U.S. v. Gallo, 55 M.J. 418

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. even if court assumed that appellant’s unwarned response that he owned a personal computer was improperly included in an affidavit for a search warrant, such misstatements or improperly obtained information can be severed from the affidavit, and the remainder examined to determine if probable cause still exists
2. conclusory statements should not be in an affidavit requesting a search warrant; however, the review process deals with the question of probability and the issue is whether there was a “substantial basis” upon which the federal magistrate judge could have found probable cause to believe a search of a given place would uncover the evidence sought
3. as to timeliness of information presented in support of a request for a search warrant, information more than 6 months old when seeking pornography on a computer or a hard drive has been allowed
4. information offered in support of a request for a search warrant must establish a nexus between the evidence sought and the place to be searched; however, a gap in the nexus may be filled in based on the affiant’s experience, allowing the issuing official and appellate courts to (1) consider the conclusion of an experienced law enforcement officer regarding where evidence of a crime is likely to be found and (2) draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense
5. in addition to the affiant’s experience and conclusions drawn therefrom, numerous factors bolstered the probability that child pornography would be found in appellant’s home and those factors also supported the inference that the additional pornographic materials would be secreted in a place other than appellant’s office: (1) 262 pornographic pictures were found on appellant’s government computer; (2) appellant fit the pedophile profile; (3) appellant advertised for child pornography; (4) appellant solicited child pornography; and (5) appellant downloaded and uploaded child pornography from his work computer