CAAF: Military search authorization for laptop based on PC for cell phone was without PC or GFE

Defendant was accused of using his cell phone to take naked pictures of other soldiers in the shower and latrine. Defendant’s cell phone was on his rack with his laptop. The search authorization included defendant’s laptop, but there was no probable cause whatsoever for the search of the laptop. Moreover, the good faith exception and inevitable discovery don’t apply either. United States v. Nieto, 2017 CAAF LEXIS 124 (C.A. A.F. Feb. 21, 2017):

Turning our attention to the military magistrate’s probable cause determination, we first note the United States Supreme Court’s observation that cell phones, such as the one possessed by Appellant, are “in fact minicomputers” that have “immense storage capacity” allowing them to store “thousands of pictures, or hundreds of videos.” Riley v. California, 134 S. Ct. 2473, 2489 (2014). Indeed, Appellant’s cell phone, by itself, had the ability to serve both as the instrumentality of the crime and as a storage device for the fruit of that crime. Therefore, in this age of “smart phones,” SA Sandefur’s generalized profile about how servicemembers “normally” store images was technologically outdated and was of little value in making a probable cause determination.

We further note that the affidavits accompanying the search authorization did not reference a laptop or data transfers from Appellant’s cell phone. Accordingly, we conclude that SA Sandefur’s generalized profile was not based on a firm factual foundation. As a result, the information provided by SA Sandefur to the magistrate did not independently establish a particularized nexus between (a) the crime the accused 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. In order to identify a substantial basis for concluding that probable cause existed to believe that Appellant’s laptop was linked to the crime, we conclude that—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, SA Sandefur’s affidavit, his generalized profile, and CPL RAO’s affidavit provided no basis, substantial or otherwise, for the military magistrate to conclude that probable cause existed to seize the laptop. See Warden v. Hayden, 387 U.S. 294, 307 (1967) (requiring “a nexus … between the item to be seized and criminal behavior”).

SA Sandefur’s oral discussion with the military magistrate also failed to adequately support the search authorization. See M.R.E. 315(f)(2)(B) (noting that probable cause determination can be based on oral statements). Except for the generalized profile discussed and discredited above, the military magistrate was not provided with substantive oral information linking Appellant’s misconduct to the laptop. This point is underscored by the fact that SA Sandefur testified that he did not have “any direct evidence” that images were on the laptop and did not know whether the files on the cell phone were transferable to the laptop, and by the fact that SA Sandefur 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. Cf. Hoffmann, 75 M.J. at 125 (noting that probable cause determination considers veracity and basis of knowledge of those supplying hearsay information). Moreover, the military magistrate could not draw any reasonable inferences linking the crime and the laptop based on the limited information and generalized profile offered by SA Sandefur. Therefore, we hold that the military magistrate did not have a substantial basis for concluding that probable cause existed to seize Appellant’s laptop.