Opinion Analysis: An intuitive relationship does not establish probable cause in United States v. Hoffmann, No. 15-0361/MC
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.