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U.S. v. Macomber, 67 M.J. 214 (2009)

student) (on brief); Jeffrey D. Jackson—for the Washburn

67 M.J. 214 University School of Law.
U.S. Court of Appeals for the Armed Forces.
Judge BAKER delivered the opinion of the Court.
UNITED STATES, Appellee, Appellant entered mixed pleas to two specifications under
v. Article 134, Uniform Code of Military Justice (UCMJ),
Edward S. MACOMBER, Airman 10 U.S.C. § 934 (2000), before a military judge sitting as
First Class, U.S. Air Force, Appellant. a general court-martial. He pled guilty to receipt of child
pornography but contested a separate specification alleging
No. 08–0072. wrongful possession of child pornography. He was ultimately
Crim.App. No. 36693. convicted of both offenses. The adjudged and approved
Argued Oct. 21, 2008. sentence included a bad-conduct discharge, confinement for
Decided Feb. 24, 2009. eighteen months, forfeiture of all pay and allowances and
reduction to pay grade E–1. The United States Air Force Court
Synopsis
of Criminal Appeals affirmed. United States v. Macomber,
Background: Accused was convicted by general court-
No. ACM 36693, 2007 CCA LEXIS 345, 2007 WL 2500313
martial, James L. Flanary, J., of receipt of child pornography
(A.F.Ct.Crim.App. Aug. 31, 2007) (unpublished).
and wrongful possession of child pornography. The United
States Air Force Court of Criminal Appeals, 2007 WL
Prior to trial, Appellant moved to suppress evidence seized as
2500313, affirmed. Review was granted.
a result of a search of his military dorm room based on a lack
of probable cause. The military judge accepted a stipulation
of fact agreed to by the parties in support of the motion.
The United States Court of Appeals for the Armed Forces, The military judge denied the motion, concluding that the
Baker, J., held that evidence presented to magistrate provided search authority had probable cause to authorize the search.
probable cause for warrant authorizing search of accused's Appellant challenges that ruling in this Court. For the reasons
dorm room for child pornography. that follow, we affirm. 1

Affirmed.
FACTS 2
In February 2004, Special Agent (SA) Novlesky of the
Ryan, J., filed dissenting opinion.
Immigration and Customs Enforcement Agency (ICE) in
Minot, North Dakota was notified by his agency colleagues
*215 BAKER, J., delivered the opinion of the Court, in that during a child pornography website takedown operation
which EFFRON, C.J., and ERDMANN and STUCKY, JJ., called “Operation Falcon,” Appellant was identified as
joined. RYAN, J., filed a separate dissenting opinion. a child pornography website subscriber. The website
For Appellant: Captain Tiaundra Sorrell (argued); Lieutenant known as “LustGallery.com—A Secret Lolitas Archive”
Colonel Mark R. Strickland (on brief). was dismantled during Operation Falcon, and ICE agents
recovered credit card information relating to its subscribers,
For Appellee: Captain Coretta Gray (argued); Colonel including Appellant. As a result of Operation Falcon, SA
Gerald R. Bruce and Major Matthew S. Ward (on brief); Novlesky received a “Site Index” listing child pornography
Major Jeremy S. Weber. website subscribers located in North Dakota. Appellant
*216 was identified on this index by his name, dormitory
Amicus Curiae for Appellant: Kimberly M.J. Lynch
address, telephone number, commercial e-mail account and
(law student) (argued); Randall Hodgkinson (supervising
credit card information. The index lists: “Edward Macomber,
attorney), Mark Coulter (law student) and E. Lee Oliver (law
Dorm 211 Unit 503, Minot, North Dakota, 58705, (701) 727–

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U.S. v. Macomber, 67 M.J. 214 (2009)

6236....” The evidence showed that Appellant had accessed listed as “Edward Macomber, Dorm 211, Unit 503, Minot
“LustGallery.com” on April 18, 2003. AFB, ND 58705.” The envelope contained a completed order
form indicating Appellant's request to purchase two child
SA Novlesky subsequently obtained the grand jury evidence pornography videos titled “IC–5 Mixed Sleepover” and “IN–
relating to Operation Falcon in order to verify the information 9 Sweet Sixteen.” A postal money order was enclosed for
presented to him by his ICE colleagues. He then contacted the amount of forty dollars payable to Eclipse Films. The
the bank relating to the credit card information linked to purchaser was listed as “Ed Macomber, Dorm 211, Unit 503,
Appellant in order to verify the accuracy of the information. Minot AFB, ND 58705.”
Because the address listed by Appellant when he signed up
for the “LustGallery.com” services appeared to be a military The law enforcement team planned a controlled delivery
dormitory address, SA Novlesky concluded that Appellant of a package containing the two child pornography videos
was a member of the Air Force stationed at Minot Air Force ordered by Appellant. Prior to the controlled delivery, SA
Base (AFB). He contacted the Air Force Office of Special White coordinated with Inspector Griffin and the Minot
Investigation (OSI) to share the information he had and to legal office to prepare an affidavit in support of search
verify Appellant's identity and military status. SA Novlesky authority for Appellant's dormitory room. The application
met with OSI Special Agent Patrick White to discuss options for search authorization was prepared for submission to the
for proceeding with the investigation of Appellant, and the base magistrate, Lieutenant Colonel (Lt Col) James Harrold.
agents agreed to conduct a joint investigation. SA Novlesky Although this was SA White's first child pornography case,
recommended to OSI that Postal Inspector Rachel Griffin be he received guidance from fellow OSI agents with more
contacted to send a target letter to Appellant offering him specific experience in child pornography cases. Inspector
child pornography. OSI agreed and Inspector Griffin was Griffin provided SA White with profile information relating
contacted and brought in as part of the investigation team. to individuals who view child pornography and who have
a sexual interest in children. She conferred with other
Pursuant to this investigation, Inspector Griffin sent a letter postal inspectors prior to advising SA White on the profile
and a “Sexual Interest Questionnaire” to Appellant from information in the affidavit. SA White discussed the affidavit
Eclipse Films, a fictional company purporting to specialize with other more experienced agents in his office and his
in illegal pornography. The correspondence stated that detachment commander.
pornography offered by the film company was “illegal”
and must be kept in the “strictest confidence.” The *217 On June 21, 2004, SA White briefed the magistrate
correspondence was sent to Appellant's mailing address at on the investigation into Appellant's activities and provided
Dorm 211 on Minot AFB. Appellant was on temporary him the affidavit in support of search authority for Appellant's
duty to Guam at the time, so the letter was forwarded to dormitory room and personal vehicle. Lt Col Harrold read
him at his temporary duty location. Appellant completed the the affidavit twice and discussed its contents with SA White.
questionnaire listing “teen sex” and “pre-teen sex” among SA White told Lt Col Harrold that Appellant was identified
his sexual interests and indicated his interest in buying as a subscriber to a known child pornography website
pornography from the company. He mailed the items back through Operation Falcon. However, Lt Col Harrold was
to Inspector Griffin at her undercover post office box. The not told that Appellant had accessed the website on April
letter was postmarked from Guam, but Appellant indicated his 18, 2003, fourteen months earlier. Lt Col Harrold was also
return address on the envelope as “Dorm 211, Unit 503, Minot informed that Appellant had identified himself through a
AFB, ND 58705.” Inspector Griffin sent Appellant a letter sexual interest questionnaire as having a sexual interest in
thanking him for his interest list and describing the available “teen sex” and “pre-teen sex” and that Appellant had ordered
videos fitting his stated sexual interests along with an order two child pornography videotapes through the mail from
form pricing the videos at twenty dollars each. undercover Inspector Griffin for delivery to his address at
Dorm 211, Minot AFB, North Dakota. SA White discussed
On June 14, 2004, Inspector Griffin received a pre-stamped the operational plan for the controlled delivery of the package
white business size envelope in the mail. The envelope was with Lt Col Harrold, along with the alternative plans in the
postmarked “Minot, ND June 8, 2004” with the return address event that Appellant did not return to his dorm room or in

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U.S. v. Macomber, 67 M.J. 214 (2009)

the event he tried to leave the base with the package. The of Appellant's 2002 Mitsubishi Mirage. According to the
affidavit provided to Lt Col Harrold listed a synopsis of each stipulation of fact, he based his probable cause finding
movie Appellant had ordered. In the synopsis, both movies “mainly on the information linking [Appellant] to a pay-
were described in fairly graphic detail as featuring children for child pornography website, together with the information
engaged in sexual acts. submitted by [Appellant] indicating his sexual interest
in children, the correspondence whereupon [Appellant]
SA White based the request for search authority on listed his dormitory address attempting to obtain child
Appellant's actions prior to his receipt of the actual videos pornography, and the fact that [Appellant] ordered two child
from Eclipse Films. Specifically, the request was based pornography videos through the mail.” He considered all of
on Appellant's subscription to the “LustGallery.com” child this information together with the profile information from
pornography website using his dorm room address, his self- experienced agents in the field that showed the likelihood
proclaimed interest in children engaged in sex, and his attempt that individuals with child pornography usually keep close
to order movies containing child pornography. While the possession and control of the pornography and often keep it
affidavit stated that SA White expected to find a parcel in their homes and bedrooms.
addressed to Appellant from Eclipse Films, this was not
the basis for the search authority nor was it the reason the That same day, Inspector Griffin and SA White set up
magistrate found probable cause. the controlled delivery of the child pornography videos to
Appellant's mailing address at the Postal Service Center
The affidavit also included “pedophile profile information.” at Minot AFB. The OSI agents were aware that the mail
This information was based on SA White's discussion with delivery system on Minot AFB required that packages be
Inspector Griffin and included profile information relative to picked up by dorm residents at the service center rather
individuals interested in child pornography or those sexually than delivered to them at their dorm rooms. Because of the
interested in children. It was also based on SA White's training illegal nature of child pornography, it was necessary for the
while attending the OSI Academy and the Federal Law agents to maintain *218 control of or visual contact with
Enforcement Training Center during which “typical behavior the contraband package at all times. Therefore, OSI agents
of child pornographers” was described. The affidavit stated: conducted surveillance of Appellant throughout the day on
June 21, 2004, while Inspector Griffin maintained visual
control of the package in the service center. Appellant picked
child pornographers and persons up the package containing the child pornography videos and
with a sexual attraction to children exited the service center. Two agents outside the service
almost always maintain and possess center drove by Appellant as he exited the facility in an effort
child pornography materials such as: to photograph him. However, the camera flash went off when
photographs, magazines, negatives, they took the picture. Appellant proceeded to his vehicle, sat
films, videotapes, graphic image files, inside for a few moments, then got out of his vehicle and
correspondence, mailing lists, books, attempted to return the package to the service center, at which
tapes, recordings and catalogs. These point he was apprehended.
materials are stored in a secure
but accessible location within their Following the apprehension, the agents initiated a search
immediate control, such as in the of Appellant's residence in accordance with the search
privacy and security of their own authorization. The search revealed several pages of printed
homes, most often in their personal materials and photos, writings Appellant had made regarding
bedrooms. specific child pornography websites, and several hundred
suspected child pornography images retrieved from his
computer.

Lt Col Harrold granted authority for the search of Dorm

211, Room 104, Minot AFB, ND 58705, and the search DISCUSSION

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U.S. v. Macomber, 67 M.J. 214 (2009)

We review a military judge's denial of a motion to suppress United States v. Ventresca, 380 U.S. 102, 108–109, 85 S.Ct.
for an abuse of discretion. United States v. Leedy, 65 M.J. 208, 741, 13 L.Ed.2d 684 (1965)) (alteration in original); Carter,
212 (C.A.A.F.2007); United States v. Rader, 65 M.J. 30, 32 54 M.J. at 419.
(C.A.A.F.2007). An abuse of discretion occurs if the military
judge finds clearly erroneous facts or misapprehends the law. “Probable cause to search exists when there is a reasonable
Leedy, 65 M.J. at 213. In this case, the military judge relied on belief that ... property or evidence sought is located in
facts stipulated to by the parties, therefore the question here the place or on the person to be searched.” Military Rule
concerns the military judge's application of the law, which of Evidence 315(f)(2). The search authority is required
we review de novo. Rader, 65 M.J. at 32 (conclusions of law to make this determination based on the “totality-of-the-
reviewed de novo); United States v. Flores, 64 M.J. 451, 454 circumstances.” *219 Gates, 462 U.S. at 238, 103 S.Ct.
(C.A.A.F.2007). The core legal question in the case is whether 2317; Carter, 54 M.J. at 418; Monroe, 52 M.J. at 331; United
the military judge correctly ruled that the search authority States v. Bethea, 61 M.J. 184, 187 (C.A.A.F.2005). A probable
had a substantial basis for determining that probable cause cause determination is “a practical, common-sense decision
existed. Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. whether, given all the circumstances set forth in the affidavit
2317, 76 L.Ed.2d 527 (1983); United States v. Carter, 54 M.J. before” the search authority, “there is a fair probability that
414, 418 (C.A.A.F.2001). “ ‘The task of a reviewing court contraband or evidence of a crime will be found in a particular
is not to conduct a de novo determination of probable cause, place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317; Bethea, 61
but only to determine whether there is substantial evidence M.J. at 187 (citation omitted). As this Court has explained,
in the record supporting the magistrate's decision to issue probable cause deals with probabilities:
the warrant.’ ” United States v. Monroe, 52 M.J. 326, 331
(C.A.A.F.2000) (quoting Massachusetts v. Upton, 466 U.S. It is not a technical standard, but rather is based on the
727, 728, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)). factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
This standard reflects the law's preference for warrants act. Probable cause requires more than bare suspicion, but
and for independent review by magistrates. “In reviewing something less than a preponderance of the evidence. Thus,
a decision that there was probable cause for a search, the evidence presented in support of a search need not be
we must keep in mind that a determination of probable sufficient to support a conviction, nor even to demonstrate
cause by a neutral and detached magistrate is entitled to that an investigator's belief is more likely true than false,
substantial deference.” Carter, 54 M.J. at 419 (citation and there is no specific probability required, nor must the
quotation marks omitted); Monroe, 52 M.J. at 331 (citations evidence lead one to believe that it is more probable
omitted); United States v. Maxwell, 45 M.J. 406, 423 than not that contraband will be present. The duty of the
(C.A.A.F.1996) (citation omitted). “A deferential standard reviewing court is simply to make a practical, common-
of review is appropriate to further the Fourth Amendment's sense decision whether, given all the circumstances set
strong preference for searches conducted pursuant to a forth in the affidavit ... there is a fair probability that
warrant.” Upton, 466 U.S. at 733, 104 S.Ct. 2085. We have contraband or evidence of a crime will be found in a
interpreted the Supreme Court's guidance to require that particular place.
resolution of doubtful or marginal cases should be largely
[P]robable cause is founded not on the determinative
determined by the preference for warrants and that “[c]lose
features of any particular piece of evidence provided an
calls will be resolved in favor of sustaining the magistrate's
issuing magistrate ... but rather upon the overall effect or
decision.” Monroe, 52 M.J. at 331 (citation and quotation
weight of all factors presented to the magistrate.
marks omitted); Maxwell, 45 M.J. at 423 (citation omitted). “
‘A grudging or negative attitude by reviewing courts towards Leedy, 65 M.J. at 213 (citations and quotation marks omitted).
warrants,’ is inconsistent with the Fourth Amendment's strong Finally, “[i]n reviewing a ruling on a motion to suppress,
preference for searches conducted pursuant to a warrant; we consider the evidence in the light most favorable to the
‘courts should not invalidate [warrants] by interpreting prevailing party.” Id. (citation and quotation marks omitted);
[affidavits] in a hypertechnical, rather than a commonsense, United States v. Reister, 44 M.J. 409, 413 (C.A.A.F.1996).
manner.’ ” Gates, 462 U.S. at 236, 103 S.Ct. 2317 (quoting

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U.S. v. Macomber, 67 M.J. 214 (2009)

points out that while SA White's affidavit presented a

“pedophile profile,” including and in particular the statement
ANALYSIS that pedophiles are likely to store pornography at their places
Appellant makes four arguments challenging the magistrate's of residence, it did not expressly conclude or state that
finding of probable cause. In particular, Appellant argues Appellant fit the profile. Indeed, while courts have relied
that there was insufficient information placed before the on such profiles to inform search determinations, clearly, a
magistrate to reflect a search nexus to his dorm room, a profile alone without specific nexus to the person concerned
computer in his dorm room, and to link Appellant to the cannot provide the sort of articulable facts necessary to find
generic pedophile profile presented by SA White. Finally, probable cause to search.
he argues that his subscription to the “LustGallery.com” site
did not provide such a nexus because the information was But that is not this case. The stipulated facts reflect that
fourteen months old and therefore stale. These arguments are Appellant had subscribed to an Internet child pornography
necessarily related where the totality of the circumstances is web service in the past, and that he expressed an ongoing
weighed. With that in mind, we consider each argument in interest in child pornography in the present. He had recently
turn, recognizing that the question presented is not whether filled out a questionnaire documenting this interest. Such facts
one fact or another provided sufficient cause, but whether the may or may not place Appellant within a generic pedophile
facts taken as a whole did so.
profile or a clinical pedophile profile, 3 but they certainly
reflect an ongoing interest in child pornography. Based on
First, Appellant argues there was an insufficient nexus
common sense, law enforcement experience, and case law,
between the child pornography discovered in his possession
the military judge reasonably concluded there was a fair
at the post office and his dorm room to provide cause to
probability that a person with an interest in child pornography,
search his dorm room. The argument is based on the apparent
who has ordered child pornography in the past and in the
ground that the mail for dormitory residents was delivered to
present, is likely to store such pornography in some quantity
the Postal Service Center as opposed to the individual rooms;
at a secure and private location. For a servicemember residing
since Appellant was apprehended at the service center, it was
on a military installation, that means his dormitory room,
unreasonable to infer that additional child pornography would
barracks, or vehicle.
be found in his dorm room.

This also moots Appellant's argument that the only evidence

The facts indicate otherwise. As stipulated, Appellant used
presented to the magistrate suggesting that he might own a
his dorm address as the return address in his correspondence
computer was based on his earlier subscription to an Internet
with the agents when he ordered pornographic videotapes
child pornography service. As the parties recognize in their
and when responding to the sexual interest questionnaire.
arguments, the critical question in this case is whether there
Further, Appellant concedes that this was his only address. In
was sufficient nexus to the dorm room to substantiate a search.
the military context, the barracks or dormitory often serves
Once the agents had probable cause to search the dorm room,
as the servicemember's residence, his or her home. That
agents were also authorized to search where the items sought
was true for Appellant. Based on these facts, common sense
might reasonably be located, and therefore the computer was
would suggest a fair probability that any child pornography
within the scope of the search authorization. In any event, Lt
Appellant might possess would be located in his dorm room.
Col Harrold reasonably relied on the common sense inference
that a military member who subscribed to an Internet website
Appellant's first nexus argument necessarily leads to
while listing his dormitory as his address owned a computer,
Appellant's additional arguments that the evidence presented
and that the computer would likely be found in his dormitory
to the magistrate did not support a fair inference that
room.
Appellant owned a computer, on which he might store child
pornography, or that he fell within the generic pedophile
That leads to Appellant's final argument that, to the extent the
profile presented to *220 the magistrate. In Appellant's view,
magistrate's finding of probable cause was based on his earlier
without such an inference, there was no reason to believe
subscription to a pornographic web service, that information
pornography would be stored in his room. Appellant correctly

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U.S. v. Macomber, 67 M.J. 214 (2009)

was stale. Moreover, because the magistrate was not told It is undoubtedly true that a magistrate's finding of probable
of this time lag, the affidavit in general is unreliable and cause “should be paid great deference.” Illinois v. Gates,
lacks credibility. Timeliness informs probable cause. United 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)
States v. Lopez, 35 M.J. 35, 38 (C.M.A.1992). The passage (quoting Spinelli v. United States, 393 U.S. 410, 419, 89
of time may diminish the likelihood that what is sought S.Ct. 584, 21 L.Ed.2d 637 (1969) (quotation marks omitted)).
will be found in the place to be searched. Id. As a result, But that deference is “not boundless.” United States v. Leon,
the magistrate should have been apprised of this time lag. 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
However, “[w]hether too long a period has elapsed from “Probable cause to search exists when there is a reasonable
the time the facts are obtained until the search is authorized belief that the ... evidence sought is located in the place or
depends on many factors.” Id. They may include, but are on the person to be searched.” Military Rule of Evidence
not limited to, the location to be searched, the type of crime (M.R.E.) 315(f)(2). “In the typical case where the police seek
involved, the nature of the articles to be seized, and how long permission to search a house for an item they believe is
the crime has been continuing. Id. In Leedy, for example, already located there, the magistrate's determination that there
we recognized that in the context of child pornography, a is probable cause for the search amounts to a prediction that
law enforcement expert's experience might reasonably inform the item will still be there when the warrant is executed.”
a magistrate's judgment as to whether, and for how long, a United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494,
child pornographer might retain pornography. 65 M.J. at 216. 164 L.Ed.2d 195 (2006). Because I do not agree that the facts
However, we also cautioned that “relying upon expertise too presented to the magistrate in Special Agent White's affidavit
heavily, at the expense of hard facts, can be troubling and is and briefing supported a prediction that child pornography
open to abuse.” Id. had ever been in Appellant's dormitory room, let alone was
still there at the time of the search, I respectfully dissent. 1
Here we have hard facts. The agent's affidavit established that
this was an investigation into the unlawful possession of child As defined in M.R.E. 315(f)(2), a finding of probable cause
pornography. The nature of the contraband sought was such “encompasses showing a nexus to the place to be searched.”
that it was highly portable, easily secreted, and often stored United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F.2001);
in the possessor's home in a variety of forms and on a variety see also Gates, 462 U.S. at 238, 103 S.Ct. 2317 (defining
of media. The affidavit also indicated that at some point probable cause as “a fair probability that contraband or
Appellant had subscribed to a child pornography website. evidence of a crime will be found in a particular place”)
But that information did not stand alone. This information (emphasis added). In this case, the fact that Appellant had
*221 prompted the agents to conduct a ruse that confirmed once accessed a child pornography website was central
Appellant's current interest in this contraband in the form of to the magistrate's finding of probable cause to search
a sexual interest questionnaire and a subsequent controlled Appellant's room. But the affidavit did not provide sufficient
delivery. As such, it was part of the total circumstances raising information to support the inference that this access resulted
the fair probability that Appellant had a present as well as a in Appellant possessing child pornography, let alone that
past sexual interest in or a sexual attraction to children, that child pornography was in his room. The affidavit merely
he probably possessed child pornography material, and that it stated that Appellant “had accessed a fee for service web site
probably was kept where he lived. known to traffic and display child pornographic images,” and
contained the agent's unsupported supposition that Appellant
“has used his computer system to facilitate the possession/
DECISION
distribution of child pornography.” (emphasis added). There
Based on this record, we conclude that the military judge did
is no evidence the agents verified that Appellant actually
not err in ruling that the magistrate had a substantial basis for
owned a home computer or had Internet access in his room.
finding probable cause in this case. The decision of the United
The affidavit does not indicate the location of the computer
States Air Force Court of Criminal Appeals is affirmed.
Appellant used; 2 it does not, for example, provide an Internet
Protocol (IP) address for that computer. Nor does it provide
RYAN, Judge (dissenting):

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information that Appellant purchased or downloaded child downloaded and uploaded child pornography from his work
pornography from the website. computer. Id. Here, however, there were not sufficient “other
factors” to allow the magistrate to rely on the profile.
The affidavit's use of profile information related to “child
pornographers and those with a sexual interest in children” Finally, even assuming the evidence supported an inference
cannot *222 mitigate the scarcity of detail in the affidavit. that Appellant previously possessed child pornography, the
According to this profile, such people “almost always critical fact supporting that inference—access to the website
maintain and possess child pornography materials” and store —occurred fourteen months prior to the search authorization
them “in a secure but accessible location, which is within application. This fact was not disclosed to the magistrate
their immediate control, such as in the privacy and security either in the affidavit or in person. This omission is important
of their own homes, most often in their personal bedrooms.” because “the passage of time at some point results in the
Reliance on this profile is problematic, and I cannot agree likelihood that the goods [sought] will no longer be in the
that all the government ever need do to defeat nexus concerns original location.” United States v. Lopez, 35 M.J. 35, 38
is provide boilerplate language about the habits of the (C.M.A.1992). Although the majority states that as a result
theoretical “collector.” of the omission “the affidavit in general is unreliable and
lacks credibility,” they do not find this to be a significant
In this case, nowhere does the affidavit specifically conclude problem. Macomber, 67 M.J. at 220. While it is true that
that Appellant fits the “collector” profile because he staleness depends in part on the nature of the evidence sought,
possessed child pornography, is a “child pornographer,” or and in general we have credited expert opinion that certain
a person “with a sexual interest in children.” Admittedly, people tend to retain child pornography for a long *223 time,
Appellant indicated an interest in viewing child pornography United States v. Leedy, 65 M.J. 208, 216 (C.A.A.F.2007), I
when he responded to the Eclipse Films survey and an disagree that the opinion should be accepted in this case. Here,
interest in acquiring child pornography when he ordered two the magistrate did not know how old the information was,
videos to be sent to him through the mail. But an express and therefore he could not assess whether it was reasonable
desire to have child pornography delivered to one's home for him to rely on the profile to determine that the evidence
in the future does not by itself support an inference that sought existed anywhere, let alone in Appellant's room.
Appellant previously possessed child pornography in that
home, or anywhere else. 3 It is by no means axiomatic that We are left, in the end, with nothing more than the facts
a person who expresses an interest in owning something that Appellant has a disturbing interest in child pornography
actually already has possessed it, particularly when that thing and fourteen months previously had paid to access a website
is contraband. While it is logical to infer that the website that contained it from an unknown computer. Because these
subscription gave Appellant access to child pornography, the facts neither establish a sufficient nexus between Appellant's
affidavit neither informs the magistrate where the access room and the child pornography nor support a reasonable
occurred nor indicates that Appellant actually downloaded belief that Appellant possessed child pornography at all,
the magistrate's conclusion that child pornography would
any images to possess in his room or elsewhere. 4
specifically be found in Appellant's room is less a “practical,
common-sense decision,” Gates, 462 U.S. at 238, 103 S.Ct.
Although we have previously credited expert reference to
2317, and more a leap of faith. Such a leap does not reflect
“profile evidence” in cases involving child pornography, we
the substantial basis required to conclude that there was
have done so when there were “other factors” to “bolster
probable cause to search Appellant's dorm room. In addition,
the opinion as to where the child pornography might be
because the sparse details in the affidavit required such a
found in appellant's home.” Gallo, 55 M.J. at 422. In Gallo,
leap to be made, and because the agent omitted information
the affidavit supporting the request to search the appellant's
about when the website was accessed, the affidavit was “so
home indicated that: (1) the appellant fit the profile of a
lacking in indicia of probable cause as to render official belief
pedophile; (2) the appellant had advertised for and solicited
in its existence entirely unreasonable.” Leon, 468 U.S. at
child pornography; (3) 262 pictures had been found on
923, 104 S.Ct. 3405 (quoting Brown v. Illinois, 422 U.S.
the appellant's work computer; and (4) the appellant had
590, 610–11, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Powell, J.,

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U.S. v. Macomber, 67 M.J. 214 (2009)

was intended to incorporate the good faith exception as

concurring in part)). The affidavit simply failed to provide
information from which a nexus between the items sought outlined in Leon).
and the location to be searched could be found. Under these
circumstances, the good faith exception of M.R.E. 311(b)(3) I would reverse the Air Force Court of Criminal Appeals and
find the military judge erred in denying the motion to suppress
does not apply. See United States v. Carter, 54 M.J. 414, 421–
the evidence seized in Appellant's dormitory room.
22 (C.A.A.F.2001) (acknowledging that M.R.E. 311(b)(3)

Footnotes

1 Oral argument in this case was heard at the Washburn University School of Law, Topeka, Kansas, as part
of the Court's “Project Outreach.” See United States v. Mahoney, 58 M.J. 346, 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.

2 The language of this factual recitation, with slight modification, is taken directly from the stipulation of fact
agreed to by the parties and relied upon by the military judge.

3 A point we need not decide in the context of this case.

1 Moreover, while these same facts certainly demonstrate that Appellant has interests that are perverse, they do
not establish a “reasonable belief” that he ever possessed child pornography, either at the time he accessed
the website or at the time the search authorization was sought. M.R.E. 315(f)(2).

2 The Stipulation of Fact states that the federal investigation revealed Appellant provided his dormitory address
when he subscribed to the website, but this does not tell us anything about where Appellant was located at
the time the “fee for service web site” was accessed. Presumably, Appellant was required to use his home
address when he paid for his subscription with his credit card.

3 The fact that Appellant instructed Eclipse Films to address the video package to him at his dormitory would
undoubtedly have provided probable cause for an anticipatory warrant to be executed once Appellant brought
the package back to his room. See Grubbs, 547 U.S. at 95–97, 126 S.Ct. 1494. But it is does not support an
inference that he already possessed child pornography in his room.

4 Nor does the affidavit indicate the number or kind of images Appellant viewed on the LustGallery site. And the
absence of information about where the access occurred is especially problematic when that access is used
to support the inference that he possessed child pornography: if Appellant did nothing more than view images
on a public computer, under our case law his actions would not have ipso facto established the offense
of possession of child pornography. See United States v. Navrestad, 66 M.J. 262, 267–68 (C.A.A.F.2008)
(holding that the appellant's act of viewing files containing child pornography on a computer at an Internet café
did not amount to possession because appellant “lacked the dominion and control necessary to constitute”
the offense).

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