The Fourth Amendment protects people and their property from unreasonable searches and seizures, and demands that warrants be supported by probable cause. It’s not a particularly heavy burden on the Government, as “probable cause deals with probabilities,” and so “requires more than bare suspicion, but something less than a preponderance of the evidence.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007).
But CAAF found that Government agents lacked even that when they seized the accused’s property in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), and the accused himself in United States v. Darnall, 76 M.J. 326 (C.A.A.F. Jun. 28, 2017) (CAAFlog case page), making probable cause the #7 Military Justice Story of 2017.
Army Specialist (E-4) Nieto was accused of using a cell phone to surreptitiously record other soldiers in the toilet at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. He eventually entered conditional pleas of guilty to numerous offenses that were discovered during the investigation into that accusation. Neito’s conditional pleas preserved his motion to suppress evidence discovered on his laptop computer, which was seized and searched pursuant to an authorization issued by a military magistrate. The search of the laptop revealed evidence of new crimes, but not of anything relevant to the alleged surreptitious recording, and Neito challenged the magistrate’s finding that there was probable cause to believe that evidence would be found on his laptop.
The military judge denied Nieto’s suppression motion and the Army CCA summarily affirmed the findings and the sentence. Nieto then personally asserted the issue to CAAF and the court granted review.
A military magistrate’s probable cause determination is reviewed only to see if “there was a substantial basis for concluding that probable cause existed.” Nieto, 76 M.J. at 105 (quoting United States v. Rogers, 67 M.J. 162, 164-65 (C.A.A.F. 2009)). Furthermore, appellate courts “give great deference to the magistrate’s probable cause determination.” 75 M.J. at 105 (marks and citation omitted). But in Nieto CAAF found an insufficient nexus between the cell phone that Nieto allegedly used, and the laptop that contained the evidence of the other offenses, because the request to search Nieto’s laptop wasn’t based on evidence of actual data transfer from his cell phone to the laptop but rather was based only on the investigator’s “generalized profile about how servicemembers ‘normally’ store images.” 76 M.J. at 107.
Writing for a majority of CAAF, Judge Ohlson emphasized that the decision does not create “a heightened standard for probable cause or requir[e] direct evidence to establish a nexus in cases where technology plays a key role.” 76 M.J. 107, n.3. Rather, applying ordinary Fourth Amendment principles, CAAF held that “the military magistrate could not draw any reasonable inferences linking the crime and the laptop,” 76 M.J. at 108, and the court set aside Nieto’s guilty pleas.
The suspicions that ensnared Navy Hospitalman (E-3) Darnall were even more attenuated.
Darnall became a suspect when a U.S. Mail package containing dimethylone (a controlled substance analogue) was intercepted. The package wasn’t addressed to Darnall exactly, but was addressed to someone with the same name at an address in the town of Twentynine Palms, California, (the location of a large Marine Corps base where Darnall was stationed).
Based only on that address, a Marine Criminal Investigative Division (CID) agent suspected that the intended recipient of the package might be a servicemember. Finding Darnall through a public records search, the agent arranged “to have a counterfeit version of the package containing no real drugs delivered to [Darnall] at the regimental mailroom and to apprehend him after he picked it up.” 76 M.J. at 3328. That happened and Darnall was apprehended, handcuffed, and interrogated, leading to the discovery of much incriminating evidence.
Darnall moved to suppress the evidence on the basis that his apprehension (the seizure of his person) was unlawful because it lacked probable cause, and also that there was a causal connection between the unlawful apprehension and his subsequent confession. See Wong Sun v. United States, 371 U.S. 471, 484-488 (1963); Brown v. Illinois, 422 U.S. 590, 603 (1975). The military judge denied the motion. Darnall was then convicted of various offenses related to the importation, manufacture, and distribution of controlled substances (steroids and designer drugs) after a contested trial, and the NMCCA affirmed.
Writing for a unanimous court, Judge Sparks observed that “there was simply no connection between [Darnall] and the box apparent to [the CID agent] at the time of the arrest except that [Darnall’s] name was printed on the outside and it was mailed to an address in the community surrounding the Marine base.” 76 M.J. at 330-331. That coincidence, and the arranged meeting of Darnall and the package in the unit’s mailroom, did “not in any way confirm [Darnall’s] involvement to a degree significant enough to establish probable cause.” 76 M.J. at 331. Rather, it was a “somewhat sloppy and apathetic investigation” leading to an apprehension “in clear violation of [Darnall’s] Fourth Amendment rights.” 76 M.J. at 332.
Concluding that the CID agent’s action “is one type of law enforcement activity we would certainly hope to deter,” 76 M.J. at 332, CAAF set aside the findings.
CAAF authorized rehearings in both cases, but it seems unlikely that the Government can successfully prosecute either appellant without the evidence at issue in CAAF’s decisions.