United States v. Private First Class JONATHAN P. MORALES

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, BURTON, and SALUSSOLIA
Appellate Military Judges

UNITED STATES, Appellee
v.
Private First Class JONATHAN P. MORALES
United States Army, Appellant

ARMY 20150498

Headquarters, Fort Bragg
Deidra J. Fleming, Military Judge
Colonel Michael O. Lacey, Staff Judge Advocate

For Appellant: Captain Joshua B. Fix, JA (argued); Lieutenant Colonel Christopher
D. Carrier, JA; Major Andres Vazquez, Jr., JA; Captain Matthew D. Bernstein, JA
(on brief); Lieutenant Colonel Melissa R. Covolesky, JA; Captain Katherine L.
DePaul, JA; Captain Matthew D. Bernstein, JA (on brief in response to specified
issues); Captain Cody D. Cheek, JA.

For Appellee: Captain Austin L. Fenwick, JA (argued); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captain
John Gardella, JA (on brief and brief in response to specified issues); Major Michael
E. Korte, JA.

13 December 2017

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OPINION OF THE COURT
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CAMPANELLA, Senior Judge:

The Fourth Amendment and Rules for Courts-Martial protect soldiers against
unreasonable searches and seizures. Here, it was unreasonable for law enforcement
to search the entire contents of appellant’s cell phone even though the search was
conducted pursuant to a search authorization. A search and seizure conducted
pursuant to a search authorization can still be unreasonable if the search and seizure
are not supported by probable cause. While appellant’s phone was lawfully seized,
the information presented to a military magistrate only provided probable cause to
search the phone for text messages. Thus, a search for photographs on the phone,
which revealed digital photographs of appellant’s crime, was unreasonable. We
therefore conclude the military judge abused her discretion at trial by not granting a
MORALES—ARMY 20150498

defense motion to suppress these digital photographs. We also hold that the good
faith exception and plain view doctrine do not apply to save the fruits of the
government’s unreasonable and unlawful search.

A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of abusive sexual contact,
indecent viewing, and indecent recording, in violation of Articles 120 and 120c,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 920c (2012 & Supp. I 2014).
The convening authority approved the adjudged sentence of a bad-conduct discharge
and confinement for eighteen months.

We review this case under Article 66, UCMJ. Upon consideration of the
matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), that the military judge abused her discretion by denying the
defense motion to suppress, this court specified issues pertaining to the lawfulness
of the government’s search and the military judge’s discretion. Oral argument was
subsequently held on these issues. 1 Given our findings with regard to the issues
specified in this case, we do not make a determination regarding any other
allegations of error.

BACKGROUND

Specialist AC’s Report to Law Enforcement

On 11 February 2014, Specialist (SPC) AC reported to law enforcement that
appellant sexually assaulted her. Specialist AC stated she and appellant were close
friends and it was common for him to stay at her off-post house. It was also
common for appellant to give SPC AC body massages. Specialist AC, however, had
made it clear to appellant they were just friends and she was not interested in a
sexual relationship.

On 9 February 2014, appellant spent the night at SPC AC’s house. Specialist
AC took cold medication before going to bed. After SPC AC laid down to go to
sleep, appellant began massaging her legs. According to SPC AC, she fell asleep
and woke up when appellant penetrated her vagina with his fingers. Upon
awakening, she confronted him and asked what he was doing. He apologized and
left the room.

1
Oral argument in this case was heard in Los Angeles, California on 27 September
2017 at the University of Southern California Gould School of Law as part of the
Outreach Program of the United States Army Court of Criminal Appeals.

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Shortly after he left, SPC AC sent appellant text messages at 0026, 10
February 2014, expressing her discomfort and telling him he had “crossed the line.”
He responded via text stating he thought she was awake during the massage, but also
admitted he had touched her really close to her genitalia.

During the investigation, SPC AC provided Special Agent (SA) Rachel Grawn
screen shots of the entire text message conversation.

During her interview, SPC AC also reported that a month prior, she
confronted appellant after seeing a nude photograph of herself on appellant’s phone.
She had not given the photo to appellant and recognized the photograph as a
personal one saved on her laptop. When confronted, appellant admitted to her he
had transferred the image from her laptop to his cellphone using a USB connection.
She returned the phone to appellant and told him to delete the image.

Application for the Search Authorization

Based on SPC AC’s report, SA Grawn sought a search authorization to search
appellant’s phone. Special Agent Grawn presented Captain NM, a part-time military
magistrate, with a request for a search authorization and a supporting affidavit that
was incorporated by reference into the authorization. Special Agent Grawn’s
affidavit stated appellant was being investigated for sexual assault and the offense of
indecent viewing, visual recording or broadcasting, against SPC AC–offenses
alleged to have occurred between 9 - 10 February 2014. Notably, the affidavit did
not mention the photograph SPC AC saw on appellant’s phone.

The authorization provided a summary of SPC AC’s interview prepared by SA
Grawn. The summary included the text message conversation between SPC AC and
appellant at 0026, 10 February 2014, which read:

[SPC AC:] Idk what or how to say this really . . . I don’t
want you to respond or come try to talk to me . . . I feel
like you crossed the line and have made me uncomfortable
. . . I was sound asleep once you started to massage my
legs . . . I don’t know why or what woke me up . . . but I
felt like you were taking advantage of me sleeping not
thinking I would wake up with all the meds in my system .
. . I felt your hands on and extremely to close to my vag . .
. I feel like if I wouldn’t have woken up you would have
tried to do more . . . please don’t ever touch me again . . .
and maybe I’m over thinking but I honestly don’t feel like
I am . . . I don’t understand what you think or don’t
understand about friends only . . . if this makes you mad
or upset I’m sorry but this is how I feel

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[Appellant] responded to SPC [AC’s] text message with
the following:

I thought you were still awake I’m sorry I do admit I got
really close to your vag and I’m sorry I won’t touch you
ever again.

The affidavit stated SA Grawn sought:

[t]o conduct a digital forensic examination of the phone,
SIM, and SD Micro Card to include any videos, images,
photographs, other graphics, text messages, electronic
mail messages, instant messages, short message service
(SMS), multimedia message service (MMS), internet data
files, deleted files, screen names, email accounts, user
names, phone contact lists, calls, electronic account names
concerning the exposing, creating, uploading, distributing,
sending, deleting of any depiction of SPC AC between the
time/date group 0000, 9 F[e]b 14 and 0900, 25 Feb 14.

Special Agent Grawn requested a search authorization for “Personal
cellphones, digital media devices, and any other materials that may assist in the
resolution of this investigation.” The military magistrate struck through the portion
of the request regarding “any other materials . . .” on the affidavit and signed the
warrant authorizing a search and seizure as follows:

All [c]ellphones and/or hard drives and any physical
evidence concerning digital communication pertaining
to the sexual assault of SPC AC, and subsequent digital
forensic examination of the collected items.

At the suppression hearing, the military magistrate testified he only
considered the affidavit submitted to him by SA Grawn and did not consider verbal
communications or other documentation. The military magistrate also acknowledged
there was no indication that photos were taken that pertained to the sexual assault;
however, there was probable cause to search for images, asserting as follows:

. . . [T]here was certainly a possibility that evidence of the
alleged crime would be found on the phone and what type
of format that evidence may take certainly could not have
ruled out the possibility of evidence of the crime being in
the form of a photo, a text message, an SMS, a phone
contact, log, registry, e-mail, and things of that nature
because the phones, the way they–the way cellphones

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work it enables them to–enables them to transmit that type
of data in various format[s].

And there that certainly–while there was no allegation at
the time other than the fact that they’re–the government
appeared to be investigating not only the 120 offense of
the digital penetration, but also the broadcasting that
certainly there could be evidence of broadcasting in the
form of photos as attachment or something of that nature.
And there had already been communication between
[appellant] and the alleged victim on a cellphone. So, it
was certainly reason[able] to believe there could be
probative evidence on that cellphone that could take the
form of any of those various media formats.

(emphasis added). 2

The Digital Forensic Examination

After seizing appellant’s cellphone, SA Grawn provided appellant’s phone to
SA Jessica Jacob to conduct a digital forensic examination. She also provided SA
Jacob with a copy of the search warrant and incorporated affidavit. At the
suppression hearing, SA Jacob testified she only reviewed the warrant and did not
read the incorporated affidavit describing the crimes being investigated.

Special Agent Jacob believed the warrant allowed her to search all the
contents of the device and as a result, she placed no limitations on her search and
extracted all the data from the phone. This is critical to our plain view
determination because it means that SA Jacob actually searched for pictures, not that
she happened upon them later.

Special Agent Jacob explained a search of a phone occurs in two steps. First,
data is extracted two separate times using two different forensic software programs,
Lantern and Cellebrite. According to SA Jacob, Lantern has the ability to
discriminate among data types and can therefore limit the extraction to categories of
information such as text messages, images, videos, media, etc. Cellebrite does not

2
Although we quote the magistrate’s testimony at the suppression hearing
extensively, our analysis relies on the facts of his statements rather than his
opinions. We cite his views of probable cause to search for photographs to highlight
how mistaken the probable cause review was in this case, relying on mere
possibilities.

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have a similar capability and can only extract all of the data. After the data is
extracted, each data set is arranged into a readable format by the respective program,
allowing SA Jacob to examine the data.

During the search of appellant’s cell phone, SA Jacob found nothing relevant
to the investigation using Cellebrite. Although Lantern did not reveal any text
messages between appellant and SPC AC on the phone, it did allow SA Jacob to find
photographs pertinent to the investigation. Special Agent Jacob extracted all the
photographs from the phone and displayed them in a list view with metadata next to
each image. The metadata included the time, date, filepath, and GPS information.
Among the images, SA Jacob found three photos of a hand grabbing buttocks,
pulling the buttocks’ cheeks apart, and exposing genitalia. The images were dated 9
February 2014 at 23:49:23, corresponding with the time of the reported assault.
Given the report of SPC AC and the date-time stamp of the photographs, the images
appear to be of appellant assaulting SPC AC. Special Agent Jacob determined the
three images were originally located within a photo editing application, PicSayPro,
before being extracted and placed in a list view. Special Agent Jacob was also able
to determine the three pictures in question had not been uploaded or transmitted to
anyone.

The Military Judge’s Analysis

In her findings of fact and conclusions of law, the military judge found the
magistrate “had probable cause to issue the warrant for the scope he provided in the
search affidavit.” The military judge determined the warrant was not invalidated by
the location where the pictures were seized, namely within the picture-editing
application. The military judge found that while the forensic examination exceeded
the scope of the search contemplated by the magistrate, the digital images at issue
were found within the scope of what the magistrate believed he was authorizing.

The military judge further held that although the actual search authorization
was qualified by the term “digital communication,” the pictures were not excluded
as a “communication,” which focuses on the “process of bringing an idea to
another’s perception” rather than on the actual transmission of the photographs.

The military judge ruled that even if the search was unreasonable, the good
faith exception applied. The military judge acknowledged SA Jacob did not read the
entire warrant, but reasoned SA Jacob would have still been objectively reasonable
in her execution of the search had she read the accompanying affidavit. Ultimately,
the military judge determined this case was a “close call” and resolved it in favor of
the magistrate.

On appeal, appellant asserts the military judge abused her discretion by
denying his motion to suppress the photographs. We agree.

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LAW AND ANALYSIS

We first address whether there was a substantial basis to conclude probable
cause existed for the military magistrate to issue a warrant that included a search of
appellant’s phone for any picture or “depiction” of SPC AC. Although evidence
supporting probable cause to search for photographs existed, it was not presented to
the magistrate. We therefore hold that the military magistrate did not have a
substantial basis to conclude probable cause existed to search for any photographs.

We next address the scope of the magistrate’s authorization and conclude the
term “digital communication” did not include pictures under the facts of this case.

Finally, we address the good faith and plain view exceptions and find they do
not apply.

Standard of Review

We review a military judge’s denial of a motion to suppress for an abuse of
discretion. United States v. Nieto, 76 M.J. 101, 105 (C.A.A.F. 2017) (citing United
States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)). We review a magistrate’s
probable cause determination as to whether the military “magistrate had a substantial
basis for concluding that probable cause existed.” Id. (citing United States v.
Rogers, 67 M.J. 162, 164-65 (C.A.A.F. 2009)). “A magistrate has a substantial basis
to issue a warrant when, based on the totality of the circumstances, a common-sense
judgment would lead to the conclusion that there is a fair probability that evidence
of a crime will be found at the identified location.” Rogers, 67 M.J. at 165 (citing
Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Leedy, 65 M.J. 208, 213
(C.A.A.F. 2007)).

Probable cause requires a sufficient nexus between the alleged crime and the
item to be seized. Nieto, 76 M.J. at 106 (citing Rogers, 67 M.J. at 166; United
States v. Gallo, 55 M.J. 418, 421 (C.A.A.F. 2001)) (emphasis added). “The question
of nexus focuses on whether there was a ‘fair probability’ that contraband or
evidence of a crime will be found in a particular place.” United States v. Clayton,
68 M.J. 419, 424 (C.A.A.F. 2010) (quoting Leedy, 65 M.J. at 213). A nexus may “be
inferred from the facts and circumstances of a particular case,” including the type of
crime, the nature of the items sought, and reasonable inferences about where
evidence is likely to be kept. Id.; Gallo, 55 M.J. at 421.

The Military Magistrate’s Probable Cause Determination

We find there was probable cause to search for text messages on appellant’s
phone but no probable cause to look for photographs.

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This court gives “‘great deference’ to the magistrate’s probable cause
determination because of ‘the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant.’” Nieto, 76 M.J. at 105 (quoting Gates, 462 U.S. at
238). “However, this deference is ‘not boundless,’ and a reviewing court may
conclude that ‘the magistrate’s probable-cause determination reflected an improper
analysis of the totality of the circumstances.’ Id. (quoting United States v. Leon, 468
U.S. 897, 915 (1984)). “Sufficient information must be presented to the magistrate
to allow that official to determine probable cause; his action cannot be a mere
ratification of the bare conclusions of others.” Hoffmann, 75 M.J. at 125-26
(quoting Gates, 462 U.S. at 239) (emphasis added). Courts do not view probable
cause determinations with hindsight. Guzman v. City of Chicago, 565 F.3d 393, 396
(7th Cir. 2009).

The military magistrate based his probable cause determination solely on the
four corners of the paperwork presented to him; thus, our review is limited to this
same paperwork. The affidavit details SPC AC’s account of the sexual assault and
appellant’s subsequent text message exchange. The search request does not mention
appellant’s alleged transfer of a nude photograph from SPC AC’s laptop without her
consent to appellant’s phone. While this evidence could have formed the basis for
probable cause to search the phone for photographs, this information was not
conveyed to the military magistrate.

In her affidavit, SA Grawn requests authorization to search for evidence of
“. . . any depiction of SPC [AC] between the time/date group 0000, 9 F[e]b 14 and
0900, 25, 25 Feb 14.” There are, however, no facts in the affidavit to support this
request–only the assertion that probable cause exists to believe evidence of indecent
viewing, visual recording, or broadcasting is on appellant’s phone. Any reliance on
this assertion would be a ratification of a bare conclusion. The request to search
appellant’s phone for a depiction presupposes that the general nature of sexual
assault is such that photographic documentation of this crime would be found on
appellant’s phone. Our superior court disavowed a similar proposition in Hoffmann.
75 M.J. at 126-27. It would be an inferential fallacy to assume without evidence
that someone committing sexual assault would also photograph evidence of the
crime on their phone. See Id. at 127 (quoting United States v. Falso, 544 F.3d 110,
122 (2d Cir. 2008)). Here, the facts and circumstances presented to the magistrate
do not establish a nexus between photos and the sexual assault. See Nieto at 107-08.

Even granting “great deference” to the magistrate, we hold he did not have a
substantial basis to determine probable cause existed to believe photographs of the
sexual assault would be found on appellant’s phone. The only nexus known to the
military magistrate between the phone and the sexual assault were appellant’s text
message admissions. We, therefore, conclude the military magistrate only had a
substantial basis for determining that appellant’s phone contained text messages

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between appellant and SPC AC evidencing the averred sexual assault–not
photographs.

The Search Authorization

The Fourth Amendment requires warrants and search authorizations to
particularly describe the place to be searched and things to be seized so that the
search will be carefully tailored to its justifications. Maryland v. Garrison, 480
U.S. 79, 84 (1987).

The search warrant, probable cause, and particularity requirements serve two
constitutional protections:

First, the magistrate’s scrutiny is intended to eliminate
altogether searches not based on probable cause. The
premise here is that any intrusion in the way of search or
seizure is an evil, so that no intrusion at all is justified
without a careful prior determination of necessity. The
second, distinct objective is that those searches deemed
necessary should be as limited as possible. Here, the
specific evil is the “general warrant” abhorred by the
colonists, and the problem is not that of intrusion per se,
but of a general, exploratory rummaging in a person’s
belongings. The warrant accomplishes this second
objective by requiring a “particular description” of the
things to be seized.

Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (internal citations omitted).

“The test for determining the adequacy of the description of the location to be
searched is whether the description is sufficient ‘to enable the executing officer to
locate and identify the premises with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly searched.’” United
States v. Lora-Solano, 330 F.3d 1288, 1293 (10th Cir. 2003) (citation omitted). This
test “ensures that the search will be carefully tailored to its justifications, and will
not take on the character of the wide-ranging exploratory searches the Framers
intended to prohibit.” United States v. Richards, 76 M.J. 365, 369 (C.A.A.F. 2017)
(quoting Garrison, 480 U.S. at 84).

Today’s digital era complicates the application of the Fourth Amendment.
With regard to cell phones, the Supreme Court, in Riley v. California, instructs:
“modern cell phones, which are now such a pervasive and insistent part of daily life
that the proverbial visitor from Mars might conclude they were an important feature
of human anatomy. . . [as] a significant majority of American adults now own such

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phones.” 134 S. Ct. 2473, 2484 (2014). The Supreme Court’s conclusion is equally
forceful: “[m]odern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many Americans ‘the
privacies of life.’ The fact that technology now allows an individual to carry such
information in his hand does not make the information any less worthy of the
protection for which the Founders fought.” Id. at 2494-95.

Here, the government’s search authorization runs afoul of the probable cause
and particularity requirements of the Fourth Amendment.

The warrant authorized a search and seizure of:

All [c]ellphones and/or hard drives and any physical
evidence concerning digital communication pertaining to
the sexual assault of SPC [AC], and subsequent digital
forensic examination of the collected items. 3

The use of the term “digital communication” was imprecise and open to
interpretation. Special Agent Grawn admitted when she drafted the warrant to
obtain “digital communication” she was referring to text messages between SPC AC
and appellant. Despite her intent, SA Grawn used the term “digital communication”
in the search authorization rather than text messages. Resultantly, the military
magistrate authorized a search for a broader, less precise, category of information,
which led to confusion. Regardless of who drafts the authorization it is the military
magistrate’s responsibility to ensure particularity. Although not required, it will
often be useful for a magistrate to understand law enforcement’s search capabilities,
the intended method of search, and the technical language endemic to a particular
field of investigation. This understanding will help ensure an authorization is
crafted such that is both clear and “expansive enough to allow investigators access
to places where incriminating materials may be hidden, yet not so broad that they
become the sort of free-for-all general searches the Fourth Amendment was designed
to prevent.” Richards, 76 M.J. at 370.

The forensic investigator thought the term “digital communication” limited
the type of items investigators could seize, meaning once a device capable of
communicating was seized, she could then search the entire device. The military
judge broadly found that the term “digital communication” focused on the “process
of bringing an idea to another’s perception” rather than on the actual transmission of
data.

3
We find no probable cause to search and seize any “hard drives.”

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Again, the purpose of the Fourth Amendment particularity requirement is to
prevent general searches. A warrant must describe the things to be seized with
sufficiently precise language so that it informs the officers how to separate the items
that are properly subject to seizure from those that are irrelevant. Davis v. Gracey,
111 F. 3d 1472, 1478-79 (10th Cir 1997). Stated another way, nothing is left to the
discretion of the officer executing the search. Marron v. United States, 275 U.S.
192, 196 (1927). Here, the government finds broad meaning in the term “digital
communication.”

That said, we find that an authorization to search for evidence of a digital
communication would not authorize a search for all photographs on a phone
wherever located. This is because not all photographs constitute communications.
Here, SA Jacob specifically testified she did not narrow or confine her search to
transferred or received communications. She did, however, determine the three
photographs at issue were not transmitted–they were drawn from a picture editing
program. We conclude under the facts of this case, the photographs at issue are not
“digital communication.” 4

The Good Faith Exception

Once a court determines that a search violates the Fourth Amendment, the
exclusionary rule demands that evidence obtained from that search be suppressed
unless an exception applies. The good faith exception to the exclusionary rule is
applicable when investigators “act with an objectively ‘reasonable good faith belief’
that their conduct is lawful.” Davis v. United States, 564 U.S. 229, 238 (2011)
(citing Leon, 468 U.S. at 909). The test is “whether a reasonably well-trained
officer would have known that the search was illegal” in light of “all of the
circumstances.” Herring v. United States, 555 U.S. 135, 145 (2009) (citing Leon,
468 U.S. at 922, n. 23). This standard takes into account the officer’s training and
experience, but not his or her subjective intent. Id. at 145-46. In application, the

4
The government argues the authorization in this case is substantially similar to the
authorization in United States v. Richards, which our superior court determined to
be a valid authorization. 76 M.J. 365. In Richards police found child pornography
on the unallocated space of a drive within a “pictures” folder. Id. at 368. The
authorization in Richards allowed law enforcement to seize “all electronic media and
power cords for devices capable of transmitting or storing online communications”
between Richards and a minor. Id. at 367-68. However, despite the similarity in
authorizing searches for “communications,” Richards is factually distinct. In this
case, the agent did not just look for communications. The agent specifically looked
for photographs as evidence of the sexual assault–she was not looking at the
photographs to find text messages.

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good faith exception applies to conduct involving only “simple, isolated
negligence,” but not to conduct amounting to a deliberate, reckless, or grossly
negligent disregard of Fourth Amendment rights. Davis, 564 U.S. at 238. The good
faith exception recognizes that the exclusionary rule “cannot be expected, and
should not be applied, to deter objectively reasonable law enforcement activity.”
Leon, 468 U.S. at 918-19.

The President, exercising his authority under Article 36, UCMJ, promulgated
a military good faith exception rule. Evidence that was obtained as a result of an
unlawful search or seizure may be used if:

(A) The search or seizure resulted from an authorization to
search, seize or apprehend issued by an individual
competent to issue the authorization under Mil. R. Evid.
315(d) or from a search warrant or arrest warrant issued
by competent civilian authority;

(B) The individual issuing the authorization or warrant
had a substantial basis for determining the existence of
probable cause; and

(C) The officials seeking and executing the authorization
or warrant reasonably and with good faith relied on the
issuance of the authorization or warrant. Good faith shall
be determined using an objective standard.

Mil. R. Evid. 311(c)(3).

Military Rule of Evidence 311(c)(3) embodies the good faith exception as
articulated in Leon and Massachusetts v. Sheppard, 468 U.S. 981 (1984), which
specifically address the scenario when officers rely on a subsequently invalidated
search warrant. United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001). 5 The
Leon exception to the exclusionary rule, however, does not extend to situations
involving the unlawful execution of a valid warrant. Leon, 468 U.S. at 918 n. 19;
see also United States v. Maxwell, 45 M.J. 406, 421 (C.A.A.F. 1996). Further, when
officers do not rely on another’s mistake, but instead commit the mistake themselves
by exceeding the scope of an explicit and valid warrant, the good faith exception
does not apply. United States v. Angelos, 433 F.3d 738, 744-46 (10th Cir. 2006).

5
In Carter and Hoffmann the CAAF analyzed Mil. R. Evid. 311(b)(3), which was
subsequently moved in 2013 to Mil. R. Evid. 311(c)(3). See Exec. Order No.
13,643, 78 Fed. Reg. 29,559, 29,567 (21 May 2013).

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The government has the burden of proving, by a preponderance of the
evidence, the requirements of the good faith exception have been met. Mil. R. Evid.
311(d)(5). Here, there is no issue with the military magistrate’s authority to issue a
search warrant, but we hold the government has not met its burden with respect to
the two other requirements.

In Carter, our superior court determined that with respect to prong (B) of Mil.
R. Evid. 311(c)(3), the phrase “substantial basis” does not have the same meaning as
the term “substantial basis” in Illinois v Gates. 6 54 M.J. at 421. Rather, “substantial
basis” as an element of good faith “is satisfied if the law enforcement official has an
objectively reasonable belief that the magistrate had a ‘substantial basis’ for
determining the existence of probable cause.” Id. at 422. Here, the affidavit
provided no factual predicate to establish its request to search for any “depiction of
SPC [AC] between the time/date group 0000, 9 F[e]b 14 and 0900 25 Feb 14” and no
factual basis to conduct an open-ended search of the phone’s entire contents. The
affidavit was bare bones with respect to such authorizations as the only nexus
between the phone and the alleged crimes described was appellant’s text message
admissions. An objectively reasonable law enforcement official executing the
warrant would have believed the military magistrate had a substantial basis for
determining probable cause with respect to a search for messages between appellant
and SPC AC. Though police officers need not interpret a warrant in an unduly
narrow fashion, they must exercise common sense in assessing the warrant’s scope.
United States v. Fogg, 52 M.J. 144, 148 (C.A.A.F. 2010). An objectively reasonable
agent would have believed this included text messages sent between appellant and
SPC AC and the metadata associated with these particular messages. It did not
reasonably include a search for any and all pictures and videos nor for that matter
did it allow an open-ended search.

With respect to prong (C) of Mil. R. Evid. 311(c)(3), the evidence indicates
either SA Jacob failed to read the entire authorization which included the affidavit,
or was not given the entire authorization, only the first page. The first page
referenced the incorporated attachment. Regardless, SA Jacob did not ask the
magistrate for guidance or clarification regarding what was authorized. Special
Agent Jacob admittedly assumed it authorized an open-ended search based on her
read of only the first page of the authorization. In this case, to understand what was

6
In Nieto, the CAAF noted a tension between its analysis of prong (B) of the good
faith doctrine in Carter, and Hoffmann. 76 M.J. at 108, n. 6. Our superior court
declined to resolve this tension in a case where neither standard was satisfied.
Similarly, we need not resolve the conflict between Carter and Hoffmann as the
good faith exception fails here, even under the more government-friendly standard of
Carter.

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authorized, SA Jacob should have read the entire authorization to include the
affidavit to put the authorization in context. In failing to do so, she executed a
broader search than was authorized. Because not all photographs constitute digital
communications, she exceeded the scope of the authorization. Additionally, SA
Jacob searched outside the date range noted in the authorization. Accordingly, we
do not find the government has met their burden that SA Jacob was objectively
reasonable.

As the government has failed to meet its burden with respect to both prong
(B) and (C), the good faith exception to the exclusionary rule is, therefore,
inapplicable.

The Plain View Doctrine

Military Rule of Evidence 316(c)(5)(C) recognizes the plain view exception
allows the seizure of evidence where an agent is in a lawful position to observe
evidence that he has probable cause to seize. Our superior court has recognized this
exception to the exclusionary rule and has held the plain view doctrine is an
exception to the suppression of evidence. “[I]n order for the plain view exception to
apply: (1) the officer must not violate the Fourth Amendment in arriving at the spot
from which the incriminating materials can be plainly viewed; (2) the incriminating
character of the materials must be immediately apparent; and (3) the officer must
have lawful access to the object itself.” Richards, 76 M.J. at 371 (citing Horton v.
California, 496 U.S. 128, 136-37 (1990)).

The plain view doctrine does not give carte blanche for law enforcement to
conduct searches beyond the scope of a given warrant. “A prerequisite for the
application of the plain view doctrine is that law enforcement must have been
conducting a lawful search when they stumbled upon evidence in plain view.”
United States v. Gurczynski, 76 M.J 381, 388 (C.A.A.F. 2017). Here, the evidence
was obtained based on an affidavit that was missing key facts, a search authorization
that was overbroad, and a search that was conducted without reading the entire
authorization. It was the government’s burden to show that law enforcement were
lawfully in the spot where the evidence was in plain view. Given the tripartite
failure, the government has not met its burden.

While it is possible that a valid search executed in a reasonable manner would
have discovered this evidence, we are not persuaded this occurred. By her own
testimony, SA Jacob was conducting a general unfettered search of the phone. 7 This

7
Assuming the extraction of all of the files contained on the phone was a reasonable
way to conduct this search, and assuming the digital forensic examiner was allowed

(continued . . .)

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search as conducted by SA Jacob was unsupported by probable cause and went
beyond any reasonable interpretation of the scope of the warrant. In short, we
cannot determine whether SA Jacob found the photos in plain view while lawfully
looking for text messages, or whether she found the photos because she was looking
for them. It is the government’s burden to establish facts to support the plain view
exception.

Accordingly, we find the plain view doctrine inapplicable.

CONCLUSION

We hold the military judge abused her discretion by failing to grant the
defense motion to suppress the pictures. The findings of guilty and the sentence are
SET ASIDE. A rehearing is authorized.

Senior Judge BURTON and Judge SALUSSOLIA concur.

FORTHE
FOR THECOURT:
COURT:

MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES JR.
JR.
Clerk of Court
Clerk of Court

(. . . continued)
to look at thumbnails or meta-data, further assuming the examiner was not allowed
by the search authorization to open the subject file, once SA Jacob found a picture
file that had not been “communicated,” but the photo was relevant to the
investigation because it was taken during the date and time of the reported assault,
she should have obtained a new search authorization before opening the file and
continuing to search for other picture files that had not been communicated.
Furthermore, the government conceded at oral argument that inevitable discovery
did not apply to the facts of this case. We accept this concession.

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