In a recently published opinion, United States v. Hoffmann, No. 201400067 (11 Dec 2014), the NMCCA held that allegations of child enticement offenses coupled with a law enforcement officer’s training and experience could establish probable cause for a search authorization of a suspect’s computer for child pornography.

The appellant was convicted, contrary to his pleas, of one specification each of attempted sodomy with a child, indecent liberties with a child, child enticement, and possession of child pornography, in violation of Articles 80, 120, and 134, UCMJ. The appellant is alleged to have attempted to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. On two occasions, the appellant was alleged to have repeatedly driven by two different underage boys, made hand motions indicating oral sex at them, and asked them if they wanted to go for a ride. However, at trial the appellant was acquitted of the specifications related to these two incidents. He was convicted of the specifications for a third incident, where he drove by yet another boy several times and asked him multiple times if he wanted a “quickie.”

Following one of the alleged incidents of which the appellant was acquitted, the appellant was apprehended by CID at Camp Lejeune and he consented to a search of his barracks room. However, once the investigating agent began searching the appellant’s desk, the appellant revoked his consent. Nevertheless, the agent still seized several items from the room that had already been discovered, including the appellant’s laptop. Nothing was done with this computer until over four months later, when NCIS sought and received a search authorization to examine the computer for evidence of child pornography. This search led to the discovery of eighteen images and two videos of child pornography, which were the basis for the appellant’s child pornography convictions.

On appeal, the appellant challenged, among other things, the validity of the search authorization for child pornography. The Court also, sua sponte, raised the issue of the validity of the seizure of the laptop after the appellant revoked his consent to search. However, in its opinion, the Court does not address the issue of whether the laptop was seized prior to the appellant’s revocation of consent, but finds that the laptop would have been inevitably seized. The Court arrives at this conclusion by relying on the testimony of the CID agent, who conducted the search. At the suppression hearing, that agent testified that, had the appellant refused to give consent for the search, the agent would have sought a search authorization. Slip Op. at 5. The Court then finds that had the CID agent sought a search authorization, there would have been probable cause for him to get one. Slip op. at 7. The Court bases this finding on the fact that:

[the Agent’s] training and experience led him to what we believe is a conclusion supported by “common-sense,” namely that those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research. Under these facts, where the appellant was accused of multiple brazen attempts to engage in sexual activity with several different boys in several different locations, it is entirely reasonable to conclude that the appellant’s laptop would contain evidence of the alleged crimes, such as evidence of internet searches regarding the location of schools, school release times, or base housing maps. Therefore, under these circumstances, we conclude that probable cause to seize the appellant’s laptop existed and that Agent Rivera would have obtained a command authorization to search and seize the laptop.

Id. Although it is not clear why from the opinion, the Appellant’s laptop was not searched for approximately four months. At that time, the case had been taken over by NCIS and the investigating agent sought a search authorization to search the computer, not for evidence of the alleged crimes described above, but for child pornography. As an aside, it seems like it would cut against the Court’s inevitable discovery holding that apparently no one ever searched the laptop for the evidence that would have given probable cause to seize the laptop. The reason for the request to search for child pornography, as stated in the NCIS agent’s affidavit for the search authorization, was that:

[the agent knew] from training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may be a logical precursor to physical interaction with a child and an individual who is sexually interested in children is likely to be predisposed to searching for and receiving child pornography. Additionally, individuals sexually interested in children frequently use child pornography to reduce the inhibitions of those children. Computers have revolutionized the way in which those sources and users interact. Computers and Internet connections are readily available and are tools of the trade for individuals wishing to exploit children and have greatly changed and added to the way in which child pornography is disseminated, collected, and viewed. The relative ease with which child pornography may be obtained on the Internet might make it a simpler and less detectable way of satisfying pedophilic desires.

Slip op. at 9. The affidavit also included detailed information about the NCIS agent’s training and qualification, which showed that she had numerous relevant investigative credentials, an educational background in psychology and forensic psychology, and extensive experience investigating child exploitation cases. Id. The agent also had a lengthy conversation with the commanding officer who issued the search authorization, during which he testified the agent:

helped him “draw a direct line” between “someone who has solicited children . . . to child pornography. She built a nexus for me that it’s a precursor, it’s an enabler. . . . [t]hat it desensitizes the target. . . . She provided me background on predators that indicated that child pornography is a precursor to solicitation.”

Slip op. at 10. At trial and on appeal, the appellant attacked the ensuing search authorization on the basis that:

…probable cause was lacking since the “intuitive relationship” between child enticement and possession of child pornography is nothing more than bare suspicion.

Id.

The Court began its analysis of this issue by noting that it appears to be an issue of first impression for the military and that the federal circuit courts appear to be split. The Court reviewed the relevant case law from the federal circuits, finding that cases out of the Fourth and Ninth Circuit were persuasive for the appellant’s position, while finding that cases from the Second, Third and Sixth Circuits were distinguishable from this case. However, the Court came to rest on a case from the Eighth Circuit, United States v. Colbert, 605 F.3d 573 (8th Cir. 2010).

In Colbert, police officers responded to a city park following a complaint about a man lurking around children on the playground. Upon further investigation, the officers discovered that Colbert had been pushing a five a year old girl on the swings and talking to her for forty minutes about movies and videos he had at his home, in an attempt to get her to accompany him to his apartment. The officers also discovered that Colbert’s vehicle, which was at the playground, was outfitted to look like a police cruiser and contained handcuffs, a police scanner, binoculars and a police hat which said, “New York PD.” Based on these facts, the officers obtained a search warrant for his apartment. The search of Colbert’s apartment revealed various children’s movies, a computer, and numerous discs containing child pornography.

In upholding the validity of the search warrant, the Eighth Circuit (in language, which as the NMCCA notes, is the same language the NCIS Agent borrowed for her affidavit) says that:

There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may very well be a logical precursor to physical interaction with a child: the relative ease with which child pornography may be obtained on the internet might make it a simpler and less detectable way of satisfying pedophilic desires. Accordingly, we conclude that Colbert’s attempt to entice a child was a factor that the judicial officer reasonably could have considered in determining whether Colbert likely possessed child pornography, all the more so in light of the evidence that Colbert heightened the allure of his attempted inveiglement by telling the child that he had movies she would like to watch. That information established a direct link to Colbert’s apartment and raised a fair question as to the nature of the materials to which he had referred. Although the return on the warrant does not list the titles of the children’s movies found in his apartment, it would strain credulity to believe that Colbert was attempting to lure the child there to watch, say, “Mary Poppins” or “The Sound of Music,” or to engage in basket weaving or a game of pickup sticks. The circumstances suggest that Colbert intended to victimize the child in some manner, and as the Supreme Court recognized nearly twenty years ago, “evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.” Thus, the state court judge could reasonably have concluded that the facts in the affidavit established a fair probability that child pornography would be found in Colbert’s apartment.

Id. at 578-579 (citations omitted).

The NMCCA finds that reasoning from the Colbert decision supports upholding the validity of the search authorization here because:

…an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities. Moreover, the rational link between child enticement and child pornography was fully articulated by SA Shutt in the affidavit that she presented to the Commander as well as during her ninety-minute conversation with him, during which she utilized her training and experience to “shed important light on the facts presented.”

Slip op. at 13-14 (citations omitted).

This is a broad holding with likely far-reaching effects. While the Court tries to couch the holding in the “totality of the circumstances” of this particular case, the logical implication of the holding goes much farther. Unlike in Colbert, the NMCCA does not base their decision, in any meaningful sense, on facts unique to this case. In Colbert, the real nexus to tie together the allegation of child enticement and a search for child pornography was that Colbert asked the girl whether she wanted to come to his house to watch some movies, seemingly mirroring a pedophilic technique of showing children images of child pornography to encourage them to engage in sexual acts. This fact is the link between the officer’s training and experience, the enticement allegation and child pornography.

However, in Hoffman there were no such allegations. In fact, the only allegations were of several solicitations to engage in a certain sexual act. Nevertheless, the NMCCA seems to find that it is enough that there was an allegation of child enticement and that the investigating officer stated with specificity in her affidavit that people who entice children for sexual purposes usually have child pornography. This opinion was based on her training and experience, but not, at least as far as it is revealed in the opinion, on any unique facts of this case. Under that rationale, in any child molestation or enticement case, agents should be able to get a search authorization for child pornography so long as the requesting agent has experience and training in child sex crime cases and makes an assertion that there is often a connection between child pornography and child enticement.

The holding in this case, if it is affirmed by CAAF, has the potential to be a major victory for law enforcement and would greatly increase their ability to search for additional evidence in child sex abuse cases. However, there is a danger in giving too much credence to the “intuitive relationships” between two different crimes. As then-Judge Sotomayor said in United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008):

It is an inferential fallacy of ancient standing to conclude that, because members of group A” (those who collect child pornography) “are likely to be members of group B” (those attracted to children), “then group B is entirely, or even largely composed of, members of group A.” Although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, the correlation drawn by the district court.

It seems questionable that this “inferential fallacy” can be corrected simply by an assertion from a government agent that the inference is true based on that agent’s training and experience.

8 Responses to “NMCCA Publishes Opinion On Searches for Child Pornography in Child Sex Abuse Cases”

  1. Defense Hack says:

    I think if you move up a level of abstraction, the ruling is entirely fair in light of the burden required for a search authorization. The science and statistics on this is pretty clear in that folks who attracted to children often possess child pornography, and that sometimes said pornography is used to groom children. Even those that never cross the threshold of actually molestation will attempt to control their unhealthy fantasies by limiting it CP. Most trained investigators will be familiar with this link. An analogy would be a drug investigator who witnesses a guy hanging out on the corner, taking cash, then running into a house, and repeating this transaction 20 times a day will have probable cause to believe that there is a drug stash in said house. To take it one step further, in a bad neighborhood, if this individual is identified as wearing gang colors, the officer may have probably cause to believe that there is also an illegal firearm in the building to protect said stash. Both of these assumptions may turn out to be false, but it certainly gives the investigator enough for a search warrant.

  2. RKincaid3 (RK3PO) says:

    This is a classic case of a conclusion in need of justification. Let’s be clear: there was no PC that the computer was involved in any of the alleged offenses at issue. This is self-evident not only from the facts of the case, but in the fact that by the time to computer was searched, the search authorization was based not upon evidence that the computer had been used or implicated in any of the underlying offenses. Instead, the search authorization was for “child pornography” when the only basis from which to conclude that child porn was a crime of which the accused was suspected was the “common sense” conclusion that:
     

    Those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research.

     
    Notwithstanding the court’s self-serving assertion about common sense, my recollection of the law in this area–as well as the science behind it–is that their conclusion is debatable at best. And thus, this is at best a broad sweeping generalization that like all generalizations is generally true but specifically vacuous and meaningless where the law requires specificity and particularity. But is a generalization the legal basis our society want’s government using to justify investigations and trials and imprisoning the citizenry? The answer, at least under the current constitution and case law, is a resounding “NO.”
     
    The lack of PC in this case, coupled with the inherent unreasonableness of the search sans consent, and the need to justify the conclusion, are both self-evident in the great lengths to which the NMCCA went in writing the opinion. Resorting to a string of euphemisms (“possibly,” “maybe,” could,” might,” “should,” “can,” “common sense,” “education and training,” “experience,” etc., and many other indefinite and uncertain “generalities”) to support the desired conclusion, the NMCCA steers far and wide afield from the specificity generally understood from precedent and a plain reading of the 4th Amendment’s “particularity” requirement to justify the search, the seizure and ultimately, the incarceration of one of “those” bad guys–someone so un-sympathetic as to preclude any adverse criticism of the case or its lack of objective justness.
     
    In so doing, the NMCCA has done a great injustice to service members everywhere AND gutted the rule of law, supplanting it with a more subjectively satisfying “to hell with the consequences, just look at the devious dirty criminal we nailed!” standard instead of the objectively JUST standard of “reasonableness” and “particularity” and “probable cause” (regardless of the vileness of the accused) in a restrained government system.

  3. RKincaid3 (RK3PO) says:

    The more I think about this, the more this is “profiling” and I wonder if those who support this “general” “profile” of a pedophile will be as supportive of other general profiles that, depending upon one’s politics/perspective, are “generally accurate” but which are nevertheless improper and downright illegal profiling tactics such as “driving in an affluent neighborhood while [insert any color here but “white”]; or the suspect was “[insert any color here but “white”] and wearing a hoodie.”
     
    Generalities are the bane of justice folks—no matter who the suspect is.  We justify such questionable policies by giving-in to our baser, inhuman instincts.
     
    Shame on us as a society (and a military), and double-shame on any court that legitimizes this utter tripe.

  4. stewie says:

    Not ALL profiling is wrong.  Certainly if it’s based on something nebulous and common like skin color or religion it’s odious.  But targeted, reasonable profiling is necessary in criminal work.  So the question left is, is the profile of “people who are interested in children sexually are likely to have child porn on their computer” accurate? I don’t know. We know that sexual interest in children is highly unusual, deviant, and likely a mental illness.  We know there appears to be some addictive elements to it.  I think being careful to not over-generalize simply because we don’t like a group (legitimately so in this case obviously) is a fair point, but I’d probably lean towards there being some level of reasonable profiling allowed in this area.

  5. RKincaid3 (RK3PO) says:

    Assuming for the sake of argument that some sort of “reasonable” profiling (supported by objective science, not subjective dislike or prejudice) could be applied, I wonder could such profiling ever rise to the level of sufficiently establishing–without more, as a legal matter–RAS for a Terry Stop, much less the higher required burden of “particularized” suspicion and “probability” (vice possibility) under the 4th Amendment to justify a constitutionally reasonable search and/or seizure.
     
    I think not, but with sufficient mental, linguistic, and wordsmithing gymnastics, I am sure that many will jump on that bandwagon.  Far too many.

  6. Sam Adams says:

    For a good summary of the empirical evidence from various studies about whether there is a connection between CP and child molestation, take a look at Emily Weissler, Head Versus Heart:Applying Empirical Evidence About the Connection Between Child Pornography and Child Molestation to Probable Cause Analysis, 82 Fordham L. Rev. 1487 (2013).

  7. RKincaid3 (RK3PO) says:

    Thanks, Sam Adams!  I will definitely read that–especially since the summary money quote is as follows:

     
    Evaluating similar fact patterns, the Second, Sixth, and Ninth Circuits have held that child molestation or child enticement cannot be used to establish probable cause for a child pornography search warrant because the connection between the two acts is not well established. However, the Eighth Circuit disagreed, holding that there is an intuitive relationship between both crimes, which can establish probable cause.

    and

    This Note concludes that, given the relative uncertainty in social science literature, more research should be done before reaching the Eighth Circuit’s holding. A prior conviction for child molestation or an attempt to entice a child should not be enough to establish probable cause to search an individual’s home for child pornography.

     
    Those pull-quotes from the lead-in presents the potential for a principled look at the law and this issue–I look forward to seeing if it in fact is such!

  8. RKincaid3 (RK3PO) says:

    That was a fascinating Law Review article, Sam Adams.  Thanks for the reference.  The survey of the case law AND the science was quite helpful.  However, despite reading that article, I am still struggling with the following issue:  
     
    Assuming arguendo that the science CLEARLY establishes an connection between CP and pedophilia, how does that FACT (let’s call it an undisputed scientific fact for this discussion) get the government a search warrant for a computer when, per the instant NMCCA case, no computer was used or involved in the offenses that originally attracted the government’s attention–attempts at molestation, aside from him simply owning or having access to a computer?
     
    I can see probable cause to search for evidence of the alleged molestation or its attempt, but absent some facts indicating the a computer was involved in the attempts, how is there, legally speaking, for purposes of the 4th Amendment, PC justifying the government’s search and seizure of the Marine’s laptop computer?  How does 1 (attempted molestation) plus 1 (obscene, suggestive gestures towards children) equal 3 (searching and seizing a computer)?  The math just doesn’t add up–legally or arithmetically.
     
    The danger with allowing a “coincidence” such as some guy being up to no good constituting and that same guy perhaps owning a computer equaling probable cause to conclude that the computer was “likely” or “possibly” used in a crime is the ubiquity of computers being both owned and used in crimes.  
     
    Frankly, under that standard, since everyone (practically) owns a computer, and if it is linked with their cell phone, and if their cell phone is used in their car, and if their car is equipped with vehicle to vehicle (“V2V”) broadcast technology, how long is it  going to take before the “science” being debated is the “common sense” connection between the fact that every human who drives a vehicle inevitably commits the crime of speeding, so therefore there is “probable cause” that one who speeds (a crime) has also committed a crime via their computer?
     
    Just how shaky a “house that Jack built” will the law of probable cause tolerate?  And more importantly, just who in society will be made to reside in those shakily erected legal houses simply because they are despicable, unpopular, criminals, perverts, traitors, ne’er-do-wells who, for the moment are determined to have acted outside the mainstream?
     
    Don’t get me wrong–I am not defending the conduct of those who commit crimes against children.  But I am questioning our societal willingness to throw away the rules that protect us all–from government or vigilantes or groups–for a little “apparent” security while being wholly ignorant of or indifferent to the fact that those rules protect us all–even when it “appears” that the worst among us are the only one’s being visibly protected.
     
    Anyway, Happy Holidays all!  My bride is calling….and I am once again in trouble!