Almost exactly a year ago, on February 18, 2016 the Court of Appeals for the Armed Forces (CAAF) overturned a Navy-Marine Court of Criminal Appeals (NMCCA) decision in United States v. Hoffman based on an improper search and seizure. In that case, Corporal Hoffman was being investigated for driving around Camp Lejeune, North Carolina soliciting young boys to have sex. Corporal Hoffman’s commander authorized a search of his electronic items based on probable cause and child pornography was found. The commander’s probable cause was based on an investigator’s opinion that there is usually an “intuitive relationship” between a person who solicits young boys and the possession of child pornography. Among other offenses, Corporal Hoffman was convicted of possessing child pornography based on what was found during the search. On appeal, the NMCCA upheld the military judge’s decision to allow the admission of evidence. However, CAAF overturned this ruling stating that there was no “intuitive relationship” between solicitation and possession of child pornography and that the commander therefore failed to establish probable cause.
Now a year later, on February 21, 2017, CAAF has overturned another case based on similar circumstances. In United States v. Nieto, an Army specialist was accused of taking videos and photographs on his cellular phone of other soldiers using the bathroom while deployed in Afghanistan. The Army investigator seized SPC Nieto’s cellular phone and also his computer stating that “in his experience” individuals who film acts on their cellular phones often back them up on their computers. Incriminating evidence was found on SPC Nieto’s computer, but not on his cellular phone. The defense counsel representing SPC Nieto at his court-martial moved to have the evidence found on the computer suppressed based on an improper search and seizure. However, the motion was denied by the military judge. He was later convicted of charges based on what was found on his computer. While SPC Nieto pled guilty to the offenses, he entered into a “conditional plea” preserving the issue of the improper search and seizure for appeal. Specialist Nieto then appealed to the Army Court of Criminal Appeals (ACCA) based on the improper search and seizure and he received no relief. However, SPC Nieto was successful at CAAF. Like in Hoffman, CAAF ruled that the investigator failed to adequately show a nexus between recording on a cellular phone and saving the recordings to a computer. An investigator simply cannot establish probable cause by relying on “his experience.” These cases show that CAAF does not always agree with the military judge’s decisions at a court-martial nor the decisions of the service appellate courts. Depending on the issues in your appeal, it may be worth taking it to the highest military court. Search and seizure issues are complex. You should never consent to a search without consulting an attorney. Also you need an experienced attorney by your side who knows how to make the right motions at your court-martial, preserve your issues for appeal and appeal the right issues to the appellate courts. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.