Court of Appeals for the Armed Forces overturns appellant’s conviction of child pornography based on an unlawful search and seizure.

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.  In this case, Corporal Hoffman was being investigated for driving around Camp Lejeune, North Carolina soliciting young boys to have sex.  After Corporal Hoffman was taken into custody, he invoked his right to silence and his right to an attorney.  However, Corporal Hoffman consented to the investigators searching his barracks room and seizing what they found.  While the investigators were in the middle of searching Corporal Hoffman’s room, they began collecting his computer and other electronic items.  At that point, Corporal Hoffman withdrew his consent to the search and seizure.  The investigators stopped searching, but took the items they had already picked up.  Later, Corporal Hoffman’s commander authorized a search of the 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.  In other words, the commander used the solicitation allegations as the probable cause that Corporal Hoffman possessed child pornography.  Corporal Hoffman was later charged at a court martial with the allegations relating to the solicitations as well as possessing child pornography.  The defense counsel objected to the admission of the child pornography found during this search by filing a motion to suppress at the court martial.  Despite the objection, the military judge allowed the evidence to come in.  Corporal Hoffman was convicted of possessing child pornography among other offenses.  On appeal, the NMCCA upheld the military judge’s decision to allow the admission of evidence.  However, CAAF overturned this ruling stating that the seizure was improper because Corporal Hoffman had validly withdrawn his consent.  Additionally, CAAF ruled that the “intuitive relationship” between solicitation and possession of child pornography in this case was just simply not present.  There was no sufficient link between the two as has been found in other cases, therefore, CAAF found there was no probable cause to search Corporal Hoffman’s devices.  CAAF dismissed one of the specifications with prejudice and set aside the other findings and sentence.  This case shows that CAAF is more than willing to overturn judge’s decisions as well as the decisions of their lower courts.  So depending on the issues in your appeal, it may be worth taking it to the highest military court.  Also, this case provides a good lesson.  If you are a suspect always invoke your right to silence and your right to an attorney.  Also, do not consent to a search without consulting an attorney!  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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