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U.S. v. Maxwell

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Citation Edit

United States v. Maxwell, 42 M.J. 568 (C.M.A. 1995) (full-text).

Factual Background Edit

Defendant was a subscriber to America Online (AOL), a private on-line computer service which required the use of a "screen name" and a secret password. Each screen name was treated as a separate identity. In December 1991, Dietz reported to FBI Agent Garrett that a number of subscribers were using the service to transmit and receive visual images portraying child pornography. Agent Garrett sought authority to seize electronic transmissions made by the subscribers who were assigned the screen names furnished by Dietz. A Federal Magistrate issued a search warrant for AOL computers based on information in Agent Garrett’s affidavit. However, AOL had withdrawn the information from the computers and has printed it out before the warrant was issued.

The search warrant permitted the seizure of information in nine AOL computers pertaining to certain listed subscribers including one of defendant’s screen name "Redde1" (the last letter being the number "1"). When the list of screen names was transcribed for the search warrant, “Redde1” was mistakenly typed as “REDDEL”, fundamentally altering the screen name. AOL did not take note of any changes or transcription errors which appeared in the list on the search warrant and turned over the printouts for screen name "Redde1".

After discovering that an Air Force member was involved in the suspected criminal activity, the FBI turned over all the items seized from AOL to the Air Force Office including communications made by defendant to another Air Force member concerning his sexual feelings and preferences.

Based on the representations made by the agents, and after consulting with a judge advocate, a search authorization directing the agents to search the defendant’s quarters.

Court Martial Proceedings Edit

The defendant’s personal computer was seized, which contained three visual depictions that were admitted into evidence on the child pornography specification. Defendant was convicted by a general-court martial of two specifications of using his personal computer to communicate indecent language to another service member and two specifications involving the use of a computer to transport pornographic materials. Defendant appealed.

Appellate Court Proceedings Edit

With all Fourth Amendment searches, the key issue is whether the search was reasonable under the totality of the circumstances. In general, the appellate court should not set aside factual determinations of a trial court on matters other than guilt unless they are clearly erroneous. The Court of Criminal Appeals would review the military judge’s ruling as to the validity of the Fourth Amendment search under the abuse of discretion standard.

The underlying issue in any case involving an asserted violation of the Fourth Amendment is whether the person making the claim has a legitimate expectation of privacy in the invaded place. A person asserting a right to privacy under the Fourth Amendment must exhibit an actual, subjective expectation of privacy and show that the subjective expectation of privacy is one that society is prepared to recognize as reasonable. The burden of establishing a reasonable expectation of privacy falls upon person asserting the violation of the Fourth Amendment.

The military judge found that the protection of the Fourth Amendment generally applies to e-mail transmissions by subscribers of on-line computer services. The defendant had an objective expectation of privacy in any e-mail transmission he made so long as they were stored in AOL's computers because he alone could retrieve through the use of his own assigned passwords. There was virtually no risk that appellant’s e-mail transmission would be received by anyone other than the intended recipients.

The FBI agent was totally unaware that there was any material difference between "Redde1" and "REDDEL". Incorrect transcription of the "screen name," substituting an 'L' for a '1' in a search warrant does not invalidate the warrant. There was no confusion in the mind of the federal magistrate, federal agent, or officials at the computer service as to which screen name they wished to search. Incorrect transcription was not noticed as AOL had already used screen names at issue in formulating the software needed to complete the search and retrieve the information.

The validity of a search warrant must be assessed on the basis of the information the officers disclosed to the issuing magistrate. Typographical errors in the description of a place or thing to be searched does not invalidate the search when the intended place or thing is searched pursuant to the warrant.

Probable cause was established to identify the screen name "Redde1" and seize the e-mail transmissions made under that screen name. The electronic transmissions were separately stored under each of the screen names associated with the transmission. Probable cause did not support the search of electronic email stored in private online computer service's computers under a “screen name” other than one listed in the search warrant. The search warrant was defective for the purposes of seizing stored transmissions which were in the mail box under the screen name "Zirloc". Probable cause means there is a reasonable belief that the evidence sought is located in place to be searched.

The Fourth Amendment exclusionary rule does not bar evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even if the warrant was ultimately found to be invalid. The “good faith exception” has been incorporated into military law.[1] The communications seized were admissible, even though the search warrant was deficient for the purpose of seizing communications in that box. Probable cause supported issuance of the warrant for another of accused’s electronic mail boxes and the FBI agent acted in good faith in preparing the affidavit and executing the warrant.

The rationale behind the exclusionary rule is the deterrence of police misconduct. Unless the purpose would be served, there is no proper reason to invoke the exclusionary rule. Searching the accused on-base quarters for evidence related to the transmission and possession of child pornography was lawful, notwithstanding contention that the commander lacked knowledge of the definition of child pornography.

Authorization of a search of the accused's on-base quarters for evidence and seizure of obscene materials and items that related to the activities with the on-line computer services or electronic bulletin boards was not overly broad, given the nature and complexity of the case which involved the alleged transmission of child pornography and other obscene materials through electronic mail.

A federal statute prohibits the receiving or transporting visual depictions of involving “use of a minor” engaged in sexually explicit conduct.[2] The statute is constitutional, notwithstanding the contention that it lacked scienter. In construing unambiguous statutes, judicial inquiry begins and ends with the plain language of the statute.

The transmission of visual images electronically through the use of an online computer service was a violation of the plain language of the statute prohibiting the knowing transportation for purposes of sale of distribution of any obscene, lewd, lascivious, or filthy picture. The accused was not denied due process because he was place on notice that his conduct could be criminal prosecuted.[3] The judge properly instructed members that the visual depictions transmitted by the accused through email could not be found to be “lascivious” under the federal statute which prohibits receiving or transporting visual depictions of minors engaged in sexually explicit conduct, if they portrayed mere nudity. The visual images do not have to show sex or a willingness to engage in it.

Finding that the visual images transmitted by the accused through email depicted minors, as required for violation of federal statute which prohibits receiving or transporting visual depictions of minors engage in sexually explicit conduct was supported by expert testimony that they were minors.

The failure to present evidence or instruct on community standards did not warrant the reversal of the accused’s conviction of service-discrediting conduct based on violation of a federal statute prohibiting knowing transportation for purposes of sale or distribution any obscene, lewd, lascivious, or filthy picture. The admission of hard copies of the visual images downloaded from the computers did not violate the best evidence rule. The copies themselves were "originals" in that they were printouts or other outputs readable by sight.

The court held that (1) for Fourth Amendment purposes, the accused had an objective reasonable expectation of privacy in the electronic mail transmission stored in private on-line service’s computer; (2) incorrect transcription of the accused’s electronic mailscreen name” did not invalidate the search warrant; (3) probable cause supported a search warrant for the search of the electronic mail box maintained under one of the accused's four screen names; (4) probable cause did not support the search of an electronic mail box maintained under another screen name; (5) evidence from the second mail box was admissible under the good faith exception to the exclusionary rule; (6) the search of the accused’s on-base quarters was lawful; (7) the child pornography statute is constitutional; (8) the electronic mail transmission violated the child pornography statute; (9) a communicating indecent language conviction could be based on electronic mail message accused intended to be private; (10) the evidence supported the convictions; (11) the admission of hard copies of the visual images transmitted did not violate the best evidence rule; (12) the military judge’s instructions were proper; and (13) the sentence of dismissal was not excessive.

References Edit

  1. Mil.R.Evid. 311(b)(3).
  2. 18 U.S.C. §2252.
  3. Id. §1465.

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