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