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.

Case Links:
Blog post: A(nother) Grostefon grant and a denial
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

21 Responses to “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”

  1. stewie says:

    A lot of young people today only use a phone to connect to the internet, so it’s not a given anymore that they are downloading it to another computer. The cloud maybe, but not necessarily another computer. I agree with the majority, it’s too big of a leap without evidence.

  2. Malum in Se says:

    Always good to see an appellate court reject inevitable discovery.  In my experience, all too often, fairly flagrant Fourth Amendment violations just get brushed aside as inevitable discovery, with Trial Counsel going in to a motion to suppress assuming that inevitable discovery is the fallback that will save their evidence and excuse reprehensible conduct by investigators.

  3. RY says:

    I think the only time I ever synched my phone with my laptop was when my wife’s phone was dying and we didnt want to lose the photos, or right before we purchased a new phone (to preserve our photos).  With facebook and instagram, it’s easy to just post online and then download from there to the computer if you want them on another device without ever linking them directly.  I’m sure some people synch a phone and laptop regularly but it’s a stretch to presume someone transfers or synchs them simply because they take videos or photos with their phone.  Judge Stucky’s approach would essentially permit seizure of every electronic device if there’s potentially evidence on one of them. 

  4. k fischer says:

    I don’t know.  I kind of agree with the dissent on this one.  Where else would he hide his homemade voyeuristic porn so he could wank?  Just because the Special Agents experience is outdated (not really, as I use my laptop to save family photos, vacation photos, videos, etc) does not mean he failed to have a substantial basis in concluding that he was transferring the stuff to another device.
     
    And who was right?  Could it be the guy who said, “Look, based on my 15 years experience, he’s transferring the files to a computer,” got a search authorization from a lawyer, then found the incriminating evidence on the accused’s computer? 
     
    But, this is going to be a good case to use for ALL search authorizations at Court martial.  Now, defense counsel has decent precedent to argue for suppression.  While I may disagree with the majority on this opinion as a conservative, I really do appreciate this opinion as a defense counsel, so my clients who plead guilty to four acts of abusive sexual contact, AWOL, False Statement, making indecent visual recordings, and violating a general order and get sentenced to five years in prison can have their conviction on all the findings reversed.

  5. CorsairF4U says:

    Good call by CAAF.  If this were allowed, then there is potentially no limit to “inevitable discovery”, especially since laptops/tablets/desktops are a shrinking market and people mostly use their phones for all their business.  Its also a good thing that the Supreme Court shot down law enforcement’s invasion of your privacy by snatching your phone and “inspecting it” for any offence they deem appropriate by fiat.

  6. stewie says:

    So he was “right” in this case. So what? I have photos on my cell phone. Not a single one of them is downloaded to my computer from that cell phone. So he’d be “wrong” in my case.  Spoiler alert: I also don’t have child porn anywhere.  And I don’t have it on my phone.  The fact that there is none on my phone is because I don’t have any, not because I’ve uploaded it all to my computer.
     
    There is no evidence provided in this case that it’s routine for folks to download images FROM their phone TO their computer. In fact, there are only two ordinary ways to do it.
     
    1. Upload from the phone to the cloud and then back down to your computer.
    2. Find a cable with a mini USB port on one end and a regular one on the other. Not hard, but an extra step that’s harder than using the cloud.
    If the warrant were to search his cloud-based account(s), that would make more sense IMO. But if you can search the computer than as another commenter said, why not every electronic device he has capable of holding images? Notebooks, IPad, PS4, XBOX, what have you.

  7. Zachary D Spilman says:

    Well, k fischer, the facts of this case seem to be that there was no evidence of the recordings on the laptop, but there was evidence of the other crimes. If that’s right then without the fruits of the search of the laptop it’s doubtful Nieto could have been convicted of anything more than the recordings specification (based on the testimony of the witnesses) and the false official statement specification (based on his false exculpatory statements during an interrogation). 

    As for application of the inevitably discovery doctrine, CorsairF4U, I think a better term is the inevitable warrant doctrine as the doctrine requires proof that at the time of the violation there was in-progress some Government action that would have inevitably led to the lawful discovery of the evidence. That means a warrant (authorization) or an exception to the warrant requirement.

    The biggest question that Judge Stucky’s dissent raises in my mind is about a limiting principle. Does an allegation involving any electronic device create probable cause to search all electronic devices? If not, what’s the line (and how is it to be applied)? And this apply to the real world? For example, if a deployed service member is accused of stealing a small item (an expensive watch, for example), but the item isn’t found in the person’s quarters, does that provide probable cause to search the person’s residence back home under the theory that they mailed the item back?

    Ultimately, this is nothing more than another substitution of common sense for actual evidence. See, for example, United States v. Frey, 73 M.J. 245 (C.A.A.F. May 19, 2014) (CAAFlog case page). The most basic premise of our system of law, however, is that the prosecution must prove its case with actual evidence. 

  8. Defense Hack says:

    In Afghanistan, uploading information to the cloud is not as easy as it is at your local Starbucks. You need cables and stuff.

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

    CAAF made the correct decision.  Agents don’t seem to understand the difference between “possibility” and “probability” of finding evidence in a particular location.  Was it possible to transfer recordings from the phone to the computer?  Of course!  But anything is possible.  Is it possible that the substance in the yellow packet labeled “Splenda” is actually cocaine instead of sweetener?  Yes.  Is it probable?  No.
     
    You want to establish probable cause to get into an electronic device?  Fine, establish some evidence to show the recordings were probably transferred from the phone to the computer, not possibly.  Appellant gave a statement admitting to recording on the phone.  Why not ask him what he does with the recordings afterwards?  If his answer is, “I transfer them to my computer,” then bingo, you have PC for the computer.  Talk to the people living in his tent.  Talk to the people who searched his phone, what parts of the phone did they search?  What kind of Samsung Galaxy phone?  Did he have a cloud account?  Did he have any cables for transferring data from the phone directly to the computer?  Did he have a dropbox app on his phone?  Did he have wifi?  If so, was it strong enough to support data transfers?
     
    Agents need to stop relying on possibilities.  Authorizations are not for going on fishing expeditions through someone’s electronic devices.  Magistrates need to hold them to the “probable cause,” not “possible cause,” standard.
     

  10. Bobby Axelrod says:

    Not sure I agree with this one.

  11. Vulture says:

    An interesting note: there are 8 ayes, and 2 nays in the comments.  The same margin as the court.

  12. Chuck Rhoades says:

    Well, count me on the opposite side of Bobby Axelrod…every time…

  13. stewie says:

    Great, no more Splenda now…thanks!

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

    Stewie,
     
    The Splenda/cocaine is simply an example I gave to students to help them understand the difference between “probability” and “possibility” for purposes of 4th Amendment.  Perhaps I should’ve used the Krispy Kreme doughnut glaze mistaken for meth example.
     
    https://www.theguardian.com/us-news/2016/jul/29/us-police-mistake-icing-from-krispy-kreme-doughnuts-for-crystal-meth

  15. Vulture says:

    Chuck.  You should probably spend your time more wisely.  If the 1 in 5 split is a correct independent test, 3 sets of the same statistic gives me about a 90% confidence interval that if I asked 100 lawyers, 20 would agree with Bobby or Kyle.  This law will likely be here after we are dead and you gain nothing by contending it.

  16. Vulture says:

    Contending it either way that is.

  17. CorsairF4U says:

    Bobby,
    I think you may wish to rethink that disagreement.  With cars becoming more and more “connected”, especially since people connect their phones to their cars all the time, what’s to stop authorities from seizing your car to “inspect” it?  Nothing, and nothing to say they won’t extract ALL data from your vehicle including position, speed, vehicle dynamics, etc?  And decide to charge you up with that information….
     
    The “plugging in phones to download data” canard is crap.  Most people plug phones in to charge them these days.  I think most transfer data through the network and “cloud” services.

  18. stewie says:

    Great, no more glazed doughnuts now…thanks!

  19. stewie says:

    Corsair, my car is less than 25K and a 2012 model, and while parked it can play video on the center console. I could, in theory, load up images/video of any kind onto a CD OR connect some devices that play video, and watch it on my console.  I’m guessing more recent models and certainly future models have or will have the ability to store data for that purpose.

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

    Stewie,
     
    If your car has air bag sensors, it’s got the ability to store data.  Agents can use car data for a variety of things in their investigations.  Cars are in reality big mobile computers.
     
    I know what you’re thinking–“Great, no more cars now…thanks!”

  21. Interested onlooker says:

    Stewie,
    I back up my iPad to my Mac without a cable and without going to the cloud. In fact, I don’t even need to use anyone else’s network to do it, as the Mac can generate an ad hoc wifi network for me to use.  All standard built-in software used, no need to install anything.  And I can download photos and videos in a similar fashion to any Mac to which I have access, no hoop-jumping required.  Is it as easy for products from other manufacturers? Probably not, but I don’t know for sure from personal experience (and intend to keep it that way!).