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.

5 Responses to “Is US v. Clayton Cert. Worthy?”

  1. Certiorari says:

    Be careful what you wish for… the Supreme Court isn’t exactly a huge fan of the exclusionary rule to begin with, and this case (thousands of CP images?) doesn’t make it any easier to argue that Clayton should go free because the constable has blundered.

  2. Socrates says:

    Good point. We may have to wait for a search & seizure case where the underlying offense is something like unlawfully removing the tag from a mattress.

    The counter arguments are: a) the law is the law; b) the SC struck-down “virtual” child porn prohibitions; c) Clayton is essentially convicted of a conspiracy crime, see New York v. Ferber, 458 U.S. 747 (1982), where he is one of several million co-conspirators in the child-porn industry. So while his moral guilt is vast, his contribution to subsidizing the industry and the crime is relatively minor. (In other words, unlike the main offender in a common-law crime, the kind in view with the Constable-has-blundered quote, no victim can point to Clayton and say “he did this to me and he got away with it.”)

    …knowing that CP is a “taboo” subject, I will commence my escape at this point.

  3. Socrates riposte says:

    Socrates, interesting logic – that’s like saying that if the scope of a heinous crime is so large, it diminishes the responsibility of the individuals involved.

  4. Anonymous says:

    I don’t think the Supreme Court will care if LTC (?!?) Clayton had C.P. or weapons-grade uranium, a search & seizure cannot be justified based on the magnitude of the contraband. Result-based opinions are not the norm up there.

    I look forward to the end of the “but but but LOOK AT ALL THAT PORN!” justification for glazing over blatant violations rule requiring probable cause.

  5. Socrates says:

    Indeed, that COULD be the case. In my conceptions of morality, the fiends who did the acts to the children and took the pictures of the children DO have greater responsibility than the viewers of the material. So, I guess my caveat on degrees of legal responsibility would deal with time and distance from the orignal act.

    A few years ago, part of the campaign against drugs implicated the funding of terrorism as one consequence. The idea was that if you purchase a marijuana joint, you are subsidizing terrorism way down the line. Don’t you think this is tendentious logic?