U.S. v. Nieto, 76 M.J. 101

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge abused his discretion in denying appellant’s motion to suppress evidence from a seized laptop, where there was an insufficient particularized nexus linking appellant’s alleged use of his cell phone in taking indecent photos of other servicemembers in a latrine to his laptop; the military magistrate who authorized the seizure of the laptop lacked a substantial basis for concluding that probable cause existed to seize it, where the information provided by the special agent to the magistrate did not independently establish a particularized nexus between (a) the crime appellant was alleged to have committed with his cell phone in the latrine and (b) the laptop that was previously seen by somebody on appellant’s bunk; the special agent’s generalized profile about how servicemembers normally stored images was technologically outdated, affidavits accompanying the search authorization did not reference a laptop or data transfers from appellant’s cell phone, and there was no direct evidence that images were on the laptop or evidence that the files on the cell phone were transferable to the laptop; in addition, the special agent made no proffer to the military magistrate that anyone had ever seen appellant download material from his cell phone to a laptop; in fact, even appellant’s ownership of the laptop in question was predicated on suspect information and credited to an unknown source; as such, the military magistrate could not have drawn any reasonable inferences linking the crime and the laptop based on the limited information and generalized profile offered by the special agent; therefore, the military magistrate did not have a substantial basis for concluding that probable cause existed to seize appellant’s laptop; in order to identify a substantial basis for concluding that probable cause existed to believe that appellant’s laptop was linked to the crime, at a minimum, there needed to be some additional showing, such as the fact that appellant actually downloaded images (illicit or otherwise) from his cell phone to his laptop, stored images on his laptop, or transmitted images from his laptop; and yet, there was no such showing in this case; therefore, there was no basis, substantial or otherwise, for the military magistrate to conclude that probable cause existed to seize the laptop

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

1. the Fourth Amendment is predicated on the right of the people to be secure in their persons, houses, papers, and effects; it safeguards against unreasonable searches and seizures and requires warrants to be supported by probable cause; the military has implemented the Fourth Amendment through MREs 311–17; these rules reflect the limits which military society, speaking through its Commander-in-Chief, is willing to place upon the protections afforded under the Fourth Amendment in a military context; an appellate court is ordinarily bound by the MREs

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

1. if a military magistrate did not have a substantial basis to find probable cause in a specific case, an appellate court ordinarily applies the exclusionary rule; however, there are exceptions to this rule, including the inevitable discovery doctrine and the good-faith doctrine

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

1. for the good-faith doctrine to apply, the government must establish that law enforcement’s reliance on a defective authorization is objectively reasonable; in the military, the good-faith doctrine applies if (1) the seizure resulted from a search and seizure authorization issued, in relevant part, by a military magistrate, (2) the military magistrate had a substantial basis for determining probable cause existed, and (3) law enforcement reasonably and in good faith relied on the authorization
2. in order for the government to prevail under the good faith or inevitable discovery doctrine, it has the burden of establishing both doctrines by a preponderance of the evidence
3. in this case, the government did not meet its burden of establishing the good-faith doctrine, where the magistrate did not have a substantial basis for determining the existence of probable cause and law enforcement’s reliance on this defective authorization was not objectively reasonable

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

1. for the inevitable discovery doctrine to apply, the government 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
2. in order for the government to prevail under the good faith or inevitable discovery doctrine, it has the burden of establishing both doctrines by a preponderance of the evidence
3. in this case, the government did not meet its burden of establishing the inevitable discovery doctrine, where the government failed to identify any evidence that law enforcement possessed, or was actively pursuing at the time of the seizure, that would have made the lawful discovery of the laptop evidence inevitable

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

1. the MREs provide that when a seizure is made pursuant to a search authorization, the search authorization must be based upon probable cause; probable cause to seize exists if there is a reasonable belief that the property or evidence is … evidence of crime; probable cause determinations are inherently contextual, dependent upon the specific circumstances presented as well as on the evidence itself, and probable cause is founded … upon the overall effect or weight of all factors presented to the magistrate; stated differently, in order for there to be probable cause, a sufficient nexus must be shown to exist between the alleged crime and the specific item to be seized; the question of nexus focuses on whether there was a fair probability that contraband or evidence of a crime will be found in a particular place; a nexus may be inferred from the facts and circumstances of a particular case, including the type of crime, the nature of the items sought, and reasonable inferences about where evidence is likely to be kept
2. in order to establish probable cause to search, a law enforcement officer’s professional experience may be useful in establishing a nexus between the alleged crime and the specific item to be seized; however, a law enforcement officer’s generalized profile about how people normally act in certain circumstances does not, standing alone, provide a substantial basis to find probable cause to search and seize an item in a particular case; there must be some additional showing that the accused fit that profile or that the accused engaged in such conduct; while courts have relied on such profiles to inform search determinations, a law enforcement officer’s profile alone without specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search or seize
3. in this case, the military judge abused his discretion in denying appellant’s motion to suppress evidence from a seized laptop, where there was an insufficient particularized nexus linking appellant’s alleged use of his cell phone in taking indecent photos of other servicemembers in a latrine to his laptop; the military magistrate who authorized the seizure of the laptop lacked a substantial basis for concluding that probable cause existed to seize it, where the information provided by the special agent to the magistrate did not independently establish a particularized nexus between (a) the crime appellant was alleged to have committed with his cell phone in the latrine and (b) the laptop that was previously seen by somebody on appellant’s bunk; the special agent’s generalized profile about how servicemembers normally stored images was technologically outdated, affidavits accompanying the search authorization did not reference a laptop or data transfers from appellant’s cell phone, and there was no direct evidence that images were on the laptop or evidence that the files on the cell phone were transferable to the laptop; in addition, the special agent made no proffer to the military magistrate that anyone had ever seen appellant download material from his cell phone to a laptop; in fact, even appellant’s ownership of the laptop in question was predicated on suspect information and credited to an unknown source; as such, the military magistrate could not have drawn any reasonable inferences linking the crime and the laptop based on the limited information and generalized profile offered by the special agent; therefore, the military magistrate did not have a substantial basis for concluding that probable cause existed to seize appellant’s laptop; in order to identify a substantial basis for concluding that probable cause existed to believe that appellant’s laptop was linked to the crime, at a minimum, there needed to be some additional showing, such as the fact that appellant actually downloaded images (illicit or otherwise) from his cell phone to his laptop, stored images on his laptop, or transmitted images from his laptop; and yet, there was no such showing in this case; therefore, there was no basis, substantial or otherwise, for the military magistrate to conclude that probable cause existed to seize the laptop
4. there is not a heightened standard for probable cause or requiring direct evidence to establish a nexus in cases where technology plays a key role has not been created; rather, the traditional standard that a nexus may be inferred from the facts and circumstances of a particular case, still holds in cases involving technological devices such as cell phones and laptops

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

1. the MREs provide that when a seizure is made pursuant to a search authorization, the search authorization must be based upon probable cause

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

1. in order for the government to prevail under the good faith or inevitable discovery doctrine, it has the burden of establishing both doctrines by a preponderance of the evidence

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

1. an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion
2. when reviewing a military magistrate’s issuance of a search authorization, an appellate court does not review the military magistrate’s probable cause determination de novo; instead, it examines whether a military magistrate had a substantial basis for concluding that probable cause existed; a substantial basis exists when, based on the totality of the circumstances, a common-sense judgment would lead to the conclusion that there is a fair probability that evidence of a crime will be found at the identified location
3. an appellate court gives great deference to a magistrate’s probable cause determination because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; however, this deference is not boundless, and a reviewing court may conclude that the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances; however, if a military magistrate has a substantial basis to find probable cause, a military judge does not abuse his discretion in denying a motion to suppress
4. an appellate court is ordinarily bound by the MREs