New published Air Force Court opinion [UPDATED]

The Air Force Court of Criminal Appeals issued a published search and seizure opinion today. United States v. Osorio, __ M.J. ___, No. ACM 36938 (A.F. Ct. Crim. App. May 9, 2008).

The things searched and seized were a computer and various computer accoutrement. Gee, any guess what Senior Airman Osorio was convicted of? Possession of child pornography. At this year's CAAF conference, a military sociologist made a presentation. I seriously think that a military sociologist should look at the issue of whether the military has a higher conviction rate for child pornography offenses than does the general population (which I would bet it does) and, if so, whether that is because: (a) servicemembers are more likely to possess child pornography than either the U.S. population as a whole or the comparable age and gender segment of the U.S. population; or (b) servicemembers possess child pornography at a similar rate to either the population or the appropriate subset of the population, but are caught at a higher rate; or (c) servicemembers possess child pornography and are caught with child pornography at a similar rate to the overall population or the appropriate subset of the population, but are prosecuted more frequently; or (d) some other cause that doesn't occur to me at the moment. Perhaps such research could be useful in devising a strategy to reduce the rate at which servicemembers access, possess, and/or distribute child pornography.

Osorio was a witness in a sexual assault investigation. Specifically, he had pictures from a party that was relevant to the investigation. OSI agents wanted to access pictures of the party, including pictures of a strip poker game that was played there. The OSI agents obtained a search authorization from a military magistrate to seize Osorio's laptop from his off-base apartment in the United States. Here's a wonderfully understated sentence from the Osorio opinion: "The following Monday, OSI, realizing that they had executed an off-base search improperly, contacted United States Magistrate Judge SO to obtain a valid search authorization." Osorio, slip op. at 3 (footnote omitted). This federal search warrant authorized the search and seizure of a "Toshiba laptop computer and one digital memory card used to record photographs taken on February 12, 2005" -- the date of the strip poker party. Again, Osorio wasn't a suspect but rather a witness.

An OSI agent at the Defense Computer Forensic Lab was asked to create a forensic mirror image of the laptop's hard drive. After she had done so and confirmed the mirror image, the DCFL OSI agent "began reviewing the thumbnails, and noticed several thumbnails of nude persons, and decided to open the thumbnails to make sure the pictures were not 'contraband.'" Id. When she did so, she found images of child pornography. The central issue in Osorio was whether by opening the thumbnails, the OSI agent performed an unauthorized search of the computer. Yes, held AFCCA in a unanimous opinion written by Judge Heimann.

AFCCA reasoned: "[W]e find SA JL exceeded the scope of the search warrant the minute she opened the thumbnail to, in her own words, 'make sure it was not contraband.' SA JL admitted on cross-examination that she opened the thumbnail to verify if the picture was child or adult pornography, not to verify it was a mirror image of the other computer or to review a photograph taken on February 12, 2005. Having testified that she was not aware of the terms of the warrant and that once she opened the picture directory tree, her job was done, we find that SA JL was not acting within the scope of the warrant at the time of the discovery of the first suspect image." Id., slip op. at 5.

AFCCA continued: "[T]he terms of the first warrant did not authorize SA JL to conduct a general search. She was only authorized to search for photos that related to a specific date. Thus we find that the military judge erred when she found that the scope of the warrant included clicking on any nude photos. . . . The federal magistrate limited the scope by the date of the photos. Searching beyond that date exceeded the warrant's scope. To conclude otherwise would invalidate our conclusion that the warrant was sufficiently specific to be valid." Id.

The court proceeded to reject several potential alternative bases for the evidence's admissibility, suppress other evidence in the case as fruit of the poisonous tree, reverse the findings and the sentence, and dismiss the charge.