CAAF Preview: United States v. Bavender

​On Tuesday, October 27, CAAF will hear argument in United States v. Bavender, a case involving the validity of a search warrant.  The issue is whether the military judge erred in denying Appellant’s suppression motion. 

Bavender briefs here.

​Pertinent Facts[1]
 
     Appellant confessed to his supervisors that he had viewed child pornography.  He then told Air Force Office of Special Investigations (AFOSI) special agents: (1) he viewed child pornography as recently as two weeks before his confession; (2) he was sexually attracted to girls aged 13-17; (3) he accessed approximately 100-150 images of child pornography since 2011 and saved at least 30-40 of them; (4) he grew concerned that he eventually would seek images of toddlers; and (5) where on his digital media the agents could find the images he saved.   He also stated that none of the images he viewed depicted sexual acts and that they were found through generic internet searches that predominately led to nudist beach websites. 
 
     Appellant initially consented to the AFOSI agents’ request to search his off-base residence for the digital media he identified. However, he retracted his consent after the AFOSI seized the digital media but before the agents searched it. In response, an AFOSI agent prepared an affidavit to obtain a search warrant.  The affidavit was based on Appellant’s admissions during his interview. The military magistrate judge concluded the affidavit established probable cause and authorized a search of Appellant’s digital media.  The search revealed images of child pornography.
 
    At trial, Appellant moved to suppress the evidence, arguing his statements did not establish probable cause sufficient for issuing the warrant.  Specifically, Appellant contended that his statements evidenced a misunderstanding of the difference between underage nudity and child pornography as defined by 10 U.S.C. § 934 (Article 134, UCMJ).  That mistake of law, he asserted, undercut the probable cause determination. He also argued that the agent who prepared the affidavit omitted, in bad faith, his statements that none of the images displayed sexual acts and that the images were found on nudist beach websites, not illegal pornography websites.
 
The Military Judge’s Decision
 
     The military judge denied the motion.  In doing so, the military judge found the affidavit established probable cause because Appellant: (1) described his interest in particular minors; (2) repeatedly accessed child pornography; (3) saved several illicit images; (4) used specific search terms to find illegal images; (5) expressed a sexual preference for minors; and (6) told agents that he had images saved on identified digital media.  The military judge did not rule explicitly on the allegation of bad faith.
 
      A general court martial convicted Appellant, contrary to his pleas, of receiving and viewing child pornography in violation of Article 134, UCMJ.  He was sentenced to a dishonorable discharge, three years confinement, and a reduction to E-1.  He appealed the suppression ruling to the Air Force Court of Criminal Appeals (AFCCA).
 
The AFCCA’s Decision
 
       The AFCCA affirmed.  The Court held that Appellant’s statements gave the military magistrate judge a substantial basis for concluding there was a fair probability that child pornography would be found on his digital media.  Addressing Appellant’s bad faith claim, the Court also held there was no evidence that the agent deliberately misled the magistrate or that the agent intentionally or recklessly omitted information that would have precluded a finding of probable cause.[2]
 
Arguments to the CAAF
 
      Appellant largely renews his principal arguments. He contends: (1) his statements about the types of images he viewed could not establish probable cause because they evidence a clear mistake of law on which the agent unreasonably relied; (2) the agent intentionally or recklessly misled the magistrate with materially false allegations and omissions in the affidavit; and (3) the AFCCA misapplied controlling CAAF precedent in reaching the contrary conclusion. 
 
       The Government defends the decisions below and argues the following.  Appellant waived his bad-faith challenge to the affidavit by failing to raise it at trial in the manner required by Mil. R. Evid. 311(d)(4)(B).  Assuming no waiver, he failed to adduce evidence of misconduct. The military judge did not abuse his discretion because the affidavit supplied sufficient probable cause to authorize the warrant.  Assuming the affidavit is defective, the agents are entitled to the good faith exception under Mil. R. Evid. 311(c)(3).  And even if the agents acted in bad faith, their actions are not sufficiently culpable to justify application of the exclusionary rule.
 
     In reply, Appellant argues (1) he properly preserved his bad-faith challenge; (2) the good faith exception does not apply because the affidavit was false or reckless; and (3) excluding the evidence would result in appreciable deterrence.


[1]Appellant disputes a number of these facts in his merits briefing.

[2]The AFCCA also rejected Appellant’s other challenges, which are not relevant on appeal.

James Taglienti

Senior Intern