NCIS received a local inquiry about a man who had just solicited a child who just got off a school bus for sex. They had a description and license number. That same description (apparently without the LPN) was tied to similar occurrences in the same area. Officers went to defendant’s base housing and asked for and got permission to search for evidence of “indecent liberties.” When they removed a CD-Rom and thumb drive from his desk drawer and touched his laptop, he withdrew consent. They seized them and applied for a search warrant, which was granted. Based on the officer’s experience, defendant’s alleged actions were probable cause to search his electronic media for evidence of child pornography because there was a “common-sense” inference and link between his actions that day and viewing likely child pornography. United States v. Hoffmann, 2014 CCA LEXIS 883 (N.-M. Ct. Crim. App. December 11, 2014), review granted 2015 CAAF LEXIS 369 (C.A. A.F. April 28, 2015):
Regarding the determination of probable cause to seize the appellant’s laptop, Agent Rivera was “very aware” of the previous allegations that an individual matching the appellant’s description, in a vehicle similar to the appellant’s, was driving slowly through base housing shortly after the local school children were released and propositioning young boys to engage in sexual activity. The record also indicates that the following information was either known to or easily discovered by Agent Rivera: (1) AL described the individual as a slim white male with no facial hair and short blond hair; (2) AL described the vehicle as a white, four-door SUV with a wheel on the back with a cover over the wheel; (3) PM described the vehicle as a silver SUV with a wheel on the back and a yellow and black license plate; (4) PM described the driver as a white male with short hair; (5) the appellant had fled housing at a high rate of speed while being chased by AL’s mother after AL had identified the appellant’s vehicle; (5) at the same time, PM’s mother had seen the appellant’s vehicle in the neighborhood and immediately contacted base security. In fact, PM’s mother was on the phone with base security when she watched the appellant speed by with AL’s mother in pursuit; (6) the vehicle pursued had a distinctive license plate that, in the midst of the pursuit, AL had written down exactly, with the exception of one letter; and (7) in his barracks room, the appellant possessed several items capable of storing electronic media. Additionally, the appellant was a Caucasian male who owned a silver, four-door SUV with a wheel attached to the back and a cover over that wheel; the appellant’s SUV had New York plates, which were yellow and black in color; and the appellant was in the vicinity of local schools at the hours when the children were walking home. In addition to this information, Agent Rivera testified that, in his 40 months of handling sex crimes, 70-80 percent of those cases involved “electronic evidence.” Finally, based upon his “training and experience,” the agent opined that “[y]ou don’t go directly to soliciting children … without doing some type of researching or inquiring about it with media equipment.”
Under these facts, we conclude that Agent Rivera would have provided the available information to the Commander with a request for authorization to seize and search the appellant’s laptop. See Weston, 66 M.J. at 553 (finding it unreasonable to conclude that experienced agent would not have “applied her superior knowledge and experience in using the existing and available resources … to quickly obtain a search authorization”).
We also conclude that the quantum of information available to Agent Rivera was sufficient to establish probable cause to seize the appellant’s laptop. Probable cause is a reasonable belief that “requires more than bare suspicion, but something less than a preponderance of the evidence.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007); see also Mil. R. Evid. 315(f)(2). Probable cause is evaluated under the “totality of the circumstances” and is a “practical, common-sense decision whether, given all the circumstances … there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Leedy, 65 M.J. at 212-13 (citations and internal quotation marks omitted). “A probable cause determination merely requires that a person ‘of reasonable caution’ could believe that the search may reveal evidence of a crime; ‘it does not demand any showing that such a belief be correct or more likely true than false.'” United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).
It is appropriate for those seeking authorization to search and seize evidence to utilize their training and experience to “shed important light on the facts presented.” Leedy, 65 M.J. at 216. Agent Rivera’s training and experience led him to what we believe is a conclusion supported by “common-sense,” namely that those who attempt to locate and then engage in sexual activity with children frequently first conduct some type of computer-based research. Under these facts, where the appellant was accused of multiple brazen attempts to engage in sexual activity with several different boys in several different locations, it is entirely reasonable to conclude that the appellant’s laptop would contain evidence of the alleged crimes, such as evidence of internet searches regarding the location of schools, school release times, or base housing maps. Therefore, under these circumstances, we conclude that probable cause to seize the appellant’s laptop existed and that Agent Rivera would have obtained a command authorization to search and seize the laptop. Thus, the seizure of the laptop was inevitable. Once seized, SA Shutt secured command authorization to search the laptop for child pornography, requiring that we next analyze the validity of that authorization.
. . .
The Affiant knows from training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography. Child pornography is in many cases simply an electronic record of child molestation. For individuals seeking to obtain sexual gratification by abusing children, possession of child pornography may be a logical precursor to physical interaction with a child and an individual who is sexually interested in children is likely to be predisposed to searching for and receiving child pornography. Additionally, individuals sexually interested in children frequently use child pornography to reduce the inhibitions of those children. Computers have revolutionized the way in which those sources and users interact. Computers and Internet connections are readily available and are tools of the trade for individuals wishing to exploit children and have greatly changed and added to the way in which child pornography is disseminated, collected, and viewed. The relative ease with which child pornography may be obtained on the Internet might make it a simpler and less detectable way of satisfying pedophilic desires.
. . .
The affidavit also set forth that SA Shutt joined NCIS in 2006 and possessed the following relevant credentials: certified member of the Internet Crimes Against Children (ICAC) task force (a national program dedicated to investigations of child exploitation via the Internet); Defense Computer Forensic Laboratory certified Digital Medial Collector; ICAC certified Peer 2 Peer and undercover chat investigator; had received advanced training in child sexual abuse investigations; and was an NCIS Field Training Agent. SA Shutt also holds a Bachelor of Arts degree in Psychology and a Master of Arts degree in Forensic Psychology. SA Shutt testified that her experience included spending seven years working on cases involving the sexual exploitation of children during which she worked on “hundreds” of child exploitation cases; of these cases, the “majority” involved digital media; she had created over 50 affidavits seeking command authorization involving media devices; finally, all of the child enticement cases SA Shutt had worked on involved evidence contained in digital media.
