United States v. Macomber

UNITED STATES, Appellee

v.

Edward S. MACOMBER, Airman First Class
U.S. Air Force, Appellant

No. 08-0072

Crim. App. No. 36693

United States Court of Appeals for the Armed Forces

Argued October 21, 2008

Decided February 24, 2009

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and STUCKY, JJ., joined. RYAN, J., filed a
separate dissenting opinion.

Counsel

For Appellant: Captain Tiaundra Sorrell (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Coretta Gray (argued); Colonel Gerald R.
Bruce and Major Matthew S. Ward (on brief); Major Jeremy S.
Weber.

Amicus Curiae for Appellant: Kimberly M. J. Lynch (law student)
(argued); Randall Hodgkinson, Esq. (supervising attorney), Mark
Coulter (law student) and E. Lee Oliver (law student) (on
brief); Jeffrey D. Jackson, Esq. –- for the Washburn University
School of Law.

Military Judge: James L. Flanary

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Macomber, No. 08-0072/AF

Judge BAKER delivered the opinion of the Court.

Appellant entered mixed pleas to two specifications under

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (2000), before a military judge sitting as a general

court-martial. He pled guilty to receipt of child pornography

but contested a separate specification alleging wrongful

possession of child pornography. He was ultimately convicted of

both offenses. The adjudged and approved sentence included a

bad-conduct discharge, confinement for eighteen months,

forfeiture of all pay and allowances and reduction to pay grade

E-1. The United States Air Force Court of Criminal Appeals

affirmed. United States v. Macomber, No. ACM 36693, 2007 CCA

LEXIS 345, 2007 WL 2500313 (A.F. Ct. Crim. App. Aug. 31, 2007)

(unpublished).

Prior to trial, Appellant moved to suppress evidence seized

as 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 military judge denied the motion, concluding that

the search authority had probable cause to authorize the search.

Appellant challenges that ruling in this Court. For the reasons

that follow, we affirm.1

1
Oral argument in this case was heard at the Washburn University
School of Law, Topeka, Kansas, as part of the Court’s “Project

2
United States v. Macomber, No. 08-0072/AF

FACTS2

In February 2004, Special Agent (SA) Novlesky of the

Immigration and Customs Enforcement Agency (ICE) in Minot, North

Dakota was notified by his agency colleagues that during a child

pornography website takedown operation called “Operation

Falcon,” Appellant was identified as a child pornography website

subscriber. The website known as “LustGallery.com- A Secret

Lolitas Archive” was dismantled during Operation Falcon, and ICE

agents recovered credit card information relating to its

subscribers, including Appellant. As a result of Operation

Falcon, SA Novlesky received a “Site Index” listing child

pornography website subscribers located in North Dakota.

Appellant was identified on this index by his name, dormitory

address, telephone number, commercial e-mail account and credit

card information. The index lists: “Edward Macomber, Dorm 211

Unit 503, Minot, North Dakota, 58705, (701) 727-6236 . . . .”

The evidence showed that Appellant had accessed

“LustGallery.com” on April 18, 2003.

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.

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SA Novlesky subsequently obtained the grand jury evidence

relating to Operation Falcon in order to verify the information

presented to him by his ICE colleagues. He then contacted the

bank relating to the credit card information linked to Appellant

in order to verify the accuracy of the information. Because the

address listed by Appellant when he signed up for the

“LustGallery.com” services appeared to be a military dormitory

address, SA Novlesky concluded that Appellant was a member of

the Air Force stationed at Minot Air Force Base (AFB). He

contacted the Air Force Office of Special Investigation (OSI) to

share the information he had and to verify Appellant’s identity

and military status. SA Novlesky met with OSI Special Agent

Patrick White to discuss options for proceeding with the

investigation of Appellant, and the agents agreed to conduct a

joint investigation. SA Novlesky recommended to OSI that Postal

Inspector Rachel Griffin be contacted to send a target letter to

Appellant offering him child pornography. OSI agreed and

Inspector Griffin was contacted and brought in as part of the

investigation team.

Pursuant to this investigation, Inspector Griffin sent a

letter and a “Sexual Interest Questionnaire” to Appellant from

Eclipse Films, a fictional company purporting to specialize in

illegal pornography. The correspondence stated that pornography

offered by the film company was “illegal” and must be kept in

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United States v. Macomber, No. 08-0072/AF

the “strictest confidence.” The correspondence was sent to

Appellant’s mailing address at Dorm 211 on Minot AFB. Appellant

was on temporary duty to Guam at the time, so the letter was

forwarded to him at his temporary duty location. Appellant

completed the questionnaire listing “teen sex” and “pre-teen

sex” among his sexual interests and indicated his interest in

buying pornography from the company. He mailed the items back

to Inspector Griffin at her undercover post office box. The

letter was postmarked from Guam, but Appellant indicated his

return address on the envelope as “Dorm 211, Unit 503, Minot

AFB, ND 58705.” Inspector Griffin sent Appellant a letter

thanking him for his interest list and describing the available

videos fitting his stated sexual interests along with an order

form pricing the videos at twenty dollars each.

On June 14, 2004, Inspector Griffin received a pre-stamped

white business size envelope in the mail. The envelope was

postmarked “Minot, ND June 8, 2004” with the return address

listed as “Edward Macomber, Dorm 211, Unit 503, Minot AFB, ND

58705.” The envelope contained a completed order form

indicating Appellant’s request to purchase two child pornography

videos titled “IC-5 Mixed Sleepover” and “IN-9 Sweet Sixteen.”

A postal money order was enclosed for the amount of forty

dollars payable to Eclipse Films. The purchaser was listed as

“Ed Macomber, Dorm 211, Unit 503, Minot AFB, ND 58705.”

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The law enforcement team planned a controlled delivery of a

package containing the two child pornography videos ordered by

Appellant. Prior to the controlled delivery, SA White

coordinated with Inspector Griffin and the Minot legal office to

prepare an affidavit in support of search authority for

Appellant’s dormitory room. The application for search

authorization was prepared for submission to the base

magistrate, Lieutenant Colonel (Lt Col) James Harrold. Although

this was SA White’s first child pornography case, he received

guidance from fellow OSI agents with more specific experience in

child pornography cases. Inspector Griffin provided SA White

with profile information relating to individuals who view child

pornography and who have a sexual interest in children. She

conferred with other postal inspectors prior to advising SA

White on the profile information in the affidavit. SA White

discussed the affidavit with other more experienced agents in

his office and his detachment commander.

On June 21, 2004, SA White briefed the magistrate on the

investigation into Appellant’s activities and provided him the

affidavit in support of search authority for Appellant’s

dormitory room and personal vehicle. Lt Col Harrold read the

affidavit twice and discussed its contents with SA White. SA

White told Lt Col Harrold that Appellant was identified as a

subscriber to a known child pornography website through

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Operation Falcon. However, Lt Col Harrold was not told that

Appellant had accessed the website on April 18, 2003, fourteen

months earlier. Lt Col Harrold was also informed that Appellant

had identified himself through a sexual interest questionnaire

as having a sexual interest in “teen sex” and “pre-teen sex” and

that Appellant had ordered two child pornography videotapes

through the mail from undercover Inspector Griffin for delivery

to his address at Dorm 211, Minot AFB, North Dakota. SA White

discussed the operational plan for the controlled delivery of

the package with Lt Col Harrold, along with the alternative

plans in the event that Appellant did not return to his dorm

room or in the event he tried to leave the base with the

package. The affidavit provided to Lt Col Harrold listed a

synopsis of each movie Appellant had ordered. In the synopsis,

both movies were described in fairly graphic detail as featuring

children engaged in sexual acts.

SA White based the request for search authority on

Appellant’s actions prior to his receipt of the actual videos

from Eclipse Films. Specifically, the request was based on

Appellant’s subscription to the “LustGallery.com” child

pornography website using his dorm room address, his self-

proclaimed interest in children engaged in sex, and his attempt

to order movies containing child pornography. While the

affidavit stated that SA White expected to find a parcel

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addressed to Appellant from Eclipse Films, this was not the

basis for the search authority nor was it the reason the

magistrate found probable cause.

The affidavit also included “pedophile profile

information.” This information was based on SA White’s

discussion with Inspector Griffin and included profile

information relative to individuals interested in child

pornography or those sexually interested in children. It was

also based on SA White’s training while attending the OSI

Academy and the Federal Law Enforcement Training Center during

which “typical behavior of child pornographers” was described.

The affidavit stated:

child pornographers and persons with a sexual attraction to
children almost always maintain and possess child
pornography materials such as: photographs, magazines,
negatives, films, videotapes, graphic image files,
correspondence, mailing lists, books, tapes, recordings and
catalogs. These materials are stored in a secure but
accessible location within their immediate control, such as
in the privacy and security of their own homes, most often
in their personal bedrooms.

Lt Col Harrold granted authority for the search of Dorm

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

Appellant’s 2002 Mitsubishi Mirage. According to the

stipulation of fact, he based his probable cause finding “mainly

on the information linking [Appellant] to a pay-for child

pornography website, together with the information submitted by

[Appellant] indicating his sexual interest in children, the

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correspondence whereupon [Appellant] listed his dormitory

address attempting to obtain child pornography, and the fact

that [Appellant] ordered two child pornography videos through

the mail.” He considered all of this information together with

the profile information from experienced agents in the field

that showed the likelihood that individuals with child

pornography usually keep close possession and control of the

pornography and often keep it in their homes and bedrooms.

That same day, Inspector Griffin and SA White set up the

controlled delivery of the child pornography videos to

Appellant’s mailing address at the Postal Service Center at

Minot AFB. The OSI agents were aware that the mail delivery

system on Minot AFB required that packages be picked up by dorm

residents at the service center rather than delivered to them at

their dorm rooms. Because of the illegal nature of child

pornography, it was necessary for the agents to maintain control

of or visual contact with the contraband package at all times.

Therefore, OSI agents 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 up the package containing the child pornography

videos and exited the service center. Two agents outside the

service center drove by Appellant as he exited the facility in

an effort to photograph him. However, the camera flash went off

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when they took the picture. Appellant proceeded to his vehicle,

sat inside for a few moments, then got out of his vehicle and

attempted to return the package to the service center, at which

point he was apprehended.

Following the apprehension, the agents initiated a search

of Appellant’s residence in accordance with the search

authorization. The search revealed several pages of printed

materials and photos, writings Appellant had made regarding

specific child pornography websites, and several hundred

suspected child pornography images retrieved from his computer.

DISCUSSION

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); United States v. Rader, 65 M.J. 30, 32

(C.A.A.F. 2007). An abuse of discretion occurs if the military

judge finds clearly erroneous facts or misapprehends the law.

Leedy, 65 M.J. at 213. In this case, the military judge relied

on facts stipulated to by the parties, therefore the question

here concerns the military judge’s application of the law, which

we review de novo. Rader, 65 M.J. at 32 (conclusions of law

reviewed de novo); United States v. Flores, 64 M.J. 451, 454

(C.A.A.F. 2007). The core legal question in the case is whether

the military judge correctly ruled that the search authority had

a substantial basis for determining that probable cause existed.

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United States v. Macomber, No. 08-0072/AF

Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v.

Carter, 54 M.J. 414, 418 (C.A.A.F. 2001). “‘The task of a

reviewing court is not to conduct a de novo determination of

probable cause, but only to determine whether there is

substantial evidence in the record supporting the magistrate’s

decision to issue the warrant.’” United States v. Monroe, 52

M.J. 326, 331 (C.A.A.F. 2000) (quoting Massachusetts v. Upton,

466 U.S. 727, 728 (1984)).

This standard reflects the law’s preference for warrants

and for independent review by magistrates. “In reviewing a

decision that there was probable cause for a search, we must

keep in mind that a determination of probable cause by a neutral

and detached magistrate is entitled to substantial deference.”

Carter, 54 M.J. at 419 (citation and quotation marks omitted);

Monroe, 52 M.J. at 331 (citations omitted); United States v.

Maxwell, 45 M.J. 406, 423 (C.A.A.F. 1996) (citation omitted).

“A deferential standard of review is appropriate to further the

Fourth Amendment’s strong preference for searches conducted

pursuant to a warrant.” Upton, 466 U.S. at 733. We have

interpreted the Supreme Court’s guidance to require that

resolution of doubtful or marginal cases should be largely

determined by the preference for warrants and that “[c]lose

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

decision.” Monroe, 52 M.J. at 331 (citation and quotation marks

11
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omitted); Maxwell, 45 M.J. at 423 (citation omitted). “‘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 [warrants] by interpreting [affidavits] in

a hypertechnical, rather than a commonsense, manner.’” Gates,

462 U.S. at 236 (quoting United States v. Ventresca, 380 U.S.

102, 108-109 (1965)) (alteration in original); Carter, 54 M.J.

at 419.

“Probable cause to search exists when there is a reasonable

belief that . . . property or evidence sought is located in the

place or on the person to be searched.” Military Rule of

Evidence 315(f)(2). The search authority is required to make

this determination based on the “totality-of-the-circumstances.”

Gates, 462 U.S. at 238; Carter, 54 M.J. at 418; Monroe, 52 M.J.

at 331; United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F.

2005). A probable cause determination is “a practical, common-

sense decision whether, given all the circumstances set forth in

the affidavit before” the search authority, “there is a fair

probability that contraband or evidence of a crime will be found

in a particular place.” Gates, 462 U.S. at 238; Bethea, 61 M.J.

at 187 (citation omitted). As this Court has explained,

probable cause deals with probabilities:

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It is not a technical standard, but rather is based on the
factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians,
act. Probable cause requires more than bare suspicion, but
something less than a preponderance of the evidence. Thus,
the evidence presented in support of a search need not be
sufficient to support a conviction, nor even to demonstrate
that an investigator’s belief is more likely true than
false, there is no specific probability required, nor must
the evidence lead one to believe that it is more probable
than not that contraband will be present. The duty of the
reviewing court is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in
the affidavit . . . there is a fair probability that
contraband or evidence of a crime will be found in a
particular place.

[P]robable 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 presented to the magistrate.

Leedy, 65 M.J. at 213 (citations and quotation marks omitted).

Finally, “[i]n reviewing a ruling on a motion to suppress, we

consider the evidence in the light most favorable to the

prevailing party.” Id. (citation and quotation marks omitted);

United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996).

ANALYSIS

Appellant makes four arguments challenging the magistrate’s

finding of probable cause. In particular, Appellant argues that

there was insufficient information placed before the magistrate

to reflect a search nexus to his dorm room, a computer in his

dorm room, and to link Appellant to the generic pedophile

profile presented by SA White. Finally, he argues that his

subscription to the “LustGallery.com” site did not provide such

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United States v. Macomber, No. 08-0072/AF

a nexus because the information was fourteen months old and

therefore stale. These arguments are necessarily related where

the totality of the circumstances is weighed. With that in

mind, we consider each argument in turn, recognizing that the

question presented is not whether one fact or another provided

sufficient cause, but whether the facts taken as a whole did so.

First, Appellant argues there was an insufficient nexus

between the child pornography discovered in his possession at

the post office and his dorm room to provide cause to search his

dorm room. The argument is based on the apparent ground that

the mail for dormitory residents was delivered to the Postal

Service Center as opposed to the individual rooms; since

Appellant was apprehended at the service center, it was

unreasonable to infer that additional child pornography would be

found in his dorm room.

The facts indicate otherwise. As stipulated, Appellant

used his dorm address as the return address in his

correspondence with the agents when he ordered pornographic

videotapes and when responding to the sexual interest

questionnaire. Further, Appellant concedes that this was his

only address. In the military context, the barracks or

dormitory often serves as the servicemember’s residence, his or

her home. That was true for Appellant. Based on these facts,

common sense would suggest a fair probability that any child

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pornography Appellant might possess would be located in his dorm

room.

Appellant’s first nexus argument necessarily leads to

Appellant’s additional arguments that the evidence presented to

the magistrate did not support a fair inference that Appellant

owned a computer, on which he might store child pornography, or

that he fell within the generic pedophile profile presented to

the magistrate. In Appellant’s view, without such an inference,

there was no reason to believe pornography would be stored in

his room. Appellant correctly points out that while SA White’s

affidavit presented a “pedophile profile,” including and in

particular the statement that pedophiles are likely to store

pornography at their places of residence, it did not expressly

conclude or state that Appellant fit the profile. Indeed, while

courts have relied on such profiles to inform search

determinations, clearly, a profile alone without specific nexus

to the person concerned cannot provide the sort of articulable

facts necessary to find probable cause to search.

But that is not this case. The stipulated facts reflect

that Appellant had subscribed to an Internet child pornography

web service in the past, and that he expressed an ongoing

interest in child pornography in the present. He had recently

filled out a questionnaire documenting this interest. Such

facts may or may not place Appellant within a generic pedophile

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profile or a clinical pedophile profile,3 but they certainly

reflect an ongoing interest in child pornography. Based on

common sense, law enforcement experience, and case law, the

military judge reasonably concluded there was a fair probability

that a person with an interest in child pornography, who has

ordered child pornography in the past and in the present, is

likely to store such pornography in some quantity at a secure

and private location. For a servicemember residing on a

military installation, that means his dormitory room, barracks,

or vehicle.

This also moots Appellant’s argument that the only evidence

presented to the magistrate suggesting that he might own a

computer was based on his earlier subscription to an Internet

child pornography service. As the parties recognize in their

arguments, the critical question in this case is whether there

was sufficient nexus to the dorm room to substantiate a search.

Once the agents had probable cause to search the dorm room,

agents were also authorized to search where the items sought

might reasonably be located, and therefore the computer was

within the scope of the search authorization. In any event, Lt

Col Harrold reasonably relied on the common sense inference that

a military member who subscribed to an Internet website while

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

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listing his dormitory as his address owned a computer, and that

the computer would likely be found in his dormitory room.

That leads to Appellant’s final argument that, to the

extent the magistrate’s finding of probable cause was based on

his earlier subscription to a pornographic web service, that

information was stale. Moreover, because the magistrate was not

told of this time lag, the affidavit in general is unreliable

and lacks credibility. Timeliness informs probable cause.

United States v. Lopez, 35 M.J. 35, 38 (C.M.A. 1992). The

passage of time may diminish the likelihood that what is sought

will be found in the place to be searched. Id. As a result,

the magistrate should have been apprised of this time lag.

However, “[w]hether too long a period has elapsed from the time

the facts are obtained until the search is authorized depends on

many factors.” Id. They may include, but are not limited to,

the location to be searched, the type of crime involved, the

nature of the articles to be seized, and how long the crime has

been continuing. Id. In Leedy, for example, we recognized that

in the context of child pornography, a law enforcement expert’s

experience might reasonably inform a magistrate’s judgment as to

whether, and for how long, a child pornographer might retain

pornography. 65 M.J. at 216. However, we also cautioned that

“relying upon expertise too heavily, at the expense of hard

facts, can be troubling and is open to abuse.” Id.

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Here we have hard facts. The agent’s affidavit established

that this was an investigation into the unlawful possession of

child pornography. The nature of the contraband sought was such

that it was highly portable, easily secreted, and often stored

in the possessor’s home in a variety of forms and on a variety

of media. The affidavit also indicated that at some point

Appellant had subscribed to a child pornography website. But

that information did not stand alone. This information prompted

the agents to conduct a ruse that confirmed Appellant’s current

interest in this contraband in the form of a sexual interest

questionnaire and a subsequent controlled delivery. As such, it

was part of the total circumstances raising the fair probability

that Appellant had a present as well as a past sexual interest

in or a sexual attraction to children, that he probably

possessed child pornography material, and that it probably was

kept where he lived.

DECISION

Based on this record, we conclude that the military judge

did not err in ruling that the magistrate had a substantial

basis for finding probable cause in this case. The decision of

the United States Air Force Court of Criminal Appeals is

affirmed.

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RYAN, Judge (dissenting):

It is undoubtedly true that a magistrate’s finding of

probable cause “should be paid great deference.” Illinois v.

Gates, 462 U.S. 213, 236 (1983) (quoting Spinelli v. United

States, 393 U.S. 410, 419 (1969) (quotation marks omitted). But

that deference is “not boundless.” United States v. Leon, 468

U.S. 897, 914 (1984). “Probable cause to search exists when

there is a reasonable belief that the . . . evidence sought is

located in the place or on the person to be searched.” Military

Rule of Evidence (M.R.E.) 315(f)(2). “In the typical case where

the police seek permission to search a house for an item they

believe is already located there, the magistrate’s determination

that there is probable cause for the search amounts to a

prediction that the item will still be there when the warrant is

executed.” United States v. Grubbs, 547 U.S. 90, 95 (2006).

Because I do not agree that the facts presented to the

magistrate in Special Agent White’s affidavit and briefing

supported a prediction that child pornography had ever been in

Appellant’s dormitory room, let alone was still there at the

time of the search, I respectfully dissent.1

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).
United States v. Macomber, No.08-0072/AF

As defined in M.R.E. 315(f)(2), a finding of probable cause

“encompasses showing a nexus to the place to be searched.”

United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001); see

also Gates, 462 U.S. at 238 (defining probable cause as “a fair

probability that contraband or evidence of a crime will be found

in a particular place”) (emphasis added). In this case, the

fact that Appellant had once accessed a child pornography

website was central to the magistrate’s finding of probable

cause to search Appellant’s room. But the affidavit did not

provide sufficient information to support the inference that

this access resulted in Appellant possessing child pornography,

let alone that child pornography was in his room. The affidavit

merely stated that Appellant “had accessed a fee for service web

site 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/distribution of child pornography.” (emphasis added).

There is no evidence the agents verified that Appellant actually

owned a home computer or had Internet access in his room. The

affidavit does not indicate the location of the computer

Appellant used;2 it does not, for example, provide an Internet

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

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United States v. Macomber, No.08-0072/AF

Protocol (IP) address for that computer. Nor does it provide

information that Appellant purchased or downloaded child

pornography from the website.

The affidavit’s use of profile information related to

“child pornographers and those with a sexual interest in

children” cannot mitigate the scarcity of detail in the

affidavit. According to this profile, such people “almost

always maintain and possess child pornography materials” and

store them “in a secure but accessible location, which is within

their immediate control, such as in the privacy and security of

their own homes, most often in their personal bedrooms.”

Reliance on this profile is problematic, and I cannot agree that

all the government ever need do to defeat nexus concerns is

provide boilerplate language about the habits of the theoretical

“collector.”

In this case, nowhere does the affidavit specifically

conclude that Appellant fits the “collector” profile because he

possessed child pornography, is a “child pornographer,” or a

person “with a sexual interest in children.” Admittedly,

Appellant indicated an interest in viewing child pornography

when he responded to the Eclipse Films survey and an interest in

acquiring child pornography when he ordered two videos to be

service web site” was accessed. Presumably, Appellant was
required to use his home address when he paid for his
subscription with his credit card.

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sent to him through the mail. But an express desire to have

child pornography delivered to one’s home in the future does not

by itself support an inference that Appellant previously

possessed child pornography in that home, or anywhere else.3 It

is by no means axiomatic that a person who expresses an interest

in owning something actually already has possessed it,

particularly when that thing is contraband. While it is logical

to infer that the website subscription gave Appellant access to

child pornography, the affidavit neither informs the magistrate

where the access occurred nor indicates that Appellant actually

downloaded any images to possess in his room or elsewhere.4

Although we have previously credited expert reference to

“profile evidence” in cases involving child pornography, we have
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. 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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United States v. Macomber, No.08-0072/AF

done so when there were “other factors” to “bolster the opinion

as to where the child pornography might be found in appellant’s

home.” Gallo, 55 M.J. at 422. In Gallo, the affidavit

supporting the request to search the appellant’s home indicated

that: (1) the appellant fit the profile of a pedophile; (2) the

appellant had advertised for and solicited child pornography;

(3) 262 pictures had been found on the appellant’s work

computer; and (4) the appellant had downloaded and uploaded

child pornography from his work computer. Id. Here, however,

there were not sufficient “other factors” to allow the

magistrate to rely on the profile.

Finally, even assuming the evidence supported an inference

that Appellant previously possessed child pornography, the

critical fact supporting that inference –- access to the website

-- occurred fourteen months prior to the search authorization

application. This fact was not disclosed to the magistrate

either in the affidavit or in person. This omission is

important because “the passage of time at some point results in

the likelihood that the goods [sought] will no longer be in the

original location.” United States v. Lopez, 35 M.J. 35, 38

(C.M.A. 1992). Although the majority states that as a result of

the omission “the affidavit in general is unreliable and lacks

credibility,” they do not find this to be a significant problem.

Macomber, __ M.J. at __ (17). While it is true that staleness

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United States v. Macomber, No.08-0072/AF

depends in part on the nature of the evidence sought, and in

general we have credited expert opinion that certain people tend

to retain child pornography for a long time, United States v.

Leedy, 65 M.J. 208, 216 (C.A.A.F. 2007), I disagree that the

opinion should be accepted in this case. Here, the magistrate

did not know how old the information was, and therefore he could

not assess whether it was reasonable for him to rely on the

profile to determine that the evidence sought existed anywhere,

let alone in Appellant’s room.

We are left, in the end, with nothing more than the facts

that Appellant has a disturbing interest in child pornography

and fourteen months previously had paid to access a website that

contained it from an unknown computer. Because these facts

neither establish a sufficient nexus between Appellant’s room

and the child pornography nor support a reasonable belief that

Appellant possessed child pornography at all, the magistrate’s

conclusion that child pornography would specifically be found in

Appellant’s room is less a “practical, common-sense decision,”

Gates, 462 U.S. at 238, and more a leap of faith. Such a leap

does not reflect the substantial basis required to conclude that

there was probable cause to search Appellant’s dorm room. In

addition, because the sparse details in the affidavit required

such a leap to be made, and because the agent omitted

information about when the website was accessed, the affidavit

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United States v. Macomber, No.08-0072/AF

was “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Leon,

468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11

(Powell, J., concurring in part)). The affidavit simply failed

to provide information from which a nexus between the items

sought and the location to be searched could be found. Under

these circumstances, the good faith exception of M.R.E.

311(b)(3) does not apply. See United States v. Carter, 54 M.J.

414, 421-22 (C.A.A.F. 2001) (acknowledging that M.R.E. 311(b)(3)

was intended to incorporate the good faith exception as outlined

in Leon).

I would reverse the Air Force Court of Criminal Appeals and

find the military judge erred in denying the motion to suppress

the evidence seized in Appellant’s dormitory room.

7