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).
2
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.”
3
United States v. Gallo, No. 00-0560/AF
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:
4
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.
5
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
6
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.
7
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.
8
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
9
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
10
United States v. Gallo, No. 00-0560/AF
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.
11
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).
2
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.
2
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.
3
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.
4