In a recently published opinion, United States v. Hoffman, No. 201400067 (11 Dec 2014), the NMCCA held that allegations of child enticement offenses coupled with a law enforcement officer’s training and experience could establish probable cause for a search authorization of a suspect’s computer for child pornography.
The appellant was convicted, contrary to his pleas, of one specification each of attempted sodomy with a child, indecent liberties with a child, child enticement, and possession of child pornography, in violation of Articles 80, 120, and 134, UCMJ. The appellant is alleged to have attempted to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. On two occasions, the appellant was alleged to have repeatedly driven by two different underage boys, made hand motions indicating oral sex at them, and asked them if they wanted to go for a ride. However, at trial the appellant was acquitted of the specifications related to these two incidents. He was convicted of the specifications for a third incident, where he drove by yet another boy several times and asked him multiple times if he wanted a “quickie.”
Following one of the alleged incidents of which the appellant was acquitted, the appellant was apprehended by CID at Camp Lejeune and he 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 still seized several items from the room that had already been discovered, including the appellant’s laptop. Nothing was done with this computer until over four months later, when NCIS sought and received a search authorization to examine the computer for evidence of child pornography. This search led to the discovery of eighteen images and two videos of child pornography, which were the basis for the appellant’s child pornography convictions.
On appeal, the appellant challenged, among other things, the validity of the search authorization for child pornography. The Court also, sua sponte, raised the issue of the validity of the seizure of the laptop after the appellant revoked his consent to search. However, in its opinion, the Court does not address the issue of whether the laptop was seized prior to the appellant’s revocation of consent, but finds that the laptop would have been inevitably seized. The Court arrives at this conclusion by relying on the testimony of the CID agent, who conducted the search. At the suppression hearing, that agent testified that, had the appellant refused to give consent for the search, the agent would have sought a search authorization. Slip Op. at 5. The Court then finds that had the CID agent sought a search authorization, there would have been probable cause for him to get one. Slip op. at 7. The Court bases this finding on the fact that:
[the Agent’s] training and experience led him to what we believe is a conclusion supported by “common-sense,” namely that those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research. Under these facts, where the appellant was accused of multiple brazen attempts to engage in sexual activity with several different boys in several different locations, it is entirely reasonable to conclude that the appellant’s laptop would contain evidence of the alleged crimes, such as evidence of internet searches regarding the location of schools, school release times, or base housing maps. Therefore, under these circumstances, we conclude that probable cause to seize the appellant’s laptop existed and that Agent Rivera would have obtained a command authorization to search and seize the laptop.
Id. Although it is not clear why from the opinion, the Appellant’s laptop was not searched for approximately four months. At that time, the case had been taken over by NCIS and the investigating agent sought a search authorization to search the computer, not for evidence of the alleged crimes described above, but for child pornography. As an aside, it seems like it would cut against the Court’s inevitable discovery holding that apparently no one ever searched the laptop for the evidence that would have given probable cause to seize the laptop. The reason for the request to search for child pornography, as stated in the NCIS agent’s affidavit for the search authorization, was that:
[the agent knew] 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.
Slip op. at 9. The affidavit also included detailed information about the NCIS agent’s training and qualification, which showed that she had numerous relevant investigative credentials, an educational background in psychology and forensic psychology, and extensive experience investigating child exploitation cases. Id. The agent also had a lengthy conversation with the commanding officer who issued the search authorization, during which he testified the agent:
helped him “draw a direct line” between “someone who has solicited children . . . to child pornography. She built a nexus for me that it’s a precursor, it’s an enabler. . . . [t]hat it desensitizes the target. . . . She provided me background on predators that indicated that child pornography is a precursor to solicitation.”
Slip op. at 10. At trial and on appeal, the appellant attacked the ensuing search authorization on the basis that:
…probable cause was lacking since the “intuitive relationship” between child enticement and possession of child pornography is nothing more than bare suspicion.
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