As CAAFlog posted below, CAAF decided a probable cause case yesterday. The majority in United States v. Clayton finds no error in a “military magistrate’s” finding of probable cause where a host of facts connected a child pornography website that was accessed from a government computer in Kuwait to the appellant.
As Judge Ryan points out in her vigorous dissent that the magistrate did not have evidence addressing whether (1) the appellant had actually received child pornography from the website via email or otherwise that might be on said computer, (2) the appellant’s laptop was the computer that received emails from or was used to access the illicit website, or (3) the location of the appellant’s government issued laptop that the agents were seeking when they requested authorization to search his quarters at Camp Arifjan. Essentially, Judge Ryan is taking her dissent in Macomber, that CAAFlog characterized, here, as “a highly case-specific dissent,” and making a federal case out of it . . . so to speak.
Given the criticism (by the defense bar and dissenting judges, of course) that has been heaped on two of the cases cited by the majority, United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc) and United States v. Martin, 426 F.3d 68 (2d Cir. 2005), Judge Ryan’s dissent makes this case particularly attractive for cert. watchers.