

   
   
   
   U.S. v. Allen



United States, Appellee
v.
James M. ALLEN, First Lieutenant
U. S. Air Force, Appellant
 
No. 99-0788
Crim. App. No. 32727
 
United States Court of Appeals for the Armed
Forces
Argued May 4, 2000
Decided August 30, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
J., filed an opinion concurring in the result.

Counsel
For Appellant: Captain Karen L. Hecker
(argued); Colonel Jeanne M. Rueth and Alison Ruttenberg (on
brief).
For Appellee: Major Harold M. Vaught (argued);
Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A. Rodgers
and Major Jennifer R. Rider (on brief).
Military Judge: Donald E. Walsh
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Senior Judge COX delivered the opinion of the
Court.
Contrary to his pleas, appellant was convicted
by officer members of anal sodomy, assault consummated by a battery, two
specifications of conduct unbecoming an officer, transporting and receiving
child pornography in interstate commerce, and soliciting his wife to commit
prostitution, in violation of Articles 125, 128, 133, and 134, Uniform
Code of Military Justice, 10 USC §§ 925, 928, 933, and 934, respectively.
The convening authority approved the sentence of a dismissal, 7 years
confinement, and total forfeitures. The Air Force Court of Criminal Appeals
affirmed the findings and sentence.
We granted review of the following issues:


I.
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL
ERROR IN DENYING THE DEFENSE MOTION TO SUPPRESS.

II.
WHETHER APPELLANTS CONVICTION FOR SODOMY,
A PRIVATE CONSENSUAL ACT BETWEEN APPELLANT AND HIS WIFE, MUST BE SET ASIDE
AND DISMISSED SINCE IT IS A VIOLATION OF APPELLANTS CONSTITUTIONAL RIGHT
TO PRIVACY.

FACTS
1. Issue I
On July 31, 1996, a government network technician
became concerned that files passing through the network firewall onto a
government computer might contain attached graphic images of pornography.
When the technician examined a portion of one image, he concluded it involved
child pornography. He reported the incident to his supervisor who in turn
reported it to the Air Force Office of Special Investigations (AFOSI or
OSI). The internet service provider was "Super Zippo."
The OSI investigation revealed that the computer
to which the graphic image was being sent was located in an area in which
four people worked, although the area was accessible to others. The investigation
excluded three of the four people working in the area as capable of having
received the graphic image, largely because those three persons were not
present in the area at the time. The remaining individual, appellant, admitted
he had been using the computer in question for a period of about 15 to
20 minutes that day. He also admitted that "Super Zippo" was his Internet
Access Provider (IAP),1
and that he possessed "erotica" at home. When asked if this included child
pornography, appellant stammered, then asked what the agents meant by child.
Because appellants private residence was off-post,
OSI agents went to El Paso County law enforcement to have them obtain a
search warrant. The El Paso County officer prepared an affidavit, went
to a civilian judge, and obtained a state search warrant to search appellants
home for child pornography, for documents pertaining to appellants "Super
Zippo" account, and to identify persons controlling the premises. OSI agents
accompanied the El Paso County officer to appellant's home. Numerous photos,
computers, and computer discs were seized pursuant to the warrant.
The warrant in the case sub judice
authorized only a search of appellants residence. The information concerning
appellants IAP account was obtained by an OSI agent, through a telephone
conversation with the manager of "Super Zippo," appellants IAP provider.
Although the OSI agent did not possess a warrant when he requested appellants
account information from "Super Zippo," he "specifically asked whether
a search warrant or a subpoena [was] required." After consulting with corporate
counsel, the manager of "Super Zippo" called the agent and indicated that
based upon advice from counsel, all that would be needed to release the
records was a "lawyer request." The agent testified that he relied on the
managers assertion that no warrant was required.
The OSI agent testified that he requested information
pertaining to appellants online account and "any records of access to
the online service that would indicate different areas that [appellant]
traveled to." The information received was a multiple page listing of online
services accessed by appellant through his "Super Zippo" account, and did
not contain the text of or reveal the content of any communications received
or sent.
Appellant makes a multi-faceted attack upon
the conduct of law enforcement officials and the search warrant. Those
contentions are:

1. The search warrant violated Federal Rule
of Criminal Procedure (FRCP) 41, and Air Force Office of Special Investigation
(AFOSI) regulations.
2. The search warrant violated the Posse Comitatus
Act.
3. The search warrant was a general warrant
and not based upon probable cause.
4. The search warrant was obtained as a result
of false statements to the state court magistrate judge.
5. The warrantless search of appellants internet
account with "Super Zippo" violated the Fourth Amendment and the Electronic
Communications Privacy Act.

After hearing evidence on a motion to suppress
the evidence seized from appellants home and from "Super Zippo," the military
judge denied the motion. He ruled that: (1) the affidavit was not knowingly
and intentionally false or made with reckless disregard for the truth;
(2) there was probable cause to issue the warrant; (3) the search warrant
was not overbroad or too general; (4) the search did not exceed the scope
of the search warrant; (5) there was no expectation of privacy in the type
of information provided by "Super Zippo" and it would have been inevitably
discovered; (6) the "Super Zippo" information was not "fruit of the poisonous
tree"; and (7) violations of Air Force Regulations concerning coordination
with a United States Attorney were not "fatal to this particular search."
The military judge also attached written findings to the record.

2. Issue II
The second issue asks us to consider whether
anal intercourse between a husband and a wife is constitutionally protected
conduct. The facts, as described by two judges of the court below who formed
a majority on this issue, are as follows:

The appellant was convicted of assaulting
his former wife by grabbing her throat, choking her, and banging her head
on the floor. He was also convicted of soliciting her to commit prostitution.
According to the appellants former wife, he told her to prostitute herself
because they could use the money she received to pay family bills and that
having sex with other men would improve their sexual relationship. She
testified that during their marriage prior to the assaults and the prostitution,
she refused appellants requests to engage in this sexual act because she
had been forcibly and painfully sodomized while a teenager. Her
revulsion and fear of this sexual act was underscored by her testimony
that she refused to allow any of the men who paid to have sex with her
to perform this sexual act on her. Obviously, after being assaulted and
encouraged to have sex with other men by her husband, she had less bargaining
power with him than she had with total strangers. Due to the pain she experienced
whenever the appellant performed this sexual act, on one occasion she did
allow him to videotape in exhange for his promise to stop subjecting her
to this violation. Unfortunately, the appellant did not honor his
promise.

Unpub. op. at 19.

DISCUSSION
A. Standard of Review
Issues involving the admissibility of evidence
are reviewed for an abuse of discretion. United States v. Johnson,
46 MJ 8, 10 (1997). Findings of fact will not be overturned unless they
are clearly erroneous or unsupported by the record of trial. United
States v. Richter, 51 MJ 213, 220 (1999). Conclusions of law will be
reviewed de novo, and will not be overturned unless the decision
was based upon an erroneous view of the law. Id.

B. Issue I
1. Whether the search warrant violates 28
CFR § 60.1, as applied to the AFOSI by paragraph 6(c) of AFOSI Regulation
124-82.2
Appellant relies upon these provisions to support
a claim that the search was unlawful. Specifically, appellant assails OSIs
failure to obtain the concurrence of a United States Attorney before obtaining
the warrant at issue.
First, these provisions do not confer a protection
upon appellant enforceable by virtue of the exclusionary rule. Appellants
reasonable expectation of privacy yields, not to coordination between police
and prosecutors, but to compliance with the warrant requirement of the
Fourth Amendment. The failure to coordinate with a United States Attorney
prior to obtaining a warrant issued by a competent Colorado state judge
is not unreasonable conduct by law enforcement which serves to violate
any of appellants Fourth Amendment protections. See United States
v. Guzman, 52 MJ 318, 321 (2000)(Like the Supreme Court in United
States v. Caceres, 440 U.S. 741 (1979), this Court refused to apply
the exclusionary rule to a violation of a Department of Defense or service
directive where the record did not demonstrate that the limitations were
"directly tied to the protection of individual rights.").
Second, the military judges findings, which
were supported by the testimony of the agents involved, show that the OSI
officers did not seek the warrant. Instead, they turned matters over to
a civilian law enforcement officer having jurisdiction in El Paso County,
the location of the place to be searched and a potential crime. See
Mil.R.Evid. 315(b)(2) and (h)(4). The El Paso County officer sought the
warrant, and he was not subject to any requirement to coordinate with a
United States Attorney.
As noted by the court below:

Following their interview of the appellant,
the AFOSI informed the local civilian investigators of the nature of the
crime they were investigating. They did so, according to their sworn testimony,
because the appellant lived off base. Additionally, Falcon AFB is a concurrent
jurisdiction installation; therefore, the local authorities had jurisdiction
over the entire case, if they chose to investigate the offenses alleged
. . . .
. . . .
The appellant further contends that 28 CFR
§ 60, as applied to the AFOSI by paragraph 6(c) of AFOSI Regulation
124-82 requires the AFOSI to obtain the concurrence of the United States
Attorneys Office before requesting a civilian search warrant. The AFOSI
did not request the warrant in this case. Rather, they merely participated
in a search conducted under the auspices of a civilian search warrant.
Therefore, we find that 28 CFR § 60.1 does not apply to the circumstances
under which the search warrant in this case was obtained and does not preclude
the AFOSI agents participation in that search.

Unpub. op. at 7 (footnote omitted). We agree.

2. Whether the Posse Comitatus Act, 18 USC
§ 1385, was violated.
Appellant contends that the primary purpose
of OSI participation was to aid the El Paso officer in the enforcement
of Colorado law. Therefore, the participation of OSI agents in the search
of his home was in furtherance of civil laws and in violation of the Posse
Comitatus Act, which prohibits use of military personnel for enforcement
of civil law. We disagree.
Appellant fails to consider the continuing
military interest in the criminal investigation. Appellant, a person subject
to the UCMJ, violated military law by receiving child pornography on a
government computer. Appellant "probably" had additional prohibited child
pornography at his residence. This crime of possessing child pornography
was cognizable under the UCMJ at all times by virtue of appellants military
status. Therefore, we find that there was an independent military interest
in the investigation of appellant. See United States v. Thompson,
33 MJ 218 (1991), cert. denied, 502 U.S. 1074 (1992). Therefore,
there is no violation of the Posse Comitatus Act.

3. Whether the search warrant was a general
warrant and not based upon probable cause.
The affidavit in issue provided probable cause
to believe that appellant possessed contraband child pornography in his
home. Probable cause is determined by the totality of the circumstances,
and is a practical, common sense decision. Illinois v. Gates, 462
U.S. 213 (1983). Deference is accorded a judge or magistrate making a probable
cause determination. Massachusetts v. Upton, 466 U.S. 727, 732-33
(1984); Illinois v. Gates, supra. There is no requirement
for a higher standard of probable cause for material protected by the First
Amendment; a showing that there is a fair probability that the material
sought is obscene is sufficient. New York v. P. J. Video, Inc.,
475 U.S. 868 (1986).
The information contained in the affidavit
amply supports probable cause under the totality of the circumstances:

1. The Falcon AFB firewall detected graphic
images being accessed on the internet from the base computer network;
2. A base computer was used to access an area
denominated, in part, by the word "lolita"  a word associated with child
pornography - and the computer was used to download several graphic images;
3. A government network technician began downloading
the graphic image being accessed, observed what looked like two nude juvenile
females, found the picture disgusting, and discontinued downloading the
image;
4. The user of the government computer accessed
the internet through "SUPER ZIPPO," an on-line service;
5. The government computer in question was
identified, the four persons with access to the computer were interviewed,
and appellant admitted using the computer during the time frame at issue
but denied accessing the file in question;
6. Appellant initially denied being a member
of an on-line service, then later admitted he was a member of "SUPER ZIPPO,"
and had access to the on-line service from his residence;
7. Appellant admitted having erotica at his
residence, but when asked if any of the material contained children, stammered
and asked, "What do you mean children?"

This information reasonably shows that appellant
accessed child pornography through his on-line server while on duty, had
access to the same service at his residence, had erotica at his residence,
and was evasive about possessing child pornography at home. Thus, appellants
computer equipment and associated materials, such as discs or printed graphics,
would be or would contain evidence of this contraband material. We find
"substantial evidence in the record" to support "the decision to issue
the warrant." See United States v. Monroe, 52 MJ 326, 331
(2000), quoting Massachusetts v. Upton, 466 U.S. at 728.
Similarly, the warrant issued met the necessary
requirements for specificity. "Attachment B" to the actual warrant lists
those items subject to search as follows:

1. Photographic images of nude children.
2. Documents pertaining to the on-line service
"Super Zippo."
3. Correspondence, diaries, and any other writings,
tape recordings, computer files, or letters relating to any nude photographs
of juveniles, internet locations for such material, or lists of such files.
4. Video tapes, magazines, books, and other
items, which may contain nude images of children.
5. Items of indicia consisting of articles
of personal property tending to establish the identity of the person or
persons in control of the premises located at . . . El Paso County, Colorado,
including, but not limited to, digitally stored files on computer disks
or hard drives.

The listing provides three categories of items
that may be searched for: (1) child pornography; (2) evidence pertaining
to appellant's IAP account; and (3) evidence pertaining to identification
of persons controlling the premises. This listing is clearly related to
the information constituting probable cause. It specifically focuses on
sources of child pornography, the computer system and service, and those
who may be involved in criminal activity at this address. It is not general
or overbroad. See United States v. Leon, 468 U.S. 897, 964
(1984)(Stevens, J., concurring); United States v. Lacy, 119 F.3d
742 (9th Cir. 1997, cert. denied, 523 U.S. 1109
(1998).

4. Whether the search warrant was obtained
as a result of false statements to the state court magistrate judge.
Mil.R.Evid. 311(g)(2), Manual for Courts-Martial,
United States (1995 ed.), provides:

False statements. If the defense makes
a substantial preliminary showing that a government agent included a false
statement knowingly and intentionally or with reckless disregard for the
truth in the information presented to the authorizing officer, and if the
allegedly false statement is necessary to a finding of probable cause,
the defense, upon request, shall be entitled to a hearing. At the hearing,
the defense has the burden of establishing by a preponderance of the evidence
the allegation of knowing and intentional falsity or reckless disregard
for the truth. If the defense meets its burden, the prosecution has the
burden of proving by a preponderance of the evidence, with the false information
set aside, that the remaining information presented to the authorizing
officer is sufficient to establish probable cause. If the prosecution does
not meet its burden, the objection or motion shall be granted unless the
search is otherwise lawful under these rules.

In light of the findings of fact entered by the
military judge, it is clear that the defense did not meet its burden of
showing "knowing and intentional falsity or reckless disregard for the
truth." See Franks v. Delaware, 438 U.S. 154 (1978). These
findings of fact are binding unless they are clearly erroneous.
Specifically, the military judge found: "After
hearing the evidence, I am even more convinced that the affidavit was not
knowingly and intentionally false, nor made with reckless disregard for
the truth." We find no basis upon which to conclude that the findings are
clearly erroneous.

5. Whether the warrantless search of appellants
internet account with "Super Zippo" violated the Fourth Amendment and the
Electronic Communications Privacy Act.
Appellant urges that the information obtained
from "Super Zippo" falls within the exclusionary rule because it was obtained
in violation of the Electronic Communications Privacy Act of 1986 (ECPA),
18 USCA §§ 2510 et. seq., or because appellant
had a Fourth Amendment privacy interest in the information.
In order to decide this issue, we must first
determine where the information obtained from "Super Zippo" falls within
the continuum of information available through computer and telecommunication
technologies. The ECPA provides a framework to analyze this question: Title
I of the Act is entitled "Interception of Communications and Related Matters";
Title II of the Act is entitled "Stored Wire and Electronic Communications
Transactional Records Access"; and Title III of the Act is entitled "Pen
Registers and Trap and Trace Devices." ECPA, Pub.L.No. 99-508, 100 Stat.
1848 (1986).
The information obtained from "Super Zippo"
was electronic data stored by "Super Zippo" in the form of a log identifying
the date, time, user, and detailed internet address of sites accessed by
appellant over several months. Hence, it falls within Title II of the ECPA.
Section 2703(c) regulates governmental access to a "record or other information
pertaining to a subscriber or customer of such service (not including the
contents of communications . . . .)" 18 USC § 2703(c)(1)(A). Under
the ECPA, the release of such records does not require a warrant. They
may also be released upon a court order issued on the "reasonable grounds
to believe" standard under § 2703(d). 18 USCA § 2703(c)(1)(B)
and (d).
Although neither a warrant nor a court order
was obtained, there is no exclusionary rule relief under § 2703. See
United States v. Hambrick, 55 F.Supp.2d 504, 507 (W.D. Va. 1999);
United States v. Kennedy, 81 F.Supp.2d 1103, 1110 (D. Kan. 2000).
If Congress had intended to have the exclusionary rule apply, it would
have added a provision similar to the one found under Title III of the
statute, concerning intercepted wire, oral, or electronic communications.
See 18 USC §§ 2516 and 2518(10).
Although suppression is not a remedy under
Title II of the ECPA, courts must determine within a constitutional framework
whether an accused has a subjective expectation of privacy that society
is willing to recognize in the type of information obtained. We tackled
this question in United States v. Maxwell, 45 MJ 406 (1996). There
we found a limited expectation of privacy in e-mail messages sent or received
through an IAP.3 Most
importantly, what was at issue in Maxwell was the treatment of communications.
This case does not involve communications, but rather is limited to stored
transactional records provided in log format without any accompanying text.
The Hambrick court found an internet
customer to have no reasonable expectation of privacy in personal information
supplied to an IAP because the customer knowingly revealed his name, address,
credit card number, and telephone number to the IAP and its employees.
55 F.Supp.2d at 508. The information at issue lies somewhere between the
type of subscriber information at issue in Hambrick and the communications
at issue in Maxwell.
We need not decide what type of privacy interest
attaches to the information in this case, however, because we agree with
the military judge that a warrant would have inevitably been obtained for
these very same records. See Mil.R.Evid. 311(b)(2); Nix v. Williams,
467 U.S. 431 (1984); United States v. Kozak, 12 MJ 389 (CMA 1982).
In light of this holding, we need not determine whether the information
was otherwise admissible. See Mil.R.Evid. 314(e) and (k); 316(f).
The OSI agent was aware appellant admitted
that "Super Zippo" was his IAP provider. He also knew that "Super Zippo"
showed up in records related to the information accessed by appellant from
the computer at appellants military work station. The agent asked "Super
Zippo" if a warrant was required, and was informed that corporate counsel
had advised management that none was needed. The agent relied on that information
and did not pursue a warrant. There is nothing upon which to support a
claim that the information would not otherwise have been obtained or that
the officers in this case were acting with other than complete good faith
in relying upon "Super Zippos" assertion that they had the authority to
release the records without a warrant.
Thus, in the final analysis, the agent asked
the person in possession of the information to turn it over to the police.
This was done freely and voluntarily. The person in possession of the information
did not demand that a warrant be produced and none was required. Under
these circumstances, there is no seizure which could be said to be the
result of a constitutional violation of such import as to bring into play
any exclusionary rule, whether a statutory or court-made rule. See
Mil.R.Evid. 314(e).

ISSUE II
Appellant alleges that his conviction for engaging
in anal sodomy with a former wife is a violation of his fundamental right
to engage in private consensual sexual relations without interference and
regulation by the government. We disagree.
"The extent to which the constitutional right
to privacy prohibits a prosecution for sexual relations within a marital
relationship raises important constitutional questions. Any such constitutional
right, however, must bear a reasonable relationship to activity that is
in furtherance of or supportive of the interests of the marital relationship."
United States v. Thompson, 47 MJ 378, 379 (1997), cert. denied,
523 U.S. 1077 (1998).
We note that the charged acts of sodomy were
not discovered as a result of a government investigation into appellants
marital activities, but were brought to the attention of authorities by
appellants former wife during the pornography investigation, who
seized on the occasion to initiate a discussion with authorities concerning
a pattern of abuse by her husband, which included the charged acts.
The facts of this case make it clear that appellants
acts were not in furtherance of the marriage. Regardless of whether the
facts would have been sufficient to prove beyond a reasonable doubt that
appellant engaged in forcible sodomy, they clearly demonstrate that the
charged acts do not warrant constitutional protection because they were
not "in furtherance of or supportive of the interests of the marital relationship."
Id. Instead, the facts graphically depict a pattern of degradation
and depersonalization, of which the acts of sodomy were a part, that appellant
visited upon his former wife. Such a pattern falls outside the ambit of
conduct that could be considered in furtherance of the marriage for purposes
of determining whether the statute should be invalidated on constitutional
grounds. In that regard, we emphasize that we are not engaged in a subjective
evaluation of the quality of the marriage; rather, our consideration is
focused on the reasonable inferences that may be drawn from the record
concerning the nature of the charged acts in the context that immediately
surrounded their commission.
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 "There are two types
of IAPs: (1) Online Service Providers (OSLs)(e.g., America Online, Prodigy,
CompuServe, Microsoft Network) offer a full range of online services in
addition to Web access, including e-mail, news, entertainment, and places
to meet people with similar interests; and (2) Internet Service Providers
(ISPs) (e.g., At&T Worldnet, Mindspring, Netcom) offer a cheaper,
more bare bones package, including e-mail, Web access, and basic software."
U.S. v. Microsoft Corp., 1998 WL 614485 at **5-6 (D.D.C. Sept. 14,
1998).
2
These provisions authorize federal law enforcement officers, including
the AFOSI, to request the issuance of a search warrant and direct that
"military agents of the Department of Defense must obtain the concurrence
of the appropriate U. S. Attorneys Office before seeking a search warrant."
3
E-mails are treated differently under the ECPA depending upon how long
they remain in storage with an IAP. See 18 USCA § 2703(a) (regulating
the disclosure of electronic communications in storage in an electronic
communications system for more or less than 180 days).


SULLIVAN, Judge (concurring in the result):
There was no prejudicial error when the military
judge denied appellants motion to suppress evidence seized from appellants
home and from Super Zippo. Regarding the warrant obtained by the local
civilian law enforcement officials to search appellants home, there was
no violation of the Posse Comitatus Act, see United States v.
Thompson, 33 MJ 218 (CMA 1991), and the totality of the circumstances
establish that the magistrate judge had sufficient information to determine
that probable cause existed. See United States v. Monroe,
52 MJ 326 (2000). Appellant does not have a constitutional reasonable expectation
of privacy in the records obtained from Super Zippo. See United
States v. Maxwell, 45 MJ 406, 418 (1996). Furthermore, the Electronic
Communication Privacy Act does not require suppression for failure to comply
with its provisions, absent a violation of a constitutional right. Cf.
18 USC § 2703(c); United States v. Thompson, supra;
United States v. Thompson, 936 F.2d 1249 (11th Cir. 1991).
The other granted issue involves Article 125,
UCMJ, 10 USC § 925, which states:

(a) Any person subject to this chapter who
engages in unnatural carnal copulation with another person of the same
or opposite sex or with an animal is guilty of sodomy. Penetration, however
slight, is sufficient to complete the offense.
(b) Any person found guilty of sodomy shall
be punished as a court-martial may direct.

Just as this Court has held that Article 125 prohibits
private, heterosexual, consensual oral sex, see United States
v. Henderson, 34 MJ 174 (1992), so too today the Court holds that anal
sex is a violation of the statute. Cf. United States v. Thompson,
47 MJ 378 (1997). In the military, the law seems clearany type of sodomy
remains a crime. I will continue to apply the law as written, which makes
no mention of a marital exception.


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