United States v. Hoffmann

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Matthew P. Hoffmann, Corporal
United States Marine Corps, Appellant
No. 15-0361
Crim. App. No. 201400067
Argued October 20, 2015—Decided February 18, 2016
Military Judge: Nicole K. Hudspeth
For Appellant: C. Ed Massey, Esq. (argued); Lieutenant
Ryan Aikin, JAGC, USN, and Lieutenant Jessica L. Ford,
JAGC, USN.
For Appellee: Captain Cory A. Carver, USMC (argued);
Colonel Mark K. Jamison, USMC, Major Suzanne M.
Dempsey, USMC, and Brian K. Keller, Esq. (on brief).
Amicus Curiae for Appellant: Loren K. Peck (law student)
(argued); Timothy C. MacDonnell, Esq. (supervising attor-
ney) (on brief)—Washington and Lee School of Law.
Judge STUCKY delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges RYAN and
OHLSON, and Senior Judge LAMBERTH joined.
_______________
Judge STUCKY delivered the opinion of the Court. 1
Government investigators collected electronic media dur-
ing a consent search of Appellant’s barracks room. During
the collection process, Appellant withdrew his consent. Nev-
ertheless, the investigators seized the electronic media. The
following day Appellant formally revoked his consent in
writing and demanded the return of all property in the Gov-
ernment’s possession without it being searched. We granted
review to determine whether the military judge erred in re-
fusing to suppress the fruit of a search of the seized media
1 Senior Judge Royce C. Lamberth, United States District
Court for the District of Columbia, sat by designation, pursuant to
Article 142(f), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 942(f) (2012).
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
made pursuant to a commander’s authorization issued four
months after Appellant revoked his consent to search and
seize. 2 We hold that the military judge abused her discretion
in denying the motion to suppress.
I. Procedural History
A general court-martial of officer and enlisted members
convicted Appellant, contrary to his pleas, of attempted sod-
omy of a child, indecent liberties with a child, child entice-
ment, and possession of child pornography. Articles 80, 120,
and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 880, 920, 934 (2012). The convening authority
approved the adjudged sentence: a dishonorable discharge,
confinement for seven years, forfeiture of all pay and allow-
ances, and reduction to the lowest enlisted grade. The Unit-
ed States Navy-Marine Corps Court of Criminal Appeals
(CCA) affirmed. United States v. Hoffmann, 74 M.J. 542, 555
(N-M. Ct. Crim. App. 2014).
II. Background
Appellant was taken into custody on board Camp
Lejeune, North Carolina, on suspicion of committing inde-
cent liberties with children. Investigators alleged that he
had driven around Camp Lejeune and solicited young boys
for sex. Appellant was advised of his right to counsel and his
right to remain silent and invoked both. Nevertheless, Ap-
pellant consented to the search of his barracks room, and
specifically “all items used for storage that are locked and
unlocked.” He further consented to the removal and reten-
tion of “any property or papers found during the search
which are desired for investigative purposes.”
Approximately twenty-five minutes into the search, after
Appellant noticed the investigators collecting various digital
media, Appellant withdrew his consent. Staff Sergeant An-
thony Rivera and other investigators terminated the search
2 We heard oral argument in this case at Washington and Lee
University School of Law, Lexington, Virginia, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58 M.J.
346, 347 n.1 (C.A.A.F. 2003). This practice was developed as part
of a public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.
2
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
but seized the items they had previously collected. In an un-
dated letter provided to the investigators the day after the
search, Appellant formally revoked his consent to search or
seize any of his property and demanded the return of the
property previously seized. The items were not returned.
Four months later, Appellant’s battalion commander is-
sued investigators a command authorization to search the
digital media that had previously been seized for evidence of
child pornography. The authorization was based on a
lengthy discussion the commander had with Special Agent
Dana Shutt, and an affidavit, asserting that she knew
through her “training and experience that there is an intui-
tive relationship between acts such as enticement or child
molestation and the possession of child pornography.” In the
affidavit, the investigator noted that the request for search
authorization related to items that had been seized as a re-
sult of Appellant’s consent. Nowhere did it inform the com-
mander that Appellant had revoked his consent. A forensic
analysis of the digital media seized revealed child pornogra-
phy.
At trial, Appellant moved to suppress the fruit of the
search of the electronic media. The military judge held a
suppression hearing. While the commander who issued the
search authorization was testifying on direct telephonically,
it came to light that he was using documents to assist him.
When the defense counsel sought to obtain copies of those
materials in order to cross-examine the search authority, the
military judge stated that the Government had met its bur-
den and that the commander’s testimony was “overkill.” She
refused to continue the motions hearing to allow the defense
counsel to obtain the documents.
The military judge denied the motion to suppress. She
found that the seizure was lawful because Appellant with-
drew his consent for search and seizure after investigators
had seized the electronic media. The military judge opined
that, even if Appellant had withdrawn consent before the
seizure, the doctrine of inevitable discovery applied and that
probable cause existed to seize and search the computer
equipment. The military judge gave substantial deference to
the commander as an impartial magistrate and concluded
3
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
that the Government had established that the evidence was
not obtained as a result of an unlawful search or seizure.
On appeal, the CCA declined to rule on the issue of
whether Appellant revoked his consent before or after the
seizure of the media. Hoffmann, 74 M.J. at 546. Instead, the
CCA focused on the inevitable discovery doctrine, concluding
that had Appellant declined to consent to the search and sei-
zure of his room, the investigators would have frozen the
scene and sought a search authorization, providing sufficient
evidence to the search authority to establish probable cause.
Id. at 547–48. We granted review.
III. Discussion
The Fourth Amendment protects the people against un-
reasonable searches and seizures and provides that war-
rants shall not be issued absent probable cause. U.S. Const.
amend. IV. The military has implemented the Fourth
Amendment through Military Rules of Evidence (M.R.E.)
311–17.
Searches conducted after obtaining a warrant or authori-
zation based on probable cause are presumptively reasona-
ble whereas warrantless searches are “presumptively unrea-
sonable unless they fall within ‘a few specifically established
and well-delineated exceptions.’” United States v. Wicks, 73
M.J. 93, 99 (C.A.A.F. 2014) (quoting Katz v. United States,
389 U.S. 347, 357 (1967)), reconsideration denied, 73 M.J.
264 (C.A.A.F. 2014). A search conducted with the consent of
the accused is “one of the specifically established exceptions
to the requirements of both a warrant and probable cause.”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); see
M.R.E. 314(e). “Property … may be seized with consent con-
sistent with the requirements applicable to consensual
searches under Mil. R. Evid. 314.” M.R.E. 316(c)(3). The
government bears the burden of showing the applicability of
the exception. Wicks, 73 M.J. at 99.
We review a military judge’s ruling on a motion to sup-
press evidence for an abuse of discretion, viewing the evi-
dence in the light most favorable to the party prevailing be-
low. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F.
2015). That means we review the military judge’s findings of
fact for clear error but her conclusions of law de novo. Id.
4
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Opinion of the Court
A. The Seizure
The scope of a consent search or seizure is limited to the
authority granted in the consent and may be withdrawn at
any time. M.R.E. 314(e)(3), 316(c)(3); see United States v.
Dease, 71 M.J. 116, 120 (C.A.A.F. 2012). The military judge
concluded that Appellant validly withdrew his consent but
only after “the investigators had already seized the digital
media, as there had already been a meaningful interference
with the accused’s possessory interest in that property.”
“A ‘seizure’ of property occurs when there is some mean-
ingful interference with an individual’s possessory interests
in that property.” United States v. Jacobsen, 466 U.S. 109,
113 (1984) (emphasis added). By employing the term “mean-
ingful interference,” the Supreme Court must have “contem-
plated excluding inconsequential interference with an indi-
vidual’s possessory interests.” United States v. Va Lerie, 424
F.3d 694, 706 (8th Cir. 2005) (en banc). It must be more than
a technical trespass. Id. at 702 (bag moved from overhead
compartment to seat so that drug dog could sniff for drugs
was not “meaningful interference”); United States v. Gant,
112 F.3d 239, 242 (6th Cir. 1997) (same); United States v.
Lovell, 849 F.2d 910 (5th Cir. 1988) (agents removed
checked luggage from baggage conveyor belt, compressed
sides of luggage several times, smelled marijuana, then sub-
jected luggage to a dog sniff was not seizure). A seizure re-
quires law enforcement agents to exercise a fair degree of
dominion and control over the property. See Jacobsen, 466
U.S. at 120 (field testing contents of a package for illegal
substances was “meaningful interference”); Hudson v. Palm-
er, 468 U.S. 517, 544 (1984) (completely destroying the prop-
erty was “meaningful control”).
Appellant withdrew his consent while the media were
still sitting in his room. While the agents may have moved
the media to a central location in the room, they did not
meaningfully interfere with it until they removed it. As the
seizure of the media occurred after Appellant had with-
drawn his consent, the seizure violated the Fourth Amend-
ment.
5
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
B. Inevitable Discovery and the Search Authorization
Normally, the fruits of a search or seizure that violates
the Fourth Amendment are inadmissible. Mapp v. Ohio,
367 U.S. 643, 654–55 (1961); United States v. Conklin, 63
M.J. 333, 334 (C.A.A.F. 2006); M.R.E. 311(a). Notwithstand-
ing the invalidity of the seizure of the digital media, the in-
evitable discovery doctrine provides an exception to the ex-
clusionary rule, “allowing admission of evidence that,
although obtained improperly, would have been obtained by
another lawful means.” United States v. Wallace, 66 M.J. 5,
10 (C.A.A.F. 2008); see Nix v. Williams, 467 U.S. 431, 443–
44 (1984); M.R.E. 311(c)(2).
To take advantage of this doctrine, the prosecution must
establish, by a preponderance of the evidence, “‘that when
the illegality occurred, the government agents possessed, or
were actively pursuing, evidence or leads that would have
inevitably led to the discovery of the evidence and that the
evidence would inevitably have been discovered in a lawful
manner had not the illegality occurred.’” Dease, 71 M.J. at
122 (quoting United States v. Kozak, 12 M.J. 389, 394
(C.M.A. 1982)) (emphasis added). The military judge made
no findings as to the state of probable cause at the time Ap-
pellant withdrew consent.
There is no evidence that, at the time of the seizure, the
government agents possessed or were actively pursuing
leads that would have inevitably led to discovery of the child
pornography images by lawful means. The assumption that
the investigators could have lawfully frozen the scene at Ap-
pellant’s barracks room and pursued a command authoriza-
tion based on probable cause is unjustified. Freezing the
scene to procure a command authorization requires probable
cause or exigent circumstances. Segura v. United States,
468 U.S. 796, 810 (1984) (plurality opinion). The Govern-
ment has not argued and the record does not contain any
exigent circumstances justifying freezing the scene. Moreo-
ver, as discussed below, the Government failed to establish
that the investigators had probable cause to believe that
child pornography or evidence of the alleged offenses would
be found on Appellant’s computer equipment.
6
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
Several months after seizing the digital media, investiga-
tors sought and obtained command authorization to search
the digital media for child pornography. If supported by
probable cause known to the investigators at the time of the
seizure and otherwise valid, the search authorization could
overcome the fact that the digital media on which child por-
nography was found was seized illegally.
An impartial commander “who has control over the place
where the property … to be searched is situated” is author-
ized to issue a search authorization, M.R.E. 315(d)(1), “based
upon probable cause.” M.R.E. 315(f)(1). Probable cause to
search exists when, based on written and oral statements
and “information as may be known by the authorizing offi-
cial that would not preclude the official from acting in an
impartial fashion,” M.R.E. 315(f)(2)(c), there “is a reasonable
belief that the person, property, or evidence sought is located
in the place or on the person to be searched.” M.R.E.
315(f)(2). A valid search authorization requires the impartial
authorizing official to “make a practical, common-sense deci-
sion whether, given all the circumstances set forth in the af-
fidavit before him, including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there
is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238
(emphasis added); see United States v. Cowgill, 68 M.J. 388,
393 (C.A.A.F. 2010); see also Ornelas v. United States, 517
U.S. 690, 696 (1996) (probable cause to search “exist[s]
where the known facts and circumstances are sufficient to
warrant a man of reasonable prudence in the belief that con-
traband or evidence of a crime will be found” in a particular
place).
“‘In dealing with probable cause, ... as the very name im-
plies, we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal techni-
cians, act.’” Gates, 462 U.S. at 231 (quoting Brinegar v. Unit-
ed States, 338 U.S. 160, 175 (1949)); see Cowgill, 68 M.J. at
393. The authorizing official is free to draw “reasonable in-
ferences” from the material supplied by those applying for
the authority to search. Gates, 462 U.S. at 240.
7
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
We do not review a probable cause determination de no-
vo. Instead, our duty is to make sure that the authorizing
official had a “substantial basis” for concluding that probable
cause existed. United States v. Huntzinger, 69 M.J. 1, 7
(C.A.A.F. 2010) (quoting Gates, 462 U.S. at 238–39). “Suffi-
cient information must be presented to the magistrate to al-
low that official to determine probable cause; his action can-
not be a mere ratification of the bare conclusions of others.”
Gates, 462 U.S. at 239; see United States v. Gallo, 55 M.J.
418, 424 (C.A.A.F. 2001).
The affidavit accompanying the request for a search au-
thorization detailed the affiant investigator’s credentials and
experience in forensic digital media collection and conduct-
ing investigations into child exploitation via the Internet.
The affidavit detailed facts and circumstances leading to
Appellant’s apprehension: one of three boys who had com-
plained about being solicited on the street for sex had identi-
fied Appellant’s vehicle and Appellant as the perpetrator;
and another victim had described a truck similar to Appel-
lant’s and picked Appellant out of a photo lineup. 3
The investigator testified that she had explained to the
search authority that in a majority of cases of child pornog-
raphy there was evidence of solicitation. The search author-
ity was unable to confirm this, and the military judge made
no finding that the investigator had. 4 Nor is it clear from the
record that the investigator advised the search authority:
(1) that a GPS tracking device had been placed on Appel-
lant’s vehicle but had not produced any information of evi-
dentiary value; (2) that she had not determined whether
Appellant had Internet access in his room; (3) that the In-
ternet Crimes Against Children Taskforce had no infor-
3 It appears the affiant failed to advise the search authority
that this victim identified Appellant with only fifty percent cer-
tainty. The affiant also advised the search authority orally that, in
a “photographic lineup,” a third victim had been unable to identify
Appellant as the perpetrator. She failed to inform the search au-
thority that, in fact, this victim had identified someone other than
Appellant.
4 Regardless, the relevant statistic would have related wheth-
er there was any evidence that persons who solicited minors for
sex were likely to have child pornography, not vice versa.
8
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
mation on Appellant’s screen name; (4) a criminal back-
ground check on Appellant was negative; and (5) no relevant
information was revealed from canvassing Appellant’s ac-
quaintances.
The investigator then concluded:
As this affiant knows through training and ex-
perience that there is an intuitive relationship be-
tween acts such as enticement or child molestation
and the possession of child pornography, this Affi-
ant believes there is probable cause to believe evi-
dence of the sexual exploitation of children by
means of the receipt and possession of child por-
nography … is present within [the seized digital
media].
The military judge’s inevitable discovery ruling was
based on the following: (1) testimony of Staff Sergeant An-
thony Rivera, one of the investigators, that, had Appellant
not consented to the seizure, he would have sought a search
authorization; 5 (2) Special Agent Dana Shutt’s affidavit in
support of a search authorization, submitted four months
after the seizure, explaining that there is “‘an intuitive rela-
tionship between acts such as enticement or child molesta-
tion and the possession of child pornography’”; (3) the search
authority’s testimony concerning his discussion of the evi-
dence and his decision to grant the search authorization;
(4) United States v. Colbert, 605 F.3d 573, 578 (8th Cir.
2010); and (5) the substantial deference to which a search
authority is entitled in determining probable cause.
The CCA, noting that this was a case of first impression
in the military, surveyed case law from the federal circuit
courts of appeals. Hoffmann, 74 M.J. at 549–52. It concluded
that, where the affiant expressly alleges the nexus between
5 He also testified that he thought there would be evidence on
the computer equipment because of his past training and experi-
ence and reported that training had taught him that “the person
that has done some sort of sexual act has either looked it up on a
computer or they usually maintain something within media
equipment, have videos or things [of] that sort.” He estimated that
such evidence would be found on an accused’s computer seventy to
eighty percent of the time. The military judge did not rely on this
testimony in her ruling on inevitable discovery.
9
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
child molestation and child pornography, the issuing author-
ity is able to weigh the credibility of information before de-
ciding whether to authorize the search. Id. at 551–52.
“View[ing] the facts in a common sense manner,” the CCA
determined that “an individual accused of deliberately seek-
ing out boys walking home alone and then engaging in bra-
zen, repeated attempts to entice those boys into sexual activ-
ity is likely to possess child pornography, either as a means
to gratify their desires or as an aid in those activities.” Id. at
551.
Appellant argues that none of the facts and circumstanc-
es provided to and relied upon by the search authority estab-
lished a nexus between the attempt to entice children on the
street to commit sex acts and the possession of child pornog-
raphy on his digital media. We agree.
No evidence connected Appellant’s acts to his possession
of child pornography. In place of the missing evidence, both
the military judge and the CCA found persuasive language
from an opinion by the United States Court of Appeals for
the Eighth Circuit that matches the language Special Agent
Shutt employed in her affidavit: “‘There is an intuitive rela-
tionship between acts such as child molestation or entice-
ment and possession of child pornography.’” Hoffmann, 74
M.J. at 551 (quoting Colbert, 605 F.3d at 578). The problem
with relying on Colbert is that the facts were considerably
different in that case. Colbert conversed for forty minutes
with a five-year-old girl he met in the park, telling her that
he had movies and videos in his apartment that she would
like to see. During a consent search of his vehicle, police
found handcuffs and other police-type gear. The Eighth Cir-
cuit held that, although a close case, the affidavit estab-
lished probable cause by showing a direct link between the
alleged enticement of a child and movies in his apartment,
the place searched pursuant to a search warrant. Colbert,
605 F.3d at 578. That link is not present in Appellant’s case.
Under the circumstances of Appellant’s case, the facts
before the search authority were simply not sufficient to
provide a substantial basis for concluding that there was
probable cause to believe Appellant possessed child pornog-
raphy. See Dougherty v. City of Covina, 654 F.3d 892, 898–
99 (9th Cir. 2011) (concluding that evidence of child molesta-
10
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
tion did not establish probable cause to search for child por-
nography). As Justice Sotomayor observed while serving on
the Second Circuit:
It is an inferential fallacy of ancient standing to
conclude that, because members of group A (those
who collect child pornography) are likely to be
members of group B (those attracted to children),
then group B is entirely, or even largely composed
of, members of group A. Although offenses relating
to child pornography and sexual abuse of minors
both involve the exploitation of children, that does
not compel, or even suggest, the correlation drawn
by the district court.
United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008)
(footnotes omitted) (citations omitted) (internal quotation
marks omitted). Without probable cause, the inevitable dis-
covery doctrine fails.
C. The Good Faith Exception
The exclusionary rule is “‘a judicially created remedy de-
signed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal constitu-
tional right of the party aggrieved.’” United States v. Leon,
468 U.S. 897, 906 (1984) (quoting United States v. Calandra,
414 U.S. 338, 348 (1974)). The Supreme Court has recog-
nized that the exclusionary rule “cannot be expected, and
should not be applied, to deter objectively reasonable law
enforcement activity.” Id. at 918–19. This has become known
as the good-faith exception to the exclusionary rule.
The President, exercising his authority under Article 36,
UCMJ, 10 U.S.C. § 836 (2012), promulgated a military good-
faith exception rule:
Evidence that was obtained as a result of an unlaw-
ful search or seizure may be used if:
(A) The search or seizure resulted from an authori-
zation to search, seize or apprehend issued by an
individual competent to issue the authorization
under Mil. R. Evid. 315(d) or from a search warrant
or arrest warrant issued by competent civilian au-
thority;
11
United States v. Hoffmann, No. 15-0361/MC
Opinion of the Court
(B) The individual issuing the authorization or
warrant had a substantial basis for determining
the existence of probable cause; and
(C) The officials seeking and executing the authori-
zation or warrant reasonably and with good faith
relied on the issuance of the authorization or war-
rant. Good faith shall be determined on an objective
standard.
M.R.E. 311(b)(3). 6
The military good-faith exception need not long detain us
in this case. As noted above in Part III.B., the individual is-
suing the authorization did not have a substantial basis for
determining the existence of probable cause, a requirement
for application of the good-faith exception. Thus, the military
judge abused her discretion in admitting the fruits of the
search of Appellant’s digital media.
D. Prejudice
Although the military judge abused her discretion by
admitting the child pornography evidence, we may not set
aside the finding of the court-martial “unless the error ma-
terially prejudices the substantial rights of the accused.” Ar-
ticle 59(a), UCMJ, 10 U.S.C. § 859(a) (2012). In this case, the
error was of constitutional dimension.
“A constitutional error is harmless when it appears be-
yond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Mitchell v. Esparza, 540
U.S. 12, 17–18 (2003) (internal quotation marks omitted);
see United States v. Mott, 72 M.J. 319, 332 (C.A.A.F. 2013).
To say that an error did not “contribute” to the
ensuing verdict is not, of course, to say that the ju-
ry was totally unaware of that feature of the trial
later held to have been erroneous....
To say that an error did not contribute to the
verdict is, rather, to find that error unimportant in
relation to everything else the jury considered on
the issue in question, as revealed in the record.
6 Now found at M.R.E. 311(c)(3). Exec. Order No. 13,643, 78
Fed. Reg. 29,559, 29,567 (May 21, 2013).
12
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Opinion of the Court
Yates v. Evatt, 500 U.S. 391, 403 (1991), overruled on other
grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991);
accord United States v. Paige, 67 M.J. 442, 451 (C.A.A.F.
2009). As the only evidence supporting Appellant’s convic-
tion for the wrongful possession of child pornography was
the result of an unlawful seizure and an unlawful search, it
clearly contributed to the court member’s findings.
The military judge instructed the court members that
each offense must stand on its own. They were to keep the
evidence of each offense separate, unless they determined
that it was relevant to prove more than one offense. During
his closing and rebuttal arguments on findings, the trial
counsel argued that all of the offenses, including the wrong-
ful possession of child pornography, were manifestations of
Appellant’s character: that of a predator, sexually attracted
to young boys. But the strongest evidence of this purported
character trait was the child pornography. Under the cir-
cumstances of this case, we conclude that the Government
failed to establish that the admission of those images was
unimportant in relation to the other evidence the panel
heard on the remaining offenses.
IV. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The findings and sen-
tence are set aside. Specification 2 of Charge III is dismissed
with prejudice. A rehearing is authorized.
13