The Court of Appeals for the Armed Forces (CAAF) decided the appeal motion for
United States v. Nieto recently. The case regarded a military investigator’s search authority
and whether or not it could be based entirely on an investigator’s
experience, specifically an investigator’s experience with how people
generally use their portable electronic devices. The CAAF ruled that experience
alone cannot constitute probable cause to seize and search physical evidence
in a military criminal defense case, as it is essentially just a “hunch”,
and reversed the appellant’s conditional guilty plea.
United States v. Nieto
Specialist Nieto was apprehended by military police after being accused
of using his cellphone to secretly record other military members using
the latrine at Forward Operating Base Azizullah, Kandahar Province, Afghanistan.
Army Criminal Investigation Division (Army CID) agents were given authorization
to search and seize Nieto’s cellphone
and laptop, despite his laptop never being mentioned in any allegations. The
computer was collected because an agent claimed to have known that people
were likely to store illicit photographs and “back those up on their
laptops.” A second agent noted that “persons who view and
record” acts for sexual gratification “often times store and
catalogue their images and videos on larger storage devices” like a laptop.
Nieto entered a conditional guilty plea on multiple offenses, believing
that the evidence against him was too difficult to overcome. He was unsuccessful
in challenging the search authorities used to seize his laptop as lacking
probable cause but maintained his right to appeal due to his plea. This
appeal moved the case review up to the CAAF.
The CAAF determined that there was no probable cause to take the laptop
in addition to the cellphone since it had not been mentioned in allegations.
It upheld that more than intuition is necessary to establish probable
cause in a military criminal investigation. In particular, the majority
ruling said a “sufficient nexus” must exist between a crime
and an item in order for it to be seized. The generalized profile used
to assume Nieto had transferred data to his laptop was not enough to constitute
Judge Stucky of the CAAF did dissent from the ruling, however, believing
it to be damaging to the overall notion and validity of probable cause.
He also argues that the conclusion does not seem to comprehend, or at
least acknowledge, the innate networked nature of today’s technology.
Judge Stucky’s dissent suggests that similar future cases may need
to deliberately establish a lack of probable cause, rather than just leaning
directly on this ruling for referenced case law.
Military service members accused of criminal violations and facing court-martial
can rely on Joseph L. Jordan, Attorney at Law. With years of military
criminal defense experience and an unparalleled record of success, members
of the Armed Forces – from the Air Force to the Navy – around
the globe have chosen him consistently for high-profile and complicated cases. Contact his firm
today if you would like to learn more about his professional legal services
and how you can defend yourself from criminal accusations.