Opinion Analysis: A generalized profile of how people use electronic devices is an insufficient nexus to justify a seizure in United States v. Nieto, No. 16-0301/AR
CAAF decided the Army case of United States v. Nieto, 76 M.J. 101, No. 16-0301/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 21, 2017. Considering the validity of a search authorization that was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices, CAAF finds that the authorization lacked probable cause and reverses the appellant’s conditional pleas of guilty and the summary affirmation of the Army CCA.
Judge Ohlson writes for the court joined by all but Judge Stucky, who dissents.
Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses that were discovered after he was accused of using a cell phone to surreptitiously record other soldiers using the toilet at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. After Nieto’s apprehension, an Army Criminal Investigation Division (CID) special agent obtained authorizations to seize and search Nieto’s cell phone and also his laptop. The allegation did not involve the laptop, but the agent sought to include the laptop in the authorization based on his experience that “Soldiers using their cell phones to photograph things . . . back those up to their laptops . . .” Slip op. at 4 (quoting record). A second agent obtained a second authorization with the additional commentary that:
About 1024, 4 Jun 13, [Appellant] admitted to using his cellular telephone to view and record Soldiers utilizing the latrine while at FOB Azi Zullah [sic], Afghanistan. [Appellant] admitted to masturbating to the images on his cellular telephone of Soldiers utilizing the latrine.
It is my [i.e., SA Dunn’s,] experience as a CID Special Agent that persons who would use a portable digital media recorder would also transfer the media from a portable device to a computer station or storage device. Persons who view and record sexual acts often times store and catalog their images and videos on larger storage devices such as a computer or hard drive.
Slip op. at 5 (quoting record) (marks in original). Incriminating evidence was found on the laptop (leading to additional charges) but the cell phone “revealed nothing relevant to CID’s investigation.” Slip op. at 5 (marks omitted).
At trial Nieto unsuccessfully challenged the search authorizations as lacking probable cause to search the laptop, and his conditional pleas preserved his right to continue that challenge on appeal. The Army CCA summarily affirmed. CAAF then granted review of one issue:
Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer
Today’s opinion finds no probable cause to seize the laptop based on “an insufficient nexus between Appellant’s cell phone and his laptop that can be inferred based on the particular facts presented to the military magistrate.” Slip op at 10 n.4. This conclusion echoes the conclusion in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), where a unanimous CAAF rejected the adequacy of an asserted intuitive relationship between a child enticement offense and the possession of child pornography as a basis for probable cause. But Judge Stucky, who was the author of CAAF’s opinion in Hoffman, dissents from today’s opinion and decries it as “a constellation of shortcomings with regard to the law of probable cause, the facts of this case, and the application of law to fact.” Diss. op. at 10.
Judge Ohlson’s majority opinion focuses on the requirement that probable cause be based on a nexus between the alleged crime and the item seized:
[I]n order for there to be probable cause, a sufficient nexus must be shown to exist between the alleged crime and the specific item to be seized. The question of nexus focuses on whether there was a fair probability that contraband or evidence of a crime will be found in a particular place. A nexus may be inferred from the facts and circumstances of a particular case, including the type of crime, the nature of the items sought, and reasonable inferences about where evidence is likely to be kept.
A law enforcement officer’s professional experience may be useful in establishing such a nexus. However, a law enforcement officer’s generalized profile about how people normally act in certain circumstances does not, standing alone, provide a substantial basis to find probable cause to search and seize an item in a particular case; there must be some additional showing that the accused fit that profile or that the accused engaged in such conduct.
Slip op. at 7-8 (marks and citations omitted).
The affidavits supporting the authorizations in this case lacked such a nexus because they involved only a generalized profile about how Soldiers used technology rather than actual evidence:
[T]he affidavits accompanying the search authorization did not reference a laptop or data transfers from Appellant’s cell phone. Accordingly, we conclude that SA Sandefur’s generalized profile was not based on a firm factual foundation. As a result, the information provided by SA Sandefur to the magistrate did not independently establish a particularized nexus between (a) the crime the accused was alleged to have committed with his cell phone in the latrine and (b) the laptop that was previously seen by “somebody” on Appellant’s bunk. In order to identify a substantial basis for concluding that probable cause existed to believe that Appellant’s laptop was linked to the crime, we conclude that – at a minimum – there needed to be some additional showing, such as the fact that Appellant actually downloaded images (illicit or otherwise) from his cell phone to his laptop, stored images on his laptop, or transmitted images from his laptop. And yet, there was no such showing in this case.
Slip op. at 9-10 (emphasis added). Judge Ohlson’s focus on the need for actual evidence linking the laptop to the crime is the crucial holding in this case, and it conforms neatly with the court’s finding in Hoffman that “no [actual] evidence connected Appellant’s acts [of child enticement] to his possession of child pornography.” 75 M.J. at 127. Judge Ohlson also emphasizes in a footnote that this focus is limited to the need for a linkage and does not create a new standard for probable cause in cases involving technology:
In reaching this conclusion, we are not creating a heightened standard for probable cause or requiring direct evidence to establish a nexus in cases where technology plays a key role. Rather, the traditional standard that a nexus may “be inferred from the facts and circumstances of a particular case,” Clayton, 68 M.J. at 424, still holds in cases involving technological devices such as cell phones and laptops. We merely conclude that in the instant case there is an insufficient nexus between Appellant’s cell phone and his laptop that can be inferred based on the particular facts pre-sented to the military magistrate.
Slip op. at 10 n.3.
Judge Stucky’s dissent, however, asserts that the majority is creating a heightened standard in cases involving technology by its reasoning that:
appears to require direct evidence of particular conduct, and therefore a likelihood that incriminating material will be found on the laptop, or that a preponderance of the evidence supports this supposition. But such a requirement does not comport with Supreme Court precedent requiring only a “fair probability” that incriminating material will be found, Gates, 462 U.S. at 238, or our own precedent stating that “the evidence presented … need not be sufficient to support a conviction, nor even to demonstrate that an investigator’s belief is more likely true than false.” Leedy, 65 M.J. at 213 (citations omitted)
Diss. op. at 8-9 (additional citation omitted). This assertion is based on Judge Stucky’s conclusion that the majority gets the facts wrong by failing to appreciate the interconnected nature of modern digital devices:
the majority’s argument in favor of treating modern cellular phones as digital islands contradicts itself. It notes the modern “age of ‘smart phones’” as a reason why SA Sandefur’s assertion that soldiers at FOBs usually transfer recording files from their phones to computers is “outdated and … of little value.” Nieto, __ M.J. at __ (9). But this contention serves the opposite purpose. “Smart phones” are actually means of connection that dramatically enhance the ability and opportunities to collect data and disseminate it across devices. Accordingly, “[t]oday’s cell phones, with their capacity to reach the Internet, the cloud, and to store mil-lions of documents and photographs [thereby], can no longer analogize to a run-of-the-mill wardrobe. Instead, they are also a portal.”
Diss. op. at 7-8 (citation at end omitted) (marks in original). Suspiciously absent from Judge Stucky’s dissent is any acknowledgement that Nieto was in Kandahar Province, Afghanistan, where the cellular data network is less than robust. Nieto was, however, on a base where there may have been wifi, but that’s a fact that cuts against the prosecution (because rather than take the easy investigative step to determine whether Nieto’s phone connected to the wifi network, it merely relied on the profile of a typical device user as evidence of Nieto’s actions).
The main thrust of Judge Stucky’s dissent seems to be in these two paragraphs:
For his part, CPL RAO swore to a first-person account of actions taken by Appellant indicating that he was making inappropriate recordings with his cellular phone, others observing these actions as well, and the fact that Appellant consistently engaged in such practices over a period of time. Moreover, it was recounted that superiors conducted an impromptu search of Appellant’s cellular phone for offensive material and found none, bolstering the suspicion that, given his consistent conduct, Appellant was transferring his media files to another device.
All told, the magistrate had before her a sworn statement as to Appellant’s consistent suspicious behavior and an affidavit from a very experienced law enforcement officer informing her of the common practices of individuals who fit Appellant’s profile. A nexus between Appellant, the crime he was suspected of, and his laptop computer is quite apparent.
Diss. op. at 5 (emphasis added). I have a hard time following this reasoning. It seems to be pure speculation to conclude that Nieto transferred offensive material to another device based on the absence of such material on his phone. Considering that he kept returning to make more recordings, it’s equally (if not more) likely that he deleted the material. Moreover, there doesn’t seem to be any limit to reasoning that holds that the absence of something in one place is proof of its existence in another place. By that logic any allegation would permit a search of everything.
Having concluded that there was no probable cause to justify the seizure of Nieto’s laptop, Judge Ohlson considers the good-faith doctrine and the inevitable discovery doctrine. Both are rejected:
In order to prevail, the Government has the burden of establishing both doctrines by a preponderance of the evidence. See M.R.E. 311(d)(5)(A). We conclude that the Government has not met its burden of establishing the good-faith doctrine. See M.R.E. 311(c)(3).
The Government also has failed to establish the applicability of the inevitable discovery doctrine. In reaching this conclusion, we note that the Government has failed to identify any evidence that law enforcement possessed, or was actively pursuing at the time of the seizure, that would have made the lawful discovery of the laptop evidence inevitable.
Slip op. at 11-12.
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