                 UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                    Before
                  F.D. MITCHELL, R.Q. WARD, J.A. FISCHER
                           Appellate Military Judges

                         UNITED STATES OF AMERICA

                                        v.

                         NICHOLAS TIENTER
                LANCE CORPORAL (E-3), U.S. MARINE CORPS

                               NMCCA 201400205
        Review Pursuant to Article 62(b), Uniform Code of Military Justice,
                                10 U.S.C. § 862(b)

Military Judge: LtCol L.J. Francis, USMC.
Convening Authority: Commanding General, 3d Marine Aircraft
Wing, MCAS Miramar, San Diego, CA.
For Appellant: Capt Cory A. Carver, USMC.
For Appellee: Maj John J. Stephens, USMC; Capt Michael B.
Magee, USMC.

                              23 September 2014

       ---------------------------------------------------
                       OPINION OF THE COURT
       ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

WARD, Senior Judge:

     This case is before us on a Government interlocutory appeal
pursuant to Article 62, Uniform Code of Military Justice.1 The
appellee, Lance Corporal Nicholas W. Tienter, U.S. Marine Corps,
is currently charged with two specifications of violating



1
    10 U.S.C. § 862 (2012).
Article 120, UCMJ.2 The Government appeals the military judge’s
ruling suppressing text messages that law-enforcement agents
seized during a search of the appellee’s cell phone.3 Following
the military judge’s written ruling, trial counsel filed a
timely notice of appeal.4

     After carefully considering the record of the motion
hearing, the military judge’s ruling, and the submissions of the
parties, we find that the military judge did not abuse his
discretion by granting the defense motion to suppress.
Accordingly, we deny the Government’s appeal and remand this
case.

                                    Background

     This case arises from an allegation that the appellee
engaged in a sexual act with someone who was substantially
incapacitated due to alcohol intoxication. The alleged incident
occurred in November 2011. The case was referred for trial by
general court-martial in September 2013.

     In October 2013, the appellee underwent surgery while
pending trial. Soon after his surgery, the appellee reported to
his command that Corporal (Cpl) S, a fellow Marine in his
squadron, had asked him for several of the Percocet pills
prescribed to him following surgery. These solicitations came
in the form of text messages. In late November 2013, the
appellee provided a transcript of some of these text messages to
members of his command, who in turn referred the matter to law
enforcement.5

     Based on the appellee’s tip, Special Agent (SA) Isaac Perez
of the Criminal Investigation Division (CID) sought
authorization from the Commanding Officer, MCAS Miramar, to
search the appellee’s cell phone and seize electronic messages
pertaining to the use and/or possession of prescription
medication. In his supporting affidavit, SA Perez stated that
after seizing the data from the appellee’s cell phone, CID
agents would search the data using “search protocols directed
exclusively to the identification and extraction of data within

2
    10 U.S.C. § 920 (Supp. 2008).
3
    Appellate Exhibit XIX.
4
    AE XXI.
5
    The texts provided by the appellee did not indicate any dates.
                                        2
the scope of this warrant.”6 SA Perez further stated that this
analysis would be completed within 90 days.7

     On 20 November 2013, the Commanding Officer, MCAS Miramar,
authorized SA Perez to search the appellee and seize his cell
phone.8 The military judge found that the scope of the
authorized search was limited to “evidence relating to the
wrongful use and possession of controlled substances as related
to communications between the accused and Cpl [S]” as well as
“any electronic mails sent or received in temporal proximity to
the incriminating electronic mails that provide context to the
incriminating mails.”9

     After seizing the appellee’s cell phone, SA Perez attached
it to a Cellebrite Universal Forensic Extraction Device (UFED),
which in turn made a complete digital copy of all data in the
cell phone. By selecting various software tools associated with
the program, he created a single Portable Document Format (PDF)
file containing all text messages retrievable on the cell
phone.10 By using keywords and phrases associated with
prescription medication, he located several text messages
pertaining to illegal drug use. In addition to these texts, SA
Perez also discovered one text wherein the appellee admitted to
adultery. SA Perez then drafted an investigative report
documenting his search and the aforementioned text messages.11

     Several months later, the senior trial counsel at MCAS
Miramar notified SA Perez that she had located a text message in
the extraction file pertaining to the sexual assault offenses
then pending trial. She asked SA Perez to go back and search

6
     AE IX, Appendix A at 6.
7
     Id.
8
  Id. at 1. Although SA Perez’s affidavit references searching the appellee’s
cell phone for “[c]ommunication between [the appellee] and Cpl [S], wherein
Cpl [S] solicits [the appellee] for prescription medication”, the command
authorization provides no explicit authorization to search the contents of
the cell phone. Rather, it merely authorizes the search of the appellee’s
person and seizure of his cell phone. The apparent variance between the
affidavit and the authorization does not change the outcome of this case.
9
  AE XIX at 4-5 (internal quotation marks and parentheses omitted) (quoting AE
IX, Appendix A, at 13).
10
     Record at 33-34.
11
     Id. at 34-35.


                                      3
the same extraction file for any additional text messages that
may relate to the appellee’s pending sexual assault charges.12

     SA Perez, with the assistance of SA Stemen of the Naval
Criminal Investigative Service (NCIS) and using search terms
specific to the sexual assault allegations, discovered several
additional text messages which formed the basis of the defense
motion to suppress.13 Even though more than 90 days elapsed
since the search authorization had been granted, SA Perez did
not seek an additional search authorization.

                              Standard of Review

     We review a military judge’s ruling on a motion to suppress
for abuse of discretion.14 We review the military judge’s
findings of fact under a clearly-erroneous standard but we
review his conclusions of law de novo.15 “Thus, on a mixed
question of law and fact . . . a military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.”16

     When reviewing matters under Article 62, UCMJ, we act only
with respect to matters of law and we review the military
judge’s ruling on a motion to suppress in a light most favorable
to the prevailing party, here the appellee.17

                                 Applicable Law

     Protecting against unreasonable searches and seizures, the
Fourth Amendment provides that “no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.”18

12
     Id. at 36.
13
  SA Perez and SA Stemen searched the extraction file first using the names
of the appellee, witnesses and the alleged victim before using keywords and
searches such as “[o]n top, oral sex [and] blow job”. Id. at 52-53.
14
     United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011).
15
     Id. (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)).
16
     Ayala, 43 M.J. at 298.
17
     Id. at 288 (citations omitted).
18
     U.S. CONST. amend. IV.


                                         4
     Even when made pursuant to a warrant, a search must conform
to the scope authorized, as an authorization to search does not
give rise to an open-ended license to rummage for anything of
evidentiary value. Granting such general power would violate
the Fourth Amendment’s requirement that warrants describe with
particularity those areas to be searched and items seized.19

     Data stored within a cell phone fall within the Fourth
Amendment’s protections.20 As such, evidence obtained from a
Government search of cell phone data generally will be
inadmissible unless (1) the search was conducted pursuant to a
search authorization or warrant, or (2) a recognized exception
applies.

                                 Discussion

     Following the motion hearing, the military judge issued a
written ruling wherein he made numerous findings of fact. For
the most part, the parties agree with his findings. The
Government alleges, and the defense concedes, that the military
judge made at least one finding of fact that was clearly
erroneous.21 We find the remaining findings fairly supported by

19
  See Marron v. United States, 275 U.S. 192, 196 (1927) (holding that
particularity requirement of Fourth Amendment prevent general searches and
“prevents seizure of one thing under a warrant describing another.”); see
also Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (finding that one of
the constitutional protections afforded by the Fourth Amendment is a
prohibition against “a general, exploratory rummaging in a person’s
belongings.” (Citations omitted)).
20
  Riley v. California, 134 S. Ct. 2473, 2494-95 (2014). See also United
States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (“Therefore, cell phones may
not be searched without probable cause and a warrant unless the search and
seizure falls within one of the recognized exceptions to the warrant
requirement.” (Citations omitted)).
21
  The military judge found that law-enforcement agents used the Cellebrite
machine three times when in fact SA Perez only use the Cellebrite machine to
extract data from the appellee’s cell phone once on 21 November 21. AE XIX
at 5, 7; Record at 32-33. We find this error immaterial as the military
judge’s ruling was predicated on the scope of the searches occurring after
the cell phone data were seized. His findings on that matter are
comprehensive and well-supported by the record. The Government also takes
issue with the absence of findings regarding the senior trial counsel’s role
in searching the .pdf file and discovering one of the text messages at issue.
The record could support a finding that it was the senior trial counsel who
prompted law-enforcement agents to search the data for evidence of sexual
assault as part of a “separate investigation” from the drug case. Record at
36. But the military judge omitted any such finding and we are not permitted
to supplement his ruling with our own findings in reviewing a Government
appeal. We are not convinced that his omission was clearly erroneous. Nor
                                      5
the record and utilize them for purposes of our analysis. We do
not add findings of fact or substitute our own interpretation of
what happened – we merely strike the erroneous finding and apply
the appropriate legal tests to the remaining facts.22

     We conclude, as did the military judge, that the agents
involved exceeded the scope of the authorized search at the time
of the discovery of the additional texts and therefore the plain
view exception does not apply.

1. Lawful Scope of the Search

     A warrant or search authorization must describe “with
particularity” the place to be searched and the items to be
seized. This protects a person from the unreasonable “rummaging
through one’s personal belongings” prohibited under the Fourth
Amendment.23 Thus, when a magistrate limits the scope of a
search to evidence of a particular crime, a search for evidence
pertaining to an unrelated crime is beyond the scope of the
warrant.24 Whether police or Government agents are acting within
the scope of the warrant depends in large part on the
reasonableness of their actions.25

     The search authorization issued in November 2013 allowed SA
Perez to search the appellee’s cell phone data for any
electronic communications between the appellee and Cpl [S]
relating to use and possession of a controlled substance.26 No
mention of any other crime is made.

     During SA Perez’s original search of the cell phone data,
he only discovered one text message unrelated to illegal drug
use, and that message related to adultery. At the motions
hearing, he admitted that had he come across the additional

would further fact-finding on the senior trial counsel’s involvement affect
the outcome in this case.
22
     United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).
23
     Coolidge, 403 U.S. at 467.
24
  Marron, 275 U.S. at 196; see also United States v. Decker, 956 F.2d 773,
778 (8th Cir. 1992) (holding that warrant authorizing seizure of UPS package
suspected to contain drugs did not authorize seizure of drugs and drug
paraphernalia from the premises).
25
     United States v. Michael, 66 M.J. 78, 80 (C.A.A.F. 2008).
26
     AE XIX at 4-5.


                                         6
texts during his original search, he would not have interpreted
them as evidence of a sexual assault.27 Only months later did SA
Perez re-examine the extraction file with the aid of SA Stemen
for any additional evidence of sexual assault. Last, and
perhaps most significant, is that nowhere did the search
authorization specify searching for evidence of sexual assault.

     Under these circumstances, we agree with the military judge
that the agents exceeded the scope of the search and accordingly
lacked probable cause to seize these additional text messages.
Even if, as the Government contends, the search authorization
might reasonably have permitted SA Perez to “review[] all of the
texts messages by reading every page of the PDF,” in his search
for drug evidence,28 the authorization did not permit a search
for evidence pertaining to sexual assault. Therefore, the
agents could lawfully seize the additional text messages only if
they were in plain view.

2. Plain View Exception

     We conclude that the military judge did not err by ruling
that the plain view exception did not apply. The Government
argues that these additional text messages were in plain view
because they were contained in the same raw data file as the
text messages related to prescription medication. But SA Perez
did not discover these text messages during his original search
for drug-related communications, despite finding one unrelated
message concerning adultery. It does not follow that one piece
of data is in plain view simply because it is co-located with
another piece of data somewhere within 2,117 pages of material.29
To the contrary, the record indicates that law-enforcement
agents only located these text messages by using search terms
specifically aimed at finding evidence of sexual assault.

     Under these facts, we agree with the military judge that
agents exceeded the scope of the search authorization in
searching the extraction report for evidence of sexual assault.
Since the plain view doctrine requires that law-enforcement
agents act within the scope of the authorization at the time of
27
     Record at 50.
28
     Appellant’s Brief of 27 Jun 2014 at 13.
29
  The military judge found that “[t]he extraction report consists of 2117
pages of material collected from the [appellee’s] cellular phone to include
numerous texts messages most [of] which are unrelated to the [appellee’s]
conversations with Cpl [S].” AE XIX at 6.


                                         7
discovery, the doctrine is inapplicable under the facts of this
case.30
                            Conclusion

     The appeal of the United States is hereby denied. The
military judge’s ruling is affirmed and the record of trial is
returned to the Judge Advocate General for remand to the
convening authority and delivery to the military judge for
further proceedings.

     Chief Judge MITCHELL and Judge FISCHER concur.

                                      For the Court



                                      R.H. TROIDL
                                      Clerk of Court




30
  See Horton v. California, 496 U.S. 128, 140 (1990) (“If the scope of the
search exceeds that permitted by the terms of a validly issued warrant . . .
the subsequent seizure is unconstitutional without more.”); United States v.
Fogg, 52 M.J. 144, 149 (C.A.A.F. 1999). We also note that the second
requirement of the plain view doctrine, i.e. that the evidence’s
“incriminating nature must also be immediately apparent” also appears unmet
in light of SA Perez’s initial inability to find these additional texts and
his testimony that he would not have readily recognized these texts as
evidence of sexual assault had he found them during his initial search. Id.
at 136-37 (internal quotation marks and citations omitted).


                                      8
