U.S. v. Macomber, 67 M.J. 214

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

1. probable cause to search exists when there is a reasonable belief that property or evidence sought is located in the place or on the person to be searched
2. the search authority is required to make a probable cause determination based on the totality-of-the-circumstances
3. a probable cause determination is a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before the search authority, there is a fair probability that contraband or evidence of a crime will be found in a particular place
4. probable cause deals with probabilities; it is not a technical standard, but rather is based on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act; probable cause requires more than bare suspicion, but something less than a preponderance of the evidence; thus, the evidence presented in support of a search need not be sufficient to support a conviction, nor even to demonstrate that an investigator’s belief is more likely true than false; there is no specific probability required, nor must the evidence lead one to believe that it is more probable than not that contraband will be present; probable cause is founded not on the determinative features of any particular piece of evidence provided an issuing magistrate, but rather upon the overall effect or weight of all factors presented to the magistrate
5. while courts have relied on generic personal profiles to inform search determinations, clearly, a profile alone without specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search
6. timeliness informs probable cause to search; the passage of time may diminish the likelihood that what is sought will be found in the place to be searched
7. whether too long a period has elapsed from the time the facts are obtained until the search is authorized depends on many factors, including, but not limited to, the location to be searched, the type of crime involved, the nature of the articles to be seized, and how long the crime has been continuing

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. the military judge did not err in ruling that the magistrate had a substantial basis for finding probable cause to issue a warrant authorizing a search of appellant’s dorm room for child pornography, where appellant used his dorm address as the return address in his correspondence with government agents when he ordered child pornographic videotapes and when responding to a sexual interest questionnaire, where appellant had subscribed to an Internet child pornography web service in the past, and where appellant had expressed an ongoing interest in child pornography in the questionnaire; based on these facts, common sense would suggest a fair probability that any child pornography appellant might possess would be located in his dorm room, even though the magistrate was not informed that appellant had last accessed the pornographic website 14 months earlier; the total circumstances presented to the magistrate raised the fair probability that appellant had a present as well as a past sexual interest in or a sexual attraction to children, that he probably possessed child pornography material, and that it probably was kept where he lived

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs if the military judge finds clearly erroneous facts or misapprehends the law
2. the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant; this standard reflects the law’s preference for warrants and for independent review by magistrates
3. in reviewing a decision that there was probable cause for a search, an appellate court must keep in mind that a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; a deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the magistrate’s decision; a grudging or negative attitude by reviewing courts towards warrants, is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner
4. the duty of the reviewing court is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place
5. in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party