United States v. Gallo

UNITED STATES, Appellee

v.

Gino J. GALLO, Airman First Class
U.S. Air Force, Appellant

No. 00-0560

Crim. App. No. 33303

United States Court of Appeals for the Armed Forces

Argued April 20, 2001

Decided September 20, 2001

CRAWFORD, C.J., delivered the opinion of the Court, in
which SULLIVAN and BAKER, JJ., joined. SULLIVAN, J., filed a
concurring opinion. GIERKE, J., filed a dissenting opinion, in
which EFFRON, J., joined.

Counsel

For Appellant: Major Stephen P. Kelly (argued); Colonel James
R. Wise and Lieutenant Colonel Timothy W. Murphy (on brief).

For Appellee: Captain James C. Fraser (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).

Amicus Curiae: Mark Santos (law student)(argued); Tracy
McCormack (supervising attorney)(on brief) – For the University
of Texas Law School.

Military Judge: J. L. Anderson

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gallo, No. 00-0560/AF

Chief Judge CRAWFORD delivered the opinion of the Court.

Contrary to his pleas, appellant was convicted of

dereliction of duty, in violation of Article 92, Uniform Code of

Military Justice, 10 USC § 892, and advertising, transporting,

receiving, possessing, and placing on the Internet child

pornography, in violation of 18 USC §§ 2251(c), 2252(a)(1), (2),

and (4), and 1462(a). The convening authority approved the

sentence of a dishonorable discharge, 42 months’ confinement,

total forfeitures, and reduction to the lowest enlisted grade.

The Court of Criminal Appeals set aside the finding of guilty to

possession of child pornography, affirmed the remaining

findings, and reassessed and affirmed the sentence as approved

by the convening authority. 53 MJ 556 (2000).

We granted review of the following issue:

WHETHER APPELLANT’S FOURTH AMENDMENT RIGHT TO BE
FREE FROM UNREASONABLE SEARCHES AND SEIZURES WAS
VIOLATED WHEN FEDERAL LAW ENFORCEMENT OFFICERS
EXECUTED A WARRANT TO SEARCH HIS HOME THAT WAS
ISSUED BASED SOLELY ON AN AFFIDAVIT FROM A
UNITED STATES CUSTOMS AGENT WHICH CONTAINED ONLY
A PEDOPHILE BEHAVIORAL PROFILE, AN ALLEGATION
THAT APPELLANT HAD “CHILD PORNOGRAPHY” IMAGES
ON HIS WORK SITE COMPUTER, AND OTHER EVIDENCE THAT
FAILED TO LINK APPELLANT’S HOME TO EVIDENCE OF A
CRIME.1

1
We heard oral argument in this case at the Courthouse of the Supreme Court
of Texas in Austin, Texas, as part of this Court’s Project Outreach. See
United States v. Allen, 34 MJ 228, 229 n.1 (CMA 1992).

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United States v. Gallo, No. 00-0560/AF

For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.

FACTS

Because of a decline in appellant’s work performance, in

mid-July 1996, appellant’s supervisor, Master Sergeant Schipani,

examined his work station. On his computer, she found a number

of sexually explicit images and subsequently issued a letter of

reprimand for the misuse of a government computer.

On October 22, 1996, a computer security monitor, Staff

Sergeant Martin, received information from an Internet service

provider that a person with a certain Internet Protocol (IP)

address was “trading child pornography.” Sergeant Martin traced

the IP address to appellant’s government-issued, work-station

computer. He then provided this information to the Office of

Special Investigations (OSI).

The next day, Special Agent Schwartz of the OSI, utilizing

the information provided by Sergeant Martin, obtained a search

warrant to seize a “mirror image” of a hard disk from

appellant’s government computer. That evening, Special Agents

Schwartz and Merkel executed the warrant and made a copy of

appellant’s hard drive on his government-issued computer.

An analysis of this disk revealed 262 graphic images of children

“in various sexual encounters, along with some text files.”

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This search revealed that at least the text files had been

viewed from or transferred to computer diskettes.

About 2 weeks later, Special Agent Schwartz interviewed

Master Sergeant Schipani and asked if appellant had a computer

at home. Some time later, without advising appellant of his

rights, Master Sergeant Schipani asked appellant if he had a

home computer, and he said he did. When the agents received

this information, they contacted Mr. Putnoky, who sought the

search warrant. At that time, Mr. Putnoky had been a United

States Customs Service agent for 26 years. Mr. Putnoky had

participated in numerous child pornography investigations. He

had spent the previous 3½ years in an undercover capacity for

the Customs Service, which plays a lead role in investigating

child pornography that enters the United States through the mail

or the Internet. “Commercially produced child pornography

historically has been and continues to be a product of foreign

distributors....” (From Mr. Putnoky’s affidavit, infra).

Mr. Putnoky prepared an affidavit and submitted it to a federal

magistrate judge, who then issued a search warrant for

appellant’s residence and his personal computer. The affidavit

also contained the following:

6. Based on my training and experience, I have
learned that:

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United States v. Gallo, No. 00-0560/AF

A. The term “pedophile” (preferential child molester)
is a psychiatric diagnostic term which refers to persons
who have a sexual attraction to children. These persons
are also referred to as “preferential child molesters.” I
have attended both formal training and seminars in the
field involving child pornography investigations,
importation and distribution of child pornography
and obscene materials given by the U.S. Customs Service,
the Federal Bureau of Investigation and numerous State and
Local law enforcement agencies/departments. I have
participated in the interviews of pedophiles....

B. Pedophiles collect sexually explicit or suggestive
materials involving children such as photographs,
magazines, video tapes, books, computer disks....

C. Pedophiles rarely, if ever, dispose of their
sexually explicit materials....

D. It has been my experience that pedophiles almost
always maintain and possess their materials (pictures,
films, video tapes, computer disks, correspondence and
photographs) in a place considered secure, frequently
within the privacy and security of their own homes. It has
been my experience that pedophiles residing with parents,
other family members, or any other person not aware of
their activities, will often conceal their child
pornography and related materials within their residence,
secreted and concealed in locations known only by them and
no one else cohabiting in the same residence.

....

7. My belief [is] that this property is located
within the premises to be searched [(appellant’s home)].

....

8. On October 23, 1996, the United States Air Force,
Office of Special Investigations (OSI), Maxwell Air Force
Base, Montgomery, Alabama, commenced an investigation into
the possible trafficking of child pornography over the
computer internet systems. This investigation involved the
soliciting and advertising of child pornography on the
DALnet IRC network by Gino GALLO. A systems administrator
associated with the DALnet IRC discovered computer traffic
indicating the trading of child pornography.

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United States v. Gallo, No. 00-0560/AF

9. Tracy REED, DALnet systems administrator located
at San Diego, California, researched the source of the
solicitations/advertisements and identified Gino GALLO’s
Internet Protocol (IP) address (143.158.38.2) as the source
of the solicitation/advertisement. This Internet Protocol
(IP) address is assigned to the computer that subject GALLO
operates in room 122, building 856, which is located at
Maxwell Air Force Base, Gunter Annex, Montgomery, Alabama.
Mr. REED notified officials in the United States Air Force
of his findings.
....

13. .... The analysis of the hard drive ...
disclosed that on several instances, files were either
downloaded or uploaded from the hard drive to a diskette[.]

14. Based on the facts presented in this Affidavit,
your affiant has probable cause to believe that presently,
and/or at the time of this warrant’s execution, there is
property contained within the place to be searched, which
is evidence of violations of Title 18, United States Code,
Sections 2251, et seq. and/or 1462, as well as other
documents, records, correspondence, receipts, order forms
and/or other materials reflecting the importation,
purchase, receipt and/or possession of child pornography.
Additionally, there is property which was designed or
intended for use, is being used, or has been used as a
means of committing criminal offenses under Title 18,
United States Code, Sections 2251, et seq. and 1462.

The affidavit also contained the following information:

1. A statement that “approximately 262 apparent child
pornography photographs” were found on appellant’s work
computer.

2. The fact that several of the photographs seized
from appellant’s work computer matched imported photographs
seized in other Customs’ cases.

3. A statement that Master Sergeant Shipani had
confirmed appellant owned a home computer.

4. A statement that an analysis of appellant’s work
computer indicated that computer files of unknown content
had been “downloaded or uploaded from the hard drive to a

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United States v. Gallo, No. 00-0560/AF

diskette, relating to files received over the internet.
Once these files are downloaded to a diskette, this makes
the files extremely portable in nature.”

DISCUSSION

Mil.R.Evid. 315(f)(2), Manual for Courts-Martial, United

States (1995 ed.),2 defines probable cause as “a reasonable

belief that the ... property ... sought is located in the place

... to be search[ed].” This definition encompasses showing a

nexus to the place to be searched, and that the information

relied on is not too stale. United States v. Lopez, 35 MJ 35,

38-39 (CMA 1992). In determining whether probable cause

existed, all the information set forth in the affidavit need not

be used. Based on the ruling by the trial judge and the

decision of the Court of Criminal Appeals, we will assume that

Master Sergeant Schipani’s inquiry whether appellant owned a

home computer was improper. See United States v. Grooters, 39

MJ 269, 273 (CMA 1994). Even so, when there are misstatements

or improperly obtained information, we sever those from the

affidavit and examine the remainder to determine if probable

cause still exists. See, e.g., United States v. Canfield, 212

F.3d 713, 717-18 (2d Cir. 2000). As the Eighth Circuit Court of

Appeals recently stated in Technical Ordnance, Inc. v. United

States, 244 F.3d 641, 647 (8th Cir. 2001):

Even if a false statement or omission is
2
The Manual provision cited is the version in effect at the time of
appellant’s court-martial. The current version is unchanged.

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United States v. Gallo, No. 00-0560/AF

included in an affidavit, the Fourth Amendment
is not violated if the affidavit would still
show probable cause after such falsehood or
omission is redacted or corrected.

In reviewing the affidavit, we should bear in mind that

“[a] grudging or negative attitude by reviewing courts
towards warrants” ... is inconsistent with the Fourth
Amendment’s strong preference for searches conducted
pursuant to a warrant; “courts should not invalidate
warrant[s] by interpreting affidavits in a hyper-
technical, rather than a commonsense, manner.”

Illinois v. Gates, 462 U.S. 213, 236 (1983)(citations omitted).

Certainly, conclusory statements should not be in an affidavit,

but in the end, the review process deals with the question of

probability. The issue is whether there was a “substantial

basis” upon which the federal magistrate judge could have found

probable cause to believe a search of appellant’s residence

would uncover child pornography. United States v. Carter, 54 MJ

414, 421 (2001).

As to the time element, information more than 6 months old

when seizing pornography on a computer or a hard drive has been

allowed. United States v. Hay, 231 F.3d 630 (9th Cir. 2000)

(6 months); United States v. Lacy, 119 F.3d 742 (9th Cir.

1997)(10 months).

As to the nexus requirement, the affidavit by the agent,

who had 26 years’ experience in law enforcement, set forth his

opinion as to how pornographic material is obtained and stored.

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United States v. Gallo, No. 00-0560/AF

The courts have allowed a gap in the nexus to be filled in based

on the affiant’s experience.

A judicial officer may give considerable weight
to “the conclusion of experienced law enforcement
officers regarding where evidence of a crime is
likely to be found,” United States v. Fannin,
817 F.2d 1379, 1382 (9th Cir. 1987), and is
“entitled to draw reasonable inferences about
where evidence is likely to be kept, based on the
nature of the evidence and the type of the offense.”
United States v. Angulo-Lopez, 791 F.2d 1394, 1399
(9th Cir. 1986).

United States v. Lawson, 999 F.2d 985, 987 (6th Cir. 1993); see

also United States v. Hodge, 246 F.3d 301 (3d Cir. 2001); United

States v. Emmons, 24 F.3d 1210 (10th Cir. 1994).

In addition to the affiant’s experience, other factors

bolster the opinion as to where the child pornography might be

found in appellant’s home. There were 262 pictures found;

appellant fit the pedophile profile; he had advertised for child

pornography; solicited child pornography; and downloaded and

uploaded child pornography from his work computer. Based on

these factors, it is reasonably probable that appellant would

keep and work on this material in a place over which he had

substantial control. Additionally, it is reasonable to infer

that the additional materials would be secreted in a place other

than his office. Lopez, 35 MJ at 39; see also United States v.

Koelling, 992 F.2d 817, 819-20, 823 (8th Cir. 1993)(upheld

warrant containing statement that “pedophiles ... keep these

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United States v. Gallo, No. 00-0560/AF

materials [(child pornography)] for many months and years, and

rarely, if ever, dispose of their collections”).

Even if probable cause was lacking because of the failure

to establish a nexus with appellant’s house, the good faith

exception in Lopez would apply. We have excised any statements

obtained in violation of Article 31, UCMJ, 10 USC § 831; there

is no evidence of an intentional misstatement, nor is this a

bare bones affidavit that would preclude the application of the

good faith exception. This is a detailed affidavit presented by

an experienced law enforcement official investigating child

pornography on the Internet. In 1996, these investigations were

not as prevalent as they are today. Thus, to ensure that the

warrant was not issued based on a bare bones statement, the

officer set forth and detailed his experience and why he

believed child pornography would be at appellant’s house.

This officer’s opinion is supported by Special Agent

Schwartz’s testimony that the search of the office computer

showed at least three text files from this directory had been

modified using the Microsoft Word program. At the time, the

files were opened and the Word program was downloaded to a

floppy diskette. According to Special Agent Merkel, this

downloading yielded three possibilities: (1) “It could mean

that ... a file was resident on the hard drive ... could have

been opened ... and then saved to the floppy drive,”; “The file

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could have been present on the floppy drive and then opened,”;

or (3) the file “could have been created and then saved to the

floppy drive.”

Based on this testimony, the Court of Criminal Appeals

adopted the military judge’s finding: “The analysis by the

AFOSI also revealed that some files had been either read from

the floppy drive, transferred from the hard drive to the floppy

drive, or transferred from the floppy drive to the hard drive.”

53 MJ at 559. The 262 images of child pornography, the Internet

solicitation, the Internet advertisement, and the pedophile

profile justify the inference that the material sought would be

at appellant’s residence. Because of the breath of this

material, at a minimum, the application of the good faith

exception seems appropriate. Thus, we hold that the judge did

not abuse his discretion in denying appellant’s motion to

suppress.

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

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United States v. Gallo, 00-0560/AF

SULLIVAN, Judge (concurring):

I write separately to amplify a certain point made by the

majority. Specifically, the information averred in the affidavit

and provided to the magistrate judge constituted sufficient

probable cause to issue a search warrant in this case.

This case is factually similar to United States v. Hay, 231

F.3d 630 (9th Cir. 2000). In Hay, a magistrate judge issued a

search warrant to search the appellant’s apartment and seize the

appellant’s “computer hardware, software, records, instructions

or documentation, and depictions of child pornography.” Id. at

633. The supporting affidavit averred that a known child

pornographer in Canada had sent 19 graphic files to the

appellant’s Internet address; that the same Internet address was

associated with a network port wired to the appellant’s

apartment; and that, by the appellant’s own admissions to an

undercover Customs agent, the appellant maintained a computer in

his apartment wired to the Internet for his sole use. Id. at

632-33. Although there was no direct evidence that the images of

child pornography would actually be found in the appellant’s

apartment, the Ninth Circuit believed the magistrate judge could

reasonably infer so from the facts found in the affidavit. Id.

at 636.
United States v. Gallo, No. 00-0560/AF

Likewise in this case, the magistrate judge had a

substantial basis to find the probable cause necessary to issue

the search warrant. As in Hay, this appellant told someone (viz.

his supervisor) about his computer at home. Moreover,

investigators found 262 images of child pornography on

appellant’s computer at work. Rather than having the files sent

to his personal Internet address, evidence indicates that

appellant downloaded Internet files to his work computer and then

transferred those files to diskettes. Consistent with the Ninth

Circuit’s approach in Hay, I think the magistrate judge could

reasonably infer that appellant had stored images of child

pornography on his computer at home. See United States v. Lacy,

119 F.3d 742 (9th Cir. 1997); but cf. United States v. Weber, 923

F.2d 1338 (9th Cir. 1990).

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United States v. Gallo, No. 00-0560/AF

GIERKE, Judge, with whom EFFRON, Judge, joins (dissenting):

In my view, there was no probable cause for the search of

appellant’s home. The search warrant was based on illegally

obtained evidence that appellant had a computer in his home, a

false statement that images had been uploaded or downloaded from

appellant’s work-station computer, an unsubstantiated assumption

that appellant was a pedophile, and a bare bones assertion that

the images on appellant’s work-station computer were

pornographic.

Furthermore, I do not believe that the magistrate judge had a

“substantial basis for . . . conclud[ing] that probable cause

existed.” United States v. Carter, 54 MJ 414, 418 (2001),

quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Where a

warrant is issued based on false information, “the deference

accorded to a magistrate’s finding of probable cause does not

preclude inquiry into the knowing or reckless falsity of the

affidavit on which that determination was based. Franks v.

Delaware, 438 U.S. 154 . . . (1978).” Carter, 54 MJ at 419,

quoting United States v. Leon, 468 U.S. 897, 914-15 (1984).

In this case, Special Agent (SA) Merkel, a “computer forensic

specialist,” examined appellant’s work-station computer at the

request of SA Schwartz, the OSI lead investigator. SA Merkel

concluded that there was nothing in the computer necessarily

indicating that images had been downloaded to a floppy disc.
United States v. Gallo, No. 00-0560/AF

SA Schwartz passed the results of his investigation,

including SA Merkel’s analysis, to SA Putnoky, who prepared an

affidavit and submitted it to the magistrate judge. Contrary to

SA Merkel’s conclusions, SA Putnoky’s affidavit asserted that

“analysis of the hard drive on the government owned computer at

[appellant’s] work cite disclosed that on several instances,

files were either downloaded or uploaded from the hard drive to a

diskette.” In my view, the investigators knowingly or recklessly

provided the magistrate with false information.

SA Putnoky’s affidavit provided no description of the images

found on appellant’s computer. It merely set out his conclusions

that they were “child pornography,” “adult pornography,” and

“apparent child pornography.” It is well established that “[t]he

magistrate’s determination ‘cannot be a mere ratification of the

bare conclusions of others.’” Carter, supra, quoting Leon, supra.

In United States v. Monroe, 52 MJ 326, 332 (2000), this Court

reaffirmed that a magistrate may not rely on the bare bones

conclusions of investigators, but instead, “must be provided

sufficient information to make an independent determination under

the totality of the circumstances.” In Monroe, this Court held

that the phrase “graphic pornographic photographs” was sufficient

to describe “obscenity as legally defined.” This Court

cautioned, however, that “[t]his is a case of borderline

sufficiency and should not be taken as a model for future

conduct.” Id. In my view, this Court drew the line in Monroe,

and this case goes beyond that line.

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United States v. Gallo, No. 00-0560/AF

SA Putnoky’s affidavit also assumed that appellant was a

pedophile, and described at great length the kinds of items that

are usually found in the homes of pedophiles. SA Putnoky’s

affidavit, however, provided no factual support for his

conclusion that appellant was a pedophile. Without such factual

support, the affidavit did not provide sufficient information to

permit the magistrate to independently determine whether

appellant was a pedophile.

The basis for searching appellant’s home was SA Putnoky’s

unsupported assertion that appellant was a pedophile, SA

Putnoky’s unsupported assertion that the images were

pornographic, and SA Putnoky’s false representation that images

had been uploaded or downloaded on appellant’s work-station

computer, using a floppy disc. Because the supporting affidavit

contained false information and relied heavily on bare bones

conclusions without supporting facts, I am unwilling to agree

that the magistrate had a substantial basis for concluding that

probable cause existed.

Furthermore, in my view, the good faith exception in Mil. R.

Evid. 311(b)(3)(B), Manual for Courts-Martial, United States

(1995 ed.),∗ cannot save the search in this case. In United

States v. Leon, supra, the Supreme Court set out four

circumstances where the good faith exception does not apply: (1)

a false or reckless affidavit; (2) a “rubber stamp” judicial

∗
The Manual provision cited is the version in effect at the time
of appellant’s court-martial. The current version is unchanged.

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United States v. Gallo, No. 00-0560/AF

review; (3) a facially deficient affidavit; and (4) a facially

deficient warrant. See Carter, 54 MJ at 419-20. The

“substantial basis” prong of Mil. R. Evid. 311(b)(3)(B) is not

satisfied if the affidavit is intentionally or recklessly false,

or if it is a “‘bare bones’ recital of conclusions.” Id. at 421.

In this case, SA Schwartz and SA Putnoky, the agents who executed

the warrant, were the sources of the false information and the

“‘bare bones’ recital of conclusions.” Unlike the majority, I do

not consider SA Putnoky’s 26 years of investigative experience as

a factor supporting good faith. To the contrary, I would expect

an experienced agent to understand the implications of providing

false information and relying on bare bones conclusions. Under

these circumstances, I cannot conclude that SA Schwartz and SA

Putnoky acted in good faith.

In my view, the military judge erred by refusing to suppress

the evidence seized from appellant’s home. Accordingly, I

dissent.

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