                         UNITED STATES, Appellee

                                         v.

              Charles J. CLAYTON, Lieutenant Colonel
                       U.S. Army, Appellant

                                  No. 08-0644
                         Crim. App. No. 20070145

       United States Court of Appeals for the Armed Forces

                        Argued November 17, 2009

                          Decided March 17, 2010


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.


                                     Counsel


For Appellant: William E. Cassara, Esq. (argued); Captain
Timothy W. Thomas (on brief); Major Grace M. Gallagher.

For Appellee: Major Adam S. Kazin (argued); Colonel Norman F.
J. Allen III and Lieutenant Colonel Martha L. Foss (on brief);
Lieutenant Colonel Francis C. Kiley.



Military Judge:    Richard Gordon



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clayton, No. 08-0644/AR


    Chief Judge EFFRON 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

of 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 included 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 May 9, 2008) (unpublished).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 ERRED IN DENYING APPELLANT’S
     MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S
     QUARTERS.

     For the reasons set forth below, we affirm.


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United States v. Clayton, No. 08-0644/AR


                          I.   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’s quarters.         The

information provided to the magistrate 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 CID agents

conducted a search of Appellant’s quarters, they found a

personal computer and digital media that contained thousands of

images of child pornography, which formed the basis for the

charges at issue in the present appeal.

     Prior to trial, 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 right to appeal the military judge’s

ruling.

            A.   THE MILITARY JUDGE’S FINDINGS OF FACT

     The following summarizes the military judge’s findings of

fact on the suppression motion, as well as information provided

to the magistrate by CID Special Agent (SA) Yolanda McClain, who


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United States v. Clayton, No. 08-0644/AR


was stationed in Kuwait and assigned investigative

responsibilities for the case.   The events at issue occurred

during the period in which Appellant served as a mobilized

United States Army Reserve Officer in Kuwait.   The initial

investigation was conducted by Senior Special Agent (SSA) Glen

Watson, an investigator with the Investigations Division of the

Office of Homeland Security Immigration and Customs Enforcement

(ICE).   SSA Watson worked in the Child Exploitation Unit, where

his duties included investigating child pornography and

exploitation.   In the course of his duties, SSA Watson

discovered an Internet child pornography website group on Google

entitled, “Preteen-Bestiality-and-Anything-Taboo.”   During the

investigation, SSA Watson discovered a picture of child

pornography that had been posted on the site.   He also found

several requests for various types of child pornography and

other requests for child exploitation.

     SSA Watson contacted Google, informing them that a group

operating on a Google site had 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 ICE with a list identifying the

members of the “Preteen-Bestiality-and-Anything-Taboo” group by

subscriber notification category and e-mail address.   The

membership list of the “Preteen-Bestiality-and-Anything-Taboo”


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United States v. Clayton, No. 08-0644/AR


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.




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United States v. Clayton, No. 08-0644/AR


     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-Taboo.’”       According to the affidavit,

members of the group used the website “to share child

pornography pictures, videos, and exploitation information

amongst themselves.”   The affidavit stated that “[m]embership

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 child

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 individual 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


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United States v. Clayton, No. 08-0644/AR


files concerning child pornography on the laptop, in Appellant’s

quarters, and in Appellant’s workspace.

     On April 20, 2006, SA McClain 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 McClain

and the magistrate were aware that Appellant lived 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 search

Appellant’s quarters.

              B.   THE MILITARY JUDGE’S CONCLUSIONS OF LAW

     At trial, the military judge held that the magistrate had a

substantial basis for concluding that probable cause existed to

conduct the search, citing Illinois v. Gates, 462 U.S. 213

(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 v.

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


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United States v. Clayton, No. 08-0644/AR


     The military judge stated that the evidence, principally

from SSA Watson’s ICE Report and SA McClain’s affidavit,

established a fair probability that child pornography would be

found in Appellant’s personal quarters and media sources.    The

military judge 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 States v. Leon, 468 U.S. 897 (1984).



          II.   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.   Id. 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(f)(2).   See id. at 212 (citing United

States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).   “[W]e review


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United States v. Clayton, No. 08-0644/AR


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(f)(2) defines 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.”    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.    Id. (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 “‘[c]lose

calls will be resolved in favor of sustaining the magistrate’s

decision.’”   Id. (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.”    Id.

(quoting Gates, 462 U.S. at 236) (alteration in original).

Fourth, the evidence must be considered in the light most

favorable to the prevailing party.     Reister, 44 M.J. at 413.




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United States v. Clayton, No. 08-0644/AR

     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.

     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) (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 Unites States v. Lopez, 35 M.J. 35, 38-39 (C.M.A. 1992).

Determinative factors include the type of crime, the nature of


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United States v. Clayton, No. 08-0644/AR

the items sought, the extent of the suspect’s opportunity for

concealment, and normal inferences 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).



                         III.    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 computer.   See United States v. Gourde, 440 F.3d 1065,

1072-73 (9th Cir. 2006) (en banc); 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, No. 02-

5210, 84 F. App’x 6, 8 (10th 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.


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United States v. Clayton, No. 08-0644/AR

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 e-

mail 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 in

Appellant’s quarters.


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United States v. Clayton, No. 08-0644/AR

     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

before 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 factfinder at the

court-martial in regard to whether the prosecution, 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.




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United States v. Clayton, No. 08-0644/AR

     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 . . . .’”    ___ M.J. ___ (9) (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


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United States v. Clayton, No. 08-0644/AR

     testified that she meant to say in the affidavit
     that a military computer in Kuwait had accessed a
     Yahoo account through a US Army server in Kuwait
     and that LTC Clayton was a suspect because of his
     membership in the [g]roup 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

th[o]rough 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 magistrate’s

reliance 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



                                15
United States v. Clayton, No. 08-0644/AR

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 I.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.



                         IV.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Clayton, No. 08-0644/AR


     RYAN, J., with whom ERDMANN, 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 be 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, 423 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, __ M.J. __ (12-13, 16) (C.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

is not sustainable.

                        I.    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.)
United States v. Clayton, No. 08-0644/AR


315(f)(2) (emphasis added); accord Illinois v. Gates, 462 U.S.

213, 238 (1983) (defining probable cause as “a fair probability

that contraband or evidence of a crime will be found in a

particular place” (emphasis added)).    This definition

contemplates some nexus between the contraband or evidence

sought and the place the government wants to search.      See United

States v. Hall, 50 M.J. 247, 250 (C.A.A.F. 1999).

     In this case, a warrant was issued to search Appellant’s

barracks room for child pornography.    In finding what it asserts

to be the required nexus here, the majority relies on the

following evidence:

     1.   That Appellant was a member of a Google Internet group

     called “Preteen-Bestiality-and-Anything-Taboo.”      __ M.J. at

     __ (11-12).

     2.   That Appellant had specifically requested membership in

     the group and his membership level provided him with a

     single daily e-mail containing up to twenty-five new

     postings to the group.    Id. at __ (12).

     3.   That both child pornography and information regarding

     child exploitation had been uploaded to the group in the

     past.   Id. at __ (11).

     4.   That the moderator and media manager of the group had

     been arrested and confessed to possessing child

     pornography.     Id. at __ (12).


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United States v. Clayton, No. 08-0644/AR


     5.   That the e-mail account through which Appellant

     received messages from the Google group “had been accessed

     by a government computer in Kuwait,”1 the country in which

     Appellant was stationed.   Id.

     6.   That Appellant’s government computer was a laptop.   Id.

The majority also notes that wireless Internet access was

available in Appellant’s dormitory, though it is unclear whether

that factors into its probable cause analysis.2   Compare id. at


1
  At this point the Government only knew that the account had
been accessed by way of a U.S. Army server in Kuwait. It had no
information regarding which computer had accessed the account.
The affidavit ambiguously asserted that “[t]he
charlesjclayton@yahoo.com account was accessed via Internet
protocol (IP) address 143.81.248.47 which was traced to a
computer that was owned and operated by the U. S. Army in
Kuwait.”
2
  The affidavit presented to the magistrate contained no
information regarding wireless Internet access. And while both
the magistrate and the affiant were independently aware that
wireless access was available in the building, it is unclear
whether that information was discussed or considered during the
search authorization process -- the magistrate appears to have
known wireless Internet was available not because of information
presented in the course of reviewing the search authorization
request, but because he had been involved in soliciting the
contract for its installation and knew someone who used it. It
is therefore at least an open question whether it was proper for
him to consider this information in granting the search
authorization. See United States v. Leedy, 65 M.J. 208, 214
(C.A.A.F. 2007) (stating that our probable cause analysis
focuses on “the evidence as set out in the four corners of the
requesting affidavit . . . illuminated by factors such as the
veracity, reliability, and basis of knowledge of the individual
presenting the evidence”) (emphasis added) (citations and
quotation marks omitted); see also Whiteley v. Warden, Wyo.
State Penitentiary, 401 U.S. 560, 565 n.8 (1971) (“[A]n
otherwise insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant when

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United States v. Clayton, No. 08-0644/AR


__ (7) (noting both affiant and magistrate were aware wireless

Internet access was available), with id. at __ (11-13)

(discussing magistrate’s probable cause determination without

noting availability of wireless Internet).

     Nothing in these facts provided the magistrate with the

necessary nexus between the place to be searched -- Appellant’s

dorm room -- and the evidence sought.   “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, 556 (1978) (abrogated by statute

on other grounds).   But all these facts show is that there was

ample probable cause to believe Appellant had access to child

pornography.   There is nothing to raise a reasonable belief that

such pornography would be in his quarters in Kuwait.

     Though wireless Internet access was generally available in

Appellant’s building, the magistrate was not presented with any

evidence that Appellant signed up for such a connection or that

the wireless Internet connection was routed through the Army

server from which Appellant’s charlesjclayton@yahoo.com e-mail

address had been accessed.   Cf. Macomber, 67 M.J. at 221 (Ryan,



he sought the warrant but not disclosed to the issuing
magistrate.”).

                                 4
United States v. Clayton, No. 08-0644/AR


J., dissenting) (finding no probable cause in part because

affidavit contained no evidence accused actually owned a

computer or had Internet access in his room).   Appellant could

have checked his personal e-mail at work, or at other locations

where deployed servicemembers access the Internet.   Likewise,

the fact that his government-issued computer was a laptop did

not make it any more likely that he was storing child

pornography in his quarters, as opposed to somewhere else.    Cf.

United States v. Rowland, 145 F.3d 1194, 1205 (10th Cir. 1998)

(finding no probable cause to search suspect’s home because

contraband videotapes were delivered to a post office box and

“[his] home . . . was but one of an otherwise unlimited possible

sites for viewing or storage . . . . [and t]he . . . affidavit

provided no basis to either limit the possible sites or suggest

that [the suspect]’s home was more likely than the otherwise

endless possibilities”).   The portability of both laptops and

the digital movies and images the Government sought here makes

any “commonsense” link to Appellant’s room exceedingly tenuous.

     I dissented in Macomber because I did not believe the

evidence there provided a legitimate nexus to the appellant’s

dormitory room.   67 M.J. at 221-23 (Ryan, J., dissenting).   But

the magistrate in that case at least had in front of him a

generic “pedophile profile,” which indicated that persons with a

sexual interest in children often store child pornography in


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United States v. Clayton, No. 08-0644/AR


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

magistrate was not presented with even this constitutionally

minimally relevant evidence.3

     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; id. 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 Amendment’s requirements

when the thing sought by a search authorization or warrant is

3
  I doubt anyone would be satisfied that an affidavit resting on
a generic “gang member” profile, for example, could fulfill the
requirements of the Fourth Amendment.

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United States v. Clayton, No. 08-0644/AR


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.   __ M.J. at __ (12-13).

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.

     People access the Internet at work, Internet cafés, public

libraries, 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 U.S. 616, 625-26 (1886) (discussing the

history of unreasonable searches and seizures prior to




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United States v. Clayton, No. 08-0644/AR


independence and how they influenced the Framers’ view of the

Fourth Amendment).

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

pornography this way.      Clayton, __ M.J. at __ (11) (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. App’x 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 533.

                     II.   The Good Faith Exception

     Because I do not believe the magistrate had a substantial

basis for finding probable cause here, I 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


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United States v. Clayton, No. 08-0644/AR


            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.

     I do not believe this exception saves the search here

because reliance on a warrant is not in good faith “[w]here the

magistrate was misled by information in an affidavit that the

affiant knew was false or would have known was false except for

his reckless disregard of the truth.”   United States v. 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 generally

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 probable cause as to render official belief in its
     existence entirely unreasonable.”

Poolaw v. Marcantel, 565 F.3d 721, 734 (10th Cir. 2009) (quoting

United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir.

2005)).   This is an argument that we have not yet addressed, but

it is apparent even under our already-existing case law that the


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United States v. Clayton, No. 08-0644/AR


good faith exception does not save the search authorization

here.

        The affiant in this case knew that no pornography had been

discovered on any Army computer, let alone Appellant’s computer.

Despite this fact, she included in her affidavit a statement

unambiguously linking Appellant to already-discovered

pornography:    “The Camp Arifjan CID Office is currently

conducting the discovery of apparent child pornography located

within one of the Coalition Forces Land Component Command

(CFLCC), CAKU, computers and the suspected login user is LTC

Charles J. CLAYTON.”    Any reasonable law enforcement agent would

know that a linkage between a suspect and contraband would be

extremely important to a magistrate’s decision to issue a search

authorization.    To indicate such a linkage without explaining to

the magistrate precisely what she claims to have meant -- that

the Criminal Investigation Command (CID) suspected “a person”

within CFLCC -- shows a reckless disregard for the truth of the

information before the 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

4
  This conclusion might be different if the false statement had
been made orally, where a slip of the tongue was possible, and
not in a written affidavit where the affiant could review the
language to make sure it said precisely what she wanted it to
say.

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United States v. Clayton, No. 08-0644/AR


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.2d 1231, 1235 (8th Cir. 1993))); United

States v. Cowgill, __ M.J. __ (12-13) (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, in fact, correct).

                         III.   Conclusion

     I would reverse the United States Army Court of Criminal

Appeals.   I respectfully dissent.




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