Argument Preview: CAAF returns to the question of intuition as a basis for probable cause in United States v. Nieto, No. 16-0301/AR
CAAF will hear the first oral argument of the October 2016 Term in the Army case of United States v. Nieto, No. 16-0301/AR (CAAFlog case page), on Tuesday, October 11, 2016, at 9:30 a.m. The case challenges a military judge’s ruling on a suppression motion that led to conditional pleas of guilty, with the following granted issue:
Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer
Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses related to an allegation that he used his cell phone to surreptitiously record other soldiers using the toilet. When the allegation was made against him, an Army Criminal Investigation Division (CID) special agent “sought an authorization to seize [Nieto]’s ‘cellular telephone(s) and Laptop computer (White Samsung Galaxy cellular Telephone and the personal laptop computer the cellular telephone syncs with to upload and download data).'” Gov’t Br. at 3 (quoting record). While the allegations against Nieto did not involve his laptop computer, the CID agent asserted that there was probable cause to seize and search the laptop (in addition to the phone) because of:
his “knowledge in reference to Soldiers using their cell phones to photograph things, … and that those phones are normally downloaded, the photos that they take, … they’ll back those up to their laptops so that when they get to the-a place where they can get Internet, they can post those or send those home to family or whatever.”
Gov’t Br. at 3-4 (omissions in original) (quoting record).
This conclusion is remarkably similar to the intuitive relationship between acts such as enticement or child molestation and the possession of child pornography that CAAF rejected earlier this year in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016) (CAAFlog case page). CAAF granted review in Nieto one month after it issued its opinion in Hoffmann.
And, significantly, the granted issue was raised personally by Nieto in accordance with United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous.
Yesterday CAAF granted review of a Grostefon issue in an Army case:
No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue personally asserted by Appellant:
WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.
Briefs will be filed under Rule 25.
(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).
The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to email@example.com
Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:
No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073. On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.