UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                          Specialist MICHAEL S. SPIESS
                          United States Army, Appellant

                                   ARMY 20100229

                         Headquarters, U.S. Army Alaska
                         Mark A. Bridges, Military Judge
            Lieutenant Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Captain Jennifer A.
Parker, JA; Colonel Edye U. Moran, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Katherine S. Gowel, JA; Captain
Christopher S. Glascott, JA (on brief).


                                 28 September 2012

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

ALDYKIEWICZ, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of violating a lawful general order and knowingly possessing
child pornography in violation of Articles 92 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 892, 934 (2006) [hereinafter UCMJ]. The convening authority
approved the sentence to a bad-conduct discharge, confinement for fourteen months,
and reduction to the grade of E-1.

       The case is now before this court for review pursuant to Article 66, UCMJ.
Appellant alleges a single assignment of error: that the military judge abused his
discretion by admitting evidence at trial that was obtained or derived from an illegal
search of appellant’s external hard drive. We agree that the military judge erred
when he concluded that the search in this case was private in nature. However, we
conclude that appellant was not prejudiced by this error because (1) the evidence
from appellant’s external hard drive would have been inevitably discovered, and (2)
SPIESS—ARMY 20100229

appellant’s allegedly derivative confession is sufficiently attenuated from the illegal
search so as to be admissible in its own right.

                                 A. BACKGROUND

       Appellant was deployed to Iraq in support of Operation Iraqi Freedom and
resided on Forward Operating Base (FOB) Warhorse in a two-person containerized
housing unit (CHU). Appellant shared his CHU with a fellow soldier, Specialist
(SPC) JC. Appellant’s CHU was divided into two halves with each half separated by
a wall locker that acted as a make-shift wall down the middle. The CHU was
secured by lock and key.

                   1. The Initial Discovery of Child Pornography

       On 22 February 2009, while appellant was on rest and recuperation (R&R)
leave in the United States, appellant’s roommate, SPC JC, was securing all the
personal belongings in their CHU as part of corrective training requiring him to
“live out of his rucksack.” This training was directed by the soldiers’ platoon
sergeant, Sergeant First Class (SFC) DH, in response to the poor living conditions
SFC DH previously observed in the CHU. Specialist JC decided to watch a movie
while he secured the belongings in the CHU. Consistent with his clean-up plan, SPC
JC took his laptop computer to appellant’s side of the CHU and connected it to
appellant’s external hard drive to search for a movie to download and view.
Specialist JC knew appellant had movies on the hard drive because on several prior
occasions appellant transferred movies to SPC JC’s laptop when SPC JC asked him
to do so. On all prior occasions, however, appellant connected the hard drive to SPC
JC’s computer and appellant himself executed both the search for movies and the file
exchange. Appellant never provided SPC JC the actual hard drive to execute either
the search or file transfer himself, nor did appellant give SPC JC unfettered or carte
blanche access to use appellant’s hard drive whenever he so desired. Furthermore,
while appellant and SPC JC occasionally shared military gear, they never shared
personal items.

       As SPC JC searched appellant’s external hard drive files for a movie, he came
upon a file name that caused him concern, specifically, a file named “15 year old on
21 year old” or words to that effect. Specialist JC suspected the video file contained
child pornography. Not wanting to wrongly accuse his roommate of misconduct,
SPC JC decided to view the file and confirm his suspicions. When the movie
played, SPC JC saw “a little girl about 12 years of age and a male late twenties early
thirties” who was talking to the girl and then “[the little girl] takes her top off.”




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SPIESS—ARMY 20100229

                         2. The Search and Seizure of Appellant’s External Hard Drive

       The following day, 23 February 2009, SPC JC approached SFC DH in the
motor pool. Specialist JC told SFC DH that he found what he thought was child
pornography on appellant’s external hard drive. Sergeant First Class DH told SPC
JC that it was obviously against the law and that SPC JC had to give him the hard
drive. Visibly bothered by what he found and the situation of accusing a “battle
buddy,” SPC JC asked SFC DH to come by his CHU and “confirm” his suspicions.

       When SFC DH arrived at the CHU later that evening, SPC JC initially started
to give SFC DH the hard drive and then changed his mind, asking SFC DH to view
the video at issue and confirm his suspicions. Specialist JC then proceeded, as he
had done the night before, to appellant’s side of the CHU and connected his laptop
to appellant’s external hard drive. Specialist JC checked the recent files on his
laptop computer in an attempt to find the video he saw the day before. When the
recent files search proved unsuccessful, SPC JC started searching various file
folders on appellant’s external hard drive for the video. That also proved
unsuccessful. After numerous failed attempts to locate the video from the day
before, SFC DH showed appellant how to search for computer files by
simultaneously holding down the “Control” key and letter “F.” Sergeant First
Class DH physically held down both keys that launched the search function.
Specialist JC then used the computer’s “Control-F” search function and attempted to
locate the movie he saw the day before, but was unsuccessful. At this point,
SFC DH suggested various search terms for SPC JC to use. Sergeant First Class DH
told appellant to try using numbers to locate the movie. This technique resulted in
the discovery of another video containing child pornography, albeit a video separate
and distinct from the video seen by SPC JC the day before. Specialist JC minimized
this video and continued, while in SFC DH’s presence, to search appellant’s hard
drive for the video he discovered the day before. A short time later, after continued
efforts to locate that specific video failed, SPC JC and SFC DH decided to
“maximize” the video which was earlier minimized. Once maximized, SPC JC and
SFC DH viewed several seconds of this video which showed a child, age ten to
twelve years old, masturbating an adult male.

       After observing obvious child pornography, SFC DH seized appellant’s hard
drive and immediately delivered it to the company First Sergeant (1SG), 1SG AD,
who in turn gave it to the unit commander, Captain (CPT) AW. 1 First Sergeant AD
told CPT AW that the hard drive contained suspected child pornography. Captain
AW immediately sought legal guidance and was told by “JAG” to contact U.S. Army
                                                            
1
 Captain AW appears in various documents in the record as CPT AG, as her last
name changed between the initial seizure of appellant’s hard drive and time of trial.




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SPIESS—ARMY 20100229

Criminal Investigation Command (CID), which she did. She advised CID that she
was in possession of a hard drive with suspected child pornography and was told to
secure the hard drive until CID agents arrived. Neither CPT AW nor 1SG AD
searched the hard drive or viewed any of its contents.

       On 24 February 2009, CID Special Agents (SA) CH and KB arrived at FOB
Warhorse to investigate the child pornography allegations against appellant. After
securing appellant’s hard drive from CPT AW, the agents conducted a search of
appellant’s CHU. Appellant’s roommate, SPC JC, consented to a search of his side
of the CHU and all of his property. The commander, CPT AW, authorized a search
of appellant’s side and all of appellant’s property. The search discovered nothing of
any evidentiary value. Special Agent CH also took sworn statements from SPC JC
and SFC DH detailing the facts and circumstances surrounding their search of
appellant’s external hard drive. Specialist JC had previously provided a sworn
statement to his commander.

          3. CID’s Interview of Appellant and his Subsequent Confession

       On 12 March 2009, appellant arrived at Balad Air Base, returning to Iraq from
his R&R leave. When he arrived in Balad, appellant was advised that he would
remain there and not travel. The next day, appellant was transported to the CID
offices on Balad.

       When appellant arrived at CID on 13 March 2009, SA KB advised appellant of
his Article 31, UCMJ, rights and that appellant was suspected of possessing child
pornography. Appellant waived his rights and agreed to talk to SA KB. Special
Agent KB did not apprise appellant of any of the evidence obtained against him.
According to SA KB, the only thing he told appellant, beyond reading him his rights,
was that appellant should be truthful with him. Appellant then confessed in a two-
page, typewritten statement to possessing and viewing child pornography.

                            4. The Suppression Hearing

       Appellant’s external hard drive was not forensically examined by CID until
several months after appellant confessed. Upon examination of the external hard
drive, experts found numerous files of child pornography.

       At his court-martial, appellant moved to suppress the evidence found on his
external hard drive, arguing the evidence was obtained as a result of an illegal
search and seizure. Appellant further moved to suppress his confession as derivative
of the illegal search. This motion was litigated at an Article 39(a), UCMJ, hearing.

       Special Agent KB testified at this hearing about his interview of appellant.
Although appellant’s external hard drive was already in CID’s possession, SA KB
stated that he did not inform appellant that appellant’s external hard drive had


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SPIESS—ARMY 20100229

already been searched by SPC JC and SFC DH and that child pornography was
found. Appellant disputed SA KB’s testimony. In support of his motion to
suppress, appellant testified that SA KB said, “We’ve got your hard drive. We’ve
got computer experts that are paid to look into this and they’re going to find
anything that’s on there.” Appellant also testified he would not have confessed but
for CID’s possession of his external hard drive and knowledge of its contents.

      In addition to the above, the suppression hearing established that SFC DH
would have pursued action to seize the hard drive had he not already seized it. The
following colloquy occurred between the military judge and SFC DH regarding the
handling of the hard drive in the event that SPC JC had refused to turn it over:

         Q: What would you have done if SPC [JC] said, “I’m not going to
         bring the hard drive to you”?

         A: Well, actually, Your Honor, he told me what he thought it was.
         And then I would have pressed the command. I mean, it’s
         already-- if he told me, “Hey, there’s drugs here and they’re not
         mine,” I would still go after the drugs, so----

         Q: So you would have notified your Command?

         A: Yes, I would have . . . .

       Similarly, the suppression hearing established that CPT AW would have
pursued a search of appellant’s CHU for child pornography had she only been
confronted with SPC JC’s 22 February 2009 observation of child pornography on
appellant’s hard drive as opposed to having been brought the hard drive by 1SG AD.
In response to questioning by the military judge the commander testified, in part, as
follows:

         A: Given the fact that I was told by Specialist--well, the First
         Sergeant that there was child pornography or some type of
         pornography that was on the hard drive of this soldier’s
         computer--or this hard drive--it gave me probable cause, as a
         Commander, because pornography is illegal in theater. That--
         now, before the [sic] action needs to be taken, we need to make
         sure that we sanitize the area and make sure that we sanitize--
         anything that’s--that’s incorrect, we need to correct it. So
         whatever measure needs to be taken, i.e., following the track that I
         was issued--or given--that--from recommendations--from a Legal
         Office or CID, that’s the track I took.
         ....




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SPIESS—ARMY 20100229

         Q: Had they not brought the hard drive to you, but just came to
         you with the information that they had seen child pornography on
         the hard drive, in the CHU, would you have authorized a search,
         based upon that information?

         A: Of the CHU?

         Q: Of the CHU.

         A: Roger, sir. And the reason I base it [sic] is just like a soldier
         that comes through this main gate, if they got--if there’s drugs in
         the car, there’s probably drugs somewhere else. And if they live
         on--and reside on post, I would--I, as a Commander, would say,
         “Well, you caught him for that at the gate, why don’t you check
         his room, also?” And I have probable cause, because if he has it
         there, to me, it may, you know be passed and possessed through--
         through the entire barracks area. So the two, to me, are linked.
         That is your area, where stuff is stored. And that hard drive was
         stored there. So I have probable cause.

When asked about the trustworthiness of SPC JC and SFC DH, the commander
testified:

         They are trustworthy. They’ve never given me a reason not to
         trust them. Sergeant [First Class DH] has been a very, very
         faithful Platoon Sergeant, who has dealt with soldier issues very
         well. And he rarely has soldier issues. And when he does, he’s
         very, very meticulous in handling it. So I understood that if he
         came to me, it had to be serious.

      Finally, SA CH testified that if the Company Commander did not already have
possession of appellant’s external hard drive suspected to contain child pornography,
CID would have “searched for and seized that hard drive.”

       After considering the defense motion along with its enclosures, the
government response, and the testimony on the motion, the military judge denied the
suppression motion, noting he would later issue written findings to be appended to
the record.

       On 17 April 2010, the military judge entered written “Findings and
Conclusions,” specifically finding that while appellant had an expectation of privacy
in his external hard drive, both the 22 February 2009 and 23 February 2009 searches
were private in nature and thus did not implicate appellant’s rights under the Fourth
Amendment as there was no governmental intrusion. Alternatively, the military
judge found the evidence at issue would have been inevitably discovered. Having


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SPIESS—ARMY 20100229

found both searches to be private in nature, the military judge’s findings and
conclusions did not specifically address the admissibility of appellant’s 13 March
2009 confession. Furthermore, the military judge’s findings are silent with regard to
any credibility determination between the diametrically opposed testimony of SA KB
and appellant on whether appellant was confronted by the fact that his hard drive
had already been searched and seized.

                                      B. LAW

       The Fourth Amendment prohibits “unreasonable searches and seizures,”
United States v. Daniels (Daniels II), 60 M.J. 69, 70 (C.A.A.F. 2004). U.S. Const.
amend IV. In the military justice system, “[a] search or seizure is ‘unlawful’ if it
was conducted, instigated, or participated in by . . . [m]ilitary personnel or their
agents and was in violation of the Constitution of the United States as applied to
members of the armed forces.” Military Rules of Evidence [hereinafter Mil. R.
Evid.] 311(c)(1). See Daniels II, 60 M.J. at 71. A search is not unlawful if it is
authorized by competent military or civilian authority based upon probable cause,
Mil. R. Evid. 315, or if it falls within certain exceptions, to include the limited
circumstances found in Mil. R. Evid. 312, 313, 314, and 317. “Evidence obtained as
a result of an unlawful search or seizure made by a person acting in a governmental
capacity” is inadmissible at a court-martial. Mil. R. Evid. 311(a). Thus, a necessary
trigger for any search implicating Fourth Amendment protections is “government
intrusion into an individual’s reasonable expectation of privacy.” Daniels II, 60
M.J. at 71.

       However, “[t]he Fourth Amendment and Mil. R. Evid. 311 are not violated
when a military member acts in a purely private capacity.” United States v.
Sullivan, 42 M.J. 360, 363–64 (C.A.A.F. 1995). Whether a military member acts in
a private capacity or in an official capacity depends not on the actor’s motivation
but on whether the individual acted as “an instrument or agent of the Government.”
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989).

        Government intrusion in violation of Fourth Amendment rights, in and of
itself, does not automatically result in exclusion of the uncovered evidence at court-
martial, nor does it necessarily require exclusion of derivative evidence. If the
evidence would have been inevitably discovered through proper means, then that
evidence is admissible against an accused. Mil. R. Evid. 311(b)(2). “The doctrine
of inevitable discovery creates 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 (C.A.A.F. 2008)
(citing Nix v. Williams, 467 U.S. 431 (1984)).

         “[A]fter an accused challenges the legality of a search, the
         prosecution must, by a preponderance of the evidence, establish to



                                          7
SPIESS—ARMY 20100229

                    the satisfaction of the military judge 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, 71 M.J. 116, 122 (C.A.A.F. 2012) (quoting United States v.
Kozak, 12 M.J. 389, 394 (C.M.A. 1982)).

       Confessions derivative of an illegal search or seizure in violation of the
Fourth Amendment are generally inadmissible, notwithstanding a proper rights
advisement pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), or Article 31,
UCMJ. However, if the government can establish the prior violation is sufficiently
distinguishable from the later confession, so as to purge any taint from the illegality,
then the confession is still admissible against an accused. Brown v. Illinois, 422
U.S. 590 (1975). 2 In Brown, the Supreme Court identified three factors “to
determine if Miranda warnings were sufficient to remove the taint of an unlawful
search and allow a subsequent confession,” United States v. Conklin, 63 M.J. 333,
338 (C.A.A.F. 2006) (citing Brown, 422 U.S. at 603–04). The three factors are:
“temporal proximity of the unlawful police activity and the subsequent confession,
the presence of intervening circumstances, and, the purpose and flagrancy of the
official misconduct.” Id.

                                                               C. DISCUSSION

      At issue in this case is the military judge’s denial of a defense motion to
suppress evidence of child pornography found on appellant’s external hard drive
following two allegedly unlawful searches of appellant’s computer, the first on 22
February 2009 by SPC JC and the next on 23 February 2009 by SPC JC and SFC DH.
Also at issue is the military judge’s denial of the defense motion to suppress
appellant’s later confession as derivative of the alleged unlawful searches.

       A military judge’s ruling on a suppression motion is reviewed for an abuse of
discretion. Dease, 71 M.J. at 120. Findings of fact and conclusions of law are
                                                            
2
 See Kaupp v. Texas, 538 U.S. 626 (2003); Taylor v. Alabama, 457 U.S. 687 (1982);
Dunaway v. New York, 442 U.S. 200 (1979); United States v. Conklin, 63 M.J. 333
(C.A.A.F. 2006). But see New York v. Harris, 495 U.S. 14 (1990) (finding
admission of evidence constitutionally permissible and declining application of
Brown’s attenuation analysis where the defendant was illegally arrested but later
confessed while in lawful custody).




                                                                     8
SPIESS—ARMY 20100229

reviewed under a clearly erroneous standard and de novo standard, respectively.
United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). When considering a
military judge’s ruling on a suppression motion, the court considers the evidence “in
the light most favorable to the prevailing party.” United States v. Reister, 44 M.J.
409, 413 (C.A.A.F. 1996). “In order to find an abuse of discretion, we must find
that the military judge committed a clear error in his conclusions.” Dease, 71 M.J.
at 121.

                        1. Reasonable Expectation of Privacy

       The military judge’s findings correctly reflect that appellant had a reasonable
expectation of privacy in his external hard drive. The hard drive was stored in a
secured CHU. The CHU was divided into two halves by a wall locker and the hard
drive was kept on appellant’s side. While appellant and SPC JC occasionally shared
military “gear,” they did not share personal belongings. Finally, appellant never
gave SPC JC permission to use his hard drive nor did SPC JC believe that he had
unfettered or carte blanche access to the drive. On all prior occasions where movies
were transferred from appellant’s hard drive to SPC JC’s computer, appellant
searched for and executed the file transfers. Accordingly, the military judge
correctly concluded that appellant had a reasonable expectation of privacy in his
external hard drive. See Conklin, 63 M.J. at 337.

                    2. Private Action or Governmental Intrusion

                  SPC JC’s Initial Discovery of Child Pornography

       Specialist JC’s search of appellant’s external hard drive on 22 February 2009
did not amount to a government intrusion into appellant’s reasonable expectation of
privacy. Specialist JC’s actions in searching appellant’s external hard drive for
movies, resulting in the discovery of child pornography, was a private, non-
governmental search. At the time of the search, SPC JC and appellant were the same
rank and neither soldier held a position of authority over the other. The purpose of
SPC JC’s search was to simply find a movie to watch as he cleaned their CHU. At
the time of the search, SPC JC did not suspect his roommate of any criminal activity,
did not suspect that the hard drive contained any items of a contraband nature, and
was not engaged in any law enforcement or command directed activity focused on
appellant or his hard drive. Nothing regarding SPC JC’s actions in connecting
appellant’s hard drive to his personal laptop computer and subsequently searching
the drive for a movie to watch has any indicia of official, governmental action. See
Daniels II, 60 M.J. at 71 (citing Skinner, 489 U.S. at 615–16 (1989)). Accordingly,




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SPIESS—ARMY 20100229

the military judge correctly concluded SPC JC’s actions did not violate appellant’s
Fourth Amendment rights. 3

                                              SPC JC’s and SFC DH’s Subsequent Search
                                                 of Appellant’s External Hard Drive

       Although the initial discovery of appellant’s child pornography was not in
violation of the Fourth Amendment, we conclude that the subsequent, unauthorized
search of appellant’s external hard drive was unlawful. See Mil. R. Evid. 313–315.
Sergeant First Class DH’s direction and participation in SPC JC’s subsequent search
of appellant’s external hard drive amounted to a government intrusion into
appellant’s reasonable expectation of privacy. The military judge’s findings of fact
with regard to the 23 February 2009 search engaged in by SPC JC and SFC DH are
supported by the record and as such are not clearly erroneous. However, in applying
the law to these facts, the military judge erroneously concluded that SFC DH’s
involvement did not transform what was previously a private search by SPC JC into
a governmental intrusion. In this respect, the military judge’s application of the law
to the facts was clearly erroneous.

       On appeal, the government urges us to consider United States v. Daniels
(Daniels II), 60 M.J. 69 (C.A.A.F. 2004), in support of the military judge’s finding
of a private, non-governmental intrusion. The Daniels case turned on whether a
government official encouraged, endorsed, or participated in a third party’s search
such that the third party became an agent for the government official. The
government correctly notes the applicability of Daniels to the instant case, but a
review of Daniels reveals that it does not support the government’s argument of
private action.

       In Daniels, the appellant, Seaman Apprentice (Seaman) Daniels, placed a vial
in his nightstand drawer and told his roommate, Seaman V, that the vial contained
cocaine. Daniels II, 60 M.J. at 70. The following day Seaman V told their
supervising instructor, Chief W, about the appellant’s possession of the illegal
substance. Chief W told Seaman V to retrieve the vial and bring it back to him.
Notwithstanding his belief that Seaman Daniels was merely joking with his

                                                            
3
  Regarding the 22 February 2009 search, the military judge made one finding of
fact unsupported by the record. The military judge found that the video observed by
SPC JC depicted an adult man lying “down on the bed with the girl.” This finding
of an adult male in bed with the child is unsupported by the record. All other
findings regarding the 22 February 2009 are supported by the record. More
importantly, the military judge’s application of the law to the supported factual
findings, without consideration of the erroneous finding, is correct.




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SPIESS—ARMY 20100229

roommate, Chief W nonetheless submitted the vial for testing, testing that
subsequently revealed the presence of cocaine and formed the basis of the
appellant’s conviction. Id. at 69–70. Prior to trial, the appellant moved to suppress
this evidence, arguing that the retrieval of the vial from his nightstand violated the
Fourth Amendment. Id. at 69. The military judge concluded the search was non-
governmental in nature and denied the motion.

       Seaman Daniels raised this same issue on appeal, and the Navy-Marine Corps
Court of Criminal Appeals held that the retrieval of the vial from his nightstand was
neither a search nor governmental action. The Navy Court based its decisions on the
facts that Chief W did not actually suspect that the appellant had drugs in his room
and that Seaman V’s motivation in seizing the alleged drugs was privately motivated
to protect his own personal interests. United States v. Daniels (Daniels I), 58 M.J.
599, 604–06 (N.M. Ct. Crim. App. 2003).

       The Court of Appeals for the Armed Forces (CAAF) disagreed, holding the
Navy Court “erred on both accounts.” Daniels II, 60 M.J. at 71. In arriving at its
decision, CAAF noted:

         [T]he question of whether a private actor performed as a
         government agent does not hinge on motivation, but rather “on the
         degree of the Government’s participation in the private party’s
         activities, a question that can only be resolved ‘in light of all
         circumstances.’” Skinner[, 489 U.S. at 614–15]. To implicate the
         Fourth Amendment in this respect, there must be “clear indices of
         the Government’s encouragement, endorsement, and participation”
         in the challenged search. Id. at 615–16.

Daniels II, 60 M.J. at 71. CAAF concluded that Seaman V’s actions amounted to
governmental intrusion, as opposed to private action, because Seaman V did not, of
his own accord, bring the suspected vial of cocaine to Chief W for consultation.
Instead, Seaman V consulted with Chief W first and was then directed by Chief W to
retrieve the vial. The court found “Chief [W’s] specific order as a government
official triggered [Seaman V’s] actual seizure of the vial.” Id. Therefore, “Chief
[W] clearly encouraged, endorsed, and participated in [Seaman] V’s seizure of the
vial and, accordingly, [Seaman V] acted as Chief [W’s] agent when he seized the
vial.” Id.

      As in Daniels, the issue before this court is the degree of participation by a
government official in a private party’s search. Stated another way, the issue is to
what extent, if any, did SFC DH encourage, endorse, and participate in the search of




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SPIESS—ARMY 20100229

appellant’s computer on 23 February 2009. 4 In this respect, the military judge made
an error similar to that made by the Navy Court in Daniels—he focused on the
private party’s motivation for conducting the search instead of the government
official’s encouragement, endorsement, and participation in that search.

       In his written findings, the military judge noted that “[a]lthough SFC [DH]
did suggest terms and methods for searching for files on the computer, those actions
did not influence SPC [JC] in his own desire to find the video file and show it to
SFC [DH].” The military judge then concluded that SFC DH did not encourage,
endorse, or participate in the search. In our view, the facts do not support this
conclusion. Like Chief W in Daniels, SFC DH directed SPC JC to give him the hard
drive and when SFC DH arrived at appellant’s CHU, SPC JC initially provided SFC
DH with the hard drive. However, SPC JC changed his mind and asked SFC DH to
confirm his suspicions regarding the child pornography that he observed the day
before. Sergeant First Class DH then proceeded to involve himself in SPC JC’s
ensuing search of appellant’s hard drive. Had SPC JC immediately retrieved the file
in question and simply displayed it to SFC DH or given SFC DH the hard drive,
without any action by SFC DH, the military judge’s conclusion would be correct in
that SFC DH would have had nothing more than a passive role, if any, in the search.
The mere delivery, or in this case, display of contraband by one private party to a
government official or law enforcement official does not convert an otherwise
private act into governmental intrusion triggering Fourth Amendment protections.
Daniels II, 60 M.J. at 71. 5

                                                            
4
 Neither CAAF in Daniels nor the Supreme Court in Skinner, the case upon which
Daniels relies, define “encourage, endorse, and participate”; however, the plain
meaning of those words are adequate for resolution of the instant case. Black’s Law
Dictionary 607, 1229 (9th ed. 2009), defines “encourage” as, “To instigate; to incite
to action,” and it defines “participation” as, “The act of taking part in something,
such as a partnership, a crime, or a trial.” Webster’s II New Riverside Dictionary
(rev. ed. 1996), defines “encourage” as, “To support [or] foster”; “endorse” as, “To
approve of publicly [or] support”; and “participate” as, “To join with others in
something [or] take part.”
5
 See, e.g., United States v. Gregory, 611 F.Supp. 1033, 1044 & n.35 (S.D.N.Y.
1985) (finding no Fourth Amendment violation where evidence was inspected by law
enforcement officials when delivered by a private citizen) (citing Walter v. United
States, 447 U.S. 649 (1980), Burdeau v. McDowell, 256 U.S. 465 (1921), and United
States v. McGuire, 381 F.2d 306, 313 n.5 (2d Cir. 1967)); State v. Buswell, 460
N.W.2d 614 (Minn. 1990) (finding no Fourth Amendment violation where evidence
was seized following the search of a motor vehicle delivered to law enforcement
personnel); State v. Lamb, 224 S.E.2d 51 (Ga. Ct. App. 1976) (finding no Fourth

                                                                      (continued . . .)


                                                               12
SPIESS—ARMY 20100229

       Specialist JC, however, did not simply retrieve the suspect file and show it to
a passive, noncommissioned officer who was in the CHU pursuant to the invitation
of one of its two lawful occupants. Sergeant First Class DH specifically went to the
CHU to retrieve suspected evidence of child pornography, and when he arrived, SPC
JC began a confirmatory search of appellant’s external hard drive. When SPC JC
could not find the suspected child pornography that he had observed the day prior,
SPC JC engaged in a detailed search of appellant’s hard drive, a search conducted in
the presence of SFC DH. Furthermore, SFC DH did more than sit idly by; SFC DH
himself, not SPC JC, manipulated the keyboard of the laptop to launch the search
engine. When SPC JC was still unable to locate the suspected child pornography,
SFC DH suggested search terms to use, terms that eventually discovered a separate
and distinct file containing child pornography. Contrary to the military judge’s
written findings, SFC DH’s actions in launching the search tool necessary to search
appellant’s computer, and then suggesting search terms, amounted to more than a
passive role in the search of appellant’s computer. The fact that SPC JC typed the
search terms suggested to him by SFC DH is less than compelling in evaluating SFC
DH’s actions.

       On the facts of this case, we find that SFC DH encouraged, endorsed, and
participated in the search of appellant’s external hard drive. Therefore, SPC JC’s
and SFC DH’s search was a government intrusion into appellant’s reasonable
expectation of privacy, and the military judge’s conclusion to the contrary is clearly
erroneous.

            3. Inevitable Discovery Exception to the Exclusionary Rule

       Although SPC JC’s and SFC DH’s unauthorized search violated the Fourth
Amendment, we nonetheless conclude appellant was not prejudiced by the military
judge’s ruling to the contrary. We hold that the child pornography found on
appellant’s external hard drive pursuant to the unlawful search would have been
inevitably discovered and was therefore admissible against appellant at his court-
martial.

       As previously noted, SPC JC’s actions on 22 February 2009 were private in
nature and thus did not trigger Fourth Amendment protections for any of the
information discovered during that search. Thus, the evidence discovered by SPC
JC in his private capacity could have been lawfully used to support a search


(. . . continued)
Amendment violation where marijuana was delivered to law enforcement personnel
by a dormitory supervisor).  




                                          13
SPIESS—ARMY 20100229

authorization—assuming it established probable cause—which, in turn, could have
led to the lawful search and seizure of appellant’s hard drive. However, absent
probable cause to believe appellant’s computer contained child pornography, “there
could be no application of the doctrine of inevitable discovery in this case.” Dease,
71 M.J. at 121–22 (citations omitted).

       Probable cause is “a fair probability that contraband or evidence of a crime
will be found in a particular place.” United States v. Williamson, 65 M.J. 706, 712
(Army Ct. Crim. App. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
In the context of military search authorizations, probable cause is defined as “a
reasonable belief that the person, property, or evidence sought is located in the place
or on the person to be searched.” Mil. R. Evid. 315(f)(2). The Military Rules of
Evidence further note that “[a] search authorization may be based upon hearsay
evidence in whole or in part.” Id. A file name alone may be sufficient to establish
probable cause. See United States v. Yammine, 69 M.J. 70, 75 (C.A.A.F. 2010)
(citing United States v. Leedy, 65 M.J. 208, 215–18 (C.A.A.F. 2007)).

       The information conveyed by SPC JC to his platoon sergeant, SFC DH, went
well beyond a single file name that might be indicative of child pornography. On 22
February 2009, SPC JC, acting in a purely private capacity, observed suspected child
pornography on the external hard drive of appellant’s computer. The military judge
found the video “was of a man and little girl entering a bedroom.” The little girl,
estimated by SPC JC to be “eleven to twelve” years of age, was wearing a swimsuit
and being followed from behind by an adult male. Specialist JC observed the girl
“take her top off.” He also saw the adult male start to “lay down.” At that point,
SPC JC stopped watching the video. Specialist JC recalled the file name of the
video to be “15 on 21 or something like that.” Specialist JC’s observations establish
probable cause to believe that appellant’s external hard drive contained child
pornography.

       The record further establishes that had the external hard drive not been seized,
appellant’s commander, CPT AW, would have authorized a search of his CHU, and
the external hard drive would have been seized and eventually processed by
appropriate law enforcement officials. In United States v. Wallace, 66 M.J. 5
(C.A.A.F. 2008), our superior court applied the doctrine of inevitable discovery in
an analogous situation. In Wallace, the appellant’s computer was initially seized
pursuant to invalidly obtained consent; however, CAAF held that the evidence found
on that computer would have been inevitably discovered: “[H]ad Appellant not
ultimately consented to the seizure of the computer, the [Air Force Office of Special
Investigations] would have sought and obtained a search authorization based upon
probable cause. . . . [T]he files containing child pornography would have been
inevitably discovered through this valid search.” Id. at 10. Cf. Dease, 71 M.J. 116.




                                          14
SPIESS—ARMY 20100229

       In the instant case, SFC DH already “possessed” evidence that established
probable cause to suspect appellant’s external hard drive contained child
pornography and he, along with the appellant’s commander, CPT AW, articulated
unequivocally, along with SA CH, what would have occurred—the external hard
drive would have been seized and eventually searched for child pornography by law
enforcement personnel. Accordingly, we hold the evidence at issue would have been
inevitably discovered and was therefore properly admitted against appellant at his
court-martial.

              4. Derivative Evidence and the Presumption of Prejudice

      Although the evidence ultimately discovered on appellant’s hard drive was
properly admitted into evidence, there remains a question as to whether appellant’s
confession was also properly admitted. In this case, appellant claims that his
confession was derivative of the underlying unlawful search by SFC DH on 23
February 2009 and should have been excluded as “fruit of the poisonous tree.” We
disagree. Applying the Brown factors to appellant’s case, we conclude that
appellant’s confession was sufficiently attenuated from the unlawful search so as to
make appellant’s properly warned confession independently admissible.

       A causal connection alone between an unlawful search and the alleged
derivative evidence, in this case appellant’s confession, does not make the derivative
evidence per se inadmissible. United States v. Murphy, 39 M.J. 486, 487 (C.M.A.
1994) (citing Nardone v. United States, 308 U.S. 338 (1939)). “As a matter of good
sense . . . such connection may have become so attenuated as to dissipate the taint.”
Nardone, 308 U.S. at 341. In Wong Sun v. United States, 371 U.S. 471 (1963), the
Supreme Court noted:

      We need not hold that all evidence is “fruit of the poisonous tree”
      simply because it would not have come to light but for the illegal
      actions of the police. Rather, the more apt question in such a case is
      whether, granting establishment of the primary illegality, the evidence
      to which the instant objection is made has been come at by exploitation
      of that illegality or instead by means sufficiently distinguishable to be
      purged of the primary taint.

Wong Sun, 371 U.S. at 487–88 (internal citations and quotation marks omitted). To
make this determination, we consider three factors: “temporal proximity of the
[constitutional violation] and the confession, the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the official
misconduct.” Brown, 422 U.S. at 603–04 (emphasis added). See United States v.
Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006).




                                          15
SPIESS—ARMY 20100229

       The first Brown factor, temporal proximity, favors the government. The
unlawful search in this case occurred, as previously noted, on 23 February 2009
when SFC DH and SPC JC searched appellant’s external hard drive in an effort to
find and review the child pornography seen the day prior by SPC JC. On 23
February 2009 appellant was out of the theater of operations on R&R leave.
Between 10 and 11 March 2009, appellant returned to theater, and on 13 March
2009, appellant met with CID. After being properly advised of and waiving his
Article 31, UCMJ, rights, appellant admitted to possessing child pornography. At
the time of appellant’s meeting with CID he “didn’t think anything of it, because I
had previously talked to CID. They had questions about something in the past; and I
told them.” 6 Excluding both the day of the illegal search as well as appellant’s
confession, seventeen days elapsed between the constitutional violation in
appellant’s case and his confession. 7

       The second Brown factor, the existence of intervening circumstances, favors
the government as well. The 23 February 2009 search was executed by a platoon
sergeant and subordinate. Law enforcement personnel were not involved, either
directly or indirectly in the illegal search. When Balad CID agents, SA CH and SA
KB, became involved on 24 February 2009, they sought and obtained a valid search
authorization from appellant’s commander. 8 The second intervening circumstance is

                                                            
6
 Although the facts and circumstances surrounding appellant’s prior contact with
CID are not developed in the record, it is clear that appellant’s prior contact with
CID was unrelated to the charges at issue.
7
 Compare United States v. Taylor, 2 M.J. 863 (A.C.M.R. 1976) (appellant’s
confession was not tainted by an illegal search conducted two days earlier), and
United States v. Patino, 862 F.2d 128 (7th Cir. 1988) (appellant’s second confession
was not tainted by an illegal search conducted six days earlier), with Kaupp v. Texas,
538 U.S. 626 (2003) (no substantial time between illegal arrest and confession
favors defendant), Taylor v. Alabama, 457 U.S. 687 (1982) (six hours between
“investigatory arrest without probable cause” and confession favors defendant),
Brown v. Illinois, 422 U.S. 590 (1975) (less than two hours between illegality and
confession favors defendant), and United States v. Conklin, 63 M.J. 333 (C.A.A.F.
2006) (less than three hours between illegal search of appellant’s computer and
subsequent consent favors appellant).
 
8
 Of note, on 26 May 2009, SA CH also sought and obtained a magistrate’s
authorization to search appellant’s external hard drive seized from his CHU for
“Text, graphics, electronic mail messages, which are read, unread or unopened, and
other data including deleted files and folders pertaining to the online solicitation of
minor(s), and/or material related to the sexual exploitation of minors; and/or

                                                                        (continued . . .)


                                                               16
SPIESS—ARMY 20100229

that appellant was interviewed following a proper Article 31, UCMJ rights
advisement, which he waived. More importantly, he was not confronted by the fact
that his computer had been searched and seized. Contrary to appellant’s testimony
on the suppression motion, SA KB, the CID agent who interviewed appellant, noted
appellant was only told to tell the truth. The following colloquy between the
military judge and SA KB focused specifically on what appellant was told vis-à-vis
any evidence the government might have on appellant establishing his guilt for
possession of child pornography:

         Q. When you advised the accused about why he was there, what
         did you tell him?

         A. I explained to him that there’s allegations of--that he’s in
         possession of child pornography, sir.

         Q. Did you make any reference to any evidence which had been
         seized in the case?

         A. No, sir, I did not.

         Q. Were you aware that a hard drive had been seized from the
         accused’s room?

         A. Correct, sir. I--I was there, when we--we seized it, sir.

         Q. But you did not mention that to the accused, when you talked
         to him?

         A. No, sir. No.

         Q. You just told him that there [are] allegations----

         A. That’s correct.

         Q. ----that he possessed child pornography?

         A. Yeah. And he needed to be truthful about it. And which he
         was, sir.


(. . . continued)
material depicting apparent or purported minors engaged in sexually explicit
conduct; and data and/or information used to facilitate access to, production,
distribution, and/or production of such material.”     




                                          17
SPIESS—ARMY 20100229

         Q. So you never went into any of the evidence, whatsoever, that
         you already had against the accused?

         A. That’s right, sir. No, sir.

       In the case at bar, SPC JC’s observations provided law enforcement personnel
a legitimate basis to interrogate appellant. When interviewed by SA KB, appellant
was not confronted by any illegally obtained evidence nor was he aware that CID
already had his computer. After a proper rights advisement and waiver thereof,
appellant provided a written statement confessing to possession of child
pornography.

       The third Brown factor, “the purpose and flagrancy of the official
misconduct,” also favors the government. On 23 February 2009, SFC DH already
had probable cause to believe appellant’s external hard drive contained child
pornography; SPC JC was very clear on what he observed the day before. Sergeant
First Class DH went to appellant’s CHU in response to a request from SPC JC, and
only after SPC JC decided not to turn over the hard drive but instead show SFC DH
the pornographic file did a search begin. At first, SFC DH sat as a passive observer
waiting for SPC JC to retrieve the file that SPC JC observed the day before. Only
after SPC JC’s efforts to search the external hard drive proved futile did SFC DH
encourage, endorse, and participate in the search. The evidence fails to establish
that either SFC DH knew he was violating appellant’s constitutional rights or that,
armed with this knowledge, he chose to engage in an unconstitutional search
anyway. See United States v. Khamsouk, 57 M.J. 282, 293 (C.A.A.F. 2002). Unlike
the actions of the officers in Brown, the “impropriety” of the constitutional violation
was not obvious. Brown, 422 U.S. at 605.

        Similarly, unlike the Brown officers, SFC DH did not “embark upon this
expedition for evidence in the hope that something might turn up.” Id. SFC DH
went to appellant’s CHU to retrieve a hard drive containing child pornography.
When he arrived, appellant’s roommate refused to turn over the hard drive and
instead asked SFC DH to confirm what he, SPC JC, had seen the day before. When
the video file in question could not be located, SFC DH participated in a search for
that file and when he and SPC JC found a suspected file containing child
pornography, the computer was immediately turned off, seized and provided to the
chain of command.

       There is no evidence to conclude that SFC DH or any member of appellant’s
chain of command acted in bad faith on 23 February 2009. In fact, when asked by
the military judge what he, SFC DH, would have done had SPC JC not turned over
the hard drive, rather than seize the hard drive immediately, SFC DH indicated he
would have used the chain of command and pursued legal action to obtain the hard
drive. Regarding the actions of the CID agents, SA CH and SA KB, there is no
evidence that they acted in bad faith or with any intention to circumvent the


                                          18
SPIESS—ARMY 20100229

mandates of the Fourth Amendment. Quite the contrary, everything they did was in
accordance with the mandates of both the Fourth Amendment and the Military Rules
of Evidence. On 24 February 2009, CID agents sought authorization to search
appellant’s CHU and a magistrate’s authorization was sought prior to conducting any
forensic analysis of appellant’s external hard drive. Before interviewing appellant,
nearly three weeks after the discovery of child pornography, CID agents informed
appellant of his Article 31, UCMJ, rights. Finally, there is no evidence either CID
agent was even aware of the constitutional violation.

       Applying all three Brown factors to the facts and circumstances of appellant’s
case, we find any taint from the 23 February 2009 illegal search of appellant’s
external hard drive sufficiently attenuated. We further find no deterrent value in
application of the exclusionary rule to the facts and circumstances of this case. As
our superior court noted in Khamsouk:

         “The primary justification for the exclusionary rule . . . is the
         deterrence of police conduct that violates Fourth Amendment
         rights.” Stone v. Powell, 428 U.S. 465, 486[ ](1976) . . . .
         However, despite its broad purpose, “the rule does not ‘proscribe
         the introduction of illegally seized evidence in all proceedings or
         against all persons,’ . . . but applies only in contexts ‘where its
         remedial objectives are thought most efficaciously served.’”
         Penn. Board of Probation and Parole v. Scott, 524 U.S. 357,
         363[ ](1998) (quoting Stone v. Powell, 428 U.S. at 486[ ]). . . .
         ....

         Thus, in determining whether invocation of the rule is warranted,
         the Court insists that lower courts strike a balance between “the
         public interest in determination of the truth at trial” and the
         “incremental contribution that might [be] made to the protection
         of Fourth Amendment values . . . .” Stone, 428 U.S. at 488[ ].

Khamsouk, 57 M.J. at 291–92. Accordingly, the military judge did not abuse his
discretion in admitting appellant’s confession.

                                 D. CONCLUSION

       In sum, SPC JC’s 22 February 2009 search of appellant’s external hard drive
was non-governmental in nature, making any evidence discovered during this search
independently admissible against appellant. Additionally, the evidence discovered
established probable cause to believe appellant possessed child pornography.
Contrary to the military judge’s conclusion, the subsequent, 23 February 2009,
search of appellant’s external hard drive by SPC JC and SFC DH was governmental
in nature and as such, illegal. Notwithstanding the military judge’s erroneous


                                          19
SPIESS—ARMY 20100229

characterization of the 23 February 2009 search as private in nature, the evidence
found on appellant’s external hard drive was admissible against appellant as the
evidence would have been, as the military judge correctly found, inevitably
discovered. Finally, appellant’s 13 March 2009 confession was sufficiently
attenuated from the illegal search making appellant’s confession independently
admissible from the evidence found on appellant’s external hard drive.

      On consideration of the entire record, we hold the findings of guilty and
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge MARTIN concur.


                                       FOR  THE COURT:
                                       FOR THE COURT: 




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




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