CAAF decided the Marine Corps case of United States v. Hoffmann, 75 M.J. 120, No.15-0361/MC (CAAFlog case page) (link to slip op.), on February 18, 2016. The court finds that appellant validly withdrew his consent to seizure of his property prior to the Government meaningfully interfering with it. Further, the court rejects an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search. The court reverses the appellant’s convictions and the published decision of the Navy-Marine Corps CCA.

Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

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 that 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 search authorization was granted based on a lengthy discussion between the commander and a Naval Criminal Investigative Service Special Agent, and the Agent’s affidavit, in which the agent claimed that from her “training and experience [] there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” Slip op. at 3 (quoting affidavit).

At trial the defense moved to suppress the fruits of the search but 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 that there is an intuitive relationship between an enticement offense and the possession of child pornography. 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).

Judge Stucky’s opinion is a wholesale rejection of the Special Agent’s assertion of probable cause, the commander’s decision authorizing the search, the NMCCA’s opinion, and the Government’s arguments.

Further, the court finds that the erroneous admission of the child pornography contributed to the convictions of the other offenses because of the trial counsel’s closing argument “that all of the offenses, including the wrongful possession of child pornography, were manifestations of Appellant’s character: that of a predator, sexually attracted to young boys.” Slip op. at 13. Accordingly, all of the findings of guilty are set aside.

Addressing the ostensibly consensual seizure first, Judge Stucky explains that “a ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Slip op. at 5 (emphasis in original). He elaborates that such meaningful interference “must be more than a technical trespass” and “requires law enforcement agents to exercise a fair degree of dominion and control over the property.” Slip op. at 5 (citations omitted). Here, however, the agents merely “moved [the appellant’s property] to a central location in the room” before the appellant withdrew his consent for a seizure. Slip op. at 5. CAAF unanimously finds that these facts do not establish meaningful interference with appellant’s possessory interest prior to withdawal of consent, rendering the subsequent seizure non-consensual.

Judge Stucky then turns to the conclusions that discovery of the child pornography was inevitable. He explains that to take advantage of the inevitable discovery doctrine:

the prosecution must establish, by a preponderance of the evidence, that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence and that the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred.

Slip op. at 6 (marks and citations omitted) (emphasis in original). CAAF unanimously finds that the Government failed to meet its burden in this case, with Judge Stucky explaining that “there is no evidence that, at the time of the seizure, the government agents possessed or were actively pursuing leads that would have inevitably led to discovery of the child pornography images by lawful means.” Slip op. at 6.

Next, addressing the probable cause determination made by the commander who authorized the eventual search of the electronic media, CAAF rejects the adequacy of the asserted intuitive relationship between an enticement offense and the possession of child pornography to justify the search. Specifically, Judge Stucky explains that:

No evidence connected Appellant’s acts to his possession of child pornography. In place of the missing evidence, both the military judge and the CCA found persuasive language from an opinion by the United States Court of Appeals for the Eighth Circuit that matches the language Special Agent Shutt employed in her affidavit: “‘There is an intuitive relationship between acts such as child molestation or enticement and possession of child pornography.’” Hoffmann, 74 M.J. at 551 (quoting Colbert, 605 F.3d at 578). The problem with relying on Colbert is that the facts were considerably different in that case. Colbert conversed for forty minutes with a five-year-old girl he met in the park, telling her that he had movies and videos in his apartment that she would like to see. During a consent search of his vehicle, police found handcuffs and other police-type gear. The Eighth Circuit held that, although a close case, the affidavit established probable cause by showing a direct link between the alleged enticement of a child and movies in his apartment, the place searched pursuant to a search warrant. Colbert, 605 F.3d at 578. That link is not present in Appellant’s case.

Slip op. at 10 (emphasis added). While Judge Stucky’s opinion does not go so far as to explicitly reject the possibility that a merely intuitive relationship could ever provide probable cause justifying a search, it does indicate that CAAF is hostile to the Government’s use of such intuition, with the following commentary:

Under the circumstances of Appellant’s case, the facts before the search authority were simply not sufficient to provide a substantial basis for concluding that there was probable cause to believe Appellant possessed child pornography. See Dougherty v. City of Covina, 654 F.3d 892, 898–99 (9th Cir. 2011) (concluding that evidence of child molestation did not establish probable cause to search for child pornography). As Justice Sotomayor observed while serving on the Second Circuit:

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.

United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (footnotes omitted) (citations omitted) (internal quotation marks omitted). Without probable cause, the inevitable discovery doctrine fails.

Slip op. at 10-11.

Judge Stucky also rejects application of the good-faith exception promulgated by the President in Mil. R. Evid. 311(c)(3) (formerly Mil. R. Evid. 311(b)(3)) because it requires that the search be conducted in reliance on an authorization issued with a substantial basis for determining the existence of probable cause. Because CAAF finds the asserted intuitive relationship insufficient to provide probable cause, the good-faith exception does not apply.

CAAF concludes that “the military judge abused her discretion by admitting the child pornography evidence,” resulting in dismissal of the child pornography charge with prejudice because “the only evidence supporting Appellant’s conviction for the wrongful possession of child pornography was the result of an unlawful seizure and an unlawful search.” Slip op. at 12-13.

However, CAAF also reverses the other convictions because of the trial counsel’s propensity-based closing arguments:

The military judge instructed the court members that each offense must stand on its own. They were to keep the evidence of each offense separate, unless they determined that it was relevant to prove more than one offense. During his closing and rebuttal arguments on findings, the trial counsel argued that all of the offenses, including the wrongful possession of child pornography, were manifestations of Appellant’s character: that of a predator, sexually attracted to young boys. But the strongest evidence of this purported character trait was the child pornography. Under the circumstances of this case, we conclude that the Government failed to establish that the admission of those images was unimportant in relation to the other evidence the panel heard on the remaining offenses.

Slip op. at 13 (emphasis added). I think this an interesting twist in the court’s decision. Mil. R. Evid. 414 generally permits the Government to introduce evidence of similar crimes in child-molestation cases, and so would likely have allowed the trial counsel’s argument that the appellant is a predator. Furthermore, the appellant was accused of soliciting boys on three separate occasions. Other actual solicitations would seem to be stronger evidence of a predatory nature than the mere possession of child pornography. Unfortunately, its unclear if the admissibility of such evidence in this case was litigated at trial.

Litigated or not, however, it is the Government’s over-reliance on merely an intuitive relationship between child molestation and child pornography that led to reversal in this case.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

34 Responses to “Opinion Analysis: An intuitive relationship does not establish probable cause in United States v. Hoffmann, No. 15-0361/MC”

  1. Phil Stackhouse says:

    It’s just too bad that it took 3+ years for a court to take an objective view of what NCIS did to Matt during the investigation.  The trial court judge should have suppressed the evidence and the NMCCA should have done the right thing as well.  Being right is great, but it doesn’t get back the 3+ years Matt’s been sitting in jail.  Disclaimer: I was Matt’s trial attorney.

  2. Alfonso Decimo says:

    The affidavit in support of the search authorization should have included more information. That’s the lesson going forward for the Government.

  3. k fischer says:

    Oh wise one,
     
    What facts would the affidavit have contained?  It sounds like the facts were that the Agent’s intuition was the sole basis for the search authorization request.  (Although, I’d say that agent had pretty good intuition.)
     
    And, when did CID begin placing tracking devices on vehicles?  Do they have to get a warrant for that?

  4. Gen Lee Amused says:

    Pardon me for not joining in any hand-wringing about the poor client with child porn on his computer having to sit in jail while the appellate process ran its course on legal issues that might not be crystal clear.  It is unfortunate that the Government didn’t do a cleaner job in the investigative stage to preserve its ability to present the evidence at trial.  As a former ADC who won cases by filing motions to suppress evidence because of Government screw-ups, I certainly recognized that defending my client’s Constitutional rights was my job, and I always did my job to the best of my ability.  But I also remember when I was the Chief of Justice, and we lost a case solely because of an Art 31 rights issue.  The ADC on that case grabbed me in the hall afterwards and said, “I told you my client was innocent.”  After the first part of my reply (which I’ll skip here), I told him there was big difference between being lucky and being innocent, and that winning a motion to suppress actual evidence definitely fell into the lucky category.   

  5. stewie says:

    I think the problem in this case is they probably could have established enough of a link had they worked a wee bit harder, but they used the easy button of he likes kids so he probably has child porn.  So, I guess my hand-wringing goes to the fact that we let a guy off because we (the government) didn’t work hard enough to do our job. I’m glad the court didn’t look towards “he’s a child porn guy” and instead towards what right looks like, but I’m not glad that a short-cut blew up this case.

  6. Alfonso Decimo says:

    Fisher King – I read the opinion more carefully and you’re right. NCIS didn’t have anything else to add to the affidavit, despite their efforts. As for the warantless GPS tracker, the latest word from the S.Ct. was U.S. v. Jones (2012). Good Scalia reading in honor of his recent demise.

  7. stewie says:

    AD, I can’t tell from the opinion myself, if NCIS had done a more thorough attempt to try and investigate a link here that they might not have found it (more to add to the affidavit)…but you could be right, given how little is there in the opinion.

  8. Advocaat says:

    CAAF applied the law without passion or prejudice, but this strikes me as a case where the defense “win” (the gravamen of the govt’s case is still intact) might lead the govt to conduct a more expansive investigation to uncover additional enticement allegations in other places where this accused has lived.

  9. Zachary D Spilman says:

    I think the problem is that they honestly believed that a mere intuitive link between two offenses is enough to establish probable cause. In my argument preview I noted the danger of Government overreaching in the absence of a limiting principle for this use of intuition. 

    If law enforcement can substitute intuition for facts, or training and experience for evidence, then the Constitutional requirement for probable cause is meaningless. 

  10. k fischer says:

    Zach,
     
     
    If a citizen can be arrested by police officers on nothing more than this, then our system of justice has become a farce. “Probable cause” now means that police officers can act solely on a “hunch” or “intuition,” which, as here, will be characterized by the court as “specialized experience and training.” And if the hunch proves to be correct and the arrest bears fruit, the court will hold, as here, that “the record firmly supports the detective’s inference.” This is a sham.
    U.S. v. Prandy-Binett, 995 F.2d 1069, 1074 (D.C. Cir. 1993)(Edwards dissenting)

     

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

    Intuition is nothing more than a gut feeling.  I’m sure they thought that since they seized the computer, they didn’t need to anymore work to establish a link between the attempted enticement and the child porn.
     
    It doesn’t take an “expert” or anyone with specialized training to say that someone who’s trying to convince kids to engaged in sexual activity with them probably has child porn.  But if you want the authorization to snoop thru the computer, then you always need give me some facts to establish the link between those two crimes in this particular case.  Connect the dots for me.
     
    I’m also not a fan of going to the commanders for authorization–they tend not to have the legal knowledge necessary to make an informed decision, and they get their advice from their TCs.  “The agent told me there’s an intuitive link between child porn and enticement, ergo there is child porn on this guy’s computer, and it’s child porn so of course I’m going to authorize a search.”  The Marines really need to reach out to magistrates. 

  12. k fischer says:

    Leia,
     
    I was a magistrate, and I probably would have ordered a search based on this reasoning.  Not now.  But, back then I would have.  It takes a special type of person to have never looked at porn, as it is highly addictive.  Most people with a paraphilia look at porn.  And, if their preference is young boys the age of 10 – 13, then they probably look at that kind of stuff and there is evidence of it on their computer.  It’s intuition, just like when Kaffee knew that Jessup ordered the Code Red.
     
    Just like in Columbus, Georgia.  If the cops see a sporty little convertible, or a foreign crossover SUV driving around the downtown area between midnight and 3 am, then they pull it over because most likely the person is a female who has been drinking.  Intuition.

  13. Zachary D Spilman says:

    I disagree k fischer. Kaffee knew that Jessup ordered the Code Red because Jessup lied about Santiago being scheduled to leave on the first flight in the morning (as revealed by the fact that all of Santiago’s clothes were hanging in his wall locker and he hadn’t made any calls). 

    Facts and evidence.

  14. k fischer says:

    Ohio, young Zachary,
     
    When he asked for the transfer order, he simply had a hunch that was confirmed by Markeson.  Joe tells him this when he was drowning in Jack Daniels and contemplating teaching typewriter maintenance.  The next day, he saw his own clothes while searching for his bat and made the connection.  Because he does think better with his bat.

  15. Zachary D Spilman says:

    Right. He had hunches (intuition, perhaps), asked questions, thought about the answers, and then arrived at an evidence-based conclusion. 

    Conversely, NCIS in Hoffman had a hunch and merely convinced a commander to roll with it.

  16. Alfonso Decimo says:

    There would have been a different result if the NCIS Special Agent’s search authorization affidavit read, based on his specialized and extensive knowledge and experience, that 100% (vice 70%) of child predators have c/p contraband stored somewhere. I also think it is relevant that the suspect attempted to retract his consent to search when the investigators started focusing on the digital storage, although it’s still not enough for p/c under this set of facts.

  17. Advocaat says:

    AD, are you saying withdrawal of consent can be a basis for PC?  Do you have a case in support of that position?  Maybe I misunderstood your post.

  18. k fischer says:

    Zach,
     
    I see your point after reading my initial statement.  When I stated that Kaffee had a hunch that Jessup ordered the code red, I was referring to when he asked for the transfer order down at GTMO.  He merely had an instinct, which was right.  Had he requested a search authorization at that point, he would have been like the very special agent in Hoffmann.
     
    Not to change the subject (as I am growing tired of your inferior knowledge of “A Few Good Men”), but does anyone find it odd that an agent cannot obtain a search authorization to search a person’s computer for child porn because there is no connection, yet, there is nothing wrong with MRE 413, which says that if a man rapes one woman, then you can use it to show he raped the victim at issue.  It seems to be the same concept.  So, on the one hand you can use 413 to obtain a conviction, yet on the other hand you can’t use similar propensity evidence to obtain a warrant to search a computer.  Seems to me that if a guy is willing to drive around post attempting to entice a 10 year old to get with him, then he probably likes looking at porn and isn’t going to be all that concerned about storing it on his computer.  That seems to be more connected than “that girl says he raped her five years ago, so he must have raped this girl.” 
     
    I’m not saying that the NMCCA made the wrong call in Hoffmann.  I’m not a big fan of when appellate courts move the goal posts, just so criminals can’t go free.  I think they should let the criminal go free to encourage LEO’s to follow the rules.  But, does anybody else find it a strange system where you have these special rules about propensity evidence to get a guy convicted of a sex crime, but you can’t make similar assumptions  to get a simple warrant to search a computer?

  19. Phil Stackhouse says:

    There were 2 kids on base that said a person in a silver SUV drove by and essentially asked them if they wanted to go do something sexual.  Later, they say a silver SUV (Matt’s) drive by and told their parents, who chased it down and called NCIS.  They put a tracker on his SUV for like 2 weeks with nothing of evidentiary value being produced…or at least incriminating value.
    That said, they brought Matt in, he denied all culpability.  They asked to search his car, he said sure.  Nothing discovered.  They asked to search his BEQ room – he said sure.  Nothing discovered.  So the CID agent began collecting his computer assets.  Matt revoked consent and demanded his property be left in his room. CID said no and seized it.  Matt delivered a letter the next day demanding the return of his property.  They said no.  Later, NCIS went to Onslow County to see if there were any other similar complaining witnesses – they found a kid from 9 months or so earlier.  That’s the evidence of child pornography.
    NCIS told the CO and MJ – that based upon her training and experience, people who solicit kids also have Child Porn…so we should get to search all their stuff. 
    Imagine – you can just train yourself into probable cause.  How Convenient.
    KFischer: The difference of 413 evidence and what happened to get PC to search – in 413 the evidence is already discovered.  She would never be able to say to a jury – he solicited kids…so there’s probably child porn on his computer.  When the evidence is discovered … they CAN AND DID use it.  Matt was acquitted of allegations surrounding the 2 kids on base – but the CP certainly was used to convict on the kid from out in town.  That’s why the entire case was overturned.
     
    AD – that’s crazy.  100% of people who have child pornography on their computer breathe…so if you breathe, we have PC to search your computers.

  20. Alfonso Decimo says:

    You can call me crazy, but just don’t call me late for dinner! The fact that a suspect was witnessed soliciting children, standing alone, would not suffice, but I believe it would have been reasonable to consider it, along with other factors, to form a belief that evidence of a crime was present in the digital media. Similarly, the circumstances around his withdrawal of consent are also relevant, as is the training and experience of the affiant. Still, I agree with the appellate court that all of this together was still not sufficient to form a reasonable belief that evidence of the crime was present in the digital media. Despite the apparently thorough efforts of NCIS, sufficient evidence was just not available for this search affidavit. Relevant but not sufficient, is that guano-crazy-talk?

  21. Zachary D Spilman says:

    the circumstances around his withdrawal of consent are also relevant, as is the training and experience of the affiant

    And you have nothing to be afraid of if you didn’t do anything wrong.

  22. stewie says:

    “the circumstances around his withdrawal of consent are also relevant”
     
    How is this any different from “when I asked him if he raped her, he asserted his right to remain silent” AD?
     
    What circumstances would make that relevant? He looked nervous? There was a bead of sweat on his forehead? His porn ‘stache quivered? 
     
     
     
     
     
     

  23. Alfonso Decimo says:

    Stewie – Are you saying the affidavit could not include the following? “When the investigators focused on the digital media storage devices, the suspect stated he desired to withdraw his consent to search.” If that language was included in the affidavit, what type of defense motion would that prompt?

  24. stewie says:

    The affidavit can have “aliens came down and told me that he had child porn on the computer.”  However, neither that nor what you typed could be remotely used for any purpose at trial or as a basis for establishing PC.

  25. Alfonso Decimo says:

    I agree a refusal to consent would be irrelevant, but some courts have found that the withdrawal of consent (depending on the circumstances) may be relevant to establishing probable cause to search. See, e.g., United States v. Taxacher, 902 F.2d 867, 873 (11th Cir. 1990).

  26. k fischer says:

    Gentlemen,
     
    I am conducting a Westlaw search right now.  Look at the time stamp on this post.

  27. Alfonso Decimo says:

    United States v. Taxacher, 902 F.2d 867, 873 (11th Cir. 1990) (finding defendant’s withdrawal of consent to search vehicle when search focused upon particular container was properly considered in determining good faith belief in probable cause for warrent).

  28. k fischer says:

    Oh, wise one, I humbly present the following: 
     
    The government does not contest the district court’s ruling that there was insufficient probable cause to justify the search of Taxacher’s car. Thus, we must assume that the search warrant was issued and executed in violation of the Fourth Amendment. The issue before us now is whether the district court correctly applied the good faith exception to the exclusionary rule, rendering the improperly obtained evidence admissable.
    U.S. v. Taxacher, 902 F.2d 867, 870 (11th Cir. 1990)

     
    While we consider the unusual revocation of consent on these facts as one of the factors arousing Officer Riner’s suspicions, we note that “a defendant’s refusal to consent to a search cannot establish probable cause.” United States v. Alexander, 835 F.2d 1406, 1409 n. 3 (11th Cir.1988).
    U.S. v. Taxacher, 902 F.2d 867, 873 (11th Cir. 1990)(footnote 6)

     

  29. k fischer says:

    I believe that Taxacher stands for the premise that revocation of consent cannot establish probable cause.  However, the Government can still get it in under the good faith exception to the exclusionary rule
     
    Also, am I not permitted to travel from Pennsylvania to Ft. Pierce, Florida to catch some tasty lefts at the Inlet with $186,000 in cash money?  WTHeck?

  30. k fischer says:

    I just read the Travel act.  So, if I fly into Burlington, Vermont to load up on a few cases of Heady Topper in Stowe to sell to a local restaurant, and I just happen to be driving a primo restored Black 1978 Pontiac Firebird, sporting a red shirt, jeans, white cowboy hat, porn ‘stache, with a runaway bride riding shotgun, back to Columbus, Georgia, then I can go to jail for 20 freaking years??????
     
    This information has completely ruined my weekend.  Thanks for that, Alfonso……

  31. Alfonso Decimo says:

    OK. I stand corrected on that cite. Hopefully y’all see me now as merely wrong in this instance and not crazy-wrong, at least. This blog is both a learning experience and entertaining! Thanks to all.

  32. k fischer says:

    AD,
     
    When I was reading the facts of Taxacher, I was with you.  Taxacher consented to the search of his vehicle, cop asks about satchel, and he revokes consent after looking really nervous and almost shutting the door on cops head=Hoffmann consents to search, they go to his desk, he gets nervous and revokes his consent.
     
    But, look at US v. Wallace (which I can’t believe C.A.A.F. did not use to distinguish the facts of Hoffmann under the inevitable discovery argument).  In that case, Wallace consents to a search where Wallace consents to a search of his home, then when OSI agents attempt to take his opinion he withdraws his consent, but they still seize the computer and obtain a search warrant for computer where they find child porn.  Same facts in how the search went down with Hoffmann, right?  Look at the facts they used to obtain a warrant:
     
    “In this case, the images of child pornography on Appellant’s computer hard drive would similarly have inevitably been discovered. As the military judge correctly concluded, had Appellant not ultimately consented to the seizure of the computer, the AFOSI investigators would have sought and obtained a search authorization based on probable cause. After all, during his interrogation, Appellant admitted to a sexual relationship with a young girl with whom he communicated mostly via e-mail and instant messenger. This alone encouraged investigators to focus on the computer as a source of evidence and created sufficient probable cause to allow AFOSI to obtain an authorization to search for, and seize e-mails and messages between Appellant and TND. Though the authorization would have been limited to e-mails and messages, one of the AFOSI investigators testified that the forensic software employed would have skimmed the computer’s hard drive, recovering all saved data. As the military judge concluded, investigators would have had to sift through all the captured data to find relevant e-mail traffic.”

    U.S. v. Wallace, 66 M.J. 5, 10 (App. Armed Forces 2008)

     
    Hoffmann is pretty different.  He was allegedly driving around trying to pick up random kids.  But, when I read the NMCCA opinion regarding the affidavit, I realize how much training Shutt had and why the Commander signed off on the search:
     

    The affidavit further stated:

    The Affiant knows 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.18

    The affidavit also set forth that SA Shutt joined NCIS in 2006 and possessed the following relevant credentials: certified member of the Internet Crimes Against Children (ICAC) task force (a national program dedicated to investigations of child exploitation via the Internet); Defense Computer Forensic Laboratory certified Digital Medial Collector; ICAC certified Peer 2 Peer and undercover chat investigator; had received advanced training in child sexual abuse investigations; and was an NCIS Field Training Agent. SA Shutt also holds a Bachelor of Arts degree in Psychology and a Master of Arts degree in Forensic Psychology. SA Shutt testified that her experience included spending seven years working on cases involving the sexual exploitation of children during which she worked on “hundreds” of child exploitation cases; of these cases, the “majority” involved digital media; she had created over 50 affidavits seeking command authorization involving media devices; finally, all of the child enticement cases SA Shutt had worked on involved evidence contained in digital media.

    U.S. v. Hoffmann, 74 M.J. 542, 549 (Navy-Marine Crim. App. 2014) review granted, (App. Armed Forces Apr. 28, 2015) and rev’d, 15-0361, 2016 WL 685102 (App. Armed Forces Feb. 18, 2016)

     
    She sounds pretty credible.
     
     

  33. Phil Stackhouse says:

    K Fischer:  The primary differences, and the one argued at the trial court level, are that Hoffmann never made a statement or denied the allegations that were alleged against him AND there was never any allegation that Hommann used or had any electronic equipment, i.e. camera, phone, etc.  In all the cases that support PC to search, there is a nexus to the computer asset: watching videos, emailing, chatting, camera, etc.

  34. k fischer says:

    Phil, 
     
    I agree.  I don’t see how the judge could get anywhere close to Wallace in admitting the evidence.  But,I can see how the commander would have been convinced.  This CID agent appears to be pretty educated.  And she did say in all of her cases involving child enticement that every one involved digital media evidence, which is what a previous commenter brought up.  I think the weakness stemming from the ID’s by the two witnesses helped to show that at the time of the request, there wasn’t a whole lot to go on to say that he was enticing kids, so how do you draw the connection to search for his computer even if Shutts was right.