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Computer Searches

There is an interesting, and perhaps correct, development on when an MCIO can search digital media, especially cellphones.

In United States v. Church, the District Court for the Eastern District of Virginia found that:

Mere evidence of forcible sodomy on a child does not ipso facto mean that there is probable cause to believe that there will be child pornography on the defendant’s computer, too. Only one circuit would make that inferential link (CA8), but not this one. Moreover, the utter lack of probable cause denies resort to the good faith exception.

United States v. Church, 2016 U.S. Dist. LEXIS 144422 (E.D.Va. Oct. 17, 2016).

Well you say, that's the law in civilian courts. Well actually, we will soon have the opportunity to learn if that is also the law in military courts. Note, the Church holding that the prosecution can't resort to their get out card of the "good faith exception."

The Court of Appeals for the Armed Forces heard oral argument in United States v. Nieto on 11 October 2016. The briefs in Nieto are on the court website here.

To paraphrase the Church court, the Court of Appeals for the Armed Forces ought to say:

In so holding, the [Court of Appeals for the Armed Forces joins], with approval, decisions from the Second and Sixth Circuits that had addressed the same issue. See United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008) (“It is beyond dispute that the warrant was defective …. Detective[s] established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography).”); United States v. Falso, 544 F.3d 110, 124 (2d Cir. 2008) (“That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”). Moreover, while the Fourth Circuit has not revisited the issue since Doyle, other circuits have joined it in what is now the clear majority view on this issue. See Virgin Islands v. John, 654 F.3d 412, 420, 55 V.I. 1324 (3d Cir. 2011); Dougherty v. City of Covina, 654 F.3d 892, 898 (9th Cir. 2011). So far, only the Eighth Circuit appears to have come to a different conclusion. See United States v. Colbert, 605 F.3d 573, 579 (8th Cir. 2010) (holding that the “intuitive link” between child molestation and child pornography was enough to allow evidence of one to sustain a warrant for the other).

Because there is a small circuit split, it is possible this issue may reach the U. S. Supreme Court, perhaps not because the weight of opinion is clearly that of the Church court.

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