Friday, June 22, 2007

You make the call

Do you remember those, "You make the call" promos, where some arcane baseball play is presented and you are supposed to identify what the umpire is supposed to do? Well here is the CAAF equivalent. Judge Erdmann's concurring opinion in United States v. Leedy, __ M.J. ___, No. 06-0567/AF (C.A.A.F. June 22, 2007), offers these facts:

Leedy's roommate, Winkler, informed SA Spring that Leedy's computer was positioned in such a way as to preclude others from directly observing his monitor; Leedy told Winkler that he downloads files from the internet; and Winkler observed the play list on Leedy's Windows' Media Player and believed several titles described pornographic files. Two file titles were named in the affidavit, "three black guys and one white girl" and "14 year old Philipino girl."

Is there probable cause to authorize a search? You make the call!

Judge Erdmann said no; a four-judge majority, in an opinion written by Judge Baker, said yes. Judge Baker's opinion included this insightful observation:

Case law is evolving as is our understanding of child pornography. Child pornography is not new, but its proliferation on the Internet is a recent phenomenon raising new, and in some cases challenging, questions of law. The Supreme Court has repeatedly directed reviewing courts to apply common sense and practical considerations in reviewing probable cause determinations. In that context, a different legal picture emerges. In an earlier era an investigator, magistrate, or court might not have thought a file titled "14 year old Filipino girl" warranted investigation, even when surrounded by titles suggesting graphic pornography. Today, applying our own common sense understanding, informed as it is by recent years
which have seen many cases of child pornography, with the facts of such cases increasingly involving computers and digital files, we conclude that the gloss SA Spring applied to Appellant's file titles was well founded. There is more than a fair probability that a list of files referencing sex acts that also includes a file referencing a fourteen-year-old child will result in the discovery of child pornography.

I agree with the majority on this one, but in the final analysis the division between Judge Erdmann and the majority wouldn't have affected the case's outcome. Judge Erdmann would have admitted the search's results under the good faith exception in any event.

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