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New CAAF opinion dealing with search authorizations in CP cases
United States v. Clayton. Another special exception, in of course, a CP case.
The dissent says it all.
RYAN, J., with whom ERDMANN, J., joins (dissenting): I cannot agree with the continued dilution of the requirement that there be an actual, as opposed to an intuitive or a hypothetical, nexus between the evidence sought and the location to be searched. Compare United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009) (finding no probable cause to search suspect’s home because affidavit only stated that informant had purchased contraband from suspect and did not assert informant had ever been in suspect’s home), and United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005) (finding no probable cause because “the defendant’s status as a drug dealer, standing alone, [does not] give[] rise to a fair probability that drugs will be found in his home”), with United States v. Clayton, __ M.J. __ (12-13, 16) (C.A.A.F. 2010) (finding probable cause to search suspect’s residence despite no evidence linking child pornography to that location), United States v. Macomber, 67 M.J. 214, 219-20 (C.A.A.F. 2009) (same), and United States v. Gallo, 55 M.J. 418, 422 (C.A.A.F. 2001) (same). Absent such dilution, the magistrate’s finding of probable cause is not sustainable.
This would seem a certworthy issue.