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.

Nieto’s brief asserts that “while there was probable cause for SPC Nieto’ s cellphone, the government failed to adequately connect SPC Nieto’s cellphone to his laptop computer.” App. Br. at 5-6. Further, by extrapolating the fact of this case the brief suggests that:

The investigators inferred SPC Nieto was likely to have transferred data from his cellphone based on “the history of what Soldiers do with their cellphones.” (JA 1 7). With this logic, use of a cellphone in the commission of a crime equates to probable cause to seize all electronic devices found in a dwelling.

App. Br. at 7-8. This potential outcome is a central theme to the brief, as it later asserts that:

To allow the military judge’s reasoning to stand means anytime law enforcement suspects a digital device has been used in a crime, every device capable of storing digital evidence could be seized from a home. This would cause unreasonable intrusions into the home the Fourth Amendment was designed to protect.

App. Br. at 15.

The Government’s response emphasizes the small quantum of evidence necessary to establish probable cause:

A probable cause determination is “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before” the search authority, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Macomber, 67 M.J. at 219 (quoting Illinois v. Gates, 462 U.S. 213,238 (1982)). “[E]vidence presented in support of a search need not be sufficient to support a conviction, nor even to demonstrate that an investigator’s belief is more likely true than false.” Leedy, 65 M.J. at 213.

Gov’t Br. at 14. The Government analogizes the facts of this case to those of United States v. Clayton, 68 M.J. 419, 424 (C.A.A.F. 2010), in which the court analyzed whether there are probable cause to search a computer for child pornography and concluded that “these cases reflect a practical, commonsense understanding of the relationship between the active steps that a person might take in obtaining child pornography from a website and retaining it for an extended period of time on the person’s computer.” The Government also distinguishes the facts of this case from those of Hoffmann, asserting that:

In both [this case and Hoffmann], the authorizations were based on drawing a connection between different crimes that a person is likely to commit. In this case, the connection that the agent drew was based only on where evidence of the crime that appellant was suspected of would be stored. In other words, in this case there is a much greater nexus. Accordingly, the military judge did not abuse his discretion by filling in the gaps based on the affiant’s experience and the military judge gave proper weight to the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found, who is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of the offense.

Gov’t Br. at 18 (marks and citations omitted).

In addition to these legal arguments, the Government also makes a fact-based argument for probable cause. Nieto made a statement to Government investigators in which he admitted that “he held his cellular phone over the latrine stalls and video recorded between fifteen and twenty male soldiers using the latrine for his own sexual gratification.” Gov’t Br. at 20. The Government’s brief, however, emphasizes that investigators “did not find evidence of any of the videos or photographs” on the phone. Gov’t Br. at 20. However, the Government asserts that:

the knowledge that these videos existed would have established a logical basis for finding probable cause to seize and search appellant’s laptop or other electronic storage devices for these videos.

Gov’t Br. at 20. I think this is quite a stretch in the absence of any evidence of transfer or copying, and a far more practical, commonsense understand would be that the videos were simply deleted from the phone.

The Government also argues that the inevitable discovery doctrine and the good faith exception both apply.

Neito’s reply brief sums up his argument simply:

Both [military] magistrates served as a rubber stamp for CID, and both affidavits were so lacking in indicia of probable cause as to render official belief in its existence unreasonable.

Reply Br. at 14.

Case Links:
• ACCA opinion (summary disposition)
Blog post: A(nother) Grostefon grant and a denial
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: CAAF returns to the question of intuition as a basis for probable cause in United States v. Nieto, No. 16-0301/AR”

  1. Tami a/k/a Princess Leia says:

    I think this will be a defense win.  Looking at what the agents knew and said at the time they requested the authorizations, there’s plenty of speculation, assumptions, and possibilities, but no PC:
    1.  Nothing to show he even had a computer with him.  Basis for knowing a computer even existed should’ve been in the affidavit.  Why not ask him if he downloaded the videos and/or pictures he took to a computer?  In the age of data storage clouds, you can’t assume data transfer to a computer.  Nowadays, pictures and video are “probably” stored in cyberspace, not from a phone to a computer.  He said he masturbated to images on his phone, which means they weren’t on his computer.  How much storage was on the phone?  What type of Samsung phone was it?  Was he taking pictures, videos, or both?
    2.  Nothing to show his phone was ever linked to his computer.  Did the DFE testify?  What about the PTMMs?  If the phone synced with the computer, there should be a record of the data transfer in the phone.  But it doesn’t appear that a full data extraction was authorized, in which case, the Government can’t claim inevitable discovery.
    3.  Why is SA Dunn asking for “texts” when there is absolutely no evidence whatsoever that texts were involved?  Appears to be a “cut and paste” request without thinking through what the agents are actually asking for.  Instead, this looks like a fishing expedition under the rationale, “it’s possible there’s something on the computer so let’s ask for it.”  Possibilities aren’t good enough, it has to be “probably.”
    The request for the computer is also overbroad.  “The laptop computer his phone syncs with….”  How many computers does that describe?  How do you know it’s a laptop instead of a tablet?  Where do they sync?  How do they sync?  Is it even his computer?  Some basic investigation to answer these questions.
    It appears that the first magistrate asked some questions, but no satisfactory answers were given.  Did either magistrate testify?