U.S. v. Hoffmann, 75 M.J. 120

First Principles: Constitutional Matters: Generally

1. where the error by the military judge in admitting evidence on the merits was of constitutional dimension, the error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; 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

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause; the military has implemented the Fourth Amendment through MREs 311–17
2. in this case, where government investigators collected electronic media during a consent search of appellant’s room, appellant withdrew his consent while the media were still sitting in his room; although 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did not meaningfully interfere with it until they removed it; as the seizure of the media occurred after appellant had withdrawn his consent, the seizure violated the Fourth Amendment
3. 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

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. the Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause; the military has implemented the Fourth Amendment through MREs 311–17
2. a seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property; the term ‘meaningful interference’ contemplates excluding inconsequential interference with an individual’s possessory interests; it must be more than a technical trespass; a seizure requires law enforcement agents to exercise a fair degree of dominion and control over the property
3. freezing the scene to procure a command authorization requires probable cause or exigent circumstances

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. 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; property may be seized with consent consistent with the requirements applicable to consensual searches under MRE 314; the government bears the burden of showing the applicability of the exception
2. the scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time
3. in this case, where government investigators collected electronic media during a consent search of appellant’s room, appellant withdrew his consent while the media were still sitting in his room; although 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

Core Criminal Law Subjects: Evidence: Search and Seizure › Exclusionary rule

1. 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; the exclusionary rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity; this has become known as the good-faith exception to the exclusionary rule

Core Criminal Law Subjects: Evidence: Search and Seizure › Good faith exception

1. 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; the exclusionary rule cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity; this has become known as the good-faith exception to the exclusionary rule
2. the military good-faith exception rule, found in MRE 311, provides that evidence that was obtained as a result of an unlawful search or seizure may be used if: (1) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under MRE 315(d) or from a search warrant or arrest warrant issued by competent civilian authority, (2) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause, and (3) 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 is to be determined on an objective standard
3. in this case, where 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 was missing, and consequently, the good-faith exception could not be used to justify the search and seizure

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. normally, the fruits of a search or seizure that violates the Fourth Amendment are inadmissible; notwithstanding the invalidity of a seizure, however, 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
2. to take advantage of the inevitable discovery 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
3. in this case, 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 child pornography images on digital media in appellant’s barracks room 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; the government did not argue and the record did not contain any exigent circumstances justifying freezing the scene; moreover, 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; the government failed to establish a nexus between appellant’s alleged attempt to entice children on the street to commit sex acts and the possession of child pornography on his digital media; under the circumstances of this case, there was no direct link shown between acts such as child molestation or enticement and possession of child pornography; consequently, there were insufficient facts to provide a substantial basis for concluding that there was probable cause to believe appellant possessed child pornography; without probable cause, the inevitable discovery doctrine failed

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable
2. an impartial commander who has control over the place where the property to be searched is situated is authorized to issue a search authorization, based upon probable cause; 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, there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched; 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; in dealing with probable cause, as the very name implies, probabilities are deal with; these are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act; the authorizing official is free to draw reasonable inferences from the material supplied by those applying for the authority to search

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable
2. warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. to take advantage of the inevitable discovery 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

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Consent to search

1. 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; property may be seized with consent consistent with the requirements applicable to consensual searches under MRE 314; the government bears the burden of showing the applicability of the exception

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where a military judge abuses her discretion by erroneously admitting evidence on the merits, an appellate court may not set aside the finding of the court-martial unless the error materially prejudices the substantial rights of the accused
2. where the error by the military judge in admitting evidence on the merits was of constitutional dimension, the error is harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; 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
3. in this case, 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; in addition, although the military judge instructed the court members that each offense must stand on its own, 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 as that of a predator, sexually attracted to young boys and that the strongest evidence of this purported character trait was the child pornography; under such circumstances, 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews 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; that means that an appellate court reviews the military judge’s findings of fact for clear error but her conclusions of law de novo
2. an appellate court does not review a probable cause determination de novo; instead, its duty is to make sure that the authorizing official had a substantial basis for concluding that probable cause existed; 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