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

• Author: Jacob D. Bashore
• Position: Judge Advocate, U.S. Army
• Pages: 1-68

MILITARY LAW REVIEW

Volume 209 Fall 2011

PROBABLE CAUSE IN CHILD PORNOGRPAHY CASES:

DOES IT MEAN THE SAME THING?

MAJOR JACOB D.BASHORE

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

offence.1

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

Amendment).

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),

2 MILITARY LAW REVIEW [Vol. 209

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 http://www.europarl.europa.eu/hearings/20070417/libe/save_the_children_1

_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:ABEHAVIORAL ANALYSIS 110–11 (5th ed. 2010), available at

http://www.missingkids.com/en_US/publications/NC70.pdf.

3 LANNING,supra note 2, at 81.

4Id. 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), http://www.guardian.co.uk/society/ 2009/mar/04/child–sex–

abuse–websites–increase (citing a fourfold increase in Europe of child abuse websites

between 2004 and 2007). See generallyChild Pornography: Model Legislation and

Global Review, INT’L CENTRE FOR MISSING &EXPLOITED CHILDREN (5th ed. 2008),

available at http://www.icmec.org/en_X1/English__5th_Edition_.pdf (finding only 29 of

187 Interpol member countries have enacted legislation sufficient to combat child

pornography).

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

author).

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).

8 JAMES P.GRAY,WHY OUR DRUG LAWS HAVE FAILED AND WHAT WE CAN DO ABOUT IT

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

2011] PROBABLE CAUSE & CHILD PORNOGRAPHY 3

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

searchedand to provide a complete description of the website that

(1987).

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).

13Id. at 428 (Ryan, J., dissenting).

14See cases cited supra note 7 and infra note 327.