CAAF: Consent was withdrawn before seizure, and seizure lacked PC; no GFE for later SW

Defendant orally withdrew his consent before seizure of his computers and again in writing the next day. The seizure violated the Fourth Amendment because there wasn’t probable cause at the time, and that undermines the government’s alternative argument that the good faith exception applies. Inevitable discovery cannot apply either because the government didn’t know enough at the time. United States v. Hoffmann, 2016 CAAF LEXIS 120 (C.A.A.F. Feb. 18, 2016):

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 molestation 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.