UNITED STATES, Appellee 

v. 

Edward S. MACOMBER, Airman First Class 

U.S. Air Force, Appellant 

No. 08-0072 

Crim. App. No. 36693 

United States Court of Appeals for the Armed Forces 

Argued October 21, 2008 

Decided February 24, 2009 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN and STUCKY, JJ., joined. RYAN, J., filed a 

separate dissenting opinion. 

Counsel

For Appellant: Captain Tiaundra Sorrell (argued); Lieutenant 

Colonel Mark R. Strickland (on brief). 

For Appellee: Captain Coretta Gray (argued); Colonel Gerald R. 

Bruce and Major Matthew S. Ward (on brief); Major Jeremy S. 

Weber. 

Amicus Curiae for Appellant: Kimberly M. J. Lynch (law student) 

(argued); Randall Hodgkinson, Esq. (supervising attorney), Mark

Coulter (law student) and E. Lee Oliver (law student) (on 

brief); Jeffrey D. Jackson, Esq. –- for the Washburn University 

School of Law. 

Military Judge: James L. Flanary 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Macomber, No. 08-0072/AF

2

Judge BAKER delivered the opinion of the Court. 

Appellant entered mixed pleas to two specifications under 

Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 934 (2000), before a military judge sitting as a general 

court-martial. He pled guilty to receipt of child pornography 

but contested a separate specification alleging wrongful 

possession of child pornography. He was ultimately convicted of 

both offenses. The adjudged and approved sentence included a 

bad-conduct discharge, confinement for eighteen months, 

forfeiture of all pay and allowances and reduction to pay grade 

E-1. The United States Air Force Court of Criminal Appeals 

affirmed. United States v. Macomber, No. ACM 36693, 2007 CCA 

LEXIS 345, 2007 WL 2500313 (A.F. Ct. Crim. App. Aug. 31, 2007) 

(unpublished). 

 Prior to trial, Appellant moved to suppress evidence seized 

as a result of a search of his military dorm room based on a 

lack of probable cause. The military judge accepted a 

stipulation of fact agreed to by the parties in support of the 

motion. The military judge denied the motion, concluding that 

the search authority had probable cause to authorize the search. 

Appellant challenges that ruling in this Court. For the reasons 

that follow, we affirm.1

 

1

 Oral argument in this case was heard at the Washburn University 

School of Law, Topeka, Kansas, as part of the Court’s “Project 
United States v. Macomber, No. 08-0072/AF

3

FACTS2

In February 2004, Special Agent (SA) Novlesky of the 

Immigration and Customs Enforcement Agency (ICE) in Minot, North 

Dakota was notified by his agency colleagues that during a child 

pornography website takedown operation called “Operation 

Falcon,” Appellant was identified as a child pornography website 

subscriber. The website known as “LustGallery.com- A Secret 

Lolitas Archive” was dismantled during Operation Falcon, and ICE 

agents recovered credit card information relating to its 

subscribers, including Appellant. As a result of Operation 

Falcon, SA Novlesky received a “Site Index” listing child 

pornography website subscribers located in North Dakota. 

Appellant was identified on this index by his name, dormitory 

address, telephone number, commercial e-mail account and credit 

card information. The index lists: “Edward Macomber, Dorm 211 

Unit 503, Minot, North Dakota, 58705, (701) 727-6236 . . . .” 

The evidence showed that Appellant had accessed 

“LustGallery.com” on April 18, 2003. 

 

Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1 

(C.A.A.F. 2003). This practice was developed as part of a 

public awareness program to demonstrate the operation of a 

federal court of appeals and the military justice system. 

2 The language of this factual recitation, with slight 

modification, is taken directly from the stipulation of fact 

agreed to by the parties and relied upon by the military judge. 
United States v. Macomber, No. 08-0072/AF

4

SA Novlesky subsequently obtained the grand jury evidence 

relating to Operation Falcon in order to verify the information 

presented to him by his ICE colleagues. He then contacted the 

bank relating to the credit card information linked to Appellant 

in order to verify the accuracy of the information. Because the 

address listed by Appellant when he signed up for the 

“LustGallery.com” services appeared to be a military dormitory 

address, SA Novlesky concluded that Appellant was a member of 

the Air Force stationed at Minot Air Force Base (AFB). He 

contacted the Air Force Office of Special Investigation (OSI) to 

share the information he had and to verify Appellant’s identity 

and military status. SA Novlesky met with OSI Special Agent 

Patrick White to discuss options for proceeding with the 

investigation of Appellant, and the agents agreed to conduct a 

joint investigation. SA Novlesky recommended to OSI that Postal 

Inspector Rachel Griffin be contacted to send a target letter to 

Appellant offering him child pornography. OSI agreed and 

Inspector Griffin was contacted and brought in as part of the 

investigation team. 

Pursuant to this investigation, Inspector Griffin sent a 

letter and a “Sexual Interest Questionnaire” to Appellant from 

Eclipse Films, a fictional company purporting to specialize in 

illegal pornography. The correspondence stated that pornography 

offered by the film company was “illegal” and must be kept in 
United States v. Macomber, No. 08-0072/AF

5

the “strictest confidence.” The correspondence was sent to 

Appellant’s mailing address at Dorm 211 on Minot AFB. Appellant 

was on temporary duty to Guam at the time, so the letter was 

forwarded to him at his temporary duty location. Appellant 

completed the questionnaire listing “teen sex” and “pre-teen 

sex” among his sexual interests and indicated his interest in 

buying pornography from the company. He mailed the items back 

to Inspector Griffin at her undercover post office box. The 

letter was postmarked from Guam, but Appellant indicated his 

return address on the envelope as “Dorm 211, Unit 503, Minot 

AFB, ND 58705.” Inspector Griffin sent Appellant a letter 

thanking him for his interest list and describing the available 

videos fitting his stated sexual interests along with an order 

form pricing the videos at twenty dollars each. 

On June 14, 2004, Inspector Griffin received a pre-stamped 

white business size envelope in the mail. The envelope was 

postmarked “Minot, ND June 8, 2004” with the return address 

listed as “Edward Macomber, Dorm 211, Unit 503, Minot AFB, ND 

58705.” The envelope contained a completed order form 

indicating Appellant’s request to purchase two child pornography 

videos titled “IC-5 Mixed Sleepover” and “IN-9 Sweet Sixteen.” 

A postal money order was enclosed for the amount of forty 

dollars payable to Eclipse Films. The purchaser was listed as 

“Ed Macomber, Dorm 211, Unit 503, Minot AFB, ND 58705.” 
United States v. Macomber, No. 08-0072/AF

6

The law enforcement team planned a controlled delivery of a 

package containing the two child pornography videos ordered by 

Appellant. Prior to the controlled delivery, SA White 

coordinated with Inspector Griffin and the Minot legal office to 

prepare an affidavit in support of search authority for 

Appellant’s dormitory room. The application for search 

authorization was prepared for submission to the base 

magistrate, Lieutenant Colonel (Lt Col) James Harrold. Although 

this was SA White’s first child pornography case, he received 

guidance from fellow OSI agents with more specific experience in 

child pornography cases. Inspector Griffin provided SA White 

with profile information relating to individuals who view child 

pornography and who have a sexual interest in children. She 

conferred with other postal inspectors prior to advising SA 

White on the profile information in the affidavit. SA White 

discussed the affidavit with other more experienced agents in 

his office and his detachment commander. 

On June 21, 2004, SA White briefed the magistrate on the 

investigation into Appellant’s activities and provided him the 

affidavit in support of search authority for Appellant’s 

dormitory room and personal vehicle. Lt Col Harrold read the 

affidavit twice and discussed its contents with SA White. SA 

White told Lt Col Harrold that Appellant was identified as a 

subscriber to a known child pornography website through 
United States v. Macomber, No. 08-0072/AF

7

Operation Falcon. However, Lt Col Harrold was not told that 

Appellant had accessed the website on April 18, 2003, fourteen 

months earlier. Lt Col Harrold was also informed that Appellant 

had identified himself through a sexual interest questionnaire 

as having a sexual interest in “teen sex” and “pre-teen sex” and 

that Appellant had ordered two child pornography videotapes 

through the mail from undercover Inspector Griffin for delivery 

to his address at Dorm 211, Minot AFB, North Dakota. SA White 

discussed the operational plan for the controlled delivery of 

the package with Lt Col Harrold, along with the alternative 

plans in the event that Appellant did not return to his dorm 

room or in the event he tried to leave the base with the 

package. The affidavit provided to Lt Col Harrold listed a 

synopsis of each movie Appellant had ordered. In the synopsis, 

both movies were described in fairly graphic detail as featuring 

children engaged in sexual acts. 

SA White based the request for search authority on 

Appellant’s actions prior to his receipt of the actual videos 

from Eclipse Films. Specifically, the request was based on 

Appellant’s subscription to the “LustGallery.com” child 

pornography website using his dorm room address, his selfproclaimed interest in children engaged in sex, and his attempt 

to order movies containing child pornography. While the 

affidavit stated that SA White expected to find a parcel 
United States v. Macomber, No. 08-0072/AF

8

addressed to Appellant from Eclipse Films, this was not the 

basis for the search authority nor was it the reason the 

magistrate found probable cause. 

The affidavit also included “pedophile profile 

information.” This information was based on SA White’s 

discussion with Inspector Griffin and included profile 

information relative to individuals interested in child 

pornography or those sexually interested in children. It was 

also based on SA White’s training while attending the OSI 

Academy and the Federal Law Enforcement Training Center during 

which “typical behavior of child pornographers” was described. 

The affidavit stated: 

child pornographers and persons with a sexual attraction to 

children almost always maintain and possess child 

pornography materials such as: photographs, magazines, 

negatives, films, videotapes, graphic image files, 

correspondence, mailing lists, books, tapes, recordings and 

catalogs. These materials are stored in a secure but 

accessible location within their immediate control, such as 

in the privacy and security of their own homes, most often 

in their personal bedrooms. 

Lt Col Harrold granted authority for the search of Dorm 

211, Room 104, Minot AFB, ND 58705, and the search of 

Appellant’s 2002 Mitsubishi Mirage. According to the 

stipulation of fact, he based his probable cause finding “mainly 

on the information linking [Appellant] to a pay-for child 

pornography website, together with the information submitted by 

[Appellant] indicating his sexual interest in children, the 
United States v. Macomber, No. 08-0072/AF

9

correspondence whereupon [Appellant] listed his dormitory 

address attempting to obtain child pornography, and the fact 

that [Appellant] ordered two child pornography videos through 

the mail.” He considered all of this information together with 

the profile information from experienced agents in the field 

that showed the likelihood that individuals with child 

pornography usually keep close possession and control of the 

pornography and often keep it in their homes and bedrooms. 

That same day, Inspector Griffin and SA White set up the 

controlled delivery of the child pornography videos to 

Appellant’s mailing address at the Postal Service Center at 

Minot AFB. The OSI agents were aware that the mail delivery 

system on Minot AFB required that packages be picked up by dorm 

residents at the service center rather than delivered to them at 

their dorm rooms. Because of the illegal nature of child 

pornography, it was necessary for the agents to maintain control 

of or visual contact with the contraband package at all times. 

Therefore, OSI agents conducted surveillance of Appellant 

throughout the day on June 21, 2004, while Inspector Griffin 

maintained visual control of the package in the service center. 

Appellant picked up the package containing the child pornography 

videos and exited the service center. Two agents outside the 

service center drove by Appellant as he exited the facility in 

an effort to photograph him. However, the camera flash went off 
United States v. Macomber, No. 08-0072/AF

10

when they took the picture. Appellant proceeded to his vehicle, 

sat inside for a few moments, then got out of his vehicle and 

attempted to return the package to the service center, at which 

point he was apprehended. 

Following the apprehension, the agents initiated a search 

of Appellant’s residence in accordance with the search 

authorization. The search revealed several pages of printed 

materials and photos, writings Appellant had made regarding 

specific child pornography websites, and several hundred 

suspected child pornography images retrieved from his computer. 

DISCUSSION 

 We review a military judge’s denial of a motion to suppress 

for an abuse of discretion. United States v. Leedy, 65 M.J. 

208, 212 (C.A.A.F. 2007); United States v. Rader, 65 M.J. 30, 32 

(C.A.A.F. 2007). An abuse of discretion occurs if the military 

judge finds clearly erroneous facts or misapprehends the law. 

Leedy, 65 M.J. at 213. In this case, the military judge relied 

on facts stipulated to by the parties, therefore the question 

here concerns the military judge’s application of the law, which 

we review de novo. Rader, 65 M.J. at 32 (conclusions of law 

reviewed de novo); United States v. Flores, 64 M.J. 451, 454 

(C.A.A.F. 2007). The core legal question in the case is whether 

the military judge correctly ruled that the search authority had 

a substantial basis for determining that probable cause existed. 
United States v. Macomber, No. 08-0072/AF

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Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. 

Carter, 54 M.J. 414, 418 (C.A.A.F. 2001). “‘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.’” United States v. Monroe, 52 

M.J. 326, 331 (C.A.A.F. 2000) (quoting Massachusetts v. Upton, 

466 U.S. 727, 728 (1984)). 

This standard reflects the law’s preference for warrants 

and for independent review by magistrates. “In reviewing a 

decision that there was probable cause for a search, we must 

keep in mind that a determination of probable cause by a neutral 

and detached magistrate is entitled to substantial deference.” 

Carter, 54 M.J. at 419 (citation and quotation marks omitted); 

Monroe, 52 M.J. at 331 (citations omitted); United States v. 

Maxwell, 45 M.J. 406, 423 (C.A.A.F. 1996) (citation omitted). 

“A deferential standard of review is appropriate to further the 

Fourth Amendment’s strong preference for searches conducted 

pursuant to a warrant.” Upton, 466 U.S. at 733. We have 

interpreted the Supreme Court’s guidance to require that 

resolution of doubtful or marginal cases should be largely 

determined by the preference for warrants and that “[c]lose 

calls will be resolved in favor of sustaining the magistrate’s 

decision.” Monroe, 52 M.J. at 331 (citation and quotation marks 
United States v. Macomber, No. 08-0072/AF

12

omitted); Maxwell, 45 M.J. at 423 (citation omitted). “‘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.’” Gates, 

462 U.S. at 236 (quoting United States v. Ventresca, 380 U.S. 

102, 108-109 (1965)) (alteration in original); Carter, 54 M.J. 

at 419. 

“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.” Military Rule of 

Evidence 315(f)(2). The search authority is required to make 

this determination based on the “totality-of-the-circumstances.” 

Gates, 462 U.S. at 238; Carter, 54 M.J. at 418; Monroe, 52 M.J. 

at 331; United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 

2005). A probable cause determination is “a practical, commonsense 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.” Gates, 462 U.S. at 238; Bethea, 61 M.J. 

at 187 (citation omitted). As this Court has explained, 

probable cause deals with probabilities: 
United States v. Macomber, No. 08-0072/AF

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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. 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. 

[P]robable 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. 

Leedy, 65 M.J. at 213 (citations and quotation marks omitted). 

Finally, “[i]n reviewing a ruling on a motion to suppress, we 

consider the evidence in the light most favorable to the 

prevailing party.” Id. (citation and quotation marks omitted); 

United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996). 

ANALYSIS 

Appellant makes four arguments challenging the magistrate’s 

finding of probable cause. In particular, Appellant argues that 

there was insufficient information placed before the magistrate 

to reflect a search nexus to his dorm room, a computer in his 

dorm room, and to link Appellant to the generic pedophile 

profile presented by SA White. Finally, he argues that his 

subscription to the “LustGallery.com” site did not provide such 
United States v. Macomber, No. 08-0072/AF

14

a nexus because the information was fourteen months old and 

therefore stale. These arguments are necessarily related where 

the totality of the circumstances is weighed. With that in 

mind, we consider each argument in turn, recognizing that the 

question presented is not whether one fact or another provided 

sufficient cause, but whether the facts taken as a whole did so. 

First, Appellant argues there was an insufficient nexus 

between the child pornography discovered in his possession at 

the post office and his dorm room to provide cause to search his 

dorm room. The argument is based on the apparent ground that 

the mail for dormitory residents was delivered to the Postal 

Service Center as opposed to the individual rooms; since 

Appellant was apprehended at the service center, it was 

unreasonable to infer that additional child pornography would be 

found in his dorm room. 

The facts indicate otherwise. As stipulated, Appellant 

used his dorm address as the return address in his 

correspondence with the agents when he ordered pornographic 

videotapes and when responding to the sexual interest 

questionnaire. Further, Appellant concedes that this was his 

only address. In the military context, the barracks or 

dormitory often serves as the servicemember’s residence, his or 

her home. That was true for Appellant. Based on these facts, 

common sense would suggest a fair probability that any child 
United States v. Macomber, No. 08-0072/AF

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pornography Appellant might possess would be located in his dorm 

room. 

Appellant’s first nexus argument necessarily leads to 

Appellant’s additional arguments that the evidence presented to 

the magistrate did not support a fair inference that Appellant 

owned a computer, on which he might store child pornography, or 

that he fell within the generic pedophile profile presented to 

the magistrate. In Appellant’s view, without such an inference, 

there was no reason to believe pornography would be stored in 

his room. Appellant correctly points out that while SA White’s 

affidavit presented a “pedophile profile,” including and in 

particular the statement that pedophiles are likely to store 

pornography at their places of residence, it did not expressly 

conclude or state that Appellant fit the profile. Indeed, while 

courts have relied on such 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. 

But that is not this case. The stipulated facts reflect 

that Appellant had subscribed to an Internet child pornography 

web service in the past, and that he expressed an ongoing 

interest in child pornography in the present. He had recently 

filled out a questionnaire documenting this interest. Such 

facts may or may not place Appellant within a generic pedophile 
United States v. Macomber, No. 08-0072/AF

16

profile or a clinical pedophile profile,3

 but they certainly 

reflect an ongoing interest in child pornography. Based on 

common sense, law enforcement experience, and case law, the 

military judge reasonably concluded there was a fair probability 

that a person with an interest in child pornography, who has 

ordered child pornography in the past and in the present, is 

likely to store such pornography in some quantity at a secure 

and private location. For a servicemember residing on a 

military installation, that means his dormitory room, barracks, 

or vehicle. 

This also moots Appellant’s argument that the only evidence 

presented to the magistrate suggesting that he might own a 

computer was based on his earlier subscription to an Internet 

child pornography service. As the parties recognize in their 

arguments, the critical question in this case is whether there 

was sufficient nexus to the dorm room to substantiate a search. 

Once the agents had probable cause to search the dorm room, 

agents were also authorized to search where the items sought 

might reasonably be located, and therefore the computer was 

within the scope of the search authorization. In any event, Lt 

Col Harrold reasonably relied on the common sense inference that 

a military member who subscribed to an Internet website while 

 

3

 A point we need not decide in the context of this case. 
United States v. Macomber, No. 08-0072/AF

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listing his dormitory as his address owned a computer, and that 

the computer would likely be found in his dormitory room. 

That leads to Appellant’s final argument that, to the 

extent the magistrate’s finding of probable cause was based on 

his earlier subscription to a pornographic web service, that 

information was stale. Moreover, because the magistrate was not 

told of this time lag, the affidavit in general is unreliable 

and lacks credibility. Timeliness informs probable cause. 

United States v. Lopez, 35 M.J. 35, 38 (C.M.A. 1992). The 

passage of time may diminish the likelihood that what is sought 

will be found in the place to be searched. Id. As a result, 

the magistrate should have been apprised of this time lag. 

However, “[w]hether too long a period has elapsed from the time 

the facts are obtained until the search is authorized depends on 

many factors.” Id. They may include, but are 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. Id. In Leedy, for example, we recognized that 

in the context of child pornography, a law enforcement expert’s 

experience might reasonably inform a magistrate’s judgment as to 

whether, and for how long, a child pornographer might retain 

pornography. 65 M.J. at 216. However, we also cautioned that 

“relying upon expertise too heavily, at the expense of hard 

facts, can be troubling and is open to abuse.” Id. 
United States v. Macomber, No. 08-0072/AF

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Here we have hard facts. The agent’s affidavit established 

that this was an investigation into the unlawful possession of 

child pornography. The nature of the contraband sought was such 

that it was highly portable, easily secreted, and often stored 

in the possessor’s home in a variety of forms and on a variety 

of media. The affidavit also indicated that at some point 

Appellant had subscribed to a child pornography website. But 

that information did not stand alone. This information prompted 

the agents to conduct a ruse that confirmed Appellant’s current 

interest in this contraband in the form of a sexual interest 

questionnaire and a subsequent controlled delivery. As such, it 

was part of the total circumstances raising 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. 

DECISION 

Based on this record, we conclude that the military judge 

did not err in ruling that the magistrate had a substantial 

basis for finding probable cause in this case. The decision of 

the United States Air Force Court of Criminal Appeals is 

affirmed. 
United States v. Macomber, No. 08-0072/AF 

 RYAN, Judge (dissenting): 

 It is undoubtedly true that a magistrate’s finding of 

probable cause “should be paid great deference.” Illinois v. 

Gates, 462 U.S. 213, 236 (1983) (quoting Spinelli v. United 

States, 393 U.S. 410, 419 (1969) (quotation marks omitted). But 

that deference is “not boundless.” United States v. Leon, 468 

U.S. 897, 914 (1984). “Probable cause to search exists when 

there is a reasonable belief that the . . . evidence sought is 

located in the place or on the person to be searched.” Military 

Rule of Evidence (M.R.E.) 315(f)(2). “In the typical case where 

the police seek permission to search a house for an item they 

believe is already located there, the magistrate’s determination 

that there is probable cause for the search amounts to a 

prediction that the item will still be there when the warrant is 

executed.” United States v. Grubbs, 547 U.S. 90, 95 (2006). 

Because I do not agree that the facts presented to the 

magistrate in Special Agent White’s affidavit and briefing 

supported a prediction that child pornography had ever been in 

Appellant’s dormitory room, let alone was still there at the 

time of the search, I respectfully dissent.1

 

1

 Moreover, while these same facts certainly demonstrate that 

Appellant has interests that are perverse, they do not establish 

a “reasonable belief” that he ever possessed child pornography, 

either at the time he accessed the website or at the time the 

search authorization was sought. M.R.E. 315(f)(2). 
United States v. Macomber, No.08-0072/AF 

2

As defined in M.R.E. 315(f)(2), a finding of probable cause 

“encompasses showing a nexus to the place to be searched.” 

United States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001); see

also Gates, 462 U.S. at 238 (defining probable cause as “a fair 

probability that contraband or evidence of a crime will be found 

in a particular place”) (emphasis added). In this case, the 

fact that Appellant had once accessed a child pornography 

website was central to the magistrate’s finding of probable 

cause to search Appellant’s room. But the affidavit did not 

provide sufficient information to support the inference that 

this access resulted in Appellant possessing child pornography, 

let alone that child pornography was in his room. The affidavit 

merely stated that Appellant “had accessed a fee for service web 

site known to traffic and display child pornographic images,” 

and contained the agent’s unsupported supposition that Appellant 

“has used his computer system to facilitate the 

possession/distribution of child pornography.” (emphasis added). 

There is no evidence the agents verified that Appellant actually 

owned a home computer or had Internet access in his room. The 

affidavit does not indicate the location of the computer 

Appellant used;2

 it does not, for example, provide an Internet 

 

2

 The Stipulation of Fact states that the federal investigation 

revealed Appellant provided his dormitory address when he 

subscribed to the website, but this does not tell us anything 

about where Appellant was located at the time the “fee for 
United States v. Macomber, No.08-0072/AF 

3

Protocol (IP) address for that computer. Nor does it provide 

information that Appellant purchased or downloaded child 

pornography from the website. 

The affidavit’s use of profile information related to 

“child pornographers and those with a sexual interest in 

children” cannot mitigate the scarcity of detail in the 

affidavit. According to this profile, such people “almost 

always maintain and possess child pornography materials” and 

store them “in a secure but accessible location, which is within 

their immediate control, such as in the privacy and security of 

their own homes, most often in their personal bedrooms.” 

Reliance on this profile is problematic, and I cannot agree that 

all the government ever need do to defeat nexus concerns is 

provide boilerplate language about the habits of the theoretical 

“collector.” 

In this case, nowhere does the affidavit specifically 

conclude that Appellant fits the “collector” profile because he 

possessed child pornography, is a “child pornographer,” or a 

person “with a sexual interest in children.” Admittedly, 

Appellant indicated an interest in viewing child pornography 

when he responded to the Eclipse Films survey and an interest in 

acquiring child pornography when he ordered two videos to be 

 

service web site” was accessed. Presumably, Appellant was 

required to use his home address when he paid for his 

subscription with his credit card. 
United States v. Macomber, No.08-0072/AF 

4

sent to him through the mail. But an express desire to have 

child pornography delivered to one’s home in the future does not 

by itself support an inference that Appellant previously 

possessed child pornography in that home, or anywhere else.3 It 

is by no means axiomatic that a person who expresses an interest 

in owning something actually already has possessed it, 

particularly when that thing is contraband. While it is logical 

to infer that the website subscription gave Appellant access to 

child pornography, the affidavit neither informs the magistrate 

where the access occurred nor indicates that Appellant actually 

downloaded any images to possess in his room or elsewhere.4

 

Although we have previously credited expert reference to 

“profile evidence” in cases involving child pornography, we have 

 

3

 The fact that Appellant instructed Eclipse Films to address the 

video package to him at his dormitory would undoubtedly have 

provided probable cause for an anticipatory warrant to be 

executed once Appellant brought the package back to his room. 

See Grubbs, 547 U.S. at 95-97. But it is does not support an 

inference that he already possessed child pornography in his 

room. 

4

 Nor does the affidavit indicate the number or kind of images 

Appellant viewed on the LustGallery site. And the absence of 

information about where the access occurred is especially 

problematic when that access is used to support the inference 

that he possessed child pornography: if Appellant did nothing 

more than view images on a public computer, under our case law 

his actions would not have ipso facto established the offense of 

possession of child pornography. See United States v. 

Navrestad, 66 M.J. 262, 267-68 (C.A.A.F. 2008) (holding that the 

appellant’s act of viewing files containing child pornography on 

a computer at an Internet café did not amount to possession 

because appellant “lacked the dominion and control necessary to 

constitute” the offense). 
United States v. Macomber, No.08-0072/AF 

5

done so when there were “other factors” to “bolster the opinion 

as to where the child pornography might be found in appellant’s 

home.” Gallo, 55 M.J. at 422. In Gallo, the affidavit 

supporting the request to search the appellant’s home indicated 

that: (1) the appellant fit the profile of a pedophile; (2) the 

appellant had advertised for and solicited child pornography; 

(3) 262 pictures had been found on the appellant’s work 

computer; and (4) the appellant had downloaded and uploaded 

child pornography from his work computer. Id. Here, however, 

there were not sufficient “other factors” to allow the 

magistrate to rely on the profile. 

 Finally, even assuming the evidence supported an inference 

that Appellant previously possessed child pornography, the 

critical fact supporting that inference –- access to the website 

-- occurred fourteen months prior to the search authorization 

application. This fact was not disclosed to the magistrate 

either in the affidavit or in person. This omission is 

important because “the passage of time at some point results in 

the likelihood that the goods [sought] will no longer be in the 

original location.” United States v. Lopez, 35 M.J. 35, 38 

(C.M.A. 1992). Although the majority states that as a result of 

the omission “the affidavit in general is unreliable and lacks 

credibility,” they do not find this to be a significant problem. 

Macomber, __ M.J. at __ (17). While it is true that staleness 
United States v. Macomber, No.08-0072/AF 

6

depends in part on the nature of the evidence sought, and in 

general we have credited expert opinion that certain people tend 

to retain child pornography for a long time, United States v. 

Leedy, 65 M.J. 208, 216 (C.A.A.F. 2007), I disagree that the 

opinion should be accepted in this case. Here, the magistrate 

did not know how old the information was, and therefore he could 

not assess whether it was reasonable for him to rely on the 

profile to determine that the evidence sought existed anywhere, 

let alone in Appellant’s room. 

 We are left, in the end, with nothing more than the facts 

that Appellant has a disturbing interest in child pornography 

and fourteen months previously had paid to access a website that 

contained it from an unknown computer. Because these facts 

neither establish a sufficient nexus between Appellant’s room 

and the child pornography nor support a reasonable belief that 

Appellant possessed child pornography at all, the magistrate’s 

conclusion that child pornography would specifically be found in 

Appellant’s room is less a “practical, common-sense decision,” 

Gates, 462 U.S. at 238, and more a leap of faith. Such a leap 

does not reflect the substantial basis required to conclude that 

there was probable cause to search Appellant’s dorm room. In 

addition, because the sparse details in the affidavit required 

such a leap to be made, and because the agent omitted 

information about when the website was accessed, the affidavit 
United States v. Macomber, No.08-0072/AF 

7

was “so lacking in indicia of probable cause as to render 

official belief in its existence entirely unreasonable.” Leon, 

468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 

(Powell, J., concurring in part)). The affidavit simply failed 

to provide information from which a nexus between the items 

sought and the location to be searched could be found. Under 

these circumstances, the good faith exception of M.R.E. 

311(b)(3) does not apply. See United States v. Carter, 54 M.J. 

414, 421-22 (C.A.A.F. 2001) (acknowledging that M.R.E. 311(b)(3) 

was intended to incorporate the good faith exception as outlined 

in Leon). 

 I would reverse the Air Force Court of Criminal Appeals and 

find the military judge erred in denying the motion to suppress 

the evidence seized in Appellant’s dormitory room.