UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                TOZZI, CELTNIEKS, and BURTON
                                   Appellate Military Judges

                              UNITED STATES, Appellant
                                            v.
                         Private E-1 JUSTIN M. GURCZYNSKI
                              United States Army, Appellee

                                     ARMY MISC 20160402

    Headquarters, United States Army Combined Arms Center and Fort Leavenworth
                           Jeffrey R. Nance, Military Judge
                   Colonel Craig E. Marutka, Staff Judge Advocate


For Appellee: Captain Carling M. Dunham, JA (argued); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Jihan Walker, JA;
Captain Carling M. Dunham, JA (on brief).

For Appellant: Captain Cody Cheek, JA (argued); Colonel Mary J. Bradley, JA;
Major Andres Vazquez, Jr., JA; Captain Cody Cheek, JA (on brief).


                                         6 September 2016

                 --------------------------------------------------------------------------
                     SUMMARY DISPOSITION AND ACTION ON APPEAL
                        BY THE UNITED STATES FILED PURSUANT TO
                    ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
                 -------------------------------------------------------------------------

BURTON, Judge:

       Appellee stands accused of two specifications of wrongful possession of child
pornography in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2012) [hereinafter UCMJ]. This case is before this court pursuant to
the government’s appeal, filed in accordance with Article 62, UCMJ, challenging the
military judge’s decision to suppress the very evidence that is the subject of these
charges. 1




1
    This Court heard oral argument on this case on 31 August 2016.
GURCZYNSKI—ARMY MISC 20160402

       The charges against appellant are premised on child pornography discovered
during a digital forensic examination (DFE) of a thumb drive and hard drive seized
on 24 January 2014 by the Army Criminal Investigation Command (CID) from the
appellant’s residence pursuant to a warrant. CID’s investigation stemmed from
allegations appellant sexually abused a child. 2 At trial, defense counsel moved
under Military Rule of Evidence [hereinafter Mil. R. Evid.] 311 to suppress the
evidence on the thumb drive and a computer hard drive on the basis that CID
exceeded the scope of the warrant during the DFE. The military judge granted the
motion upon determining CID obtained the evidence by conducting an unlawful
search and seizure in violation of the Fourth Amendment to the United States
Constitution and Mil. R. Evid. 311.

      In granting the defense motion to suppress, the military judge made detailed
findings of fact concerning the scope of the warrant and the search actually
conducted, which we briefly summarize here.

       First, the military judge found the warrant obtained by CID to search
appellant’s residence allowed agents to search for computers and associated
peripheral devices for evidence of “attempted sexual abuse of a child, abusive sexual
contact with a child and other offenses related” to the allegations against the
appellant. The warrant authorized CID to search items seized for evidence appellant
used the devices to communicate with the alleged victim of his abuse in order to
arrange the meeting where the appellant ultimately engaged in indecent acts and
sexual contact with the child.

       Second, a little over a month after the search of appellant’s residence, CID
Special Agent (SA) JT sent the thumb drive and other seized digital items to the
Digital Forensics Lab at the Fort Lewis, Washington CID office for the DFE. The
items were accompanied by a DD Form 2922, Forensic Laboratory Examination
Request, with instructions that the DFE search the thumb drive for “child
pornography or correspondence” with the alleged victim. The request specified that
other digital items seized should be searched for child pornography and e-mails,
online chats, online messages, and other forms of communication between appellant
and the alleged victim.

2
  On 19 June 2014, military judge sitting as a general court-martial convicted
appellant, consistent with his pleas, of one specification of making a false official
statement, and contrary to his pleas, of two specifications of taking indecent
liberties with a child and two specifications of abusive sexual contact with a child,
in violation of Articles 107 and 120, UCMJ. This court dismissed one of the
indecent liberties specifications, as it was charged in the alternative with a
specification of abusive sexual contact; we then affirmed the remaining findings and
the sentence. United States v. Gurczynski, ARMY 20140518 (Army Ct. Crim. App.
31 Aug. 2016) (summ. disp.). CID conducted the DFE over 9 months after this trial.

                                          2
GURCZYNSKI—ARMY MISC 20160402

       Third, when SA CP opened the thumb drive during the DFE, he saw several
file names of videos normally associated with child pornography, as well as a photo
of the appellant. SA CP, suspecting the video files contained child pornography,
and without obtaining a new or expanded search warrant, opened one of the files and
concluded, based on his professional experience, that it was child pornography.
After that, SA CP searched other media seized from appellant’s home and found
additional child pornography on a computer hard drive.

      Fourth, SA CP, relied upon both the DA Form 2922 and the search warrant in
determining the scope of the DFE he conducted.

        Based on these facts, the military judge concluded CID exceeded the scope of
the warrant in searching the thumb drive and granted appellant’s motion to suppress
the child pornography found on the thumb drive and computer hard drive. First, the
military judge found CID had probable cause within the meaning of Mil. R. Evid.
315(f) and a valid warrant to search for communications. Noting that search
warrants must be specific, the military judge found the same was not true for child
pornography because nothing in the warrant or supporting affidavit mentioned
anything “even closely approximating evidence of child pornography.” See United
States v. Carey, 172 F.3d 1268 (10th Cir, 1999). In this respect, the DA Form 2922,
relied upon by SA CP, impermissibly expanded on the scope of the warrant. The
military judge also noted the nature of the charges, given their plain statutory
meaning, did not remotely contemplate the possession, creation or distribution of
child pornography. Second, to search for child pornography upon seeing the video
files, SA CP was required to obtain a new or expanded warrant. See U.S. v. Walser,
275 F.3d 981, 986 (10th Cir. 2001). Third, the military judge determined that the
inevitable discovery doctrine set forth in Mil. R. Evid. 311(c)(2) did not apply since
CID did not have probable cause to search for child pornography in the first
instance. See United States v. Hoffman, 75 M.J. 120, 127 (“Without probable cause,
the inevitable discovery doctrine fails.”). 3




3
 The military judge did not address in his written ruling trial counsel’s assertion the
child pornography was admissible under Mil. R. Evid. 316(c)(5)(C) as evidence in
plain view. We find that plain view does not apply under the circumstances of this
case. For the plain view doctrine to apply, a law enforcement officer must not have
violated the Fourth Amendment, the incriminating nature of the evidence must be
readily apparent, and the officer must have a lawful right of access the object
searched. Horton v. California, 496 U.S. 128, 136-37 (1990). Here, CID violated
the Fourth Amendment by exceeding the scope of the warrant. See United States v.
Osorio, 66 M.J. 632 (A.F. Ct. Crim. App. 2008).

                                           3
GURCZYNSKI—ARMY MISC 20160402

       We review a military judge’s ruling on a motion to suppress for an abuse of
discretion. United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011) (citations
omitted). In reviewing such a ruling, “we review factfinding under the clearly-
erroneous standard and conclusions of law under the de novo standard.” Id. (quoting
United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). On mixed questions of
law and fact, “a military judge abuses his discretion if his findings are clearly
erroneous or his conclusions of law are incorrect.” Id. “The abuse of discretion
standard calls for more than a mere difference of opinion. The challenged action
must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United
States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (citations and internal quotation
marks omitted).

       When acting on interlocutory appeals under Article 62, UCMJ, our court may
act “only with respect to matters of law.” Baker, 70 M.J. at 287-88 (citing United
States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004)). As we are limited to reviewing
matters of law, the question before us is not whether we disagree with the trial
court’s findings, but “whether those findings are fairly supported by the record.”
Baker, 70 M.J. at 288 (quoting United States v. Burris, 21 M.J. 140, 144 C.M.A.
1985). In conducting our review of a motion to suppress, “we consider the evidence
in the light most favorable to the prevailing party.” Baker, 70 M.J. at 288 (citations
omitted).

       Upon review of the record of trial, including the military judge’s ruling dated
13 May 2016, the briefs of both parties, and the oral arguments, we find the military
judge did not abuse his discretion in suppressing the evidence obtained from the
thumb drive seized from the residence of the accused on 24 January 2014 and his
findings are fairly supported by the record. Therefore, the appeal of the United
States pursuant to Article 62, UCMJ, is DENIED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                        FOR
                                         FOR THE COURT:
                                                 COURT:




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




                                          4
