U.S. v. Bavender, 80 M.J. 433

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

1. arguments for suppression of evidence under MRE 311 (evidence obtained from unlaw searches and seizures) that are not made at trial are waived; further, the defense in each case must make a particularized objection to the admission of evidence to give the government the opportunity to present relevant evidence on the objection, otherwise the issue is waived and may not be raised on appeal
2. government agents are not required to provide all relevant information in seeking a search authorization

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

1. government agents are not required to provide all relevant information in seeking a search authorization
2. in this case, the information contained in the affidavit presented to the military magistrate by the criminal investigative agents established probable cause to search appellant’s electronic media for child pornography where the affidavit stated (1) that appellant had provided a sworn statement and verbally admitted that he had been viewing child pornography, (2) that his pornography habit involved illegal forms and downloading illegal porn, (3) that he knew that one image he had viewed was underage porn, and (4) that in looking for those types of images on his computer, he used search terms like ‘young teenage porn’; furthermore, the affidavit linked the child pornography to appellant’s electronic devices by stating that appellant had admitted to downloading the contraband onto his computer, thumb drive, and cell phone
3. even if the criminal investigative agents intentionally or recklessly omitted information from their affidavit to the magistrate, the omissions identified by appellant did not defeat probable cause where (1) the affidavit actually covered some of the information that appellant claims was omitted, (2) two of the omitted images would have bolstered the magistrate’s probable cause determination, (3) appellant’s claim that only hackers could find child pornography was undercut by his own admission that he could not be sure whether videos on the websites he visited contained child pornography, and (4) the circumstances surrounding his purported innocent acts would still cast suspicion on the actual legality of his conduct
4. probable cause does not require that the innocent explanation for suspicious facts be ruled out; rather, the relevant question is the degree of suspicion that attaches to particular types of noncriminal acts

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

1. government agents are not required to provide all relevant information in seeking a search authorization
2. a magistrate need not personally view allegedly obscene material prior to issuing a warrant authorizing its seizure; instead, it is adequate if the affidavit provides sufficient information for the search authority to make an independent determination under the totality of the circumstances
3. in this case, the information contained in the affidavit presented to the military magistrate by the criminal investigative agents established probable cause to search appellant’s electronic media for child pornography where the affidavit stated (1) that appellant had provided a sworn statement and verbally admitted that he had been viewing child pornography, (2) that his pornography habit involved illegal forms and downloading illegal porn, (3) that he knew that one image he had viewed was underage porn, and (4) that in looking for those types of images on his computer, he used search terms like ‘young teenage porn’; furthermore, the affidavit linked the child pornography to appellant’s electronic devices by stating that appellant had admitted to downloading the contraband onto his computer, thumb drive, and cell phone
4. even if the criminal investigative agents intentionally or recklessly omitted information from their affidavit to the magistrate, the omissions identified by appellant did not defeat probable cause where (1) the affidavit actually covered some of the information that appellant claims was omitted, (2) two of the omitted images would have bolstered the magistrate’s probable cause determination, (3) appellant’s claim that only hackers could find child pornography was undercut by his own admission that he could not be sure whether videos on the websites he visited contained child pornography, and (4) the circumstances surrounding his purported innocent acts would still cast suspicion on the actual legality of his conduct
5. probable cause does not require that the innocent explanation for suspicious facts be ruled out; rather, the relevant question is the degree of suspicion that attaches to particular types of noncriminal acts

Core Criminal Law Subjects: Evidence: Waiver

1. arguments for suppression of evidence under MRE 311 [evidence obtained from unlaw searches and seizures] that are not made at trial are waived; further, the defense in each case must make a particularized objection to the admission of evidence to give the government the opportunity to present relevant evidence on the objection, otherwise the issue is waived and may not be raised on appeal
2. in this case, appellant waived the portion of his argument that criminal investigative agents knowingly or recklessly misrepresented his statements in an affidavit used to obtain a search authorization from a military magistrate where at trial, the defense never argued that the affidavit contained intentionally false information or that the affidavit used the term child pornography in reckless disregard for the truth and where this theory was not inherent in the defense argument
3. in this case, the defense did not waive the argument that criminal investigative agents intentionally or recklessly omitted material facts from the search authorization affidavit where in both its written motion to suppress and orally at trial, the defense clearly argued that there were material omissions in the affidavit

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

1. an appellate court’s review of a military judge’s suppression ruling is for an abuse of discretion; it reviews the military judge’s factfinding for clear error, and it conducts a de novo review of legal conclusions; the evidence is viewed in a light most favorable to the prevailing party at trial