Facts: AL, a thirteen year old boy reported that while he was walking home alone a Male in an SUV approached him making gestures consistent with fellatio. After doing this several times, the male asked if AL wanted a ride. AL declined. A little more than a month later, AL saw the same SUV in the same area and he telephoned his mother. She picked up AL and they engaged in a high speed chase with the SUV, and copied down the license plate. Investigators showed up to Appellant’s work to speak with him. Appellant gave consent to search his barracks and seize any evidentiary items. After a number of items were collected and placed on Appellant’s desk, appellant revoked his consent. The agent stopped searching, but sized the items already on the desk. Several days later, the Special Agent (SA) who took over the case learned of two other identical incidents involving two other similarly aged boys within months of each other. The SA requested via affidavit, authorization to search Appellant’s computer for child pornography. * Note* One avenue to secure authorization to search/seize in a military barracks room is through the Commander (who is said to own those rooms), the other of course is via a magistrate.
“The Affiant knows from training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may be a logical precursor to physical interaction with a child and an individual who is sexually interested in children is likely to be predisposed to searching for and receiving child pornography. Additionally, individuals sexually interested in children frequently use child pornography to reduce the inhibitions of those children. Computers have revolutionized the way in which those sources and users interact. Computers and Internet connections are readily available and are tools of the trade for individuals wishing to exploit children and have greatly changed and added to the way in which child pornography is disseminated, collected, and viewed. The relative ease with which child pornography may be obtained on the Internet might make it a simpler and less detectable way of satisfying pedophilic desires.”
Issue: Whether the military judge erred in denying the motion to suppress the evidence of child pornography based upon lack of probable cause in the affidavit. This appears to be an issue of first impression for the military and federal circuits are split on whether evidence of a sexual offense against a child is sufficient to establish probable cause to search for child pornography. *Other issues were raised, but do not merit discussion here.
Law: Appellant argued the following cases: Dougherty v. City of Covina, 654 F.3d 892 (9th Cir.2011), United States v. Doyle, 650 F.3d 460 (4th Cir.2011), Virgin Islands v. John, 654 F.3d 412 (3dCir.2011), and United States v. Falso, 544 F.3d 110 (2d Cir.2008), . The 9th, 4th, 3rd , and 2nd circuits each held that acts of sexual abuse of children does not in itself support probable cause to search for child pornography.
Here, the Navy/Marine Court of Criminal Appeals found that the very cases cited by appellant are distinguishable in the instant case. Where those cases provided no facts to support the link between hands on offenses and child pornography, the Special Agent in this case specifically cited to her training and experience that there is an identifiable link. As such, the Commander was able to weigh the credibility of those facts and make a common sense determination. The court also cited United States v. Colbert, 605 F.3d 573 (8th Cir.2010), where the defendant approached a 5 year old girl at the playground and invited her to watch videos at his house. A search of the premises yielded evidence of child pornography. In rejecting the defense motion challenging the validity of the search warrant, the 8th circuit held.
“There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with a child: the relative ease with which child pornography may be obtained on the internet might make it a simpler and less detectable way of satisfying pedophilic desires. Cf. United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994) (“[C]ommon sense would indicate that a person who is sexually interested in children is likely to also be inclined, i.e., predisposed, to order and receive child pornography.”).”
Holding: Under these facts, our common sense tells us that the Eighth Circuit’s analysis is correct: an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities. Moreover, the rational link between child enticement and child pornography was fully articulated by [The Special Agent] in the affidavit that she presented to the Commander as well as during her ninety-minute conversation with him, during which she utilized her training and experience to “shed important light on the facts presented.”