Getting Illegal Evidence Suppressed In A Military Criminal Case | Law Offices of David P. Sheldon
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Getting Illegal Evidence Suppressed In A Military Criminal Case

The legal system continues to walk the fine line between prosecuting dangers to society and protecting our right to privacy. An 11-member en banc federal appeals court has ruled that while U.S. Navy investigators violated federal law in providing evidence in a child pornography case, that decision won't benefit the perpetrator. The 42-page opinion reverses a 2014 opinion by a three-member panel of the court.

The ruling

In the recent ruling, Judge Morgan Christen was quoted as saying that the court would "decline to compel suppression because the facts of this case do not demonstrate that suppression is needed to deter future violations".

One of the agents with the Naval Criminal Investigative Service used a software program called RoundUp in a successful attempt to search for computers in Washington state that shared child porn.

The software program was developed by computer scientists Brian Levine and Marc Liberatore of the University of Massachusetts at Amherst. It has proved to be a very effective tool for collecting evidence against people who share images of child pornography on the internet. It is so effective that it's used in 58 task forces in more than 45 states specializing in Internet Crimes Against Children (ICAC).

Crimes of the highest priority

Crimes against children is rated as high priority by the U.S. criminal justice system. That high priority rating resulted in financial assistance for the development of the software in the amount of $460,000 from the U.S. Department of Justice's National Institute of Justice and an additional $1.4 million from the National Science Foundation.

The en banc court ruled that the evidence gathered by a military agency using the software violated the Posse Comitatus Act. That act forbids the use of evidence gathered by the military to be used in civilian court proceeedings. However, the court concluded that "the government should have the opportunity to self-correct before we resort to the exclusionary rule, particularly because it has already acknowledged the need to do so.".

The defendant in the case was convicted and sentenced to 18 years in prison. In 2014, a 9th Circuit panel excluded the evidence because a military agency had passed information collected during an investigation of military personnel to civilian authorities. In 2010, an NCIS agent, who was working as a civilian employee in Brunswick, Georgia at the time, began a criminal inquiry of child internet porn.

Should civilian authories have handled the case?

When the agent revealed that Dryer discovered a database of known child pornography on a specific computer, he turned the information over to civilian authorities. Using unique file identifiers, the software is able to identify specific computers on which illegal content is present. When the illegal files are passed through peer-to-peer file sharing networks, individuals within those networks can be successfully identified.

In 2011, NCIS agents obtained permission from Washington state to investigate computers for the purpose of identifying those sharing child pornography. The legal conflict lay in the fact that those investigative searches were not confined to users who were active duty members of the military. Instead, the investigation included the entire state, which included many civilians not under the jurisdiction of the military code of conduct.

The investigation discovered two images and one video depicting child pornography on his computer. After the discovery, the agent informed the FBI. The FBI tracked his name and address and got a search warrant through the Department of Homeland Security. Although he was previously convicted of another federal child pornography charge, he challenged the case as a violation of the Posse Comitatus Act.

The judicial system continues to refine the law for the benefit of the general public as well as civilian and military organizations

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David P. Sheldon | International Military Law Attorney

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