,
58 M.J. 326, 347 n.1 (C.A.A.F. 2003). This practice was
developed as part of a public awareness program to demonstrate
the operation of a federal court of appeals and the military
justice system.

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United States v. Leedy, No. 06-0567/AF


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

computers 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


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United States v. Leedy, No. 06-0567/AF


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




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United States v. Leedy, No. 06-0567/AF


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).

2
    UCMJ, 10 U.S.C. § 839(a) (2000).
3
  The affidavits and recorded testimony used various spellings of
“Filipino” (including “Philipino”); we have used the preferred
spelling of this adjective throughout this opinion but note that
it refers to the same file discussed in the affidavits and
testimony.

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United States v. Leedy, No. 06-0567/AF


     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 (1984); United States v. Carter, 54 M.J. 414

(C.A.A.F. 2001).   First, the authorization was facially

deficient, because it relied on a “bare bones” affidavit.    See

Carter, 54 M.J. at 422 (finding by implication that a bare bones

affidavit is one in which, inter alia, sources of information

are not identified, and conflicts and gaps in evidence are not

acknowledged); United States v. Wilhelm, 80 F.3d 116, 121-22

(4th Cir. 1996) (reliance on affidavit unreasonable because

magistrate acted as rubber stamp by approving "bare bones"

affidavit based solely upon uncorroborated anonymous tip).

Second, on appeal, Appellant argued that the magistrate did not

perform his duties in a neutral and detached manner.   Appellant

contends that the magistrate misunderstood his role, which was

to protect individual liberties, not, as the magistrate said in


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United States v. Leedy, No. 06-0567/AF


the Article 39(a) hearing, to “make sure if we’re accusing

somebody that the evidence will be there.”   According to

Appellant, instead of undertaking the necessary critical

examination of the facts, the magistrate chose simply to defer

to the criminal investigator.

     The Government demurred, arguing that even if the evidence

presented did not create a certainty that contraband was to be

found, under prevailing constitutional law enough was presented

to the magistrate for him to make a proper determination of

probable cause.   Under the totality of the circumstances there

was a substantial basis upon which the magistrate could have

found probable cause.   Moreover, the magistrate was properly

detached and independent in his dealings with the AFOSI; the

magistrate scrutinized the affidavit and questioned the

investigator, raising the issue of the potential inaccuracy of

the informant’s suspicions, and his concern regarding the

identity of the “14-year-old Filipino girl” file as legally

“child pornography.”

     The military judge weighed these arguments and made the

following factual findings.

     1) A1C Winkler and Appellant were roommates and each
     had his own computer. Appellant’s computer was set up
     such that no one in the room would be able to see the
     monitor without being directly in front of the screen.

     2) At some time in early to mid-February 2003 A1C
     Winkler accidentally bumped Appellant’s computer,


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United States v. Leedy, No. 06-0567/AF


     deactivating Appellant’s screensaver and revealing the
     contents of the computer’s desktop.

     3) A1C Winkler saw the Windows Media Player program
     open on the desktop and noticed that there were
     several file names listed in the player.
     4) One file name that A1C Winkler remembers was “14
     year old Filipino girl”, and though A1C did not
     remember the name of any other files, he recalled that
     some mentioned ages and some mentioned acts. A1C
     Winkler became concerned that these files included
     child pornography.

     5) On March 14, 2003, A1C Winkler reported his suspicions
     to the AFOSI.

     Based on these facts, the military judge agreed with the

magistrate’s determination that “there was probable cause to

believe that evidence . . . was reasonably likely to be found in

the accused’s . . . personal computer.”

     Both Government and Appellant made the same arguments

before the Air Force Court of Criminal Appeals, which found that

the “evidence presented to the magistrate was sufficient to

permit a person of reasonable caution to conclude that

contraband would be found on the appellant’s computer.”   Leedy,

ACM 35939.

     Appellant renews his arguments before this Court.    For the

reasons stated below, we concur with the military judge and the

lower court’s conclusions and affirm.

                            DISCUSSION

     We recognize that there are competing standards of review

at play in this case.   The specified issue refers to the denial


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United States v. Leedy, No. 06-0567/AF


of a motion to suppress, a decision we review for an abuse of

discretion.   United States v. Rader, 65 M.J. 30, 32 (C.A.A.F.

2007); United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F.

2002).   However, we review the legal question of sufficiency for

finding probable cause de novo using a totality of the

circumstances test.   United States v. Reister, 44 M.J. 409, 413

(C.A.A.F. 1996) (holding that “[c]onclusions of law are reviewed

de novo . . .").   In turn, this determination is based in large

part on the facts found by the military judge, the review of

which we conduct under a “clearly erroneous” standard.   Findings

of fact will not be overturned unless they are clearly erroneous

or unsupported by the record.4   See United States v. Brisbane, 63

M.J. 106, 110 (C.A.A.F. 2006); United States v. Swift, 53 M.J.

439, 446 (C.A.A.F. 2000) (citing United States v. Ayala, 43 M.J.

296, 298 (C.A.A.F. 1995)); United States v. Moses, 45 M.J. 132,

135 (C.A.A.F. 1996)).   Finally, our review is shaped by the

outcome of the trial below as we have held that “[i]n reviewing

a ruling on a motion to suppress, we consider the evidence ‘in

4
   The clearly erroneous standard is a very high one to meet and
Appellant does not meet the burden by suggesting that the
findings are “maybe” or “probably wrong.”4 Parts & Electric
Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th
Cir. 1988). If there is “some evidence” supporting the military
judge’s findings we will not hold them “arbitrary, fanciful, or
clearly erroneous.” United States v. McCollum, 56 M.J. 837, 843
(A.F. Ct. Crim. App. 2002). Indeed, here, we hold that “the
military judge's findings of fact are well within the range of
the evidence permitted under the clearly-erroneous standard.”
United States v. Norris, 55 M.J. 209, 215 (C.A.A.F. 2001).

                                 9
United States v. Leedy, No. 06-0567/AF

the light most favorable to the’ prevailing party.”    Reister, 44

M.J. at 413; United States v. Flores, 64 M.J. 451, 454 (C.A.A.F.

2007).

      We start by examining whether the magistrate had a

“substantial basis” for determining that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238 (1983).   It follows that

where a magistrate had a substantial basis to find probable

cause, a military judge would not abuse his discretion in

denying a motion to suppress.

      The threshold for probable cause is subject to evolving

case-law adjustments, but at its core it requires a factual

demonstration or reason to believe that a crime has or will be

committed.   As the term implies, probable cause deals with

probabilities.   Brinegar v. United States, 338 U.S. 160, 175

(1949).   It is not a “technical” standard, but rather is based

on “the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.”

Id.   Probable cause requires more than bare suspicion, but

something less than a preponderance of the evidence.   Thus, the

evidence presented in support of a search need not be sufficient

to support a conviction, nor even to demonstrate that an

investigator’s belief is more likely true than false, United

States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992); there is

no specific probability required, nor must the evidence lead one


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United States v. Leedy, No. 06-0567/AF

to believe that it is more probable than not that contraband

will be present.   Bethea, 61 M.J. at 187.   “The duty of the

reviewing court is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the

affidavit...there is a fair probability that contraband or

evidence of a crime will be found in a particular place.”

Gates, 462 U.S. at 238; see also Bethea, 61 M.J. at 187 (holding

that the standard is a “flexible, common-sense” one) (citing

Texas v. Brown, 460 U.S. 730, 742 (1983); Carroll v. United

States, 267 U.S. 132, 162 (1925) (holding that probable cause to

search exists when the facts and circumstances are sufficient in

themselves to warrant a man of reasonable caution to believe

that an offense has been committed).

     With the Court’s common sense standard of probable cause in

mind, it follows that probable cause determinations are

inherently contextual, dependent upon the specific circumstances

presented as well as on the evidence itself.   Indeed, probable

cause is founded not on the determinative features of any

particular piece of evidence provided an issuing magistrate --

nor even solely based upon the affidavit presented to a

magistrate by an investigator wishing search authorization --

but rather upon the overall effect or weight of all factors

presented to the magistrate.




                                11
United States v. Leedy, No. 06-0567/AF

     Though there are no “specific ‘tests’ [that must] be

satisfied” to find a substantial basis for probable cause,

Gates, 462 U.S. at 231, our case law broadly bifurcates the

review of a magistrate’s determination into two “closely

intertwined” analyses: first, we examine the facts known to the

magistrate at the time of his decision, and second, we analyze

the manner in which the facts became known to the magistrate.

Thus, while the initial inquiry rightly centers on the evidence

as set out in the four corners of the requesting affidavit, this

evidence “may [then be] usefully illuminat[ed]” by factors such

as the “veracity,” “reliability” and “basis of knowledge” of the

individual presenting the evidence.   The magistrate then relies

on these and other factors in determining the “commonsense,

practical question whether there [was] ‘probable cause’ to

believe that contraband...is located in a particular place.”

Id. at 230; United States v. Gallo, 55 M.J. 418, 421-22

(C.A.A.F. 2001).

Probable Cause

     The question presented in this case is straightforward

albeit compound:   did A1C Winkler’s description of the file

titles on Appellant’s computer as presented in SA Spring’s

affidavit, when assessed through the lens of the circumstances

under which the magistrate came to know this information --

including SA Spring’s experience investigating child pornography


                                12
United States v. Leedy, No. 06-0567/AF

and the magistrate’s own, independent analysis of the facts --

provide a “substantial basis” for the magistrate to conclude

that there was a fair probability that child pornography would

be found on Appellant’s computer?

     SA Spring’s affidavit consisted of two primary sections.

The first section provided SA Spring’s background and expertise

in the area of child pornography.   The second section addressed

specific facts and circumstances supporting the request to

search Appellant’s computer, providing background information

regarding Appellant’s and A1C Winkler’s room, their

relationship, computer arrangements, and Internet use.

Paragraph D contained the facts, or absence of facts, on which

the search authorization hinges.

       D. Approximately one month ago (between the end of Jan
     03 and the middle of Feb 03), Winkler was working at his
     computer when he inadvertently bumped [Appellant’s]
     computer. According to Winkler, [Appellant] routinely
     leaves his computer on, and when he bumped it,
     [Appellant’s] screen saver turned off. Winkler then
     observed what he believed to be the computer program
     “Windows Media Player” open on [Appellant’s] computer.
     Winkler observed what he described as a “play list” for the
     program. Based upon personal experience, I know that
     Windows Media Player is a computer program that can be used
     to play various computer files, including digital video
     files. I also know, based upon my personal experience,
     that a “play list” is a list of recently “played” or
     accessed files. Winkler stated that he observed several
     titles in the play list that he believed described
     pornographic files. Winkler remembered seeing a file with
     the title “three black guys and one white girl” among
     others. Winkler also saw a file titled “14 year old
     Filipino girl” in the same play list as the other file
     titles.


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United States v. Leedy, No. 06-0567/AF

     Appellant argues that based on the material provided in

this affidavit probable cause is lacking.   There is no evidence

that the file names observed by A1C Winkler were titles of

video, as opposed to audio files and no evidence in the record

that A1C Winkler, or anyone else, had ever observed Appellant

viewing pornography, to say nothing of child pornography, on his

computer or anywhere else.5

     Yet, as the Government notes, the title “14 year old

Filipino girl” does not appear in isolation.   SA Spring’s

affidavit states that

     Winkler stated that he observed several titles in the
     play list that he believed described pornographic
     files. A1C Winkler remembered seeing a file with the
     title “three black guys and one white girl,” among
     others. A1C Winkler also saw a file titled “14 year
     old Filipino girl” in the same play list as the other
     file titles.

     In his Essential Findings of Fact the military judge found

that A1C Winkler noticed a list of files displayed on the

Windows Media Player (on the computer desk top) that led him to

5
  A1C Winkler’s statement to SA Spring suggests that the files
were video in nature —- his statement speaks of “a list of
movies” being displayed on the screen (rather than just
“files”). However, this information is not contained in the
affidavit presented to Magistrate Byers and the testimony
presented to the military judge does not otherwise reflect that
this information was provided to the magistrate orally. In
addressing this issue, we rely alone on information that we know
was presented to the magistrate at the time of his
determination, as reflected in the affidavit, the military
judge’s findings and conclusions of law, and testimony in the
record of trial addressed to the suppression motion that is
consistent with the military judge’s findings.

                               14
United States v. Leedy, No. 06-0567/AF

believe that A1C Leedy had child pornography on his computer.

One file name that he remembered was ‘14 year old Filipino

girl.’   He did not clearly remember the name of any other files,

but did recall that some mentioned ages and some mentioned

acts.”

     Despite these findings, Appellant makes a colorable

argument that this evidence when viewed in the abstract might be

insufficient to establish a substantial basis to find probable

cause to search for child pornography.    Such a substantial basis

would, after all, be based almost entirely on the existence of a

single file.   As interpreted by Appellant, such a conclusion is

unwarranted as it derives from insufficient evidence which

leaves too many gaps in SA Spring’s knowledge to find probable

cause.   Such a gap could only be filled, according to Appellant,

if there was a detailed description of the contents of the files

in question.

     Moreover, Appellant is correct in arguing that courts have

generally relied on photographic descriptions of pornography

before finding probable cause to search for pornography.    See,

e.g., United States v. Brunette, 256 F.3d 14 (1st Cir. 2001)

(holding that appending a sample of the offending material to a

warrant request was preferable).     Indeed, the parties cite to




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United States v. Leedy, No. 06-0567/AF

only one case in which an appellate court has upheld probable

cause to search for child pornography based on titles alone.6

     From a Constitutional perspective, the shortcoming in

Appellant’s argument is that he focuses almost exclusively on

the title “14 year old Filipino girl” as the predicate for

probable cause.   It is evident that as is the case with many

digital file titles found on the Internet or on one’s personal

computer, the title could be innocent.   Consider the file name

“Lolita,” which on its own could as easily reference an English

term paper, a discussion of teacher-student relations, or

contain adult or child pornography.   Likewise, in a vacuum, the

title “Teen Angel” could as likely reference a popular 1960s

song as it could be a video file containing child pornography.

Similarly, a listing of any number of rap song titles might

suggest images of violence and pornography, but not in fact

visually convey those images when played.   The point certainly

is made.

     However, in the current case, Appellant’s file title “14

year old Filipino girl,” does not appear in isolation.

6
   In United States v. Eichert, 168 Fed. App’x 151 (9th Cir.
2006), the court found probable cause where the magistrate was
provided a list of about one-hundred newsgroup titles and file
names with titles such as “teens, preteen, sex, children and
young girls” and “sex words” but was not provided a description
of the contents of the files or newsgroups themselves. Id. at
152. However, amicus curiae distinguishes Eichert on the ground
that “the titles...were sufficiently detailed where one could
assume the type of material the file contained.”

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United States v. Leedy, No. 06-0567/AF

Consequently, the title alone is not the sole predicate fact.

As an initial factor, it is included on a sequential play list

alongside titles that A1C Winkler understood to identify sex

acts7 and which the military judge concluded referenced sex acts.

     Moreover, and critically, none of these facts are abstract

pieces of evidence, but rather are properly viewed in context,

through the professional lens in which they were presented to

the magistrate.   The magistrate had the benefit of the affiant’s

professional experience in investigating child pornography, a

background which usefully “illuminated” the facts provided.

Gates, 462 U.S. at 230.8


7
  The record includes a number of different statements regarding
A1C Winkler’s recollection of the file titles. The most
descriptive is contained in his statement to AFOSI, which
includes titles such as “White Slut banged by . . .” However,
as noted earlier, in reviewing this case we have considered only
that evidence the record indicates was provided to the
magistrate as reflected in the affidavit, testimony, and the
military judge’s findings.
8
  In the affidavit, SA Spring provided his professional
background:

     I have been a Special Agent with the Air Force Office of
     Special Investigations (AFOSI) since March 1994. I
     received training to be a Special Agent at the United
     States Air Force Special Investigations Academy . . . I
     have been assigned as the Detachment Commander of AFOSI Det
     613, Kunsan AB (KAB), Korea since 28 Jun 2002. Prior to
     this assignment I was an instructor and course manager at
     the United States Air Force Special Investigations Academy
     for three years. In that capacity, I was responsible for
     development of course curriculum for both entry level and
     advanced training, including curriculum development for
     blocks of instruction dealing with the sexual abuse and

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United States v. Leedy, No. 06-0567/AF

     SA Spring’s training and experience shed important light on

the facts presented and addressed the magistrate’s concerns on

several measures.   First, in regard to the potentially benign

nature of the file title in question, SA Spring indicated A1C

Winkler believed that the sorts of titles surrounding the “14

year old Filipino girl” were indicative of titles associated

with child pornography.

     Second, SA Spring’s experience addressed the magistrate’s

concerns that A1C Winkler’s allegations might be stale, given

the month (or more) that had elapsed between A1C Winkler’s



     exploitation of children . . . . During my time as a
     Special Agent, I have participated in and supervised
     numerous criminal investigations involving the sexual abuse
     and exploitation of children. I have the following
     education and training specific to investigations into the
     sexual abuse and exploitation and children:
     - In 1994, I received basic instruction at the Special
        Investigations Academy that included analysis of persons
        involved in exploitation of children, their habits and
        common practices.
     - In 1996, I received advanced instruction at the Special
        Investigations Academy that included analysis of persons
        involved in the exploitation of children, their habits
        and common practices.
     - I hold a Masters of Forensic Science degree from the
        George Washington University. Specifically, I received
        graduate level instruction on the investigation of crimes
        involving the exploitation of children, to include
        trafficking in child pornography and traits and
        characteristics of persons involved in such activities.
     - As an instructor at the Special Investigations Academy
        from 1999-2002, I have attended numerous lectures and
        classes concerning the sexual abuse and exploitation of
        children.




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United States v. Leedy, No. 06-0567/AF

discovering of the files and his reporting to AFOSI.   In the

first part of his affidavit, SA Spring stated that staleness

concerns are usually misapplied in child pornography cases given

that in his experience individuals who enjoy child pornography

are invariably “collectors,” almost always keeping their

material permanently.9   The one month lag alone was thus not

likely to render A1C Winkler’s statement inaccurate.   Moreover,

even if the offending file had been erased in the interim, from

experience SA Spring was aware that trained computer forensic

examiners can usually find digital files on hard drives even if

users have deleted them.

     We acknowledge that relying upon expertise too heavily, at

the expense of hard facts, can be troubling and is open to

abuse.   However, such blind faith reliance is not present here,

either by SA Spring or the magistrate.   It is evident that SA
9
  SA Spring noted that “I have learned that the following
characteristics are, generally, found to exist in varying
combinations in cases involving people who view, collect,
obtain, buy, trade or sell child pornography.” The affidavit
includes the following characteristics:
          D. These people rarely, if ever, dispose of their
     sexually explicit materials and often tend to maintain vast
     collections of such imagery . . .

          F. These people go to great lengths to conceal and
     protect from discovery, theft, and damage their collections
     of illicit materials...

          I. The Internet is frequently used to find, access,
     download, sell and/or trade sexually explicit images of
     children.



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United States v. Leedy, No. 06-0567/AF

Spring did not simply rest on his training, passively filtering

any evidence through his experience.   SA Spring was actively

skeptical about A1C Winkler’s claims and did not immediately

accept his concerns as legitimate.    When A1C Winkler presented

his information to the AFOSI, SA Spring performed an in-depth

interview of the airman to assess his credibility.   SA Spring

questioned the airman about whether there was an ulterior motive

behind his report and clearly established the limits of what was

known and what was not.   It was only once SA Spring had assessed

the information and was confident that A1C Winkler’s concerns

were bona fide and that he had no “axe to grind” against

Appellant that SA Spring presented the collected material to the

base Chief of Military Justice for her assessment as to the

existence of probable cause.   After obtaining a judge advocate’s

assent, SA Spring wrote up a comprehensive affidavit to be

presented to the magistrate requesting search authorization.

The affidavit included both information about A1C Winkler’s

claims and SA Spring’s professional judgment (based upon his

education and experience) linking the claims to a likelihood

that contraband would be present.

     The constitutional propriety of SA Spring’s behavior also

comports with common sense.    After all, if a sample of the child

pornography or a detailed description of the contents of the

pornographic image were required as predicate to search for


                                 20
United States v. Leedy, No. 06-0567/AF

child pornography, law enforcement would be left in an untenable

position: a substantial basis for finding probable cause to

search for the contraband would only be available after the

contraband had already been discovered.   Direct evidence of the

very material sought would be needed and “[t]here is no

requirement...that an affidavit present conclusive proof by

direct evidence that the crime has been committed before a

search warrant can issue.”   Eichert, 168 Fed. App’x 152.

     This is not to say that law enforcement officers should not

include specific detail where such detail is available to

substantiate search requests.   An affidavit that demonstrates

that a subject has viewed child pornography and describes that

pornography is more likely to substantiate probable cause than

one that does not.   However, the Constitution does not, and

common sense cannot, necessarily require such detail in order to

properly find probable cause.

     Case law is evolving as is our understanding of child

pornography.   Child pornography is not new, but its

proliferation on the Internet is a recent phenomenon raising

new, and in some cases challenging, questions of law.   The

Supreme Court has repeatedly directed reviewing courts to apply

common sense and practical considerations in reviewing probable

cause determinations.   In that context, a different legal

picture emerges.   In an earlier era an investigator, magistrate,


                                21
United States v. Leedy, No. 06-0567/AF

or court might not have thought a file titled “14 year old

Filipino girl” warranted investigation, even when surrounded by

titles suggesting graphic pornography.   Today, applying our own

common sense understanding, informed as it is by recent years

which have seen many cases of child pornography, with the facts

of such cases increasingly involving computers and digital

files, we conclude that the gloss SA Spring applied to

Appellant’s file titles was well founded.   There is more than a

fair probability that a list of files referencing sex acts that

also includes a file referencing a fourteen-year-old child will

result in the discovery of child pornography.10

Neutral and Detached Magistrate

     We next address Appellant’s argument that the military

magistrate in this case failed in his duty to act in a neutral

and detached manner.   Appellant does not challenge the

independence and structure of military search approval

generally, but rather asserts that in this case the magistrate

was a “rubber stamp” for SA Spring’s request.     However, the

record suggests the contrary.

     The base magistrate was Colonel (Col) Byers who was the

Mission Support Group commander at Kunsan Air Base and had more

10
  As we find that the authorization was proper, we need not
address the availability of any good faith exception to the
authorization requirement that may have been present in this
case. See United States v. Leon, 468 U.S. 897 (1984); Gallo, 55
M.J. at 422.

                                  22
United States v. Leedy, No. 06-0567/AF

than two decades of experience in the Air Force.   There is no

evidence that the magistrate had any generalized proclivity

towards simply conceding search requests to investigators.       In

fact, shortly before he reviewed the search request at issue

here, Col Byers had been involved in “a number of probable cause

determinations” including at least one case where he declined

authorization until the government provided additional predicate

information.

     Moreover, in the current case, the magistrate evidently

closely read the affidavit, and questioned SA Spring about the

matter for more than twenty minutes, raising many of the

concerns that Appellant now echoes.   Col Byers voiced his

trepidations about whether A1C Winkler could be trusted, the

length of time between A1C Winkler’s finding of the files and

his report to AFOSI, that no one had actually seen any

pornography played on Appellant’s computer, and about whether
                                                      11
the file names provided were actually pornographic.        The

magistrate explicitly, and properly, relied on SA Spring’s

experience -- stating, for instance, that he concurred with SA

11
  In his testimony, Col Byers recalled his discussions with SA
Spring:
     My concern was how do you know that [the file] would be
     pornographic...in nature and [SA Spring] said because of
     other titles that [A1C] Winkler recollected seeing....And
     based on the discussions with [A1C] Winkler that [SA
     Spring] felt that those titles would indeed lead to some
     type of picture or video...of a pornographic nature.



                               23
United States v. Leedy, No. 06-0567/AF

Spring’s assessment that there was a substantial basis to

believe that the file names were pornographic based upon “[SA

Spring’s] experience and some cases that he’s had and the

evidence that those type [sic] of titles taken in context...was

that [those files] could be pornographic in nature” -- but Col

Byers did not simply defer to SA Spring’s expertise.12     The

magistrate did not immediately accept SA Spring’s answers; he

proceeded to speak with others including A1C Winkler’s and

Appellant’s commanding officer to gain further insight about

whether there was any motive for A1C Winkler to fabricate

charges against Appellant.   It was only after this investigation

and further consultation with the legal office that the

magistrate issued the authorization.

     Mirroring the analysis required from Gates and our own

cases, the magistrate acted in light of his own investigation of

the facts, and paid heed to the circumstances in which he

learned of the facts (including the substantial professional

history of the affiant).   It was only then that the magistrate

expressed confidence in SA Spring’s affidavit and was convinced

that the requirements for probable cause had been met.13     On



12
  The military judge found that though when “Col Byers reviewed
the affidavit, he did review SA Spring’s training and
experience, [he] generally was focused on [SA Spring’s]
knowledge of the facts as they pertained to this case.”



                                24
United States v. Leedy, No. 06-0567/AF

these facts, we conclude that the magistrate was neither

unmindful of his duties nor was he insufficiently detached from

the requesting investigator.    See, e.g., United States v.

Cravens, 56 M.J. 370, 373, 376 (C.A.A.F. 2002) (in which this

Court adopted the military judge’s finding that a magistrate

appropriately fulfilled his role as a neutral and detached

magistrate, and that his decision was clearly his own after he

asked responsible questions, considered the views of the

investigators and judge advocate advisor and only then made his

decision).

                               DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




13
  While SA Spring followed good practice and precedent in
including in the affidavit material from A1C Winkler, buttressed
by his own expertise, we note with approval that SA Spring
clearly delineated in the affidavit what claims were made by the
informant and what conclusions were reached as a result of SA
Spring’s experience in the matter. The magistrate was thus
fully informed as to what was solid fact and what was presented
as inference.

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United States v. Leedy, No. 06-0567/AF


     ERDMANN, Judge (concurring in the result):

     I respectfully disagree with the majority’s conclusion that

the magistrate had a substantial basis for determining that

probable cause existed.   Because I believe that the good faith

exception applies to this case, however, I concur in the result.

     I agree with the majority that we review the magistrate’s

determination that probable cause existed by examining the facts

known to the magistrate at the time of his decision and by

analyzing the manner in which the facts became known to the

magistrate.   The magistrate must be provided sufficient

information to make an independent determination about the

existence of probable cause under the totality of the

circumstances.   United States v. Monroe, 52 M.J. 326, 331

(C.A.A.F. 2000)(citing Illinois v. Gates, 462 U.S. 213, 239

(1983)).

     Here, the facts known to the magistrate were presented

through the affidavit of SA Spring and indicated the following:

Leedy’s roommate, Winkler, informed SA Spring that Leedy’s

computer was positioned in such a way as to preclude others from

directly observing his monitor; Leedy told Winkler that he

downloads files from the internet; and Winkler observed the play

list on Leedy’s Windows’ Media Player and believed several

titles described pornographic files.   Two file titles were named
United States v. Leedy, No. 06-0567/AF


in the affidavit, “three black guys and one white girl” and “14

year old Philipino girl.”

      Even considering that these facts were filtered through the

expertise of SA Spring when presented to the magistrate, I

believe they fall short of demonstrating a fair probability that

child pornography would be found on Leedy’s computer.   Two of

the facts -- that Leedy’s computer monitor was positioned for

privacy and that Leedy downloads internet files -- are such

common occurrences of innocent daily activity that they add very

little, if anything, to a common-sense analysis of probable

cause.   I do not believe that what remains -- the two file

titles and the unexplained belief of Leedy’s roommate that other

file titles were pornographic -- is enough to justify the search

of an individual’s personal computer for child pornography.

Although the standard for probable cause does not necessarily

require that the illegal images be attached or described, a

common-sense approach demands more concrete information than

what was provided here to establish a fair probability that

evidence of a crime will be found.   See Monroe, 52 M.J. at 331-

32.   An investigator’s expertise may add value in certain

instances, but the scarce facts of this case establish an

underlying deficiency that reliance on an investigator’s

experience and training cannot overcome.




                                 2
United States v. Leedy, No. 06-0567/AF


     In this regard, the majority relies on a finding by the

military judge that Winkler “did not clearly remember the name

of any other files, but did recall that some mentioned ages and

some mentioned acts.”    If the magistrate did in fact have this

information before him, the case for probable cause is stronger.

However, this information was not included in SA Spring’s

affidavit and there is no evidence that these specific details

were presented to the magistrate.     Rather, this fact was part of

Winkler’s statement to AFOSI, which the majority correctly

excluded from consideration because the magistrate did not

review that statement.   The AFOSI statement, nevertheless, was

presented to the military judge for his consideration on the

motion to suppress the results of the search.    To the extent

that the military judge relied on that statement, he erred.      For

this reason, the fact that Winkler recalled seeing unnamed

titles that mentioned ages and acts is not part of this court’s

consideration.

     Although I do not believe probable cause existed, I

nevertheless concur in the result because I would find that the

good faith exception applies in this case.    The good faith

exception, which is contained in Military Rule of Evidence

311(b)(3), provides as follows:

     Evidence that was obtained as a result of an unlawful
     search or seizure may be used if:



                                  3
United States v. Leedy, No. 06-0567/AF


     (A) The search or seizure resulted from an
     authorization to search, seize or apprehend issued by
     an individual competent to issue the authorization
     under Mil.R.Evid. 315(d) or from a search warrant or
     arrest warrant issued by competent civilian authority;

     (B) The individual issuing the authorization or
     warrant had a substantial basis for determining the
     existence of probable cause; and

     (C) The officials seeking and executing the
     authorization or warrant reasonably and with good
     faith relied on the issuance of the authorization or
     warrant. Good faith shall be determined on an
     objective standard.

See also United States v. Leon, 468 U.S. 897 (1984).

     In its application, the good faith exception is notably

broad where, as here, there is no evidence of law enforcement

misconduct.   In United States v. Leon, the Supreme Court

explained that the Fourth Amendment itself does not expressly

require excluding evidence that was obtained in violation of its

command.   Rather, the exclusionary rule operates as “a

judicially created remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect, rather than a

personal constitutional right of the party aggrieved.”    468 U.S.

at 906 (citation and quotation omitted).    Use of the

exclusionary rule is to prevent further police misconduct in

other cases, not to compensate the individual whose Fourth

Amendment rights were violated or to punish the errors of judges

and magistrates.   468 U.S. at 906, 916.   The Supreme Court

concluded that:


                                 4
United States v. Leedy, No. 06-0567/AF


     In the ordinary case, an officer cannot be expected to
     question the magistrate’s probable-cause determination
     or his judgment that the form of the warrant is
     technically sufficient. Once the warrant issues,
     there is literally nothing more the policeman can do
     in seeking to comply with the law. . . . Penalizing
     the officer for the magistrate’s error, rather than
     his own, cannot logically contribute to the deterrence
     of Fourth Amendment violations.

468 U.S. at 921 (citation and quotation omitted).

     Consistent with this precedent, this court has previously

determined that:

     “Substantial basis” as an element of good faith
     examines the affidavit and search authorization
     through the eyes of a reasonable law enforcement
     official executing the search authorization. In this
     context, the second prong of Mil.R.Evid. 311(b)(3) is
     satisfied if the law enforcement official had an
     objectively reasonable belief that the magistrate had
     a “substantial basis” for determining the existence of
     probable cause.

United States v. Carter, 54 M.J. 414, 422 (C.A.A.F. 2001).

     With this backdrop, I conclude that the good faith

exception applies in this case.   The facts here raise no issue

under M.R.E. 311(b)(3)(A).   As to M.R.E. 311(b)(3)(B) and

311(b)(3)(C), even though I find SA Spring’s affidavit is

insufficient to support the magistrate’s determination that

probable cause existed, the deficiencies are not so egregious

that the law officer executing the warrant should be faulted for

relying on the magistrate’s probable cause determination.

Because the good faith exception would allow the prosecution to

use the evidence obtained from the search of Leedy’s computer, I


                                  5
United States v. Leedy, No. 06-0567/AF


would affirm the decision of the United States Air Force Court

of Criminal Appeals on this alternative ground.




                                6
