This opinion is su bject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________
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 s : N icole K

. Hudspeth
and Nicholas A. Martz (On Motion)

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 atto rney) (on brief)

— Washington and Lee School of Law.

Judge STUCKY delivered the opinio n 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 du ring a consent search of Appellant’s barracks room. During the collection process

, Appellant withdrew his consen t. Ne vertheless, 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 Go vernment’s possession without it being searche d

. We granted
review to determine whether th e military judge erred in r e-

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

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2 fusing to suppress the fruit of a search of the seized media
made pu rsuant to a commander’s authorization issued four months after Appellant revoked his consent to search and
seize. 2 W e 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 so domy of a child, indecent liber ties with a child, child entic ement, 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 allo wances, and reduction to the lowest enlisted grade. The Uni ted States Navy

- Marine Corps Court of Criminal Appeals (CCA) affirmed. United States v. Hoffma n n , 74 M.J. 542, 555 (N

- M. Ct. Cr im. App. 2014).

II. Background
Appellant was taken into custody on board Camp Lejeune , North Carolina, on suspicion of committing ind ecent liberties with child ren

. Investigators alleged that he had driven around Camp Lejeune and solicited young boys
for s ex. Appella nt was advised of his right to counsel and his right to remain silent and invoked both

. Nevertheless , A ppellant 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 rete ntion 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 digita l media, Appellant withdrew his consent. Staff Sergeant A n-

2 We heard oral argument in this case at Washing ton 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 o peration of a federal court of appeals and the military justice system.United States v. Hoffmann , No. 15

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3 thony Rivera and other investigators terminated the search
but se ized the items they had previously collected. In an u ndated letter provided to the investigator s 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 i ssued 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 Shut t

, and an affidavit

, asse rt ing that she knew through her “training and experience that there is an intu itive 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 se arch
authorization related to items that had been seized as a r esult of Appellant’s consent. Nowhere did it inform the co mmander that Appellant had revoked his consent. A forensic analysis of the digital media seized revealed child pornogr aphy.

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 ha d met its bu rden and that the commander’s testimony was “overkill.” The military judge refused to continue the motions hearing to
allow the defense counsel to obtain the documents.

The mil itary judge denied the motion to suppress

, fin ding that the seizure was lawful because Appellant withdrew
his con sent 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 discov ery appl ied and that prob able cause existed to sei ze and search the computer equi pment

. The military judge gave substantial deference to the
commander as an impartial magistrate and concluded thatUnited States v. Hoffmann , No. 15

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4 the G overnment had established that the evidence was not
obtained as a result of an unlawful search or seizur e.
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 d eclined to consent to the search and se izure of his room, the investigators would have frozen the
scene and sought a search authorization

, provid ing 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 u nreasonable searches and seizures and provides that wa rrants 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.)

3 11

– 17.

S earches conducted after obtaining a warrant or author ization based on probable cause are presumptively reason able whereas warrantless searches are “ presumptively unre asonable unless they fall within ‘ a few speci fically established
and well

- delineated exceptions. ’ ” United States v. Wicks , 73 M.J. 93, 99 (C.A.A.F. 2014 ) (quot ing 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 “ o ne of the specifically established exceptions to the requirements of both a warrant and probable cause .”
Schneckloth v. Bustamont e, 412 U.S. 218, 219 (1973) ; see M.R.E. 314(e)

. “Property ... may be seized with consent co nsistent 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 su ppress evidence for an abuse of discretion , viewing the ev idence in the light most favorable to the party prevailing b elow

. United States v. Keefauver

, 7 4 M.J. 2 30 , 2 33 (C.A.A.F.

20 15). That means we review the military judge’s findings of
fact for c lear error but her conclusions of law de novo. Id.United States v. Hoffmann , No. 15

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5 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 , 7 1 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 possesso ry interest in that property.”

“A ‘seizure’ of property occurs when there is some mea ningful 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 t erm “ mea ningful interference

, ” the Supreme Court must have “conte mplated excluding inconsequential interference with an ind ividual’s possessory interests.” United States v. Va Lerie , 42 4 F.3d 694, 706 (8th Cir. 2005) (en banc) . It must be more than
a techn ical 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 Ci r. 1988) (agents removed checked luggage from baggage conveyor belt, compressed sides of luggage several times, smelled marijuana, then su bjected luggage to a dog sniff was not seizure). A seizure r equire s 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 interfere nce” ); Hudson v. Pal me r, 468 U.S. 517, 544 (1984) (completely destroying the pro per ty 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
seiz ure of the media occurred after Appellant had wit hdrawn his consent, the seizure violated the Fourth Amen dmen t.United States v. Hoffmann , No. 15

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6 B

. Inevitable Discovery and the Search Authorization

Normally, the fruits of a search or seizure that violates
the Fourth Amendment are inadmis sible. 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). Notwithstan ding the in validity of the seizure of the digital media

, the i nevitable discovery doctrine provides an exception to the e xclusionary rule , “allowing admission of evidence that, although obtained improperly, would have been obtained by
another lawful means.” United States v. Walla ce , 66 M.J. 5, 10 (C.A.A.F. 2008) ; see Nix v. Will i a ms , 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 le d 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 A ppellant 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 A ppellant’s barracks room and pursued a command authoriz ation based on probable cause is unjustified. Freezing t he 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 Gover nment has not argued and the record does not contain any exigent circumstance s jus tifying freezing the scene

. More over, 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.United States v. Hoffmann , No. 15

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7 Several months after seizing the digital media, investig ators sought and obtained command authorization to sea r ch the digital media for child pornography. If supported by probable cause known to the investigators at the time of the
seizure and otherwise va lid, the search authorization could overcome the fact that the digital media on which child po rnography was found was seized illegally.

An impartial commander “w ho has control over the place where the property ... to be searched is situated” is autho rized 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 official that would not preclude th e official from acti ng 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 per son to be searched. ” M.R.E.

315 (f)(2). A valid search authorization req uires the impartial authorizing official to “make a practical, common

- sense dec ision whether, given all the circumstances set forth in the a ffidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, the re 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) (p robable cause to search “exist[s]
where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that co ntraband or evidence of a crime will be found” in a particular place )

. “‘In dealing with prob able cause, ... as the very name i mplies, 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 techn icians, act.’” Gates , 462 U.S. at 231 (quo ting Brinegar v. Uni ted States , 338 U.S. 160, 175 (1949)) ; see Cowgill , 68 M.J. at

393

. The authorizing official is free to draw “reasonable i nferences” from the material supplied by those applying for the authority to search. Gates , 462 U.S. at 240.United States v. Hoffmann , No. 15

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8 We do not review a probable cause determination de n ovo. Instead, our duty is to make sure that the authorizing
official ha d a “ substantial basis ” for concluding that probable
cause existed. United States v. Huntzinger , 69 M.J. 1, 7 (C.A.A.F. 2010) ( quoting Gat es , 462 U.S. at 238

– 39 ). “Sufficient information must be presented to the magistrate to a llow that official to determine probable cause; his action ca nnot 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 a uthorization detailed the affiant investigator’s credentials and experience in forensic digital media collection and conduc ting investigations into child explo itation via the Internet. The affidavit detailed facts and circumstances leading to Appellant’s apprehension: one of three boys who had co mplained about being solicited on the street for sex had ident ified Appellant’s vehicle and Appellant as the perpetrat or ; and a nother victim had described a truck similar to Appe llant’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 porno graphy there was evidence of solicitation. The search autho rity 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 advise d the search authority : (1) that a GPS tracking device had be en placed on Appe llant’s vehicle but had not produced any information of ev identiary value; (2) that she had not determined whether Appellant had Internet access in his room; (3) that the I nternet Crimes Against Children Taskforce had no info r-

3 It appears the affiant failed to advise the search authority that this victim identified Appellant with only fifty percent ce rtainty. The affiant also advised the search authority or ally that, in a “photographic lineup,” a third victim had been unable to identify Appellant as the perpetrator. She failed to inform the search a uthority that, in fact, this victim had identified someone other than Appellant.

4 Regardless, the relevant st atistic would have related whet her there was any evidence that persons who solicited minors for sex were likely to have child pornography, not vice versa.United States v. Hoffmann , No. 15

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9 mation on App ellant ’s screen name ; (4) a criminal bac kground check on Appellant was negative; and (5) no relevant information was revealed from canvassing Appellant’s a cquaintances.

The investigator then concluded:

As this affiant knows through training and e xperien ce that there is an intuitive relationship b etween acts such as enticement or child molestation and the possession of child pornography, this Affiant believes there is probable cause to believe ev idence of the sexual exploitation of children by
means of th e receipt and possession of child po rnography ... is present with in [the seized digital media].

The military judge’s inevitable discovery ruling was based on the following: (1) testimony of Staff Sergeant A nthony 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 rel ationship between acts such as enticement or child molest ation and the possession of child pornography’” ; (3) the search authority’s testimony concerning his discussion of the ev idence and his decision to grant the search authorization; (4) United State s v. Colbert , 605 F.3d 573, 57 8 (8th Cir. 2010); and (5) the substantial deference to which a search authority is entitle d in determining probable cause

. The CCA, noting that this was a case of first impression in the military, surveyed case law from the f ederal 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 exper ience 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 s ort.” 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.United States v. Hoffmann , No. 15

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10 child molestation and child pornography, the issuing autho rity is able to weigh the credibility of information before d eciding 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 see king out boys walking home alone and then engaging in br azen, repeated attempts to entice those boys into sexual acti vity 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 circumstan ces pro vided to and relied upon by the search authority esta blish ed a nexus between the attempt to entice children on the street to commit sex acts and the possession of child porno graphy on his digital media. We agree.

N o evidence connected Appellant’s acts to his possession of child pornography. In place of the missing evidence, b oth the military judge and the CCA found persuasive language from an opinion by the United States Court of A ppeals for the Eighth Circuit that match es the language Special Agent
S hu tt employed in her affidavit : “‘ There is an intuitive rel ationship between acts such as child molestation or entic ement 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 apartme nt that she would
like to see. During a consent search of his vehicle, police found handcuffs and other police

- type gear. The Eighth Ci rcuit held that, although a close case, the affidavit esta blished probable cause by showing a direct link between the alleged enticement of a child and movies in his apartment

, th e 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 , t h e facts
before the search authority were simply not sufficient to provide a substantial ba sis for concluding that there was probable cause to believe Appellant possessed child porno graphy

. See Dougherty v. City of Covina , 654 F.3d 892, 898

– 99 (9th Cir. 2011) (concluding that evidence of child molest a-United States v. Hoffmann , No. 15

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11 tion did not establish probable cause to sear ch for child po rnography). As Justice Sotomayor observed while serving on
the Second Circuit :
It is an inferential fallacy of ancient standing to
conclude t hat, because members of group A (those who collect child pornography) are likely to be members of gr oup 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 e ven 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 di scovery doctrine fails.

C. The Good Faith Exception

The exclusionary rule is “‘ a judicially created remedy d esigned to safeguard Fourth Amendment rights generally
thr ough its deterrent effect, rather than a personal constit utional right of the p arty aggrieved. ’ ” United States v. Leon

, 468 U.S. 897, 906 (1984) (quoting United States v. C a l andra

, 414 U.S. 338 , 348 (1974) ). The Supreme C ourt has reco gnized that the exclusionary rule “ cannot be expected, and should not be applied, to deter objectively reasonable law
enforcement activi ty. ” 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 ex ception rule:

Evidence that was obtained as a result of an unla wful search or seizure may be used if:

(A) The search or seizure resulted from an author ization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a s earch warrant or arrest warrant issued by competent civilian a uthority;United States v. Hoffmann , No. 15

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12 (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 author ization or warrant reasonably and with good faith
relied on the issuance of the authorization or wa rrant. 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 i ssuing 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 h er discretion in admitting the fruits of the search of Appellant’s digital media.

D. Prejudice

Although the military judge abused her discretion by
admi tting the child pornography evidence

, we may not set aside the finding of the court

- martial “unless the er ror m aterially prejudices the substantial rights of the accused.” A rticle 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 b eyond a reasonable doubt that t he error complained of did not
contribute to the verdict obtained. ” Mitchell v. Esparza , 540 U.S. 12, 17

– 18 (2003) (internal quotation mar ks omitted ) ; see United States v. Mott , 72 M.J. 319, 332 (C.A.A.F. 2013).

To say that an error did not “contribute” t o the ensuing verdict is not, of course, to say that the j ury 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
rela tion 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).United States v. Hoffmann , No. 15

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13 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 convi ction for the wrongful possession of child pornography was
the result of an unlawful seiz ure 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 o wn. 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 argume nts on findings , the trial
counsel argued that all of the offenses , including the wron gful possession of child pornography, were manifesta tions of Appellant’s character: that of a predator, sexually attracted to young boys

. But the strongest evidence of th is purported
character trait was the child pornography. Under the ci rcumstances of this case, we conclude that the G overnment failed to establish that the admission of those images was unimportant in relation to the other evidence the panel
heard on the re maining offenses

. IV. Judgment

The judgment of the United States Navy

- Marine Corps Court of Criminal Appeals is reversed

. The findings and se ntence are set aside. Specification 2 of Charge III is dismissed with prejudice. A rehearing is authorized.