Attempts to Solicit Boys for Sex, Child Pornography and Probable Cause

This post examines an opinion from the U.S. Court of Appeals for the Armed Forces:  U.S. v. Hoffman, 75 M.J. 120 (2016).  As courts usually do, this court began the opinion by explaining how, and why, this case came before it:

Government investigators collected electronic media during a consent search of [Hoffman’s] barracks room. During the collection process, [Hoffman] withdrew his consent. Nevertheless, the investigators seized the electronic media. The following day [he] formally revoked his consent in writing and demanded the return of all property in the Government's possession without it being searched. We granted review to determine whether the military judge erred in refusing to suppress the fruit of a search of the seized media made pursuant to a commander's authorization issued four months after U.S. v. [Hoffman] revoked his consent to search and seize. 

U.S. v. Hoffman, supra.

The Court of Appeals went on to outline the “procedural history” of the case, to this point:

[a] general court-martial of officer and enlisted members convicted [Hoffman], contrary to his pleas, of attempted sodomy of a child, indecent liberties with a child, child enticement, and possession of child pornography. Articles 80, 120, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S. Code §§ 880, 920,  934 (2012). The convening authority approved the adjudged sentence: a dishonorable discharge, confinement for seven years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The United States Navy–Marine CorpsCourt of Criminal Appeals (CCA) affirmed. U.S. v. Hoffmann, 74 M.J. 542, 555 (U.S. Navy-Marine Corps Court of Criminal Appeals 2014) [“CCA”].

U.S. v. Hoffman, supra.

The opinion then outlines the facts that resulted in this prosecution (referring to Hoffman as “Appellant”):

Appellant was taken into custody on board Camp Lejeune, North Carolina, on suspicion of committing indecent liberties with children. Investigators alleged that he had driven around Camp Lejeune and solicited young boys for sex. Appellant was advised of his right to counsel and his right to remain silent and invoked both. Nevertheless, Appellant consented to the search of his barracks room, and specifically `all items used for storage that are locked and unlocked.’ He further consented to the removal and retention of `any property or papers found during the search which are desired for investigative purposes.’

Approximately twenty-five minutes into the search, after Appellant noticed the investigators collecting various digital media, Appellant withdrew his consent. Staff Sergeant Anthony Rivera and other investigators terminated the search but seized the items they had previously collected. In an undated letter provided to the investigators the day after the search, Appellant formally revoked his consent to search or seize any of his property and demanded the return of the property previously seized. The items were not returned.

Four months later, Appellant's battalion commander issued investigators a command authorization to search the digital media that had previously been seized for evidence of child pornography. The authorization was based on a lengthy discussion the commander had with Special Agent Dana Shutt, and an affidavit, asserting that she knew through her `training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography.’ In the affidavit, the investigator noted that the request for search authorization related to items that had been seized as a result of Appellant's consent. Nowhere did it inform the commander that Appellant had revoked his consent. A forensic analysis of the digital media seized revealed child pornography.

U.S. v. Hoffman, supra.

As Wikipedia explains,

[i]n the U.S., the simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search.  A consent search requires the individual whose person or property is being searched to freely and voluntarily waive his or her Fourth Amendment rights, granting the officer permission to perform the search. Where consent is obtained through `deception’ on the part of government personnel, the search may be determined to be an unreasonable search in violation of the Fourth Amendment.

The person has the right to refuse to give consent, and except in limited cases may revoke consent at any point during the search. . . .

As Wikipedia also explains, consent is one of a number of exceptions to the Fourth Amendment’s default requirement that officers obtain a search warrant before they embark up on searching someone’s property.

Getting back to U.S. v. Hoffman, the opinion goes on to explain that at his trial, Hoffman

moved to suppress the fruit of the search of the electronic media. The military judge held a suppression hearing. While the commander who issued the search authorization was testifying on direct telephonically, it came to light that he was using documents to assist him. When the defense counsel sought to obtain copies of those materials in order to cross-examine the search authority, the military judge stated that the Government had met its burden and that the commander's testimony was `overkill.’ She refused to continue the motions hearing to allow the defense counsel to obtain the documents.

The military judge denied the motion to suppress. She found that the seizure was lawful because Appellant withdrew his consent for search and seizure after investigators had seized the electronic media. The military judge opined that, even if Appellant had withdrawn consent before the seizure, the doctrine of inevitable discovery applied and that probable cause existed to seize and search the computer equipment. The military judge gave substantial deference to the commander as an impartial magistrate and concluded that the Government had established that the evidence was not obtained as a result of an unlawful search or seizure.

U.S. v. Hoffman, supra.

The Court of Appeals ends this portion of the opinion with the observation that

[o]n appeal, the CCA declined to rule on the issue of whether Appellant revoked his consent before or after the seizure of the media. . . . Instead, the CCA focused on the inevitable discovery doctrine, concluding that had Appellant declined to consent to the search and seizure of his room, the investigators would have frozen the scene and sought a search authorization, providing sufficient evidence to the search authority to establish probable cause. . . .  We granted review.

U.S. v. Hoffman, supra.

The court wnet on to outline the legal issues in the case and the standard it would apply in analyzing those issues:

The Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause. U.S. Const. amend. IV. The military has implemented the Fourth Amendment through Military Rules of Evidence (M.R.E.) 311–17.

Searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are `presumptively unreasonable unless they fall within “a few specifically established and well-delineated exceptions.”’ United States v. Wicks, 73 M.J. 93, 99 (U.S. Court of Appeals for the Armed Forces 2014) (quoting Katz v. United States, 389 U.S.347, 357 (1967). . . . A search conducted with the consent of the accused is `one of the specifically established exceptions to the requirements of both a warrant and probable cause.’ Schneckloth v. Bustamonte, 412 U.S.218, 219 (1973); see M.R.E. 314(e). `Property . . . may be seized with consent consistent with the requirements applicable to consensual searches under Military Rule of Evidence 31(c)(3).’  The government bears the burden of showing the applicability of the exception. United States v. Wicks, supra.

We review a military judge's ruling on a motion to suppress evidence for an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below. United States v. Keefauver, 74 M.J. 230, 233 (U.S. Court of Appeals for the Armed Forces 2015). That means we review the military judge's findings of fact for clear error but her conclusions of law de novo. United States v. Keefauver, supra.

U.S. v. Hoffman, supra.

The Court of Appeals then began the process of applying the above principles to the facts in this case.  It began with the officers’ seizure of Hoffman’s property:

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 (U.S. Court of Appeals for the Armed Forces 2012). The military judge concluded that Appellant validly withdrew his consent but only after `the investigators had already seized the digital media, as there had already been a meaningful interference with the accused's possessory interest in that property.’

U.S. v. Hoffman, supra.

The court then explained that a

`”seizure”’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.’ United States v. Jacobsen, 466U.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 (U.S. Court of Appeals for the 8th Circuit 2005) (emphasis in the original) (en banc). It must be more than a technical trespass. United States v. Va Lerie, supra (bag moved from overhead compartment to seat so drug dog could sniff for drugs was not `meaningful interference’); United States v. Gant, 112 F.3d 239, 242 (U.S. Court of Appeals for the 6th Circuit (1997) (same); United States v. Lovell, 849 F.2d 910 (U.S. Court of Appeals for the 5th Circuit 1988) (agents removed checked luggage from 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 United States v. Jacobsen, supra  (field testing contents of a package for illegal substances was `meaningful interference’); Hudson v. Palmer, 468 U.S. 517  (1984) (completely destroying the property was `meaningful control’).

Appellant withdrew his consent while the media were still sitting in his room. While the agents may have moved the media to a central location in the room, they did not meaningfully interfere with it until they removed it. As the seizure of the media occurred after Appellant had withdrawn his consent, the seizure violated the Fourth Amendment.

U.S. v. Hoffman, supra.

The Court of Appeals then took up the issue of whether the inevitable discovery principle applied in this case. U.S. v. Hoffman, supra.  It began by explaining that

[n]ormally, the fruits of a search or seizure that violates the Fourth Amendment are inadmissible. Mapp v. Ohio, 367U.S. 643, 654–55 (1961); United States v. Conklin, 63 M.J. 333, 334 (U.S. Court of Appeals for the Armed Forces 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 (U.S. Court of Appeals for the Armed Forces 2008); see Nix v. Williams, 467U.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.”’ United States v. Dease (quoting (quoting United States v. Kozak, 12 M.J. 389, 394 (U.S. Court of Military Appeals 1982)) (emphasis added). The military judge made no findings as to the state of probable cause at the time Appellant withdrew consent.

U.S. v. Hoffman, supra.

The opinion goes on to point out that

[t]here is no evidence that, at the time of the seizure, the government agents possessed or were actively pursuing leads that would have inevitably led to discovery of the child pornography images by lawful means. 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.

Several months after seizing the digital media, investigators sought and obtained command authorization to search the digital media for child pornography. If supported by probable cause known to the investigators at the time of the seizure and otherwise valid, the search authorization could overcome the fact that the digital media on which child pornography was found was seized illegally.

U.S. v. Hoffman, supra.

The court then took up the issue of probable cause, explaining that

[a]n 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.’ Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added); see  United States v. Cowgill, 68 M.J. 388, 393 (U.S. Court of Appeals for the Armed Forces 2010); see also Ornelas v. United States, 517 U.S. 690 (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.”’ Illinois v. Gates, supra (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). . . . The authorizing official is free to draw `reasonable inferences’ from the material supplied by those applying for the authority to search. Illinois v. Gates, supra.

U.S. v. Hoffman, supra.

The court applied these principles to the issue before it, explaining that the

affidavit accompanying the request for a search authorization detailed the affiant investigator's credentials and experience in forensic digital media collection and conducting investigations into child exploitation via the Internet. The affidavit detailed facts and circumstances leading to Appellant's apprehension: one of three boys who had complained about being solicited on the street for sex had identified Appellant's vehicle and Appellant as the perpetrator; and another victim had described a truck similar to Appellant's and picked Appellant out of a photo lineup.

The investigator testified that she had explained to the search authority that in a majority of cases of child pornography there was evidence of solicitation. The search authority was unable to confirm this, and the military judge made no finding that the investigator had. Nor is it clear from the record that the investigator advised the search authority: (1) that a GPS tracking device had been placed on Appellant's vehicle but had not produced any information of evidentiary value; (2) that she had not determined whether Appellant had Internet access in his room; (3) that the Internet Crimes Against Children Taskforce had no information on Appellant's screen name; (4) a criminal background check on Appellant was negative; and (5) no relevant information was revealed from canvassing Appellant's acquaintances.

The investigator then concluded:

`As this affiant knows through training and experience that there is an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography, this Affiant believes there is probable cause to believe evidence of the sexual exploitation of children by means of the receipt and possession of child pornography . . . is present within [the seized digital media].’

U.S. v. Hoffman, supra.

The appellate court then explain that the

military judge's inevitable discovery ruling was based on the following: (1) testimony of Staff Sergeant Anthony Rivera, one of the investigators, that, had Appellant not consented to the seizure, he would have sought a search authorization; (2) Special Agent Dana Shutt's affidavit in support of a search authorization, submitted four months after the seizure, explaining that there is `”an intuitive relationship between acts such as enticement or child molestation and the possession of child pornography”’; (3) the search authority's testimony concerning his discussion of the evidence and his decision to grant the search authorization; (4)United States v. Colbert, 605 F.3d 573 (U.S. Court of Appeals for the 8th Circuit 2010); and (5) the substantial deference to which a search authority is entitled in determining probable cause.

The CCA, noting that this was a case of first impression in the military, surveyed case law from the federal circuit courts of appeals. . . . It concluded that, where the affiant expressly alleges the nexus between child molestation and child pornography, the issuing authority is able to weigh the credibility of information  before deciding whether to authorize the search. . . . `View[ing] the facts in a common sense manner,’ the CCA determined that `an individual accused of deliberately seeking out boys walking home alone and then engaging in brazen, repeated attempts to entice those boys into sexual activity is likely to possess child pornography, either as a means to gratify their desires or as an aid in those activities.’ . . .  

U.S. v. Hoffman, supra.

It went on to point out that Hoffman claimed

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.”’. . . .

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. U.S. v. Colbert, supra.  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 (U.S. Court of Appeals for the 9th Circuit 2011) (evidence of child molestation did not establish probable cause to search for child pornography). 

U.S. v. Hoffman, supra.

The Court of Appeals therefore held that the

judgment of the United States Navy–Marine Corps Court of Criminal Appeals is reversed. The findings and sentence are set aside. Specification 2 of Charge III is dismissed with prejudice. A rehearing is authorized.

U.S. v. Hoffman, supra.

The Boyfriend, the Text Message and Driving While Impaired

This post examines an opinion from the Court of Appeals of Minnesota:  Tomlinson v. Commissioner of Public Safety, 2016 WL 2842941 (2016). The court begins, as courts usually do, by explaining how the case arose and the legal issues it raised:

Christine Tomlinson's boyfriend contacted the sheriff's office after midnight and reported that, based on his impression from a text-message exchange with Tomlinson and her custom of driving home drunk from the club meeting she had just left, he believed that Tomlinson was driving drunk. A deputy identified and stopped the truck Tomlinson was driving, finding Tomlinson to be considerably considerably intoxicated. Tomlinson stipulated to the state's case, and the district court convicted her of two counts of driving while impaired.

Tomlinson argues on appeal that the district court should have suppressed all post-stop evidence because the deputy lacked reasonable suspicion to justify the stop. . . .

Tomlinson v. Commissioner of Public Safety, supra.  You can, if you are interested, read about Minnesota's DWI/DUE law here.

The opinion goes on to outline the facts that resulted in Tomlinson’s conviction:

About an hour and a half after midnight on a Thursday night in March 2015, Jay Janzen called the Watonwan CountySheriff's Office. Janzen said that his girlfriend, Christine Tomlinson, was driving drunk from Vernon Center to their shared home east of Ormsby. Deputy Mark Slater drove to the couple's rural home to investigate.

Deputy Slater spoke with Janzen. He learned from Janzen that Tomlinson was still not home, that she was driving from a snowmobile club meeting from which she regularly drives home drunk, and that his text-message exchange with Tomlinson informed him that Tomlinson had become lost.

Deputy Slater found Tomlinson's pickup truck at about 2:20 a.m. traveling rapidly down a gravel road. The deputy drove close behind for some distance, until the truck slowed quickly and pulled to the right. The deputy stopped the truck. Tomlinson appeared to be drunk. Deputy Slater administered field sobriety tests, confirming his suspicion. He arrested her, took her to jail, and administered a breath test that indicated that her alcohol concentration was twice the per se intoxication limit.

The state charged Tomlinson with two counts of impaired driving based separately on her physical impairment and on her alcohol-concentration level. Tomlinson moved the district court to suppress all evidence obtained after the stop, arguing that Deputy Slater lacked reasonable suspicion to stop the truck.

Tomlinson v. Commissioner of Public Safety, supra.

As Wikipedia explains, in

Terry v. Ohio, the U.S. Supreme Court ruled that a person can be stopped and briefly detained by a police officer based on a reasonable suspicion of involvement in a punishable crime. If the officer has reasonable suspicion the detainee is armed, the officer may perform a `pat-down’ of the person's outer garments for weapons. Such a detention does not violate the Fourth Amendment prohibition on unreasonable searches and seizure, though it must be brief. Reasonable suspicion does not provide grounds for arrest; however, an arrest can be made if facts discovered during the detention provide probable cause that the suspect has committed a crime.

Getting back to the Tomlinson case, the opinion also explains that the

district court conducted a hearing. The parties presented the deputy's squad-car video recording depicting Deputy Slater following closely and then stopping Tomlinson's pickup on the gravel road. The deputy said he based the stop on the tip and on Tomlinson's driving. He emphasized her rapid deceleration and her movement to the right. Tomlinson countered, testifying that her deceleration and rightward movement was reasonable to allow the tailing car to pass. 

The district court denied Tomlinson's motion, deeming the stop justified based on the drunk-driving tip and on Tomlinson's driving. Tomlinson stipulated to the state's case under Minnesota Rule of Criminal Procedure 26.01, subdivision 4, preserving for appeal her right to challenge the district court's suppression decision. The district court found Tomlinson guilty of impaired driving. She appeals.

Tomlinson v. Commissioner of Public Safety, supra.

The Court of Appeals began its analysis of Tomlinson’s appeal by noting she

asks us to reverse the denial of her motion to suppress, arguing that the stop was unconstitutional. We review de novo a district court's conclusion that an officer had the constitutional ground to stop a motorist. State v. Burbach, 706 N.W.2d 484, 487 (Minnesota Supreme Court 2005). Police may stop a motorist without a warrant without offending the motorist's Fourth Amendment rights if the officer bases the stop on reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 (1968); State v. Timberlake, 744 N.W.2d 390, 393 (Minnesota Supreme Court 2008).

Tomlinson convincingly argues that her driving did not warrant the stop. A traffic violation itself would certainly be sufficient. State v. Anderson, 683 N.W.2d 818, 823 (Minnesota Supreme Court 2004). But an objectively reasonable officer would not conclude that Tomlinson's driving was either illegal or suspicious. A reasonable officer would know that a late-night driver may be alarmed and act defensively upon being approached rapidly from behind and then tailgated by an unknown vehicle. Allowing oneself to be tailgated at high speed on a barren gravel road can be dangerous regardless of the tailgater's condition or intentions. Cf. State v. Brechler, 412 N.W.2d 367, 368 (Court of Appeals of Minnesota 1987) (reasoning that a driver's conduct could have been caused by the presence of a police car following in close proximity). At that hour a reasonable driver might also fear that the tailgater has criminal intentions or is suffering from some mental impairment, like, for instance, intoxication. We agree with Tomlinson that there was nothing objectively suspicious, illegal, or unusual about her slowing and pulling to the side of the road.

Tomlinson v. Commissioner of Public Safety, supra.

But the court also went on to explain that

there was more than Tomlinson's driving. We assess the constitutionality of a traffic stop on all relevant circumstances, including the time, the location, and the officer's ability to draw inferences and conclusions based on his training. Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minnesota Supreme Court1987). And reasonable suspicion may arise from information supplied by an informant. Marben v. State, Dep't of Pub. Safety, 294 N.W.2d 697, 699 (Minnesota Supreme Court 1980). Although Tomlinson admitted to the district court that she had informed Janzen that she had been drinking, the record does not indicate that he relayed this specifically to the deputy.

The deputy nevertheless was aware of the following details: Tomlinson was driving very late, after midnight; Tomlinson reportedly customarily drives home drunk after she leaves the club meeting she had just left; Tomlinson got lost despite her apparent familiarity with her route; Tomlinson had still not found her way home in the 45 minutes between the time of the call and the time the deputy encountered her on the road; and Tomlinson's boyfriend, who lives with Tomlinson, believed that her communication to him indicated that she was drunk. These circumstances would allow any reasonable officer to suspect that Tomlinson may have been driving drunk. This reasonable suspicion warrants the minimal intrusion of the brief traffic stop. Immediately after the stop the deputy saw that Tomlinson appeared to be drunk, justifying the longer detention necessary for the deputy to administer field sobriety tests.

Tomlinson v. Commissioner of Public Safety, supra.

The court also pointed out that Tomlinson argued that

Deputy Slater's knowledge of tumult in her and Janzen's relationship undermines the reliability of Janzen's tip. We reach a different conclusion. When an informant gives sufficient detail allowing police to locate him and hold him accountable if his information turns out false, the officer can assume that the informant is telling the truth. City of Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minnesota Supreme Court 1988). Janzen identified himself to the sheriff's office and then spoke at his home in-person with the deputy. Janzen's open exposure to punishment constituted a weighty counterbalance to the possibility that he might be trying to trouble Tomlinson by a false police report.

Tomlinson v. Commissioner of Public Safety, supra.

The Court of Appeals went on to explain that

[w]e are not persuaded otherwise by Tomlinson's contention that Janzen's report lacked credibility because he did not personally observe Tomlinson—or even hear her speak—before he told police she was intoxicated. The contention has only faint support in the caselaw. In Olson v. Commissioner of Public Safety, for example, the Supreme Court invalidated a stop that rested on an anonymous caller's `bare assertion of a possibly drunk driver on the road.’ 371 N.W.2d 552, 556 (Minnesota Supreme Court 1985). Similarly, in Rose v. Commissioner of Public Safety, we concluded that the officer lacked reasonable suspicion when he relied on a gas-station attendant's report that a driver was intoxicated, reasoning that the informant had not personally observed the driver and the circumstances did not inform the officer how the attendant concluded that the driver was intoxicated. 637 N.W.2d 326, 330 (Minnesota Court of Appeals 2001), review denied (Minn. Mar. 19, 2002).

But Olson and Rose are easily distinguished from this case. Janzen was not an anonymous informant who provided only a `bare assertion’ of `possibly’ drunk driving, like the informant in Olson. 371 N.W.2d at 556. Nor was he a stranger-informant who failed to provide any basis for his conclusion, like the informant in Rose. 637 N.W.2d at 330. Janzen expressed that Tomlinson was intoxicated, not just possibly intoxicated, and he was convinced of it based on his personal experience with Tomlinson's regularly driving home drunk after her snowmobile club meetings and on her getting lost after leaving the meeting late that night. As for the nature of the contact between Janzen and Tomlinson, we recognize that a written exchange would almost certainly not prove intoxication. But even a text-message communication, particularly between people very familiar with each other, might raise the suspicion of intoxication either by its substance or its form.

Tomlinson v. Commissioner of Public Safety, supra (emphasis in the original).

The court therefore found that

[t]his case is sufficiently similar to those in which the informant confidently communicated drunk driving and in which the basis for the report was apparent. In Shepherd, the supreme court affirmed a stop based on a gas-station attendant's reporting that he saw a drunk driver leave the station.  City of Minnetonka v. Sheppherd, 420 N.W.2d 887, 890 (Minnesota Supreme Court 1988).

In Playle v. Commissioner of Public Safety, we deemed a fast-food employee's tip sufficient after the employee reported encountering a drunk driver at a drive-up window. 439 N.W.2d 747, 748–49 (Court of Appeals of Minnesota 1989). And in Jobe v. Commissioner of Public Safety, we held that the stop was justified when the informant stated that he saw the reported driver swerving. 609 N.W.2d 919, 920, 923 (Court of Appeals of Minnesota 2000). The deputy here was reasonably satisfied from the informant's familiarity with Tomlinson's habits and from their contemporaneous communication that Tomlinson may be driving drunk.

The district court appropriately denied Tomlinson's motion to suppress the evidence that followed the traffic stop.

Tomlinson v. Commissioner of Public Safety, supra.

Child Pornography, Miranda and the Clock Settings

This post examines an opinion from the Appellate Court of Connecticut:  State v. Spence, 2016 WL 1567017 (2016).  The opinion begins by explaining that the facts,

which the jury reasonably could have found, and procedural history are relevant to this appeal. The state police began investigating the defendant's activities when they received a tip that a person with a Connecticut Internet protocol (IP) address was downloading child pornography over peer-to-peer file sharing networks. Using a computer program tailored for law enforcement, the state police accessed the identified IP address and downloaded images of child pornography. The state police applied for and were granted an ex parte order to require the Internet service provider to reveal the name and street address associated with the identified IP address. The state police then obtained a search warrant for the defendant's home.

On June 13, 2012, state troopers and local police executed a search and seizure warrant at the defendant's home at 34 May Street in Fairfield. Police entered the home shortly after 6 a.m. and found the defendant, his wife, three children, and mother-in-law in the single-family residence. At that time, the lead investigator, state police Detective David Aresco, asked the defendant if he could explain why the state police were in his home. In response, the defendant asked if `he could speak with Detective Aresco in private.’ Once outside, the defendant received a Miranda warning and then provided an oral and written statement acknowledging that he had downloaded more than 150 images and videos of child pornography and that he had exclusive control of the computer where the files were stored.

State v. Spence, supra.

Spence was convicted, “after a jury trial, of possession of child pornography in the first degree in violation of [Connecticut] GeneralStatutes § 53a–196d (a)(1).” State v. Spence, supra.  The opinion explains that, on appeal, Spence claimed that the

trial court committed error by (1) `denying the defendant's motion to suppress his statements’ made to the police prior to his formal arrest; (2) `giving a constructive possession instruction that treated a computer as the equivalent of a premises’; and (3) `permitting the state to offer rebuttal evidence on matters that it knew were at issue during the case-in-chief.’

State v. Spence, supra. 

Prior to his trial, Spence

moved to suppress the statements he made to the state police on the day his home was searched. On September 6, 2013, the trial court conducted a hearing on the motion. Ultimately, the trial court denied the motion and the defendant was convicted by a jury of possession of child pornography in the first degree. 

State v. Spence, supra. 

The Appellate Court began its analysis of Spence’s argument concerning his motion to suppress by explaining that he claimed the

trial court improperly denied his motion to suppress his statements to the police on the day the search warrant was executed at his home. Specifically, the defendant argues that when the police entered his home and gathered together the residents in one room, based on the circumstances, a reasonable person in his situation would believe he was in custody. Accordingly, he claims that the police should have provided a Miranda warning before they asked any questions. Prior to trial, the defendant sought to suppress his initial response to Detective Aresco asking if he could speak to the detective `in private.’ He also sought to suppress the oral and written statements he made after receiving Miranda warnings. The defendant argued that the lack of a Miranda warning prior to his initial request to speak with the police in private tainted the statements that followed.

State v. Spence, supra. 

The Appellate Court began its analysis of Spence’s argument by explaining that the

search warrant was executed at the defendant's home at approximately 6:10 a .m. on June 13, 2012. Eight to ten state troopers and police officers entered the home. The officers were wearing standard issue side arms, bulletproof vests, and clothes that identified that they were law enforcement. The defendant was sleeping on the second floor when the police arrived. After the police conducted a protective sweep of the rooms in the home, they gathered the entire family into the kitchen or dining room area.

Without issuing a Miranda warning, Aresco informed the residents that he was investigating a computer crime and then asked the defendant if he could explain why the police were in his home. The defendant responded by asking if they could speak in private. The defendant therefore was brought outside to an unmarked police car. He was advised of his Miranda rights and signed a waiver notice to confirm that he was aware of his rights. The defendant was questioned and Aresco recorded notes and prepared a written statement. The three page written statement was read back to the defendant. After rereading it and making corrections, the defendant signed the statement and initialed each page. The questioning lasted for approximately one and one-half hours and the defendant was allowed to take a cigarette break. The court held a hearing on the motion to suppress that included testimony from Aresco and another state trooper who was involved with the execution of the search warrant at the defendant's home. The court denied the defendant's motion after concluding that the defendant was not in custody when he initially responded to Aresco's inquiry.

State v. Spence, supra. 

As Wikipedia explains, officers are only required to give Miranda warnings when a suspect is in “custody” and is subject to “interrogation.”  The Appellate Court took up that issue, explaining, initially, that

a reasonable person in the defendant's position would not have believed that he was in police custody of the degree associated with a formal arrest. On the basis of the facts that the trial court reasonably could have found, the police presence did not overwhelm the defendant to the point that a reasonable person would believe that he was in custody.

Any questioning that occurred in the defendant's home was informal in nature and short in duration. Aresco advanced a general question that introduced his presence in the home. The defendant did not answer the question. Instead, he effectively put off any discussion by requesting to speak with the investigators in private. While inside the home, the defendant was not handcuffed or restrained. The surroundings were familiar to the defendant. He was in an open area of the home, and he was surrounded by his family including other adults. While there were as many as ten police officers in the home assisting with the execution of the search warrant, they were not brandishing their weapons.

Considering the totality of the circumstances, the trial court properly determined that the defendant was not in custody and therefore a Miranda warning was not required. We do note that Aresco did initiate the questioning and the defendant was not informed by police that he was free to leave. These . . . factors weigh in favor of a custodial environment, however, a consideration of the remaining factors applied to this case compels the conclusion that a reasonable person in the defendant's position would not have believed that he was in police custody of the degree associated with formal arrest.

State v. Spence, supra. 

The Appellate Court therefore held that the trial court judge “properly denied the motion to suppress the defendant’s statements.”  State v. Spence, supra. 

The court then took up Spence’s argument that the trial judge

erroneously instructed the jury on constructive possession. The trial court instructed the jury that it could infer that the defendant possessed the images of child pornography if it found that the defendant had control of the computer that contained the images. The defendant argues that the trial court was required to instruct the jury that it could infer possession of pornography only if it found that the defendant had control over the computer and the premises within which it was found. 

State v. Spence, supra. 

The opinion goes on to explain that

following additional facts are relevant to the defendant's claim. During the course of the trial, Detective Aresco testified that one computer was removed from the defendant's home as a result of the execution of the search warrant on June 13, 2012. The computer was found in the defendant's bedroom, and he told police that he kept it under his bed. The defendant lived in the home with his wife, three children, and his wife's parents. Aresco testified that other computers also were found in the home and examined for child pornography, but only the defendant's computer was found to contain the illicit images. In his statement to the state police, the defendant stated that his computer was password protected and `I am the only person that has that computer—that uses that computer.’

State v. Spence, supra. 

The court also noted that

[a]t the close of the trial, the court instructed the jury regarding constructive possession: `The state has submitted evidence in order to show that the defendant had control over the computer where the video files were found. Control of the computer gives rise to the inference of unlawful possession. And the mere access by others is insufficient to defeat this inference. If it is proven that the defendant is the exclusive owner of the computer where the video files were found, then you may infer that he controlled the computer. However, when it is shown that ownership or use of the computer is not exclusive, you may no longer make this inference. The ability to control the computer must be established by independent proof.’ The court also instructed the jury that in order to convict the defendant, they were required to find beyond a reasonable doubt that he `knowingly possessed the child pornography.’

State v. Spence, supra. 

The Appellate Court found that the trial court’s jury

instruction included an explanation of each of the elements the jury had to find present in order to convict the defendant of the alleged crime. Finding control of the home in this case is not a requirement to infer possession of the contraband when the contraband is contained within another object, here the computer, that itself could be controlled and secured through the use of a password. `To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses. . . it is essential that the state's evidence include more than just a temporal and spatial nexus between the defendant and the contraband. . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant's] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.’ (Internal quotation marks omitted). State v. Smith, 94 Conn. App. 188, 891 A.2d 974 (Appellate Court of Connecticut 2006). . . . It was not necessary for the jury to find that the defendant controlled the premises in order to infer that he possessed the child pornography.

State v. Spence, supra. 

The court then took up Spence’s last argument, i.e., that

the trial court abused its discretion when it allowed the state to present rebuttal evidence concerning the clock settings on the defendant's computer. Although the state had the opportunity to present this evidence during its case-in-chief, the evidence in question became relevant only when the defendant opened the door by presenting an alibi defense that he was working when the pornographic images were downloaded. 

State v. Spence, supra. 

The court also pointed out that the

following additional facts are relevant to the defendant's claim. During the presentation of the state's case-in-chief, defense counsel cross-examined Detective Aresco about the dates and times that the pornographic images were downloaded to the defendant's computer. Defense counsel provided Aresco with a copy of the state police computer analysis report that had been generated following an examination of the defendant's computer. Using the report to refresh his memory, Aresco read the dates and times captured in the report for when specific files were downloaded. On redirect examination, Aresco testified that based on his training, the report's recorded download time was not reliable evidence. 

On recross-examination, Aresco testified that the file download times captured in the report may have been off by at least two hours from the time when the files were actually downloaded by the defendant because Aresco observed that the clock in the computer was set to the Pacific time zone. The next day, after the state rested and prior to the defense presenting any witnesses, the state informed the court that following his testimony, Aresco had further reviewed file download times and found that his testimony regarding a two hour difference in time was incorrect.

Aresco was now prepared to testify that when he examined the computer he observed a nine hour difference between the clock in the defendant's computer and the `actual time.’ The state informed the court and defense counsel that Aresco would be presented as a rebuttal witness. The defendant objected to any rebuttal testimony regarding the time to which the clock in the computer was set because he considered it to be new forensic evidence that was available to the state before it rested its case. The trial court deferred making a ruling on the objection so it could consider the defendant's argument.

The defendant then called as his first witness a manager from the bus company where he was employed. The manager testified to the dates and times when the defendant drove his bus route. The defendant sought to establish that he was driving a bus at the time that the child pornography images were downloaded to his computer. This theory was predicated on Aresco's earlier testimony regarding when each illicit image was downloaded to the defendant's computer.

State v. Spence, supra. 

Next, the opinion explains that after Spence rested his defense case, the trial judge

found that the defendant would not be prejudiced by rebuttal testimony from Aresco because the defendant had been given notice of the state's claim that the time recorded on the computer was inaccurate. Aresco returned to the witness stand and testified that he had been mistaken in his prior testimony and that he had observed a nine hour difference between the time on the clock in the defendant's computer and the `actual time.’ The defendant cross-examined Aresco about why his testimony changed and the difference in time.

State v. Spence, supra. 

The Appellate Court found that this procedure did not prejudice Spence:

On the basis of our review, we conclude that the trial court did not abuse its discretion by permitting the state to recall the pertinent witness to clarify an earlier representation as to when child pornography was downloaded to the defendant's computer. The testimony was proper rebuttal evidence. The defendant was on notice of the timing issue and was able to cross-examine the witness on rebuttal. See State v. Cavell, supra, 235 Conn. 728 (state forensic analysis that was not relevant during case-in-chief was allowed as rebuttal evidence). The state was not required to prove the timing of when the child pornography was downloaded, only that the defendant was in possession of it. It was the defense that made relevant the computer recorded download times.

State v. Spence, supra. 

It also noted that

[f]ollowing the defendant's cross-examination of Aresco, the state took immediate steps to determine the actual temporal discrepancy and informed the trial court and the defendant that it would seek to introduce rebuttal evidence. Prior to presenting his defense, the defendant was aware that the state was prepared to offer rebuttal evidence regarding the computer time. The defendant did not seek a continuance to afford himself time to address the state's additional evidence. The trial court was within its discretion to allow the state to refute the testimony presented by the defendant.

State v. Spence, supra. 

So, for these and other reasons, the court affirmed Spence’s conviction.  State v. Spence, supra.