CAAF will hear oral argument in the Marine Corps case of United States v. Hoffmann, No.15-0361/MC (CAAFlog case page), on Tuesday, October 20, 2015, at noon. As part of Project Outreach, the case will be argued at the Washington and Lee University School of Law, Lexington, Virginia. CAAF will consider two issues involving a seizure and search that discovered child pornography:

I. The search and seizure of the personal items of an individual where the search was initially granted by written consent, but later revoked before the seizure of items, violated the Fourth Amendment of the Constitution.

II. The appellant was charged with crimes involving child enticement. The NMCCA found a search for a separate crime, child pornography, was suppported by probable cause based solely on the child enticement allegations. In doing so, the NMCCA relied on a minority opinion in federal case law and applied it incorrectly. This court should reverse.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and child enticement, in violation of Articles 80, 120, and 134. He was also convicted of attempted abusive sexual contact with a child, but the charge was dismissed as an unreasonable multiplication of charges.

The appellant was charged with attempting to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. Following one of those alleged incidents the appellant was apprehended by military criminal investigators and the appellant 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 seized several items from the room, including the appellant’s laptop. Months later a different agent obtained a search authorization to examine the computer for evidence of child pornography, leading to the discovery of contraband and the appellant’s conviction for possession of child pornography.

The appellant moved to suppress the discovered materials at trial asserting that the seizure was unlawful because of the withdrawn consent and that there was no probable cause for the search. The probable cause issue is based on the fact that the agent did not have any direct evidence that the appellant had child pornography, but rather she asserted that based on her training and experience, “there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” Gov’t Br. at 14 (marks omitted).

The military judge denied the motion. For the seizure, the military judge found that the seizure was completed prior to the withdrawal of consent and that the agent would have obtained an authorization in the absence of consent (supporting inevitable discovery).  The NMCCA affirmed on the basis of inevitable discovery. For the existence of probable cause, the military judge agreed with the agent that there is an intuitive relationship between an enticement offense and the possession of child pornography, and found that the “relationship consists of some individuals using child pornography to reduce the inhibitions of potential child victims, documenting abuse through the production of child pornography, and that possessing and viewing child pornography are a logical precursor to physical interaction with a child.” Gov’t Br. at 14-15 (quoting judge’s ruling). The NMCCA affirmed this reasoning as well, considering the split opinions of numerous federal circuits and concluding that:

our common sense tells us that the Eighth Circuit’s analysis is correct: 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.

United States v. Hoffman, 74 M.J. 542, __, slip op. at 13 (N-M. Ct. Crim. App. 2014).

While the language of the granted issues blends the separate questions of the lawfulness of the seizure of the appellant’s property and the lawfulness of the subsequent search, I believe that next week’s oral argument will focus on the search issue. Specifically, I think this case presents the fairly broad question of whether any merely intuitive relationship between two offenses (in this case its child enticement and possession of child pornography) provides probable cause for a search for evidence of one offense when a person is suspected committing the other offense.

On the seizure issue, the appellant’s brief focuses on the inevitable discovery doctrine and asserts that despite the investigator’s testimony that he would have secured the scene and obtained a search authorization had the appellant not consented, “there is no evidence he would have done so and there is no certainty an authorization would have issued.” App. Br. at 9-10. In response, the Government’s brief insists that “there was no reasonable likelihood that [the investigator] here would have abandoned his efforts to seize and search Appellant’s media devices.” Gov’t Br. at 26. And the Government’s argument is bolstered by the fact that the military judge found that “investigators would have ‘frozen’ the scene to obtain a search authorization if Appellant had not provided consent,” Gov’t Br. at 8, a finding of fact that receives significant deference in appellate review.

Notably, the search issue also affects the seizure issue, as the Government asserts that an authorization to seize would have authorized “a search of evidence related to both child enticement as well as child pornography.” Gov’t Br. at 27 (emphasis added).

On the search issue, the appellant’s primary argument is that “in this case there was no nexus between the allegations of child enticement and the possession of child pornography.” App. Br. at 17. The appellant’s brief insists that there must be some actual, case-specific connection between the two offenses to create probable cause to search for one upon suspicion of the other:

The affidavit here, however, alleged no nexus whatsoever to digital media in relation to the alleged enticements. [The agent] conceded there was a complete absence of any electronic component to the crime during her testimony. . . .

Here, the witnesses did not allege Cpl Hoffmann used or referenced any digital media or electronic devices in the three alleged enticements. NCIS even specifically searched for a connection between Cpl Hoffmann and online child pornography, so as to justify their actions. This was to no avail. The only other evidence submitted in the affidavit was Cpl Hoffmann owned two computers and several media storage devices – the previously seized items. Because most individuals in the country own a computer or a media device, this ownership is insufficient to justify a search.

App. Br. at 21. In its response, the Government surveys federal caselaw and concludes that “acknowledging the logical nexus between child molestation and child pornography is not a minority view.” Gov’t Br. at 34. Applied to the facts of this case, the Government insists that:

[T]he agent here averred the existence of the nexus between child molestation and child pornography based on her expertise as a forensic psychologist and her extensive training and experience. The nexus, together with the corroborated and reliable evidence of Appellant’s sexual desire and intent to commit sexual acts with children, established probable cause.

Gov’t Br. at 36-37. But – as with the seizure issue – the Government also highlights the highly-deferential standard of review:

The Court of Appeals for the Armed Forces summarized the framework for reviewing probable cause determinations, focusing on four key principles: (1) determinations of probable cause made by a neutral and detached magistrate are entitled to substantial deference; (2) resolution of doubtful or marginal cases should be largely determined by the preference for warrants; (3) close calls will be resolved in favor of sustaining the magistrate’s decision; and (4) the evidence must be considered in the light most favorable to the prevailing party below.

Gov’t Br. at 29 (citations omitted). That deference will likely weigh heavily in CAAF’s decision in this case.

Finally, as is generally the case with a Project Outreach argument, there is an amicus brief from a law student. Writing in support of the appellant, the law student notes that the investigators waited five months after seizing the appellant’s property before obtaining a search authorization, and asserts that this delay renders the seizure unreasonable. On the search issue, the law student highlights the bare intuition that supported the search authorization, and then asserts that it was unreasonable for the agent to rely on the search authorization because she “holds herself out as an expert in the enforcement of internet-related sex crimes,” and “if that is true, [then she] had a duty to know the basic elements of the child pornography laws.” Amicus Br. at 19.

One thing to listen for during next week’s oral argument is whether there is a limiting principle to the ability to use an intuitive relationship between two offenses to support probable cause. The risk of Government overreaching seems very real. Moreover, the use of intuition in place of facts hasn’t fared well at CAAF recently. For instance, last term the court considered (and rejected) an intuitive assertion that guns follow drugs in United States v. Keefauver, 74 M.J. 230 (C.A.A.F. Jun. 12, 2015) (CAAFlog case page). In Keefauver, Judge Ryan wrote for a unanimous court to:

make clear that, contrary to the belief of the military judge, the presence or suspected presence of drugs without more does not justify a sweep, nor does the bare conjecture and bald assertion that “guns follow drugs,” without additional facts.

Keefauver, 74 M.J. at __, slip op. at 17 (citations omitted). While Hoffmann may present a greater factual basis than was present in Keefauver, it seems that a court that rejected a merely intuitive nexus between guns and drugs would also reject a similar nexus between child enticement and child pornography.

Case Links:
NMCCA oral argument audio
NMCCA opinion (74 M.J. 542)
Blog post: NMCCA Publishes Opinion On Searches for Child Pornography in Child Sex Abuse Cases
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Amicus brief in support of the appellant (law student)
Blog post: Argument preview

18 Responses to “Argument Preview: United States v. Hoffmann, No.15-0361/MC”

  1. stewie says:

    Bad facts = bad law.  On these facts, and in these kind of cases, it’s not hard to agree with the principle put forward that someone actively seeking sex with children provides probable cause to believe that they possess pics of that very phenomenom.  Having said that, the ability to extend that argument to other types of crimes is highly problematic and I think undesirable.  So if the court allows it in this caes, one hopes they at least make clear that they are narrowly applying it to this situation.

  2. Tami a/k/a Princess Leia says:

    Gee, for all this agent’s “experience and training,” the agent still had to resort to a cut & paste job of an 8th Circuit opinion standing for the proposition that people who entice children are likely to have child porn, even when there’s no evidence of using child porn whatsoever to entice kids.  I love how the NMCCA footnotes this irony (it’s not lost on us that the agent’s affidavit mirrors the 8th Circuit opinion word for word).
     
    Also, this agent went to a commander, not a magistrate.  I question how much experience the commander has with child porn cases.  It doesn’t always follow that someone who tries to entice a child for sex has child porn.  Just like it doesn’t always follow that someone with child porn will turn into a child molester.

  3. stewie says:

    But does it have to “always” follow for it to be suitable enough for probable cause or does it just have to follow “enough?”
     
    I am not sure what “enough” would be now, but I don’t think “always” is required.

  4. Matt J says:

    These cases are difficult, because after the fact, when the child pornography has been found, it is much easier to think the agent knew what she was talking about.  What we don’t see is how many times she got a warrant based on her experience and no evidence of CP was found.  Does anybody know if any such records are kept?  If not, they should be.  For instance, if she swears that based on her experience Suspects of X often have evidence of Y, but in the last 20 times such a warrant was issued evidence of Y was only found in 2-3 cases, she is lying.  On the other hand, if evidence Y was found in 16 of the last 20, it seems much more reasonable.  This would be a good research project if it hasn’t been done yet.

  5. Tami a/k/a Princess Leia says:

    Stewie,
     
    I think reliance on mere intuition to support probable cause requires, at the very least something pretty darn close to “always,” if not actually “always.”
     
    Of course, I would also call “intuition” by its layman’s terms–hunch or gut feeling, which as we all know is never going to be enough by itself to get to probable cause.

  6. stewie says:

    I would probably categorize in this case something slightly more than “a hunch” though. I agree that the Venn Diagramm of child molesters and child porn viewers isn’t a single circle, but there is a heck of a lot of overlap. I caveat that by saying when dealing with pre-pubescent children. I don’t think there is nearly as much overlap if it’s simply someone over 18 propositioning someone post-pubescent but under the age of consent.  I think there is when it’s dealing with young kids.  Seems to me the more overlap, the more allowable it might be.  At any rate, I think it’s based on more than pure intutiion in that limited scenario.

  7. RY says:

    My problem is referring to intuition at all.  It ought to be facts, literature or something more concrete just I think it so.  If the affidavit said, “I’ve investigated a dozen cases involving a male subject soliciting pre-pubescent boys and girls for sex and nine of them included pictures of child pornography” then we have factual evidence that mirrors key facts in this case and we have no problem.  Even if they said, “In my training and experience I’ve learned that 40 percent of cases involving enticement of pre-pubescent boys or girls also have CP” then we are good.  But there must be some delineation of facts and application to this case that shows a fair probability there will be evidence under these particular facts.  I don’t particularly like using commanders as magistrates and I can’t help but think a civilian magistrate would have required more before issuing a warrant.

  8. Mike says:

    I can hear the CID agents in the future  taking the stand and testifying “based on my CID school trading and my extensive experience w these types of cases, I intuitated the perp had cp”
    DC. How long have been a CID agent?  
    CID. 15 months 
    dc  and how many cases involving solicitation of minors have you been involved in besides this case
     
    CID : well none but I have heard stories from reliable sources 
     
     
     
     

  9. stewie says:

    Don’t we have scientific studies in this area about this particularly…proclivity though?
     
    This is a narrow, special area is my point.

  10. RY says:

    It’s a fair question whether there are actual scientific studies in this area.  I don’t know if there are but it is not the only way to establish probable cause.  It has got to be more than a gut feeling or belief.  It would not be difficult, for example, to empirically scrub the investigations by offense code to see how many enticement cases also found evidence of CP and cross-check that with actual trial results.  It might take a little time to prepare but then it can be used by all services for quite a while.  I think the numbers would probably show what you said, Stewie, that there is a pretty solid link for pre-pubescent cases but not as strong for post-pubescent.

  11. DCGoneGalt says:

    So copy and paste the Abstract summary of the research into the affidavit.  Bingo!

  12. Tami a/k/a Princess Leia says:

    If this is something that could be resolved by looking up case studies on the subject, then why rely on experience and training?  This agent gave bupkus (did I spell correctly?) on end results of training and experience.
     
    Also disturbing that CID agent apparently didn’t mention previous attempts to verify that Hoffmann was surfing internet for child porn or accessing peer to peer turned up zilch.  Nadda.  Zip.  That’s a pretty important fact that should have been disclosed, I think.
     
    I think CAAF will give less deference to the commander acting as a “magistrate.”  Still haven’t figured out why Marine Corps CID agents don’t seek authorizations from magistrates.  I know Marines don’t have their own magistrate program, but is there anything that precludes them from seeking an authorization from an Army JAG magistrate?  Or how about a civilian judge or magistrate?

  13. UnconVenntional Wisdom says:

    Stewie, if you are interested in a thoughtful take on the overlap between child pornography viewers and child molesters, Bing the testimony of Dr. Richard Wollert before the US Sentencing Commission, 12 February 2012.  

  14. Dew_Process says:

    . . . an officer’s reliance on a mere “ ‘hunch’ ” is insufficient to justify a [Terry] stop.”
     

    U.S. v. Arvizu, 534 U.S. 266, 274 (2002). If a “hunch” can’t justify a Terry stop, it certainly cannot sustain probable cause.
     
    For some expert testimony on the lack of a nexus between CP and molestation, see THIS testimony.

  15. stewie says:

    UW, what’s the Cliff Notes version? Is the testimony there that there is no connection whatsoever? Because I would find that hard to believe.

  16. Stackhouse says:

    Disclosure up front: Matt was my client at the trial level.
    The nexus argument propounded by the government is loosely based upon a split in the federal circuits.  It’s about 1/2 – 1/2 – where the 1/2 the federal circuits in similar typed cases say the nexus doesn’t get you to probable cause.  The 1/2 that allowed the search – there was something in the case that connected to electronics, e.g. a man soliciting the child reportedly had a camera or tried to entice the child with an offer to watch movies in his apartment.
    In the case – in the light most favorable to the government – there was no allegation of any electronics, cameras, cell phones, nothing.  It was purely and issue of – we suspect him of in-person soliciting a child for sex; therefore, there is probable cause he has child pornography on any media asset in his possession.  Further – before the search authorization was granted – there was a photo line up – 1 kid identified Matt, 1 kid was 50/50, and another kid identified a completely different person.
    As one poster mentioned – the after-the-fact – see I told you so…there is child pornography – should will be the tough emotional hurdle to overcome…but walk down the slippery slope.  Also – the agent didn’t base her decision or belief on any study – it was just her experience and what she learned in some classes.  What’s the slippery slope look like for searches…if you are suspected to have engaged in one type of conduct, you probably engaged in another? Where does that end.

  17. stewie says:

    Slippery slope argument is rarely a good one in the legal world in my opinion because we make exceptions and special cases in the law all of the time.

  18. Charlie Gittins says:

    My Crim Pro and Evidence prof in law school used to call it the “child porn exception to the rules of evidence” meaning that courts will find probable cause/nexus/relevance regardless of the tenuousness of the connection.  Pretty much my experience as well, although later in my career, I just chose not to take kiddie porn cases.