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 attorney) (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 during a consent search of Appellant’s barracks room. During 

the collection process, Appellant withdrew his consent. Nevertheless, 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 Government’s possession without it being searched. We granted 

review to determine whether the military judge erred in refusing 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

2

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 sodomy of a child, indecent liberties with a child, child enticement, 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 allowances, and reduction to the lowest enlisted grade. The United 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 indecent 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, Appellant 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 retention 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 Anthony 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.
United States v. Hoffmann, No. 15-0361/MC

Opinion of the Court

3

but seized the items they had previously collected. In an undated 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 issued 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 intuitive 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 result of Appellant’s consent. Nowhere did it inform the commander that Appellant had revoked his consent. A forensic 

analysis of the digital media seized revealed child pornography.

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 burden 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 withdrew 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 
United States v. Hoffmann, No. 15-0361/MC

Opinion of the Court

4

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 seizure 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 unreasonable searches and seizures and provides that warrants 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 authorization based on probable cause are presumptively reasonable whereas warrantless searches are “presumptively unreasonable 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 consistent 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 suppress evidence for an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below. 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.
United States v. Hoffmann, No. 15-0361/MC

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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, 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 meaningful 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 “meaningful interference,” the Supreme Court must have “contemplated excluding inconsequential interference with an individual’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 subjected luggage to a dog sniff was not seizure). A seizure requires 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. Palmer, 468 U.S. 517, 544 (1984) (completely destroying the property 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 withdrawn his consent, the seizure violated the Fourth Amendment.
United States v. Hoffmann, No. 15-0361/MC

Opinion of the Court

6

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). Notwithstanding the invalidity of the seizure of the digital media, the inevitable discovery doctrine provides an exception to the exclusionary 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 Appellant 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 Appellant’s barracks room and pursued a command authorization 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 Government has not argued and the record does not contain any 

exigent circumstances justifying freezing the scene. Moreover, 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. 15-0361/MC

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7

Several months after seizing the digital media, investigators 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 pornography was found was seized illegally.

An impartial commander “who has control over the place 

where the property ... to be searched is situated” is authorized 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 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 decision whether, given all the circumstances set forth in the affidavit 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 contraband or evidence of a crime will be found” in a particular 

place).

“‘In dealing with probable cause, ... as the very name implies, 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 technicians, act.’” Gates, 462 U.S. at 231 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); see Cowgill, 68 M.J. at 

393. The authorizing official is free to draw “reasonable inferences” from the material supplied by those applying for 

the authority to search. Gates, 462 U.S. at 240.
United States v. Hoffmann, No. 15-0361/MC

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8

We do not review a probable cause determination de novo. 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). “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot 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 authorization detailed the affiant investigator’s credentials and 

experience in forensic digital media collection and conducting investigations into child exploitation via the Internet. 

The affidavit detailed facts and circumstances leading to 

Appellant’s apprehension: one of three boys who had complained about being solicited on the street for sex had identified Appellant’s vehicle and Appellant as the perpetrator;

and another victim had described a truck similar to Appellant’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 pornography there was evidence of solicitation. The search authority 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 Appellant’s vehicle but had not produced any information of evidentiary value; (2) that she had not determined whether 

Appellant had Internet access in his room; (3) that the Internet 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 certainty. 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 authority that, in fact, this victim had identified someone other than 

Appellant. 

4 Regardless, the relevant statistic would have related whether 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. 15-0361/MC

Opinion of the Court

9

mation on Appellant’s screen name; (4) a criminal background check on Appellant was negative; and (5) no relevant 

information was revealed from canvassing Appellant’s acquaintances. 

The investigator then concluded: 

As this affiant knows through training and experience that there is an intuitive relationship between acts such as enticement or child molestation 

and the possession of child pornography, this Affiant believes there is probable cause to believe evidence of the sexual exploitation of children by 

means of the receipt and possession of child pornography ... is present within [the seized digital 

media].

The military judge’s inevitable discovery ruling was 

based on the following: (1) testimony of Staff Sergeant Anthony 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 relationship between acts such as enticement or child molestation and the possession of child pornography’”; (3) the search 

authority’s testimony concerning his discussion of the evidence 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 experience 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. 
United States v. Hoffmann, No. 15-0361/MC

Opinion of the Court

10

child molestation and child pornography, the issuing authority is able to weigh the credibility of information before deciding 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 seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity 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 circumstances provided to and relied upon by the search authority established a nexus between the attempt to entice children on the 

street to commit sex acts and the possession of child pornography 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 relationship between acts such as child molestation or enticement 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 Circuit held that, although a close case, the affidavit established 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 pornography. See Dougherty v. City of Covina, 654 F.3d 892, 898–

99 (9th Cir. 2011) (concluding that evidence of child molesta-
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Opinion of the Court

11

tion did not establish probable cause to search for child pornography). 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 discovery doctrine fails.

C. The Good Faith Exception

The exclusionary rule is “‘a judicially created remedy designed to safeguard Fourth Amendment rights generally 

through its deterrent effect, rather than a personal constitutional 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 recognized 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 goodfaith exception rule:

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

(A) The search or seizure resulted from an authorization 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 authority;
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Opinion of the Court

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 authorization or warrant reasonably and with good faith 

relied on the issuance of the authorization or warrant. 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 issuing 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 materially prejudices the substantial rights of the accused.” Article 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 beyond 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 jury 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).
United States v. Hoffmann, No. 15-0361/MC

Opinion of the Court

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 conviction 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 wrongful 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 circumstances 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 sentence are set aside. Specification 2 of Charge III is dismissed 

with prejudice. A rehearing is authorized.