UNITED STATES, Appellee 

v. 

David A. LEEDY, Airman First Class 

U.S. Air Force, Appellant 

No. 06-0567 

Crim. App. No. 35939 

United States Court of Appeals for the Armed Forces 

Argued March 14, 2007 

Decided June 22, 2007 

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

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

opinion concurring in the result. 

Counsel

For Appellant: Major John N. Page, III (argued); Lieutenant 

Colonel Mark R. Strickland and Captain Christopher S. Morgan (on 

brief). 

For Appellee: Major Matthew Ward (argued); Colonel Gerald R. 

Bruce, Lieutenant Colonel Robert V. Combs, Major Kimani R. 

Eason, and Captain Jamie L. Mendelson (on brief); Colonel Gary 

F. Spencer. 

Amicus Curiae for Appellant: Carey Scheible (law student) 

(argued); Robert B. Harper, Esq. (supervising attorney), Neal 

Hamilton (law student)(on brief) – for the University of 

Pittsburgh School of Law. 

Military Judge: Dawn R. Eflein 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Leedy, No. 06-0567/AF 

2

Judge BAKER delivered the opinion of the Court. 

Appellant was an Airman First Class (A1C) assigned to Kunsan 

Air Base, Korea. Before a general court-martial composed of 

members Appellant pleaded not guilty to possessing and/or 

receiving child pornography in violation of Article 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000). 

Appellant was convicted and sentenced to a bad-conduct 

discharge, confinement for eight months, total forfeiture of all 

pay and allowances, and reduction to airman basic. The 

convening authority reduced the confinement to seven months and 

approved the remainder of the sentence. The Air Force Court of 

Criminal Appeals affirmed the findings and the sentence. United 

States v. Leedy, ACM 35939 (A.F. Ct. Crim. App. Feb. 28, 2006) 

(unpublished). Upon Appellant’s petition we granted review of 

the following issue: 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S 

MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S 

COMPUTER WHERE THE AFFIDAVIT IN SUPPORT OF THE SEARCH DID 

NOT CONTAIN ANY DESCRIPTION OF THE SUBSTANCE OF THE IMAGES 

SUSPECTED TO DEPICT “SEXUALLY EXPLICIT CONDUCT.”1

 The granted issue raises the question of when, if at all, 

can computer file titles, absent further description of file 

 

1

 We heard oral argument in this case at the University of 

Pittsburgh School of Law, Pittsburgh Pennsylvania, as part of 

the Court’s “Project Outreach.” See United States v. Mahoney, 

58 M.J. 326, 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. 
United States v. Leedy, No. 06-0567/AF 

3

contents, serve as probable cause to search for child 

pornography. We conclude that the military judge did not err in 

denying Appellant’s motion to suppress. Admissible evidence 

must be obtained based upon a valid search authorization or, in 

the absence of such authorization, must be consistent with one 

of the recognized exceptions to the requirement. In this case, 

we find that the authorization was proper as there was a 

substantial basis for the issuing magistrate to conclude that 

there was a fair probability that evidence of child pornography 

would be found on Appellant’s computer. 

BACKGROUND 

 While stationed at Kunsan Air Base, Appellant lived with a 

roommate, A1C Winkler. Both Appellant and A1C Winkler owned 

computers that were proximate to one another in their room. 

Appellant’s computer was situated to preclude observation of the 

monitor by others in the room. On an occasion in January or 

February 2003, Appellant’s computer was on while Appellant was 

not present. A screensaver activated on his computer was set to 

automatically disengage when the computer’s mouse moved. While 

working on his computer, A1C Winkler bumped Appellant’s 

computer. The screensaver disengaged and A1C Winkler 

subsequently observed a program running on Appellant’s computer 

that he recognized as Windows Media Player, an application used 

to play digital audio and video files. The program was not 
United States v. Leedy, No. 06-0567/AF 

4

playing any files but did display a play list with titles of 

recently accessed files. These titles led A1C Winkler to 

believe that many of the files were sexually explicit; further, 

A1C Winkler felt that based on their titles at least one of the 

files likely depicted child pornography. 

On March 14, 2003, at least one month later, A1C Winkler 

reported his suspicions to the base Air Force Office of Special 

Investigations (AFOSI) Detachment and was interviewed by the 

detachment commander, Special Agent (SA) Spring, and another 

investigator. Following the interview, the investigators took 

the information to the Chief of Military Justice at the base to 

discuss whether probable cause existed to authorize a search of 

Appellant’s computer. The Chief of Military Justice felt that 

probable cause existed and the detachment commander prepared an 

affidavit requesting search authorization. The affidavit was 

presented on March 14, 2003, to the base military magistrate. 

The magistrate provided the authorization and a search was 

executed by AFOSI agents. Investigators searched Appellant’s 

computer and found pornographic files (video clips and still 

photos), more than thirty of which depicted sexually explicit 

acts involving minors. 

At trial, Appellant moved to suppress all evidence obtained 

as a result of the search of his computer. The military judge 
United States v. Leedy, No. 06-0567/AF 

5

held an Article 39(a)2 session to litigate the matter, during 

which Appellant argued the magistrate did not have probable 

cause to issue the authorization. Appellant contended that the 

probable cause standard was not met for several reasons: A1C 

Winkler was unknown to AFOSI and had no track record of 

providing any information to the office; the only evidence A1C 

Winkler provided the magistrate was stale (over a month had 

elapsed between A1C Winkler seeing Appellant’s files and his 

report to AFOSI); no one had ever seen any pornography of any 

sort on Appellant’s computer; the sole direct link between 

Appellant and child pornography was the title of a file: “14 

Year Old Filipino Girl”3

, and there was nothing in the title, nor 

in A1C Winkler’s description of the other files, that 

necessarily suggested lasciviousness or portrayals of “sexually 

explicit conduct”. On appeal, Appellant also noted that the 

application Windows Media Player can play both video and audio 

files and there was nothing in the file titles provided by A1C 

Winkler that indicated that the potentially offending files were 

visual rather than audio (federal law only criminalizes “visual 

depiction” of child sex acts). See 18 U.S.C. § 2252(a) (2000). 

 

2

 UCMJ, 10 U.S.C. § 839(a) (2000). 

3

 The affidavits and recorded testimony used various spellings of 

“Filipino” (including “Philipino”); we have used the preferred 

spelling of this adjective throughout this opinion but note that 

it refers to the same file discussed in the affidavits and 

testimony. 
United States v. Leedy, No. 06-0567/AF 

6

Further, the investigating officer made no effort to 

corroborate the informant’s suspicions, or to provide the 

magistrate with examples of the pornography in question (which, 

Appellant argues, has regularly been required in such cases). 

The investigators also admitted that they had no evidence that 

Appellant exhibited any of the “characteristics” of those who 

possess child pornography. 

Finally, Appellant argued that not only was the 

authorization inappropriate, the “good faith” exception to 

authorization was unavailable for two reasons. United States v. 

Leon, 468 U.S. 897 (1984); United States v. Carter, 54 M.J. 414 

(C.A.A.F. 2001). First, the authorization was facially 

deficient, because it relied on a “bare bones” affidavit. See

Carter, 54 M.J. at 422 (finding by implication that a bare bones 

affidavit is one in which, inter alia, sources of information 

are not identified, and conflicts and gaps in evidence are not 

acknowledged); United States v. Wilhelm, 80 F.3d 116, 121-22 

(4th Cir. 1996) (reliance on affidavit unreasonable because 

magistrate acted as rubber stamp by approving "bare bones" 

affidavit based solely upon uncorroborated anonymous tip). 

Second, on appeal, Appellant argued that the magistrate did not 

perform his duties in a neutral and detached manner. Appellant 

contends that the magistrate misunderstood his role, which was 

to protect individual liberties, not, as the magistrate said in 
United States v. Leedy, No. 06-0567/AF 

7

the Article 39(a) hearing, to “make sure if we’re accusing 

somebody that the evidence will be there.” According to 

Appellant, instead of undertaking the necessary critical 

examination of the facts, the magistrate chose simply to defer 

to the criminal investigator. 

The Government demurred, arguing that even if the evidence 

presented did not create a certainty that contraband was to be 

found, under prevailing constitutional law enough was presented 

to the magistrate for him to make a proper determination of 

probable cause. Under the totality of the circumstances there 

was a substantial basis upon which the magistrate could have 

found probable cause. Moreover, the magistrate was properly 

detached and independent in his dealings with the AFOSI; the 

magistrate scrutinized the affidavit and questioned the 

investigator, raising the issue of the potential inaccuracy of 

the informant’s suspicions, and his concern regarding the 

identity of the “14-year-old Filipino girl” file as legally 

“child pornography.” 

The military judge weighed these arguments and made the 

following factual findings. 

1) A1C Winkler and Appellant were roommates and each 

had his own computer. Appellant’s computer was set up 

such that no one in the room would be able to see the 

monitor without being directly in front of the screen. 

2) At some time in early to mid-February 2003 A1C 

Winkler accidentally bumped Appellant’s computer, 
United States v. Leedy, No. 06-0567/AF 

8

deactivating Appellant’s screensaver and revealing the 

contents of the computer’s desktop. 

3) A1C Winkler saw the Windows Media Player program 

open on the desktop and noticed that there were 

several file names listed in the player. 

4) One file name that A1C Winkler remembers was “14 

year old Filipino girl”, and though A1C did not 

remember the name of any other files, he recalled that 

some mentioned ages and some mentioned acts. A1C 

Winkler became concerned that these files included 

child pornography. 

5) On March 14, 2003, A1C Winkler reported his suspicions 

to the AFOSI. 

Based on these facts, the military judge agreed with the 

magistrate’s determination that “there was probable cause to 

believe that evidence . . . was reasonably likely to be found in 

the accused’s . . . personal computer.” 

Both Government and Appellant made the same arguments 

before the Air Force Court of Criminal Appeals, which found that 

the “evidence presented to the magistrate was sufficient to 

permit a person of reasonable caution to conclude that 

contraband would be found on the appellant’s computer.” Leedy, 

ACM 35939. 

 Appellant renews his arguments before this Court. For the 

reasons stated below, we concur with the military judge and the 

lower court’s conclusions and affirm. 

DISCUSSION 

 We recognize that there are competing standards of review 

at play in this case. The specified issue refers to the denial 
United States v. Leedy, No. 06-0567/AF 

9

of a motion to suppress, a decision we review for an abuse of 

discretion. United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 

2007); United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F. 

2002). However, we review the legal question of sufficiency for 

finding probable cause de novo using a totality of the 

circumstances test. United States v. Reister, 44 M.J. 409, 413 

(C.A.A.F. 1996) (holding that “[c]onclusions of law are reviewed 

de novo . . ."). In turn, this determination is based in large 

part on the facts found by the military judge, the review of 

which we conduct under a “clearly erroneous” standard. Findings 

of fact will not be overturned unless they are clearly erroneous 

or unsupported by the record.4

 See United States v. Brisbane, 63 

M.J. 106, 110 (C.A.A.F. 2006); United States v. Swift, 53 M.J. 

439, 446 (C.A.A.F. 2000) (citing United States v. Ayala, 43 M.J. 

296, 298 (C.A.A.F. 1995)); United States v. Moses, 45 M.J. 132, 

135 (C.A.A.F. 1996)). Finally, our review is shaped by the 

outcome of the trial below as we have held that “[i]n reviewing 

a ruling on a motion to suppress, we consider the evidence ‘in 

 

4

 The clearly erroneous standard is a very high one to meet and 

Appellant does not meet the burden by suggesting that the 

findings are “maybe” or “probably wrong.”4

 Parts & Electric 

Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th 

Cir. 1988). If there is “some evidence” supporting the military 

judge’s findings we will not hold them “arbitrary, fanciful, or 

clearly erroneous.” United States v. McCollum, 56 M.J. 837, 843 

(A.F. Ct. Crim. App. 2002). Indeed, here, we hold that “the 

military judge's findings of fact are well within the range of 

the evidence permitted under the clearly-erroneous standard.” 

United States v. Norris, 55 M.J. 209, 215 (C.A.A.F. 2001). 
United States v. Leedy, No. 06-0567/AF 

10

the light most favorable to the’ prevailing party.” Reister, 44 

M.J. at 413; United States v. Flores, 64 M.J. 451, 454 (C.A.A.F. 

2007). 

We start by examining whether the magistrate had a 

“substantial basis” for determining that probable cause existed. 

Illinois v. Gates, 462 U.S. 213, 238 (1983). It follows that 

where a magistrate had a substantial basis to find probable 

cause, a military judge would not abuse his discretion in 

denying a motion to suppress. 

The threshold for probable cause is subject to evolving 

case-law adjustments, but at its core it requires a factual 

demonstration or reason to believe that a crime has or will be 

committed. As the term implies, probable cause deals with 

probabilities. Brinegar v. United States, 338 U.S. 160, 175 

(1949). 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.” 

Id. 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, United 

States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992); there is 

no specific probability required, nor must the evidence lead one 
United States v. Leedy, No. 06-0567/AF 

11

to believe that it is more probable than not that contraband 

will be present. Bethea, 61 M.J. at 187. “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.” 

Gates, 462 U.S. at 238; see also Bethea, 61 M.J. at 187 (holding 

that the standard is a “flexible, common-sense” one) (citing 

Texas v. Brown, 460 U.S. 730, 742 (1983); Carroll v. United 

States, 267 U.S. 132, 162 (1925) (holding that probable cause to 

search exists when the facts and circumstances are sufficient in 

themselves to warrant a man of reasonable caution to believe 

that an offense has been committed). 

With the Court’s common sense standard of probable cause in 

mind, it follows that probable cause determinations are 

inherently contextual, dependent upon the specific circumstances 

presented as well as on the evidence itself. Indeed, probable 

cause is founded not on the determinative features of any 

particular piece of evidence provided an issuing magistrate -- 

nor even solely based upon the affidavit presented to a 

magistrate by an investigator wishing search authorization -- 

but rather upon the overall effect or weight of all factors 

presented to the magistrate. 
United States v. Leedy, No. 06-0567/AF 

12

Though there are no “specific ‘tests’ [that must] be 

satisfied” to find a substantial basis for probable cause, 

Gates, 462 U.S. at 231, our case law broadly bifurcates the 

review of a magistrate’s determination into two “closely 

intertwined” analyses: first, we examine the facts known to the 

magistrate at the time of his decision, and second, we analyze 

the manner in which the facts became known to the magistrate. 

Thus, while the initial inquiry rightly centers on the evidence 

as set out in the four corners of the requesting affidavit, this 

evidence “may [then be] usefully illuminat[ed]” by factors such 

as the “veracity,” “reliability” and “basis of knowledge” of the 

individual presenting the evidence. The magistrate then relies 

on these and other factors in determining the “commonsense, 

practical question whether there [was] ‘probable cause’ to 

believe that contraband...is located in a particular place.” 

Id. at 230; United States v. Gallo, 55 M.J. 418, 421-22 

(C.A.A.F. 2001). 

Probable Cause 

The question presented in this case is straightforward 

albeit compound: did A1C Winkler’s description of the file 

titles on Appellant’s computer as presented in SA Spring’s 

affidavit, when assessed through the lens of the circumstances 

under which the magistrate came to know this information -- 

including SA Spring’s experience investigating child pornography 
United States v. Leedy, No. 06-0567/AF 

13

and the magistrate’s own, independent analysis of the facts -- 

provide a “substantial basis” for the magistrate to conclude 

that there was a fair probability that child pornography would 

be found on Appellant’s computer? 

SA Spring’s affidavit consisted of two primary sections. 

The first section provided SA Spring’s background and expertise 

in the area of child pornography. The second section addressed 

specific facts and circumstances supporting the request to 

search Appellant’s computer, providing background information 

regarding Appellant’s and A1C Winkler’s room, their 

relationship, computer arrangements, and Internet use. 

Paragraph D contained the facts, or absence of facts, on which 

the search authorization hinges. 

 D. Approximately one month ago (between the end of Jan 

03 and the middle of Feb 03), Winkler was working at his 

computer when he inadvertently bumped [Appellant’s] 

computer. According to Winkler, [Appellant] routinely 

leaves his computer on, and when he bumped it, 

[Appellant’s] screen saver turned off. Winkler then 

observed what he believed to be the computer program 

“Windows Media Player” open on [Appellant’s] computer. 

Winkler observed what he described as a “play list” for the 

program. Based upon personal experience, I know that 

Windows Media Player is a computer program that can be used 

to play various computer files, including digital video 

files. I also know, based upon my personal experience, 

that a “play list” is a list of recently “played” or 

accessed files. Winkler stated that he observed several 

titles in the play list that he believed described 

pornographic files. Winkler remembered seeing a file with 

the title “three black guys and one white girl” among 

others. Winkler also saw a file titled “14 year old 

Filipino girl” in the same play list as the other file 

titles. 
United States v. Leedy, No. 06-0567/AF 

14

Appellant argues that based on the material provided in 

this affidavit probable cause is lacking. There is no evidence 

that the file names observed by A1C Winkler were titles of 

video, as opposed to audio files and no evidence in the record 

that A1C Winkler, or anyone else, had ever observed Appellant 

viewing pornography, to say nothing of child pornography, on his 

computer or anywhere else.5

 

Yet, as the Government notes, the title “14 year old 

Filipino girl” does not appear in isolation. SA Spring’s 

affidavit states that 

Winkler stated that he observed several titles in the 

play list that he believed described pornographic 

files. A1C Winkler remembered seeing a file with the 

title “three black guys and one white girl,” among 

others. A1C Winkler also saw a file titled “14 year 

old Filipino girl” in the same play list as the other 

file titles. 

In his Essential Findings of Fact the military judge found 

that A1C Winkler noticed a list of files displayed on the 

Windows Media Player (on the computer desk top) that led him to 

 

5

 A1C Winkler’s statement to SA Spring suggests that the files 

were video in nature —- his statement speaks of “a list of 

movies” being displayed on the screen (rather than just 

“files”). However, this information is not contained in the 

affidavit presented to Magistrate Byers and the testimony 

presented to the military judge does not otherwise reflect that 

this information was provided to the magistrate orally. In 

addressing this issue, we rely alone on information that we know 

was presented to the magistrate at the time of his 

determination, as reflected in the affidavit, the military 

judge’s findings and conclusions of law, and testimony in the 

record of trial addressed to the suppression motion that is 

consistent with the military judge’s findings. 
United States v. Leedy, No. 06-0567/AF 

15

believe that A1C Leedy had child pornography on his computer. 

One file name that he remembered was ‘14 year old Filipino 

girl.’ He did not clearly remember the name of any other files, 

but did recall that some mentioned ages and some mentioned 

acts.” 

Despite these findings, Appellant makes a colorable 

argument that this evidence when viewed in the abstract might be 

insufficient to establish a substantial basis to find probable 

cause to search for child pornography. Such a substantial basis 

would, after all, be based almost entirely on the existence of a 

single file. As interpreted by Appellant, such a conclusion is 

unwarranted as it derives from insufficient evidence which 

leaves too many gaps in SA Spring’s knowledge to find probable 

cause. Such a gap could only be filled, according to Appellant, 

if there was a detailed description of the contents of the files 

in question. 

Moreover, Appellant is correct in arguing that courts have 

generally relied on photographic descriptions of pornography 

before finding probable cause to search for pornography. See,

e.g., United States v. Brunette, 256 F.3d 14 (1st Cir. 2001) 

(holding that appending a sample of the offending material to a 

warrant request was preferable). Indeed, the parties cite to 
United States v. Leedy, No. 06-0567/AF 

16

only one case in which an appellate court has upheld probable 

cause to search for child pornography based on titles alone.6

 

From a Constitutional perspective, the shortcoming in 

Appellant’s argument is that he focuses almost exclusively on 

the title “14 year old Filipino girl” as the predicate for 

probable cause. It is evident that as is the case with many 

digital file titles found on the Internet or on one’s personal 

computer, the title could be innocent. Consider the file name 

“Lolita,” which on its own could as easily reference an English 

term paper, a discussion of teacher-student relations, or 

contain adult or child pornography. Likewise, in a vacuum, the 

title “Teen Angel” could as likely reference a popular 1960s 

song as it could be a video file containing child pornography. 

Similarly, a listing of any number of rap song titles might 

suggest images of violence and pornography, but not in fact 

visually convey those images when played. The point certainly 

is made. 

However, in the current case, Appellant’s file title “14 

year old Filipino girl,” does not appear in isolation. 

 

6

 In United States v. Eichert, 168 Fed. App’x 151 (9th Cir. 

2006), the court found probable cause where the magistrate was 

provided a list of about one-hundred newsgroup titles and file 

names with titles such as “teens, preteen, sex, children and 

young girls” and “sex words” but was not provided a description 

of the contents of the files or newsgroups themselves. Id. at 

152. However, amicus curiae distinguishes Eichert on the ground 

that “the titles...were sufficiently detailed where one could 

assume the type of material the file contained.” 
United States v. Leedy, No. 06-0567/AF 

17

Consequently, the title alone is not the sole predicate fact. 

As an initial factor, it is included on a sequential play list 

alongside titles that A1C Winkler understood to identify sex 

acts7

 and which the military judge concluded referenced sex acts. 

Moreover, and critically, none of these facts are abstract 

pieces of evidence, but rather are properly viewed in context, 

through the professional lens in which they were presented to 

the magistrate. The magistrate had the benefit of the affiant’s 

professional experience in investigating child pornography, a 

background which usefully “illuminated” the facts provided. 

Gates, 462 U.S. at 230.8

 

 

7

 The record includes a number of different statements regarding 

A1C Winkler’s recollection of the file titles. The most 

descriptive is contained in his statement to AFOSI, which 

includes titles such as “White Slut banged by . . .” However, 

as noted earlier, in reviewing this case we have considered only 

that evidence the record indicates was provided to the 

magistrate as reflected in the affidavit, testimony, and the 

military judge’s findings. 

8

 In the affidavit, SA Spring provided his professional 

background: 

I have been a Special Agent with the Air Force Office of 

Special Investigations (AFOSI) since March 1994. I 

received training to be a Special Agent at the United 

States Air Force Special Investigations Academy . . . I 

have been assigned as the Detachment Commander of AFOSI Det 

613, Kunsan AB (KAB), Korea since 28 Jun 2002. Prior to 

this assignment I was an instructor and course manager at 

the United States Air Force Special Investigations Academy 

for three years. In that capacity, I was responsible for 

development of course curriculum for both entry level and 

advanced training, including curriculum development for 

blocks of instruction dealing with the sexual abuse and 
United States v. Leedy, No. 06-0567/AF 

18

SA Spring’s training and experience shed important light on 

the facts presented and addressed the magistrate’s concerns on 

several measures. First, in regard to the potentially benign 

nature of the file title in question, SA Spring indicated A1C 

Winkler believed that the sorts of titles surrounding the “14 

year old Filipino girl” were indicative of titles associated 

with child pornography. 

Second, SA Spring’s experience addressed the magistrate’s 

concerns that A1C Winkler’s allegations might be stale, given 

the month (or more) that had elapsed between A1C Winkler’s 

 

exploitation of children . . . . During my time as a 

Special Agent, I have participated in and supervised 

numerous criminal investigations involving the sexual abuse 

and exploitation of children. I have the following 

education and training specific to investigations into the 

sexual abuse and exploitation and children: 

- In 1994, I received basic instruction at the Special 

Investigations Academy that included analysis of persons 

involved in exploitation of children, their habits and 

common practices. 

- In 1996, I received advanced instruction at the Special 

Investigations Academy that included analysis of persons 

involved in the exploitation of children, their habits 

and common practices. 

- I hold a Masters of Forensic Science degree from the 

George Washington University. Specifically, I received 

graduate level instruction on the investigation of crimes 

involving the exploitation of children, to include 

trafficking in child pornography and traits and 

characteristics of persons involved in such activities. 

- As an instructor at the Special Investigations Academy 

from 1999-2002, I have attended numerous lectures and 

classes concerning the sexual abuse and exploitation of 

children. 
United States v. Leedy, No. 06-0567/AF 

19

discovering of the files and his reporting to AFOSI. In the 

first part of his affidavit, SA Spring stated that staleness 

concerns are usually misapplied in child pornography cases given 

that in his experience individuals who enjoy child pornography 

are invariably “collectors,” almost always keeping their 

material permanently.9

 The one month lag alone was thus not 

likely to render A1C Winkler’s statement inaccurate. Moreover, 

even if the offending file had been erased in the interim, from 

experience SA Spring was aware that trained computer forensic 

examiners can usually find digital files on hard drives even if 

users have deleted them. 

We acknowledge that relying upon expertise too heavily, at 

the expense of hard facts, can be troubling and is open to 

abuse. However, such blind faith reliance is not present here, 

either by SA Spring or the magistrate. It is evident that SA 

 

9

 SA Spring noted that “I have learned that the following 

characteristics are, generally, found to exist in varying 

combinations in cases involving people who view, collect, 

obtain, buy, trade or sell child pornography.” The affidavit 

includes the following characteristics: 

D. These people rarely, if ever, dispose of their 

sexually explicit materials and often tend to maintain vast 

collections of such imagery . . . 

 

F. These people go to great lengths to conceal and 

protect from discovery, theft, and damage their collections 

of illicit materials... 

I. The Internet is frequently used to find, access, 

download, sell and/or trade sexually explicit images of 

children. 
United States v. Leedy, No. 06-0567/AF 

20

Spring did not simply rest on his training, passively filtering 

any evidence through his experience. SA Spring was actively 

skeptical about A1C Winkler’s claims and did not immediately 

accept his concerns as legitimate. When A1C Winkler presented 

his information to the AFOSI, SA Spring performed an in-depth 

interview of the airman to assess his credibility. SA Spring 

questioned the airman about whether there was an ulterior motive 

behind his report and clearly established the limits of what was 

known and what was not. It was only once SA Spring had assessed 

the information and was confident that A1C Winkler’s concerns 

were bona fide and that he had no “axe to grind” against 

Appellant that SA Spring presented the collected material to the 

base Chief of Military Justice for her assessment as to the 

existence of probable cause. After obtaining a judge advocate’s 

assent, SA Spring wrote up a comprehensive affidavit to be 

presented to the magistrate requesting search authorization. 

The affidavit included both information about A1C Winkler’s 

claims and SA Spring’s professional judgment (based upon his 

education and experience) linking the claims to a likelihood 

that contraband would be present. 

The constitutional propriety of SA Spring’s behavior also 

comports with common sense. After all, if a sample of the child 

pornography or a detailed description of the contents of the 

pornographic image were required as predicate to search for 
United States v. Leedy, No. 06-0567/AF 

21

child pornography, law enforcement would be left in an untenable 

position: a substantial basis for finding probable cause to 

search for the contraband would only be available after the 

contraband had already been discovered. Direct evidence of the 

very material sought would be needed and “[t]here is no 

requirement...that an affidavit present conclusive proof by 

direct evidence that the crime has been committed before a 

search warrant can issue.” Eichert, 168 Fed. App’x 152. 

This is not to say that law enforcement officers should not 

include specific detail where such detail is available to 

substantiate search requests. An affidavit that demonstrates 

that a subject has viewed child pornography and describes that 

pornography is more likely to substantiate probable cause than 

one that does not. However, the Constitution does not, and 

common sense cannot, necessarily require such detail in order to 

properly find probable cause. 

Case law is evolving as is our understanding of child 

pornography. Child pornography is not new, but its 

proliferation on the Internet is a recent phenomenon raising 

new, and in some cases challenging, questions of law. The 

Supreme Court has repeatedly directed reviewing courts to apply 

common sense and practical considerations in reviewing probable 

cause determinations. In that context, a different legal 

picture emerges. In an earlier era an investigator, magistrate, 
United States v. Leedy, No. 06-0567/AF 

22

or court might not have thought a file titled “14 year old 

Filipino girl” warranted investigation, even when surrounded by 

titles suggesting graphic pornography. Today, applying our own 

common sense understanding, informed as it is by recent years 

which have seen many cases of child pornography, with the facts 

of such cases increasingly involving computers and digital 

files, we conclude that the gloss SA Spring applied to 

Appellant’s file titles was well founded. There is more than a 

fair probability that a list of files referencing sex acts that 

also includes a file referencing a fourteen-year-old child will 

result in the discovery of child pornography.10 

Neutral and Detached Magistrate 

We next address Appellant’s argument that the military 

magistrate in this case failed in his duty to act in a neutral 

and detached manner. Appellant does not challenge the 

independence and structure of military search approval 

generally, but rather asserts that in this case the magistrate 

was a “rubber stamp” for SA Spring’s request. However, the 

record suggests the contrary. 

The base magistrate was Colonel (Col) Byers who was the 

Mission Support Group commander at Kunsan Air Base and had more 

 

10 As we find that the authorization was proper, we need not 

address the availability of any good faith exception to the 

authorization requirement that may have been present in this 

case. See United States v. Leon, 468 U.S. 897 (1984); Gallo, 55 

M.J. at 422. 
United States v. Leedy, No. 06-0567/AF 

23

than two decades of experience in the Air Force. There is no 

evidence that the magistrate had any generalized proclivity 

towards simply conceding search requests to investigators. In 

fact, shortly before he reviewed the search request at issue 

here, Col Byers had been involved in “a number of probable cause 

determinations” including at least one case where he declined 

authorization until the government provided additional predicate 

information. 

Moreover, in the current case, the magistrate evidently 

closely read the affidavit, and questioned SA Spring about the 

matter for more than twenty minutes, raising many of the 

concerns that Appellant now echoes. Col Byers voiced his 

trepidations about whether A1C Winkler could be trusted, the 

length of time between A1C Winkler’s finding of the files and 

his report to AFOSI, that no one had actually seen any 

pornography played on Appellant’s computer, and about whether 

the file names provided were actually pornographic. 11 The 

magistrate explicitly, and properly, relied on SA Spring’s 

experience -- stating, for instance, that he concurred with SA 

 

11 In his testimony, Col Byers recalled his discussions with SA 

Spring: 

My concern was how do you know that [the file] would be 

pornographic...in nature and [SA Spring] said because of 

other titles that [A1C] Winkler recollected seeing....And 

based on the discussions with [A1C] Winkler that [SA 

Spring] felt that those titles would indeed lead to some 

type of picture or video...of a pornographic nature. 
United States v. Leedy, No. 06-0567/AF 

24

Spring’s assessment that there was a substantial basis to 

believe that the file names were pornographic based upon “[SA 

Spring’s] experience and some cases that he’s had and the 

evidence that those type [sic] of titles taken in context...was 

that [those files] could be pornographic in nature” -- but Col 

Byers did not simply defer to SA Spring’s expertise.12 The 

magistrate did not immediately accept SA Spring’s answers; he 

proceeded to speak with others including A1C Winkler’s and 

Appellant’s commanding officer to gain further insight about 

whether there was any motive for A1C Winkler to fabricate 

charges against Appellant. It was only after this investigation 

and further consultation with the legal office that the 

magistrate issued the authorization. 

Mirroring the analysis required from Gates and our own 

cases, the magistrate acted in light of his own investigation of 

the facts, and paid heed to the circumstances in which he 

learned of the facts (including the substantial professional 

history of the affiant). It was only then that the magistrate 

expressed confidence in SA Spring’s affidavit and was convinced 

that the requirements for probable cause had been met.13 On 

 

12 The military judge found that though when “Col Byers reviewed 

the affidavit, he did review SA Spring’s training and 

experience, [he] generally was focused on [SA Spring’s] 

knowledge of the facts as they pertained to this case.” 
United States v. Leedy, No. 06-0567/AF 

25

these facts, we conclude that the magistrate was neither 

unmindful of his duties nor was he insufficiently detached from 

the requesting investigator. See, e.g., United States v. 

Cravens, 56 M.J. 370, 373, 376 (C.A.A.F. 2002) (in which this 

Court adopted the military judge’s finding that a magistrate 

appropriately fulfilled his role as a neutral and detached 

magistrate, and that his decision was clearly his own after he 

asked responsible questions, considered the views of the 

investigators and judge advocate advisor and only then made his 

decision). 

DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed. 

 

13 While SA Spring followed good practice and precedent in 

including in the affidavit material from A1C Winkler, buttressed 

by his own expertise, we note with approval that SA Spring 

clearly delineated in the affidavit what claims were made by the 

informant and what conclusions were reached as a result of SA 

Spring’s experience in the matter. The magistrate was thus 

fully informed as to what was solid fact and what was presented 

as inference. 
United States v. Leedy, No. 06-0567/AF 

ERDMANN, Judge (concurring in the result): 

I respectfully disagree with the majority’s conclusion that 

the magistrate had a substantial basis for determining that 

probable cause existed. Because I believe that the good faith 

exception applies to this case, however, I concur in the result. 

I agree with the majority that we review the magistrate’s 

determination that probable cause existed by examining the facts 

known to the magistrate at the time of his decision and by 

analyzing the manner in which the facts became known to the 

magistrate. The magistrate must be provided sufficient 

information to make an independent determination about the 

existence of probable cause under the totality of the 

circumstances. United States v. Monroe, 52 M.J. 326, 331 

(C.A.A.F. 2000)(citing Illinois v. Gates, 462 U.S. 213, 239 

(1983)). 

Here, the facts known to the magistrate were presented 

through the affidavit of SA Spring and indicated the following: 

Leedy’s roommate, Winkler, informed SA Spring that Leedy’s 

computer was positioned in such a way as to preclude others from 

directly observing his monitor; Leedy told Winkler that he 

downloads files from the internet; and Winkler observed the play 

list on Leedy’s Windows’ Media Player and believed several 

titles described pornographic files. Two file titles were named 
United States v. Leedy, No. 06-0567/AF 

2

in the affidavit, “three black guys and one white girl” and “14 

year old Philipino girl.” 

Even considering that these facts were filtered through the 

expertise of SA Spring when presented to the magistrate, I 

believe they fall short of demonstrating a fair probability that 

child pornography would be found on Leedy’s computer. Two of 

the facts -- that Leedy’s computer monitor was positioned for 

privacy and that Leedy downloads internet files -- are such 

common occurrences of innocent daily activity that they add very 

little, if anything, to a common-sense analysis of probable 

cause. I do not believe that what remains -- the two file 

titles and the unexplained belief of Leedy’s roommate that other 

file titles were pornographic -- is enough to justify the search 

of an individual’s personal computer for child pornography. 

Although the standard for probable cause does not necessarily 

require that the illegal images be attached or described, a 

common-sense approach demands more concrete information than 

what was provided here to establish a fair probability that 

evidence of a crime will be found. See Monroe, 52 M.J. at 331-

32. An investigator’s expertise may add value in certain 

instances, but the scarce facts of this case establish an 

underlying deficiency that reliance on an investigator’s 

experience and training cannot overcome. 
United States v. Leedy, No. 06-0567/AF 

3

In this regard, the majority relies on a finding by the 

military judge that Winkler “did not clearly remember the name 

of any other files, but did recall that some mentioned ages and 

some mentioned acts.” If the magistrate did in fact have this 

information before him, the case for probable cause is stronger. 

However, this information was not included in SA Spring’s 

affidavit and there is no evidence that these specific details 

were presented to the magistrate. Rather, this fact was part of 

Winkler’s statement to AFOSI, which the majority correctly 

excluded from consideration because the magistrate did not 

review that statement. The AFOSI statement, nevertheless, was 

presented to the military judge for his consideration on the 

motion to suppress the results of the search. To the extent 

that the military judge relied on that statement, he erred. For 

this reason, the fact that Winkler recalled seeing unnamed 

titles that mentioned ages and acts is not part of this court’s 

consideration. 

Although I do not believe probable cause existed, I 

nevertheless concur in the result because I would find that the 

good faith exception applies in this case. The good faith 

exception, which is contained in Military Rule of Evidence 

311(b)(3), provides as follows: 

Evidence that was obtained as a result of an unlawful 

search or seizure may be used if: 
United States v. Leedy, No. 06-0567/AF 

4

(A) The search or seizure resulted from an 

authorization to search, seize or apprehend issued by 

an individual competent to issue the authorization 

under Mil.R.Evid. 315(d) or from a search warrant or 

arrest warrant issued by competent civilian authority; 

(B) The individual issuing the authorization or 

warrant had a substantial basis for determining the 

existence of probable cause; and 

(C) The officials seeking and executing the 

authorization or warrant reasonably and with good 

faith relied on the issuance of the authorization or 

warrant. Good faith shall be determined on an 

objective standard. 

See also United States v. Leon, 468 U.S. 897 (1984). 

 In its application, the good faith exception is notably 

broad where, as here, there is no evidence of law enforcement 

misconduct. In United States v. Leon, the Supreme Court 

explained that the Fourth Amendment itself does not expressly 

require excluding evidence that was obtained in violation of its 

command. Rather, the exclusionary rule operates as “a 

judicially created remedy designed to safeguard Fourth Amendment 

rights generally through its deterrent effect, rather than a 

personal constitutional right of the party aggrieved.” 468 U.S. 

at 906 (citation and quotation omitted). Use of the 

exclusionary rule is to prevent further police misconduct in 

other cases, not to compensate the individual whose Fourth 

Amendment rights were violated or to punish the errors of judges 

and magistrates. 468 U.S. at 906, 916. The Supreme Court 

concluded that: 
United States v. Leedy, No. 06-0567/AF 

5

In the ordinary case, an officer cannot be expected to 

question the magistrate’s probable-cause determination 

or his judgment that the form of the warrant is 

technically sufficient. Once the warrant issues, 

there is literally nothing more the policeman can do 

in seeking to comply with the law. . . . Penalizing 

the officer for the magistrate’s error, rather than 

his own, cannot logically contribute to the deterrence 

of Fourth Amendment violations. 

468 U.S. at 921 (citation and quotation omitted). 

 Consistent with this precedent, this court has previously 

determined that: 

“Substantial basis” as an element of good faith 

examines the affidavit and search authorization 

through the eyes of a reasonable law enforcement 

official executing the search authorization. In this 

context, the second prong of Mil.R.Evid. 311(b)(3) is 

satisfied if the law enforcement official had an 

objectively reasonable belief that the magistrate had 

a “substantial basis” for determining the existence of 

probable cause. 

United States v. Carter, 54 M.J. 414, 422 (C.A.A.F. 2001). 

 With this backdrop, I conclude that the good faith 

exception applies in this case. The facts here raise no issue 

under M.R.E. 311(b)(3)(A). As to M.R.E. 311(b)(3)(B) and 

311(b)(3)(C), even though I find SA Spring’s affidavit is 

insufficient to support the magistrate’s determination that 

probable cause existed, the deficiencies are not so egregious 

that the law officer executing the warrant should be faulted for 

relying on the magistrate’s probable cause determination. 

Because the good faith exception would allow the prosecution to 

use the evidence obtained from the search of Leedy’s computer, I 
United States v. Leedy, No. 06-0567/AF 

6

would affirm the decision of the United States Air Force Court 

of Criminal Appeals on this alternative ground.