CAAFlog » September 2015 Term » United States v. Hoffmann

CAAF decided the Marine Corps case of United States v. Hoffmann, 75 M.J. 120, No.15-0361/MC (CAAFlog case page) (link to slip op.), on February 18, 2016. The court finds that appellant validly withdrew his consent to seizure of his property prior to the Government meaningfully interfering with it. Further, the court rejects an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search. The court reverses the appellant’s convictions and the published decision of the Navy-Marine Corps CCA.

Judge Stucky writes for a unanimous court.

CAAF granted review of two issues:

I. The search and seizure of the personal items of an individual where the search was initially granted by written consent, but later revoked before the seizure of items, violated the Fourth Amendment of the Constitution.

II. The appellant was charged with crimes involving child enticement. The NMCCA found a search for a separate crime, child pornography, was suppported by probable cause based solely on the child enticement allegations. In doing so, the NMCCA relied on a minority opinion in federal case law and applied it incorrectly. This court should reverse.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and child enticement, in violation of Articles 80, 120, and 134. He was also convicted of attempted abusive sexual contact with a child, but that charge was dismissed as an unreasonable multiplication of charges.

The appellant was charged with attempting to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. Following one of those alleged incidents the appellant was apprehended by military criminal investigators and the appellant 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 seized several items from the room, including the appellant’s laptop. Months later a different agent obtained a search authorization to examine the computer for evidence of child pornography, leading to the discovery of contraband and the appellant’s conviction for possession of child pornography. The search authorization was granted based on a lengthy discussion between the commander and a Naval Criminal Investigative Service Special Agent, and the Agent’s affidavit, in which the agent claimed that from her “training and experience [] there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” Slip op. at 3 (quoting affidavit).

At trial the defense moved to suppress the fruits of the search but the military judge denied the motion. For the seizure, the military judge found that the seizure was completed prior to the withdrawal of consent and that the agent would have obtained an authorization in the absence of consent (supporting inevitable discovery). The NMCCA affirmed on the basis of inevitable discovery. For the existence of probable cause, the military judge agreed that there is an intuitive relationship between an enticement offense and the possession of child pornography. The NMCCA affirmed this reasoning as well, considering the split opinions of numerous federal circuits and concluding that:

our common sense tells us that the Eighth Circuit’s analysis is correct: an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities.

United States v. Hoffman, 74 M.J. 542, __, slip op. at 13 (N-M. Ct. Crim. App. 2014).

Judge Stucky’s opinion is a wholesale rejection of the Special Agent’s assertion of probable cause, the commander’s decision authorizing the search, the NMCCA’s opinion, and the Government’s arguments.

Further, the court finds that the erroneous admission of the child pornography contributed to the convictions of the other offenses because of the trial counsel’s closing argument “that all of the offenses, including the wrongful possession of child pornography, were manifestations of Appellant’s character: that of a predator, sexually attracted to young boys.” Slip op. at 13. Accordingly, all of the findings of guilty are set aside.

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Audio of last week’s project outreach oral arguments is available at the following links:

United States v. Hoffmann, No.15-0361/MC (CAAFlog case page): Oral argument audio

United States v. Rapert, No.15-0476/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Marine Corps case of United States v. Hoffmann, No.15-0361/MC (CAAFlog case page), on Tuesday, October 20, 2015, at noon. As part of Project Outreach, the case will be argued at the Washington and Lee University School of Law, Lexington, Virginia. CAAF will consider two issues involving a seizure and search that discovered child pornography:

I. The search and seizure of the personal items of an individual where the search was initially granted by written consent, but later revoked before the seizure of items, violated the Fourth Amendment of the Constitution.

II. The appellant was charged with crimes involving child enticement. The NMCCA found a search for a separate crime, child pornography, was suppported by probable cause based solely on the child enticement allegations. In doing so, the NMCCA relied on a minority opinion in federal case law and applied it incorrectly. This court should reverse.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and child enticement, in violation of Articles 80, 120, and 134. He was also convicted of attempted abusive sexual contact with a child, but the charge was dismissed as an unreasonable multiplication of charges.

The appellant was charged with attempting to solicit boys between the ages of 10 and 13 for oral sex on three separate occasions. Following one of those alleged incidents the appellant was apprehended by military criminal investigators and the appellant 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 seized several items from the room, including the appellant’s laptop. Months later a different agent obtained a search authorization to examine the computer for evidence of child pornography, leading to the discovery of contraband and the appellant’s conviction for possession of child pornography.

The appellant moved to suppress the discovered materials at trial asserting that the seizure was unlawful because of the withdrawn consent and that there was no probable cause for the search. The probable cause issue is based on the fact that the agent did not have any direct evidence that the appellant had child pornography, but rather she asserted that based on her training and experience, “there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.” Gov’t Br. at 14 (marks omitted).

The military judge denied the motion. For the seizure, the military judge found that the seizure was completed prior to the withdrawal of consent and that the agent would have obtained an authorization in the absence of consent (supporting inevitable discovery).  The NMCCA affirmed on the basis of inevitable discovery. For the existence of probable cause, the military judge agreed with the agent that there is an intuitive relationship between an enticement offense and the possession of child pornography, and found that the “relationship consists of some individuals using child pornography to reduce the inhibitions of potential child victims, documenting abuse through the production of child pornography, and that possessing and viewing child pornography are a logical precursor to physical interaction with a child.” Gov’t Br. at 14-15 (quoting judge’s ruling). The NMCCA affirmed this reasoning as well, considering the split opinions of numerous federal circuits and concluding that:

our common sense tells us that the Eighth Circuit’s analysis is correct: an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities.

United States v. Hoffman, 74 M.J. 542, __, slip op. at 13 (N-M. Ct. Crim. App. 2014).

While the language of the granted issues blends the separate questions of the lawfulness of the seizure of the appellant’s property and the lawfulness of the subsequent search, I believe that next week’s oral argument will focus on the search issue. Specifically, I think this case presents the fairly broad question of whether any merely intuitive relationship between two offenses (in this case its child enticement and possession of child pornography) provides probable cause for a search for evidence of one offense when a person is suspected committing the other offense.

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Yesterday CAAF granted review of two issues in the Marine Corps case of United States v. Hoffmann, No. 15-0361/MC:

No. 15-0361/MC. U.S. v. Matthew P. Hoffmann. CCA 201400067. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE SEARCH AND SEIZURE OF THE PERSONAL ITEMS OF AN INDIVIDUAL WHERE THE SEARCH WAS INITIALLY GRANTED BY CONSENT, BUT LATER REVOKED BEFORE THE SEIZURE OF ITEMS, VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION.

II. THE APPELLANT WAS CHARGED WITH CRIMES INVOLVING CHILD ENTICEMENT. THE NMCCA FOUND A SEARCH FOR A SEPARATE CRIME, CHILD PORNOGRAPHY, WAS SUPPORTED BY PROBABLE CAUSE BASED SOLELY ON THE CHILD ENTICEMENT ALLEGATIONS. IN DOING SO, THE NMCCA RELIED ON A MINORITY OPINION IN FEDERAL CASE LAW AND APPLIED IT INCORRECTLY. SHOULD THIS COURT REVERSE?

Briefs will be filed under Rule 25.

Sam analyzed the NMCCA’s opinion in this post.

In a recently published opinion, United States v. Hoffmann, 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.

Id.

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