Friday, May 09, 2008

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.


Anonymous said...

Interesting to say the least. OSI searches an off base residence based upon a military magistrate's warrant? I can only assume that agent was removed from further investigations. I've heard of good faith but has it morphed into a "no-faith exception?"

Anonymous said...

I have a hypothesis on the sociological reasons for perverse sexual tendencies in the military. The military ethic mythologizes the iron-man and the perfect solidier is a desexualized robotic performer of tasks. It is obviously dehumanizing and a front. Perverts will be drawn to an organization that sets up these props and fronts. Its easier to hide. Back in the days when America used to win its wars, sexual joking, bonding, identity and acts (with European adults) was part of military culture.

Another theory that is too horrible to face is that human sexuality is a somewhat random evolutionary experiment and that attraction to children is socially unacceptable and taboo - but in evolutionary terms - not that shocking. This in no way excuses the most evil aspects of making children victims: destroying their innocence, permanently harming them, and exploiting their inability to consent.

Anonymous said...

Oh please. Sexual perverts decide to "hide" in the military and alternatively NAMBLA is on to something. Give me a break. Call me crazy, but perhaps your talking about a highly regulated society in which personal freedoms are more restricted and folks are more lunder a much higher amount of supervision....and just perhaps that lends to catching more people. Just because civilians, percentage wise, catch less people, is certainly not evidence to claim military are more likely to commit such a crime. Just look at the cases, a decent majority of them involve military inspections or violations of GO#1. More importantly, to first say that there is an inordinate amount of child porn in the military is a completely blind statement backed by not a shred of evidence. When CAAFLOG provides some numbers perhaps it's worth moving on to the next question. But moving on to the reason for that is sort of...what do they call it? I believe, "assuming facts not in evidence." The only crime you legitimately see more of in the military because military members are more prone to commit such a crime would be something like AWOL.

John O'Connor said...

I can't believe CAAFlog is hoping to "devis[e] a strategy to reduce the rate at which servicemembers [get caught with] child pornography."

Actually, I think the rate of people getting caught and prosecuted is higher in the military, and I suspect the dual causes are the reduced privacy of servicemembers (which causes more to get caught than in civilian life) and a higher rate of prosecution. I don't have any reason to believe that there is more of this stuff (on a percwentage basis) than in a civiloian cohort of people with the same age, gender, and education, and other sociological characteristics as the military.

Anonymous said...

It's a surprise anyone is caught with crack agents such as this. I am also interested in the punishment in military courts compared to military. My only knowledge in anecdotal. It seems that civilians punish harder. Again, just my casual observation from news stories. However, working in military justice I do see an exponentially larger amount in the military. But I often see civilians get 2 years or more for what is reported as possession of child porn. I've routinely seen sailors/Marines get 45 days and no discharge. Maybe our military society doesn't view it a serious crime. (this is not to start a deluge of posts, "Back when I was a TC in ______ we always got 3 years."

Marcus Fulton said...

Here in the SE, they tend to plead out at around a year to 18 months unless unusual e&m is present. Very few data points for what members give, since these cases usually plead. We had one members sentence in the last few months, 66 months for 65 images, no unusual aggravation. Sentences were much shorter when I was last a trial defense counsel nine to ten years ago. I do remember a 45 day sentence, I think it was a blind gulty plea to a GCM panel.

Anonymous said...

I'm Anon #2, the hypothesis-tester. This is a great example of why anonymity is an advantage. We could not have this kind of conversation on an attribution basis because of the social taboos and ridiculous assumptions people would make, even subconsciously. (Isn't Barack Obama a secret Muslim?)

I think Anon #3's answers are strong. Its true that we don't know the comparative numbers. The view shared by JO'C that reduced privacy would account for catching more predators makes sense, too.

Nevertheless, I still think that perverts seek out organizations like the military to hide - perhaps even hoping to run from their temptations.

There has been data on a correlation of alcoholics and military service because its easier to be functional in a mass organization. So I am borrowing this paradigm when I a strong term like "hide."

I think a certain church - which shall remain nameless - but had a HQ in Italy - had a similar problem of professing an idealized, desexualized identity, yet unintentionally attracting those who sought to escape their own unwanted sexuality.

How could be falsify my hypothesis? Well, we could take a group of known pedophiles (contrasted with a control group of, eh hem, "normal" people - although social scientists are not supposed to make such normative judgments) and provide them with a set of career choices - of which the military was one of the choices. If my hypothesis had any chance of validity, there would be a disproportionate number of the perverts would chose to pursue a military career.

The NAMBLA comment was a cheap shot and ignores my moral condemnation of child predators. That kind of cheap shot reminds me of those who advocate making the trains run on time being accused of supporting fascism, too.