Probable Cause in Child Pornography Cases: Does It Mean the Same Thing?

AuthorJacob D. Bashore
PositionJudge Advocate, U.S. Army
Volume 209 Fall 2011
It is not the breaking of his doors, and the rummaging of his
drawers, that constitutes the essence of the offence; but it is
the invasion of his indefeasible right of personal security,
personal liberty and private property, where that right has
never been forfeited by his conviction of some public
I. Introduction
In today’s ever-increasing complex and technological world, the
dissemination and possession of child pornography2 has never been more
Judge Advocate, U.S. Army. Presently assigned as Branch Chief, Defense Appellate
Division, U.S. Army Legal Services Agency, Virginia. LL.M., 2011, The Judge Advocate
General’s Legal Center and School, Charlottesville, Virginia; J.D., 2006, University of
Tennessee; B.S., 1999, Wright State University. Previous assignments include Senior
Trial Counsel while assigned to the 7th Army Joint Multinational Training Command,
Grafenwoehr, Germany, 2009–2010; Brigade Judge Advocate and Trial Counsel while
assigned to the 2nd Stryker Cavalry Regiment, Vilseck, Germany, 2007–2009; Tank
Platoon Leader, Tank Company Executive Officer, and Squadron S1 while assigned to
1st Squadron, 3rd Armored Cavalry Regiment, Fort Carson, Colorado, 2000–2003.
Member of the bars of Tennessee, the Court of Appeals of the Armed Forces, and the
Supreme Court of the United States. This article was submitted in partial completion of
the Master of Laws requirements of the 59th Judge Advocate Officer Graduate Course.
The author would like to thank Lieutenant Colonel Derek J. Brostek, USMC, for his
feedback and direction on this article.
1 Boyd v. United States, 116 U.S. 616, 630 (1886) (discussing the purpose of the Fourth
2 For the purposes of this article, the term “child pornography” is used as defined in 18
U.S.C. § 2256 (2006). Some say that child pornography is mislabeled because it is the
permanent depiction of sexual abuse of children. See YAMAN AKDENIZ, INTERNET CHILD
PORNOGRAPHY AND THE LAW 11 (2008) (citing Vernon Jones & Elizabeth Skogrand,
Visible Evidence—Forgotten Children, SAVE THE CHILDREN EUROPE (Oct. 2006),
widespread.3 It has never been easier to acquire large collections of vile,
illegal depictions of children being abused in the worst ways
imaginable.4 As a result, the number of prosecutions involving child
pornography has been steadily rising over the past two decades.5 This
trend has not been unique to the civilian sector, as the military has seen a
similar increase.6
Some have used the horrendous nature of child pornography to argue
that the courts have created a lesser probable cause standard in child
pornography cases simply because of the despicable nature of the crime.7
This argument is largely recycled rhetoric from the days when drug
searches were shaping Fourth Amendment jurisprudence,8 but, at least in
available at
_en.pdf (last visited Feb. 21, 2012) (“The term ‘child pornography’ . . . undermines the
seriousness of the abuse. It also tends to oversimplify what is a very complex social
problem, and . . . the term ‘child abuse images’ . . . better reflects the nature of the
offense.”). However, not all depictions meeting the definition as defined in 18 U.S.C. §
2256 are the result of children being sexually abused. KENNETH V. LANNING, CHILD
MOLESTERS: A BEHAVIORAL ANALYSIS 110–11 (5th ed. 2010), available at
3 LANNING, supra note 2, at 81.
4 Id. at 79–80 (classifying pre–internet boom collectors as better educated, wealthier, and
older as opposed to today where any individual can quickly obtain a large collection via
the internet); Robert Booth, EU Fights Huge Increase in Web Child Abuse, THE
GUARDIAN (Mar. 4, 2009), 2009/mar/04/child–sex–
abuse–websites–increase (citing a fourfold increase in Europe of child abuse websites
between 2004 and 2007). See generally Child Pornography: Model Legislation and
available at (finding only 29 of
187 Interpol member countries have enacted legislation sufficient to combat child
5 AKDENIZ, supra note 2, at 130–39 (discussing the rapidly rising federal prosecution rate
for child pornography offenses from 1995 to 2006; in 1995 five offenders were convicted
as compared to 1251 in 2006).
6 In Fiscal Year (FY) 2001, the Army charged twenty-one soldiers with possession of
child pornography. From FY 2008 until FY 2010, the Army averaged sixty-four child
pornography cases per year. E–mail from Homan Barzmehri, Mgmt. & Program Analyst,
Office of the Clerk of Court, Army Court Criminal Appeals (Nov. 17, 2010) (on file with
7 United States v. Coreas, 419 F.3d 151 (2d Cir. 2005) (“Child pornography is so
repulsive a crime that those entrusted to root it out may, in their zeal, be tempted to bend
or even break the rules. If they do so, however, they endanger the freedom of all of us.”)
(upholding warrant only because of stare decisis).
97 (2001) (“In fact, it is widely understood by attorneys and legal commentators that
there is a ‘drugs exception’ to the Bill of Rights.”); see also Steven Wisotsky,
Crackdown: The Emerging “Drug Exception” to the Bill of Rights, 38 HASTINGS L.J. 889
the case of United States v. Clayton,9 it has some validity.
The Court of Appeals for the Armed Forces (CAAF) has dealt with
two cases over the past two years involving the sufficiency of evidence
presented to obtain authorization to search for and seize evidence of
child pornography. First, in United States v. Macomber, the court found
that the magistrate properly issued a search authorization10 when Airman
First Class Macomber paid to access a child pornography website and
then fourteen months later ordered two child pornography videos from
undercover agents.11 In the second case of interest, United States v.
Clayton, the CAAF ruled that there was probable cause to seize and
search media when Lieutenant Colonel Clayton was found to be a
member of an internet discussion group which may have distributed child
pornography via an e-mail digest.12 Judge Ryan, who authored dissenting
opinions in both cases, argued in Clayton that “[t]he Court today appears
to champion the idea that there is something de minimis about the Fourth
Amendment’s requirements when the thing sought by a search
authorization or warrant is child pornography.”13 Other judges
throughout the federal circuits have expressed similar concerns.14
This article specifically argues that the CAAF got it right in
Macomber by properly applying traditional Fourth Amendment
principles to current technology. While there may be new variables that
the founders of our country did not envision, the courts are applying the
same historical legal analysis. However, the CAAF took a step too far
when they saved the nearly “bare bones” affidavit prepared by the
investigator in Clayton by declaring that sufficient evidence was
presented to establish probable cause. Had the agent spent some more
time investigating the case to obtain specific information about Clayton
and his interaction with the discussion group, the CAAF would likely
have been on solid ground in affirming the search based on probable
cause. However, the agent’s failure to address nexus to the place
searched and to provide a complete description of the website that
9 68 M.J. 419 (C.A.A.F. 2010), cert. denied, 131 S. Ct. 595 (2010).
10 The competent military authority issues a “search authorization” as opposed to a
“search warrant,” which is issued by civilian authorities. MANUAL FOR COURTS-MARTIAL,
UNITED STATES, MIL. R. EVID. 315(b)(1)–(2) (2008) [hereinafter MCM].
11 United States v. Macomber, 67 M.J. 214 (C.A.A.F. 2009).
12 68 M.J. 419 (C.A.A.F. 2010).
13 Id. at 428 (Ryan, J., dissenting).
14 See cases cited supra note 7 and infra note 327.

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