United States v. Lancina
201600242
| N.M.C.C.A. | Jun 30, 2017Background
- NCIS investigated a Navy service member after his ONENET government computer accessed a suspicious website; the security manager cloned the computer’s hard drive and gave the original to NCIS.
- NCIS Special Agent (SA) R prepared an affidavit describing two thumbnail images (alleged child pornography), a “pedo bear” icon, the appellant’s apparent membership as “LANCE ALOT” on a website with profiles including users who listed ages under 18, and other contextual facts about the appellant’s online activity.
- The Commander, Fleet Activities Yokosuka (CO) signed a command authorization for search and seizure (CASS) for the appellant, his home, and electronic media.
- NCIS executed the search at the appellant’s residence after obtaining permissive consent from a third-party cohabitant (Ms. O); agents seized a laptop and external hard drive that later contained thousands of child pornography images in passworded folders.
- The appellant moved to suppress, arguing SA R presented false/misleading information to obtain the CASS and that the consent by Ms. O (and SOFA compliance) was defective; the military judge denied suppression.
- On appeal, the court reviewed probable cause for the CASS, alleged false statements/omissions in the affidavit, nexus to the home, Ms. O’s consent/standing under SOFA, and inevitable discovery/good-faith exceptions; it affirmed the findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause to search (CASS) | Affidavit facts (thumbnails, icon, website activity, profile matches) provided fair probability of crimes and evidence at home | Appellant: thumbnails cached only; website not shown to host child pornography; affidavit misleading | Court: Despite removing a misleading statement about the site being a known CP site, remaining facts (thumbnails, icon, membership, child erotica profiles, weekend access, home internet) gave CO substantial basis for probable cause to search home and devices |
| Alleged false/misleading statements in affidavit | Appellant: SA R mischaracterized the website and omitted that thumbnails were not verified downloads or in NCMEC | Gov: statements were supported by agent experience, context, and other affidavit facts | Court: Finding that the assertion the security manager stated the site was a “known child pornography” site was clearly erroneous and reckless, but severing that language left sufficient probable cause; defense failed to meet burden to suppress overall evidence |
| Nexus between workplace evidence and home devices | Appellant: thumbnails/icon on work computer and general typology do not establish nexus to home; no IP or direct transfer evidence | Gov: appellant used site on weekends, admitted to home internet and devices; typology and storage practices permit inference that images would be at home | Court: Unlike Nieto, weekend usage and admission of home internet/devices allowed reasonable inference appellant accessed site at home; nexus sufficient to support search |
| Consent and SOFA standing / inevitable discovery | Appellant: third‑party consent (Ms. O) and SOFA issues undermine search legality; standing to challenge SOFA compliance | Gov: Ms. O voluntarily consented; appellant lacks standing to assert SOFA rights of third party; investigators would have obtained Japanese authorization if refused (inevitable discovery) | Court: Appellant lacked standing to assert SOFA rights of Ms. O; even if standing existed, inevitable discovery applied because NCIS would have coordinated with Japanese authorities to obtain lawful authorization; suppression not warranted |
Key Cases Cited
- United States v. Hoffmann, 75 M.J. 120 (CAAF) (warrant/authorization probable-cause standard)
- United States v. Nieto, 76 M.J. 101 (CAAF) (nexus requirement; generalized typology insufficient)
- United States v. Gallo, 55 M.J. 418 (CAAF) (thumbnails on work computer can support probable cause and nexus when download/movement shown)
- United States v. Cravens, 56 M.J. 370 (CAAF) (standard for showing intentional or reckless false statements in affidavit)
- United States v. Mason, 59 M.J. 416 (CAAF) (standard for material omissions and remedy)
- United States v. Clayton, 68 M.J. 419 (CAAF) (membership in web group can support search of quarters on commonsense inferences)
- United States v. Allen, 53 M.J. 402 (CAAF) (connection between online access at work and access at home can support home search)
- United States v. Wallace, 66 M.J. 5 (CAAF) (inevitable discovery permits admission when investigators would have sought a lawful authorization)
- Nix v. Williams, 467 U.S. 431 (U.S.) (establishing inevitable discovery doctrine)
- United States v. Gourde, 440 F.3d 1065 (9th Cir.) (membership and site content support inference of downloads)
- United States v. Froman, 355 F.3d 882 (5th Cir.) (membership in CP group can support search on commonsense inference)