Knowing when to revoke consent to a search - court of appeals for the armed forces overturns conviction in Hoffman

Yesterday, the Court of Appeals for the Armed Forces overturned a conviction in a case that a friend of the firm - and talented trial attorney - litigated at trial. The case was US v. Hoffman. You can read the opinion here.

It is refreshing to see CAAF reverse a conviction because of an illegal search and seizure.

The facts were simple. Hoffman was accused of soliciting young males for sex. He was taken into custody and invoked his right against self-incrimination. While in custody, he consented to a search of his barracks room for electronic evidence. Investigators began collecting evidence. While they were collecting evidence, Hoffman revoked his consent to the search. The investigators terminated the search but kept the items they had already collected. Four months later the battalion commander issued a warrant authorizing the previously seized items.

The 4th Amendment protects all Americans from illegal searches and seizures. Over the years, the 4th Amendment has become fairly diluted by multiple exceptions to the rule. In Hoffman, the exception at issue was the inevitable discovery rule. This is the idea that courts will not suppress evidence that the government was supposedly going to eventually find legally. In Hoffman, the trial judge and Navy and Marine Corps Court of Criminal Appeals both held that the inevitable discovery rule applied. In other words, the military judge refused to suppress the evidence because she figured the government would have eventually obtained it legally anyways. So the government got a free pass for violating the 4th Amendment.

The court gave a very nice summary of the scope of consent. They wrote:

"The scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time.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)...

“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 the 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”)."

On the topic of inevitable discovery, the court wrote:

"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 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."

On the topic of probable cause, the court said:

"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.

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 case provides a nice lesson on the law. It also provides a word to the wise - you can still withdraw your consent to search after the search is initiated.
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