This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                             Appellant

                                     v.

                       Alexander M. TAYLOR
                        Major, U.S. Marine Corps
                                Appellee

                             No. 201900242

                           Decided: 30 April 2020

        Appeal by the United States Pursuant to Article 62, UCMJ

                               Military Judge:
                              Jeffrey V. Munoz

 Arraignment: 7 March 2019 by a general court-martial convened at
 Marine Corps Base Camp Pendleton, California.

                             For Appellant:
                    Major Clayton L. Wiggins, USMC
          Lieutenant Commander Timothy C. Ceder, JAGC, USN

                              For Appellee:
                    Major Anthony M. Grzincic, USMC

 Senior Judge TANG delivered the opinion of the Court, in which
 Judges LAWRENCE and STEPHENS joined.

                        _________________________
                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

           This opinion does not serve as binding precedent, but
                may be cited as persuasive authority under
                 NMCCA Rule of Appellate Procedure 30.2.

                                 _________________________

TANG, Senior Judge:
    This is an interlocutory appeal taken by the Government under Article
62, Uniform Code of Military Justice [UCMJ]. 1 Following a pretrial hearing,
the military judge granted a Defense motion to suppress evidence resulting
from the searches of 12 of Appellee’s electronic devices. We are asked to
decide whether we have jurisdiction over this appeal and, if so, whether the
military judge abused his discretion by suppressing this evidence. We
conclude that we have jurisdiction and that the military judge did not abuse
his discretion. We therefore deny the Government’s appeal.

                                     I. BACKGROUND

    Appellee married Ms. Lisa Yankee 2 in 2011. Ms. Yankee had previously
been married to another man with whom she shared two children: the alleged
victim and the alleged victim’s younger brother. Ms. Yankee and her ex-
husband had an acrimonious divorce. Throughout Ms. Yankee’s marriage to
Appellee, there were many back-and-forth child custody disputes relating to
the alleged victim and her younger brother. Personnel from various state
agencies often interacted with the children to determine whether they felt
comfortable in their two homes—they always said they did and that they
wanted to continue living with both parents’ families. The children dis-
claimed the existence of any abuse in either household. Ms. Yankee ultimate-
ly gained custody of the children in 2015, though custody continued to swap
over the years based on various allegations.
    On Valentine’s Day 2016, while the children were with their father and
step-mother, the children’s father emailed Ms. Yankee that he would not
allow their children to return home to her because the alleged victim told him
that Appellee sexually abused her from 2014 to 2016. During the dates of
abuse alleged, the victim would have been between the ages of seven and
nine years old. Ms. Yankee initially did not believe the alleged victim because



   1   10 U.S.C. § 862 (2019).
   2   In this opinion, we have replaced all names of third parties with pseudonyms.




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                 United States v. Taylor, NMCCA No. 201900242
                              Opinion of the Court

her daughter had told lies before, and Ms. Yankee told law enforcement
officers as much.
   For Appellee, this allegation was the last straw. After five years of being
caught up in Ms. Yankee and her ex-husband’s child custody disputes, he had
had enough. 3 Appellee moved out and, soon afterward, he told Ms. Yankee he
wanted a divorce. Ms. Yankee told him, “I’ll take you for everything you
have,” and “I will destroy you.” 4 Soon after Appellee moved out, Ms. Yankee
determined she now believed her daughter “100 percent,” and eventually
Ms. Yankee’s son also alleged Appellee touched him inappropriately.
Ms. Yankee relayed these allegations to law enforcement officials, eventually
additionally claiming he had: (1) sexually assaulted her throughout their
marriage; (2) sexually assaulted another man’s girlfriend; (3) searched for
barely-legal pornography; (4) fraternized and committed adultery; and (5)
sent nude photographs to a 16-year-old girl.
   In November 2016, after the civilian authorities declined to prosecute
Appellee, the Naval Criminal Investigative Service [NCIS] took over as lead
investigative agency. The record does not account for what happened between
November 2016 and May 2018 when the investigation was apparently
resumed. However, during that time period, Ms. Yankee and Appellee’s
divorce was finalized. By May 2018, when NCIS agents first met with
Ms. Yankee, she was living elsewhere, told them she had Appellee’s electronic
devices and media, and a few days later gave them 12 items of electronic
media that she said belonged to Appellee. The agents then held those items
without taking any further action for nearly six months, never seeking a
Command Authorization for Search and Seizure or a search warrant, and
never asking Appellee for consent to search them.
    In October 2018, Appellee was charged with rape of a child, charging that
he digitally penetrated the alleged victim’s vulva, and three specifications of
sexual abuse of a child, charging that he touched the alleged victim’s breasts,
genitalia, and buttocks with the intent of gratifying his sexual desires. The
offenses are alleged to have occurred between 1 January 2014 and 7 February
2016. In November 2018, after NCIS had had custody of the 12 items of
media for several months, and after an Article 32 hearing had been held in
Appellee’s case, agents asked Ms. Yankee to consent to a search of the items




   3 See Appellate Exhibit [App. Ex.] XIII at 1 (Declaration of Appellee, submitted as
an enclosure to the Defense Motion to Suppress Evidence).
   4   Record at 415.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

she said belonged to Appellee. Ms. Yankee agreed and signed a permissive
authorization for search and seizure [PASS] granting her consent to search a
specific list of items. 5
    The Government found evidence on three of the devices, which it believes
corroborates the alleged victim’s allegations. The Defense moved to suppress
all 12 items and the results of the search of those items. The military judge
granted the Defense motion, issuing findings of fact and conclusions of law in
a written ruling. The Government appeals the military judge’s ruling
pursuant to Article 62, UCMJ.

                      II. JURISDICTION UNDER ARTICLE 62

   As an initial matter, pointing to the military judge’s expression of doubt
as to whether any of the evidence at issue would be admissible at trial,
Appellee argues this Court lacks jurisdiction to consider the Government’s
appeal because the suppressed evidence is not substantial proof of a fact
material in the proceeding. 6 We construe our narrow jurisdictional grant
under Article 62 strictly. 7 Nevertheless, it is this Court, not the Government,
which ultimately decides whether we have jurisdiction to hear this appeal. 8
   Here, the Government contends that substantial proof of a material fact is
contained on three items of media:
   (1) an iMicro brand hard drive held together with purple tape [purple-
taped drive], named “Time Machine Backups”; 9
   (2) a 500GB Western Digital brand hard drive [Western Digital drive];
and
   (3) a 2GB MicroSD memory card [memory card]. 10



   5  The list was not included in the record, and there are conflicting references to
the items seized; however, we assume for purposes of this appeal that all 12 items of
media at issue here are on that list.
   6   See 10 U.S.C. § 862(a)(1)(B) (2019).
   7   Clinton v. Goldsmith, 526 U.S. 529, 535 (1999).
   8   See United States v. Jacobsen, 77 M.J. 81, 86 (C.A.A.F. 2017).
   9   App. Ex. XI at 29.
   10 Because the Government does not contend that any evidence on the remaining
nine devices constitutes proof of a material fact, we decline to consider the Govern-
ment’s appeal as it relates to those other devices.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

From the forensic search of these three items, the Government has provided
notice under Military Rules of Evidence [MRE] 404(b) and 414 11 of its
intention to offer:
    (1) 20 photos and one video of a “nude” female child—which could be the
alleged victim—and a nude boy. 12
   (2) 42 thumbnail images of “suspected” child pornography. 13
   (3) Videos and numerous web artifacts 14 referencing teens, including six
videos purporting to show teenage females, 25 web artifacts, including
searches referencing teen torture and teen pornography. 15
    (4) A document that contains a story about a stepfather sexually interest-
ed in his stepdaughter. 16
  (5) “Web artifacts related to: child torture, do-fantasy (sex story), 17 and
BDSM Library ‘Bella and the Beast’.” 18




   11  Military Rule of Evidence 414 governs the admissibility of evidence of offenses
of child molestation in cases in which an accused is charged with an offense of child
molestation. Appellee is charged with an offense of child molestation. However, as
described below, not all classes of the proffered evidence likely constitute other
alleged offenses of child molestation by Appellee within the meaning of Military Rule
of Evidence 414(d)(2). See United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010)
(interpreting a prior version of MRE 414). Nevertheless, this Court will consider that
the Government intends to offer the evidence under Military Rule of Evidence 404(b).
   12App. Ex. X at 76, 80. Twenty images were from the purple-taped drive; 18 of
apparently the same images and one video were on memory card. However, the
Government omitted reference to the nude young boy when referring to the items on
the memory card. Not all of the images were unique.
   13   Id.
   14  This term was not defined in the forensic examination report, nor did the Gov-
ernment define it in its MRE 404(b) or 414 filings. We understand this term to refer
to forensic evidence of a user’s internet browsing history.
   15   App. Ex. X at 76, 80.
   16  Id. at 76. The Government only cited MRE 404(b) in support of the admissibil-
ity of this evidence. The type of document was not specified; the forensic report
merely noted that a “document was located containing what appears to be a story of a
stepfather sexually interested in his stepdaughter,” with no further explanation.
App. Ex. XI at 30.
   17   The Government did not explain what this meant.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

   In its written notice of appeal under Rule for Courts-Martial [R.C.M.] 908,
the Government characterized the suppressed evidence as “verified and
suspected child pornography (seven known series), a comic strip depicting a
step-father raping his step daughter, a text document entitled ‘Bella and the
Beast’ that contains a graphic description of the rape of a 13 year old girl, and
search terms referencing teen torture and teen pornography.” 19
    The Government contends this evidence proves Appellee’s “motive and
intent to sexually exploit children.” 20 The Government further contends this
evidence is “particularly important” in this case because “there was no
forensic analysis of the crime scene, no forensic interview of the [alleged]
Victim, and several years have passed since the initial report.” 21 Therefore,
the Government urges this evidence is “substantial proof in this case”
because it constitutes the only sources of possible corroborating evidence to
the alleged victim’s otherwise uncorroborated account. 22
    The Defense retained the services of a digital forensic examiner employed
by the DoD Cyber Crime Center. This expert has participated in 140 forensic
examinations and has testified as an expert in 16 courts-martial. He re-
viewed a forensic duplicate of all 12 devices Ms. Yankee turned over to NCIS.
He provided a written declaration attesting that:
   (1) No file on any item of media was apparently accessed, created, or
downloaded any later than July 2013. 23
    (2) There was no evidence Appellee viewed any of the underlying images
of suspected child pornography because the only files present were thumb-
nail, or “thumbs.db,” files. 24 He opined that Appellee “almost certainly had no



   18 App. Ex. X at 76. The Government only cited MRE 404(b) in support of the
admissibility of this evidence. The Government argued the title of the document was
similar to a nickname attributed to the alleged victim.
   19   App. Ex. XXI at 1.
   20   Appellant’s Reply Brief of 9 Dec 19 at 1.
   21  Id. at 3. According to Ms. Yankee, there was also no physical examination of
the alleged victim.
   22   Id.
   23 The expert noted the date accuracy is contingent upon the date accuracy of the
attached computer clock, which he could not verify.
   24 The expert believed the thumbs.db files were generated when an unknown user
of a personal computer (not an Apple Macintosh computer [Mac], which is the only
computer Appellee was known to own) displayed a folder of images in thumbnail



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                    United States v. Taylor, NMCCA No. 201900242
                                 Opinion of the Court

idea what was in the thumbs.db or that it was even there and, even if he
knew it was there, he couldn’t access it.” 25
   (3) The six videos the Government stated were of “apparent” teenagers
constituted six of 480 videos that were in a folder that was “mass copied”
around 23:00 on 2 October 2009, all at the same time from a drive that had
received files from an unknown source computer. 26 This was the same time
the thumbs.db files were transferred. There was no evidence Appellee ever
“searched for or even viewed” those files. 27
    (4) Although web searches were conducted for “teen + torture,” on Google,
Google images, and Google video, the unknown user then searched “teenag-
er+tortured+cops+found” on Google and finally searched for “child+electric+
torture+cops+found” and also “minutechild+electric+tortured+cops+found” on
an Apple Macintosh [Mac] computer. This suggested the user was possibly
searching for a news article rather than child pornography.
    (5) “The pictures of the [nude] boy and girl. . . do not appear to constitute
child pornography. The pictures appear to be bathtub-type pictures common-
ly taken by parents of their children.” 28 Additionally, the photos likely
belonged to Ms. Yankee.
    The military judge found, and Appellee argued in his brief to this Court,
that there is not a high likelihood that this evidence will be admitted at
trial. 29 For this reason, Appellee contends it is not substantial evidence of a



view; deleted the underlying images; conducted a bulk transfer of files to removable
media; later hooked that removable media up to Appellee’s Mac; then Appellee’s Mac
was backed up to the purple-taped drive using the Time Machine program. All
actions could happen without Appellee’s knowledge or ability to see the contents of
the thumbs.db images.
   25  App. Ex. XII at 9. The Government did not present any evidence to contradict
this opinion.
   26   Id. at 8.
   27   Id.
   28 Id. at 5. “[T]he most identifiable person possessing these photos is the mother,
[Ms. Yankee]. The pictures are duplicated across all three devices in question. . . .
The only device on which the pictures of the children appeared that had a clear
indicator of ownership, was the Western Digital. That hard drive is labeled [with Ms.
Yankee’s first name] and the pictures of the children were found under a folder”
labeled with Ms. Yankee’s first name and the word “pics.” Id.
   29The military judge wrote that the Government did not even know whether the
nude child depicted was the alleged victim; the evidence tying Appellee to any child



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                     United States v. Taylor, NMCCA No. 201900242
                                  Opinion of the Court

fact material to the proceeding. Citing United States v. Wuterich, 30 the
Government argues our “inquiry concerns the impact of the ruling on the pool
of potential evidence, not whether there has been a formal ruling on admissi-
bility.” 31
    We are asked to determine whether we must take into account the likeli-
hood of admissibility of the evidence when determining whether the sup-
pressed evidence is proof of a material fact. In Wuterich, the Court of Appeals
for the Armed Forces [CAAF] considered several appeals resulting from a
military judge’s action in granting a motion to quash a Government subpoena
for outtakes of Staff Sergeant Wuterich’s videotaped interview, portions of
which aired on the CBS News program “60 Minutes.” Wuterich argued the
Government could not appeal the ruling under Article 62, UCMJ, because
“the prosecution [had] not demonstrated that the outtakes [the prosecution
sought] contain any relevant, admissible evidence.” 32 He argued, because the
Government had not seen the withheld outtakes, any “assertions as to what
might be contained in [them] . . . were mere speculation” which, furthermore,
were cumulative of other sources of Wuterich’s statements. 33 The CAAF held
that the “question of whether the material in the outtakes is cumulative goes
to the merits of the ruling by the military judge, not whether that ruling is
appealable.” 34 The court wrote:
         In the present case, the military judge ruled that the evidence
         requested in the subpoena was cumulative with the evidence
         otherwise available to the prosecution. In so doing, he focused
         specifically on the pool of potential evidence that would be ad-
         missible at the court-martial. As such, his decision to quash the
         subpoena was appealable under Article 62, UCMJ, because it
         had a direct effect on whether the outtakes would be excluded
         from consideration at the court-martial. 35




pornography images was “weak,” possibly not relevant, and may be excluded under
MRE 403 balancing. App. Ex. XXIII at 18.
   30   67 M.J. 69 (C.A.A.F. 2008).
   31   Appellant’s Reply Brief at 3 (quoting Wuterich, 67 M.J. at 73).
   32   Wuterich, 67 M.J. at 75.
   33   Id.
   34   Id. at 76.
   35   Id. at 77 (citation omitted).




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                    United States v. Taylor, NMCCA No. 201900242
                                 Opinion of the Court

    We find this logic to be controlling. Although the evidence may ultimately
never be admitted at trial on other grounds, such as Military Rule of Evi-
dence 403, the military judge’s ruling nonetheless excluded this entire class
of evidence from consideration and shrank the potential pool of evidence
available to the Government. Notwithstanding the likelihood that the
military judge will not admit this evidence at trial, we find we have jurisdic-
tion to hear the appeal as it relates to the three items of media from which
the Government intends to offer evidence.

                    III. REVIEW OF MILITARY JUDGE’S RULING

A. The Ruling
    The military judge issued findings of fact and conclusions of law in a rul-
ing in which he concluded that the Government “ha[d] failed to sustain its
burden to demonstrate that there was ‘lawful consent’ by clear and convinc-
ing evidence to search” the devices. 36 In drafting his findings of fact, he stated
that he “considered all legal and competent evidence presented by the
parties, reasonable inferences to be drawn from the evidence, allied papers
and documents” and that he had “resolved all issues of credibility.” 37 He
granted the Defense motion in whole.
    The military judge found that Appellee had a reasonable expectation of
privacy in the 12 devices and that he did not abandon them. Rather, he left
the devices in his home with the expectation of reclaiming his property later.
Ms. Yankee repeatedly prevented his agents from retrieving his property,
then she took most of his personal property when she left, leaving him
“maggots, rotted and decaying food, multiple trash bags, dozens of cigarette
butts . . . , seemingly sliced or vandalized furniture,” but little else. 38 Because
Appellee did not abandon the property, the Government had to prove Ms.
Yankee could consent to the search.
   The military judge then held that Ms. Yankee could not provide valid
consent to search Appellee’s electronic media. In so holding, he detailed Ms.
Yankee’s relationship to the electronic media in light of binding precedent in
United States v. Matlock, 39 United States v. Clow, 40 and Frazier v. Cupp, 41



   36   App. Ex. XXIII at 19.
   37   Id. at 2.
   38   Id. at 5 (finding of fact q.).
   39   415 U.S. 164 (1974).




                                         9
                     United States v. Taylor, NMCCA No. 201900242
                                  Opinion of the Court

which define when a third party with shared access, “common authority” or
“other sufficient relationship” can lawfully consent to a search. He found that
she could not consent because: (1) she did not own the devices, having
repeatedly stated they belonged to Appellee; 42 (2) she did not lawfully possess
the devices, having wrongfully impeded Appellee’s agents from retrieving
Appellee’s property, then impermissibly removing the items from the home
and failing to return them; 43 and (3) Appellee did not assume the risk that
Ms. Yankee would consent to a search of the items she wrongfully withheld. 44
He ruled that she did not lawfully have “common authority,” access, or
control over the devices.
    The military judge further held that Ms. Yankee lacked apparent authori-
ty to consent. He found that it was not reasonable for NCIS special agents to
believe she could consent because they knew: (1) Ms. Yankee said the devices
belonged to Appellee, not her; (2) the couple was divorced; (3) the couple’s
divorce was so “acrimonious” that Ms. Yankee had thrown Appellee’s
uniforms on the lawn when he sought their return; (4) Appellee had left the
marital residence over two years before Ms. Yankee gave the devices to NCIS
then months later consented to the search; and (5) Ms. Yankee prevented
Appellee (and by extension, his surrogates) from retrieving his property by
changing the locks. 45 Because the NCIS agents knew of Ms. Yankee’s
hostility toward Appellee, it was “completely unreasonable” to rely on her
purported consent. 46
    Finding that Ms. Yankee could not provide actual or apparent consent,
the military judge concluded the warrantless search was unlawful. The
military judge further found, pursuant to MRE 311(a) that exclusion of the
evidence would result in appreciable deterrence of future unlawful searches
and seizures and the benefits of such deterrence outweigh the costs to the
justice system. In weighing these interests, he noted that NCIS agents had
been investigating the case for three-and-a-half years and that they made no



   40   26 M.J. 176 (C.M.A. 1988).
   41   394 U.S. 731 (1969).
   42   App. Ex. XXIII at 10.
   43   Id. at 11-12.
   44   Id. at 12.
   45   Id. at 15-16.
   46   Id. at 16 (emphasis in original).




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                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

effort to search the items of digital media for 165 days, never attempting to
obtain a warrant or command authorization for search and seizure. He wrote,
“There is a very strong implication in the failure to seek a [command authori-
zation for search and seizure] that NCIS knew they did not have probable
cause to search the 12 devices.” 47 He next noted a “willful blindness wherein
NCIS ‘deliberately shield[ed] themselves from clear evidence of critical facts
that are strongly suggested by the circumstances’ ” when it ignored facts that
should have made it apparent that Ms. Yankee could not consent to the
search. 48 Balancing these facts against the “questionable” admissibility of the
evidence, which is not the “main evidence” of guilt, and NCIS’s delay in
reviewing the evidence, the military judge found the MRE 311(a) test
weighed in favor of exclusion. 49 He also quickly rejected the Government’s
arguments relating to good faith and inevitable discovery and suppressed the
evidence.

B. Standard of Review Under Article 62 and the Government’s
Challenge
    In this appeal, we may act only with respect to matters of law. 50 We are
bound by the military judge’s factual determinations unless they are unsup-
ported by the record or clearly erroneous, and we may not find facts in
addition to those found by the military judge. 51 We review a military judge’s
ruling on a motion to suppress for abuse of discretion. 52 We review fact-
finding under the clearly-erroneous standard and conclusions of law under a
de novo standard. 53 It is an abuse of discretion if the military judge:
(1) “predicates his ruling on findings of fact that are not supported by the
evidence”; (2) “uses incorrect legal principles”; (3) “applies correct legal
principles to the facts in a way that is clearly unreasonable”; or (4) “fails to




    47   Id. at 17.
    48Id. (alteration in original) (quoting Glob.-Tech Appliances, Inc. v. SEB S.A., 563
U.S. 754, 766 (2011)).
    49   Id. at 18.
    50   Art. 62(b), UCMJ; Rule for Courts-Martial 908(c)(2).
    51   United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004).
    52   United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011).
    53   Id. (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)).




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                     United States v. Taylor, NMCCA No. 201900242
                                  Opinion of the Court

consider important facts.” 54 It may also be an abuse of discretion if the
“military judge’s decision on the issue . . . is outside the range of choices
reasonably arising from the applicable facts and the law.” 55 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.’ ” 56 We “consider the evidence in the light most favorable to the
prevailing party.” 57
    Here, the Government does not challenge the military judge’s findings of
fact, but instead argues the military judge abused his discretion by failing to
take crucial facts into account and misapplying the law. Specifically, Appel-
lant claims the military judge abused his discretion by:
    (1) Failing to analyze Ms. Yankee’s “joint use” of the devices and instead
focusing on Appellee’s purported ownership as dispositive; 58
   (2) Failing to reconcile critical facts by failing “to analyze Ms. Yankee’s
access and control of the three devices” when he concluded that the devices
were “sole and separate property” of Appellee; 59
    (3) Misapplying the law when he failed to analyze Ms. Yankee’s authority
to consent based on an “other sufficient relationship” as outlined in United
States v. Matlock; 60
    (4) Failing to mention or reconcile critical facts, including that:
Ms. Yankee had used the devices; the devices were not password protected or
stored in “any particular place” in the house; when Ms. Yankee moved out
she took the items she “considered hers, shared property, or things having
‘something to do with’ her children”; the forensic analysis “corroborated
Ms. Yankee’s testimony of her use of the devices”; and the Defense expert


   54 United States v. Commisso, 76 M.J. 315, 321 (C.A.A.F. 2017) (citing United
States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010)); United States v. Solomon, 72 M.J.
176, 180-81 (C.A.A.F. 2013)).
   55  United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019) (quoting United States
v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).
   56 Baker, 70 M.J. at 287 (quoting United States v. White, 69 M.J. 236, 239
(C.A.A.F. 2010)).
   57   Id. at 288 (quoting United States v. Cowgill, 68 M.J. 388, 390 (C.A.A.F. 2010)).
   58   Appellant’s Brief of 25 Sep 2019 at 18.
   59   Id. at 19.
   60   415 U.S. 164 (1974).




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

concluded that only the Western Digital drive had “clear indication of
ownership”; 61 and
    (5) Focusing too much on ownership of the drives as viewed through prop-
erty law instead of applying the Matlock test. Specifically, the Government
argues the military judge failed to reconcile his finding that Ms. Yankee
essentially publicly disclaimed ownership of the items with certain provisions
of the couple’s separation and divorce agreements that could tend to show
that she rightfully retained the property. 62
    We find no abuse of discretion on the record here. While there is some
evidence of possible joint use of one of the items (the purple-taped drive), the
military judge’s ruling considered and rejected that “the 12 devices were
jointly used,” 63 further noting this argument was “contradicted by the
Government’s own MRE 404(b) and MRE 414 notices,” in which the Govern-
ment gave indication that the media belonged to Appellee. 64 While the
military judge’s discussion could have been more fully developed, we do not
find that his treatment of the issue amounted to a failure to consider any
important fact so as to constitute an abuse of discretion. 65 To the contrary, we
determine that his ruling reasonably addressed the issues salient to the
PASS, made relevant findings of fact supported by the evidence, and applied
the correct legal principles to those facts to reach sound conclusions.

C. Standard for Third Party Consent to Search
    The Fourth Amendment guarantees “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures . . . .” 66 A warrantless search is “per se unreasonable under the



   61   Appellant’s Brief at 23.
   62 In these agreements, Appellee could only remove items from the home if
Ms. Yankee agreed and the provision that each party was entitled to keep “the items
currently in their possession.” Id. at 24-25 (quoting App. Ex. X at 33).
   63   App. Ex. XXII at 12.
   64 Id. The notices show intent by the Government to present evidence that “[t]he
accused kept a number of items on his Seagate Hard Drive” (the purple-taped drive)
and “his 2GB MicroSD Card.” Id. (emphasis in original) (quoting App. Ex. X at 76,
80).
   65 Having made this determination, we need not evaluate the Government’s other
claims of error in the military judge’s ruling, as we will conduct a de novo review.
   66   U.S. Const. amend. IV.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

Fourth Amendment—subject only to a few specifically established and well-
delineated exceptions.” 67 When an accused challenges the propriety of a
search, the Government bears the burden of proof to prove by a preponder-
ance of the evidence that the search was not unlawful. 68
    Voluntary consent to search is one exception to the warrant require-
ment. 69 Under MRE 314(e)(2): “A person may consent to a search of his or her
person or property, or both, unless control over such property has been given
to another. A person may grant consent to search property when the person
exercises control over that property.” Consent to search must be proven by
the Government by clear and convincing evidence. 70
    Under certain circumstances, a third party may lawfully consent to
search of another’s property. The validity of a third party’s consent to search
does not “hinge on the niceties of property law or on legal technicalities.” 71 A
third party may consent to search of another’s property under any of the
following three circumstances:
   First, a third party’s consent is valid if the consenting third party is also
an owner of the property and can consent in her own right or if she is a “joint
user” of the property. 72
    Second, a third party can give valid consent if she has “common authori-
ty” or an “other sufficient relationship” with the property such that the
party’s consent makes the search reasonable. 73
    Third, even if the third party was not competent to actually consent, the
search may still be lawful if law enforcement officials reasonably believed the
third party could consent—that she had apparent authority to consent. 74
However, apparent authority justifies a search only if “no facts . . . tended to
show that the [law enforcement] agents should have reasonably known that
the [property] was the exclusive property” of someone other than the consent-



   67   Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted).
   68   See Mil. R. Evid. 311(d)(5)(A).
   69   Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
   70   Mil. R. Evid. 314(e)(5).
   71   United States v. Clow, 26 M.J. 176, 183 (C.M.A. 1988).
   72   See id. at 176; Frazier v. Cupp, 394 U.S. 731 (1969).
   73   Matlock, 415 U.S. at 171.
   74   See Illinois v. Rodriguez, 497 U.S. 177, 185-87 (1990).




                                            14
                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

ing third party. 75 Also, pertinent to this case, apparent authority “probably”
does not exist when the agent knows the spouse purporting to consent on
behalf of the other person “is motivated by hostility.” 76

D. Facts Outlining Ms. Yankee’s Relationship with the Devices
   Whether Ms. Yankee could consent to a search of the three devices turns
on the nature of her interest in them through ownership, joint use, common
authority, or another sufficient relationship.
    Prior to their divorce, Appellee and Ms. Yankee lived together in their
marital home, which was mortgaged in his name only. While they were
together, Appellee owned and used a Mac laptop computer, and he permitted
Ms. Yankee to use it. When Appellee had to travel for work, the couple
purchased a computer for Ms. Yankee. Appellee also gave Ms. Yankee the
passwords to certain of his accounts. However, since their split, he changed
his passwords.
    Ms. Yankee testified that she used the purple-taped drive to store pic-
tures of her children and to periodically back up her phone data once or twice
per year. She acknowledged that she had never used the Western Digital
drive. 77 She stated the “memory cards” were hers from her cell phones or
camera. 78 However, she later contradicted this statement when she said she
never used any of the devices except for the purple-taped drive and the two
Kindles. 79 While the couple lived together, the items were not stored or used
in a specific place in the home. They were not password-protected or locked
up. Appellee never said Ms. Yankee could not use them.
   When the alleged victim’s allegation first arose, Appellee was about to
begin pre-deployment workups with the USS MAKIN ISLAND (LHD-8). He
knew he would be at sea two or three weeks out of each month and would
then deploy for six months. To avoid conflict with Ms. Yankee, in February
2016, he took some personal belongings and moved aboard ship. 80 Based on




   75   United States v. Gallagher, 66 M.J. 250, 252 (C.A.A.F. 2008).
   76   Clow, 26 M.J. at 188 n.14 (citing Matlock, 415 U.S. at 171).
   77   Record at 369.
   78   Id. at 352.
   79   Id. at 363.
   80   See App. Ex. XIII at 1; App. Ex. XXIII at 3 (finding of fact c.).




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

the limitations of shipboard life, he could not bring all of his personal
property, the bulk of which remained in his marital home. 81
    Appellee sued for divorce in March 2016. Later that month, Appellee sent
his father to his home to retrieve some personal items using his key. Appel-
lee’s father succeeded in retrieving some items, but then Ms. Yankee con-
fronted Appellee’s father and ordered him to leave before he could retrieve
any further items. Then she changed the locks. From that point on, Appellee
never regained access to his home until May 2017.
   The couple last contacted one another in May or June 2016 when Appellee
requested his uniforms and a “basket” of other military items. 82 Ms. Yankee
threw the uniforms on the front lawn. She also began lodging complaints
with Appellee’s command. In response, on 16 June 2016, Appellee applied for
and received a civilian restraining order against Ms. Yankee. One condition
prohibited Ms. Yankee from disposing of Appellee’s property. Appellee tried
but failed to evict Ms. Yankee from the home. The restraining order was
converted into a mutual no-contact order in August 2016 when the parties
agreed to communicate only through their divorce attorneys, with the
exception of emails relating to their house or debts. They also agreed to
permit Appellee—with a third party present—to arrange an agreeable time
and date to retrieve his property, but only if Ms. Yankee conceded the
property was his. Ms. Yankee was not permitted to “unreasonably withhold
permission” for Appellee to remove his property. 83
    Pursuant to these agreements, through counsel, Appellee requested re-
turn of some specific items, including “[a]ny and all misc[ellaneous] items on
[the] side of bed drawers” 84 and “any additional items” of his “personal
belonging.” 85 Twice, through attorneys, Appellee arranged for his father to
retrieve his personal property from the home. Twice, Ms. Yankee refused him
entry.
   Between the time Appellee moved out of the home in March 2016 and the
time he returned from deployment in May 2017 and regained access to the



   81   See App. Ex. XIII at 2; App. Ex. XXIII at 3 (finding of fact c.).
   82   Record at 360.
   83   App. Ex. X, encl. 5.
   84  App. Ex. XIV. During the Article 39(a), UCMJ, hearing, LY indicated that the
electronic items were sometimes stored in the bedroom drawers. Record at 363.
   85   Id.




                                             16
                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

home after Ms. Yankee moved out, Appellee was only able to recover a few
items of his property. These were: the few items Appellee’s father retrieved
during his first abruptly-ended visit, the “basket” of military items, and the
uniforms Ms. Yankee threw on the front lawn. However, during the Article
39(a), UCMJ, hearing, Ms. Yankee testified about her obligations during this
time period, and she provided a different account. She testified that Appellee
was “able to ask for things, and [she] was supposed to have them ready for
him on a certain date, if that happened.” 86 She also testified, “If he would
have asked for [the electronics], I would have turned them over.” 87 She denied
wrongly impeding Appellee’s access to his property while she was still living
there. She testified he only requested the “basket” of military items and his
uniforms, and she had very limited recall of any other requests.
   When Appellee regained access to his home after Ms. Yankee moved out,
he discovered that she left very little of his personal property, and it ap-
peared she had deliberately sabotaged the home, which would become
Appellee’s asset after the divorce and on which he solely carried the mort-
gage. When his lawyers demanded Ms. Yankee return the property she took
from the home that belonged to him, Ms. Yankee’s lawyers responded in June
2017 on her behalf that she did not take any of Appellee’s property and any
missing items must be with Appellee’s father.
    Appellee submitted an affidavit in support of the motion and stated that
“most of [his] personal property was taken from the home.” 88 He never
received most of the personal property items he requested. Appellee’s father
testified that Appellee twice arranged through counsel for Appellee’s father to
retrieve Appellee’s property from the home. However, he testified Ms. Yankee
twice blocked these pre-arranged attempts. The court accepted video docu-
mentation of Appellee’s father’s two failed attempts to retrieve Appellee’s
property. By the time Appellee could return to the home, his personal
property was nowhere to be found. The house instead contained rotten food,
bags of maggots, raw sewage, and garbage. 89
   In preparation for divorce, the parties drafted a stipulated settlement
agreement. The document was made part of the final dissolution action when
the divorce was finalized in September 2017. Each party listed their own



   86   Record at 377.
   87   Id. at 380.
   88   App. Ex. XIII at 3.
   89   See Record at 419-20 (testimony of Appellee’s father).




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                     United States v. Taylor, NMCCA No. 201900242
                                  Opinion of the Court

“sole and separate property” and wrote that “failure to list a separate
property asset . . . shall not create a community or any other interest” for the
other spouse. 90 They agreed that each would retain each person’s own
personal property, including their own “personal effects.” 91 Each party would
retain the property they acquired before marriage. In a separate section, the
parties agreed that as to the “furniture, furnishings, art work, antiques, tools,
and appliances” that had already been separated, each person was entitled to
keep the items in their possession. 92 Neither Appellee nor Ms. Yankee listed
the 12 electronic items as their separate property or as community property
allocated to either person.

E. Owner or Joint User
   Whether Ms. Yankee could consent to search of the three devices turns on
the nature of her interest in them through ownership, joint use, common
authority, or another sufficient relationship. We first analyze whether she
was an owner or joint user.

   1. Owner: Are they his or hers?
    The military judge ruled that the electronic media belonged to Appellee.
We agree. Although the electronics were undeniably in Ms. Yankee’s posses-
sion when she turned them over to NCIS, the analysis must focus on whether
she was a rightful owner. There is a conflict in the evidence about what
Ms. Yankee told NCIS when she turned over the media, and how she
described its ownership during the Article 39(a), UCMJ, session. Specifically,
Ms. Yankee first told NCIS agents the electronics belonged to Appellee, but
during the Article 39(a), UCMJ, hearing, she provided different statements.
We interpret the facts in the light most favorable to the party prevailing
below. We also take into account the military judge’s findings of fact that
Ms. Yankee made some false statements. 93




   90   App. Ex. X at 32.
   91   Id. at 51.
   92   Id. at 31.
   93 The military judge found that Ms. Yankee made two apparent or actual false
statements when she: claimed her lawyers told her she did not have to permit
Appellee’s family members to retrieve his property and when she told her lawyers
that she did not have any of Appellee’s property and that it must be in the house or
in Appellee’s father’s possession. See App. Ex. XXIII at 11, Conclusions (7) and (8).



                                         18
                     United States v. Taylor, NMCCA No. 201900242
                                  Opinion of the Court

    In May 2018, Ms. Yankee told the NCIS special agent receiving the items
that they belonged to Appellee. The receiving special agent documented these
statements in a written report. 94 When the agent asked Ms. Yankee to
confirm whether they belonged to Appellee, Ms. Yankee replied, “Yes, they
are his.” 95
    In November 2018, when NCIS special agents gained Ms. Yankee’s con-
sent to search the items, they documented that Ms. Yankee said “the afore-
mentioned items . . . were never requested by [Appellee] nor his attorney.” 96
This statement inherently suggests Ms. Yankee was characterizing the items
as belong to Appellee.
    In March 2019, Ms. Yankee told the trial counsel that the items “had been
abandoned in the house by [Appellee] for about a year,” again representing
that the items were Appellee’s. 97 An agent documenting additional contact
with Ms. Yankee wrote that Ms. Yankee had provided consent to search
“several electronic devices [Appellee] abandoned in her residence.” 98
    Based on Ms. Yankee’s early representations, in April 2019, the trial
counsel provided MRE 404(b) and 414 notice stating the Government’s
intention to offer evidence that Appellee maintained certain incriminating
files on his items of media.
    By time of the Article 39(a), UCMJ, hearing in July 2019, Ms. Yankee and
the NCIS agents attempted to contest the accuracy of the NCIS reports,
suggesting Ms. Yankee had said the items were shared. Trial counsel asked
Ms. Yankee, “Did you tell them they were Major Taylor’s?” to which
Ms. Yankee responded, “I said they were ours.” 99 Trial counsel responded,
“Now, NCIS has a different view. They believe that when you came to me [the
trial counsel] with [the electronics] in May of 2018, you told them that the




The military judge considered these statements as they relate to “assessing the
credibility of [Ms. Yankee] since she did testify at the Article 39(a)” hearing. Id.
   94   See App. Ex. X at 25.
   95   Record at 407.
   96   App. Ex. XI at 17.
   97   Id. at 20.
   98   Id. at 21.
   99   Record at 371.




                                         19
                   United States v. Taylor, NMCCA No. 201900242
                                Opinion of the Court

electronic devices are Major Taylor’s. Do you recall saying that to NCIS?” 100
Ms. Yankee replied that she did not remember her exact words.
    She also avoided the issue of ownership when she answered questions on
direct examination, stating, “I just said these were the—these were anything
and everything electronic that was in the house.” 101 She said she took the 12
items of media because she “just took everything that [she] thought was
[hers] or that was just laying around that [she] needed.” 102 Later describing
the items she took, she equivocated, “As far as I know, they were both of ours,
they were in our house, we both used them or, I just packed it because I
figured it probably had something to do with my kids.” 103
    Interpreting the facts in the light most favorable to Appellee and consid-
ering the military judge’s concerns with Ms. Yankee’s credibility, we find that
the military judge did not abuse his discretion by concluding that the items of
media belonged to Appellee.
    The Government contends the military judge abused his discretion by
holding that the Western Digital Drive—the only item to show an indicia of
ownership because it was labelled with Ms. Yankee’s first name—belonged to
Appellee. We disagree. The military judge stated that he considered all of the
evidence and arguments of the parties. He was in a position to assess Ms.
Yankee’s credibility. Given the conflicting statements Ms. Yankee made on
this issue, we do not believe this conclusion was “outside the range of choices
reasonably arising from the applicable facts and the law.” 104
    The Government argues the parties’ legal agreements could be read to
confer ownership of the items of media upon Ms. Yankee. We disagree. A
close analysis of their divorce agreements does not resolve the issue of
whether Ms. Yankee could rightfully retain the items of media. This issue
turns on whether the drives were Appellee’s personal property—a matter not
conclusively established in the agreements. The Government argues that
Appellee could have requested return of the three items of media; that he had
requested a specific digital camera; and therefore his failure to request return
of the three items is evidence the items were not his. We believe Appellee



   100   Id.
   101   Id. at 355.
   102   Id. at 354.
   103   Id. at 369.
   104   Frost, 79 M.J. at 109 (quoting Kelly, 72 M.J. at 242).




                                            20
                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

could not be reasonably expected to catalog, from memory, every single item
that belonged to him in the marital home. Nor could he be expected to take
every single item of his personal property with him to the ship when he first
left. He abruptly left out of caution, 105 then, based on his ship’s deployment
schedule, a no-contact order, changed locks, a Military Protective Order, and
Ms. Yankee’s actions to repeatedly block his intermediaries, Appellee was
unable to retrieve his property. Ms. Yankee said herself that she took the
drives because she thought they might be of use to her—not that they were
hers to take. 106
   Consistent with Ms. Yankee’s earliest statements and the military judge’s
conclusion, we find that Ms. Yankee was not a rightful owner of the three
devices.

   2. Joint user?
   The military judge acknowledged and rejected the Government’s argu-
ment that Ms. Yankee “jointly used” the electronic media. 107 We agree with
the military judge’s conclusion.
    On appeal, the Government argues Ms. Yankee was a joint user of, at a
minimum, the purple-taped drive. Ms. Yankee testified she stored her
children’s photos on the drive and that she backed her phone up to it once or
twice per year. The forensic examination revealed photos of Ms. Yankee’s
children were on the purple-taped drive, including the nude non-
pornographic bath-time-style photos of the unknown female child. The
forensic report does not show any evidence that Ms. Yankee ever used the
hard drive to back up her phone, nor does the report demonstrate repeated
use by Ms. Yankee.
   The Government also argues “data referencing Ms. Yankee’s Facebook
account was found” on the purple-taped drive. 108 They later argue that
Ms. Yankee “backed up . . . information from her Facebook account.” 109



   105   See App. Ex. XXIII at 3 (finding of fact c.).
   106 The Government notes that even if Appellee had specifically requested any of
the items, the agreements required Ms. Yankee to consent to removal of any specific
item. We do not find this provision controlling, and Ms. Yankee repeatedly and
unequivocally told NCIS special agents the items belonged to Appellee.
   107   App. Ex. XXIII at 13.
   108   Appellant’s Brief at 18 (emphasis added).
   109   Id. at 19.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

However, the Government did not present evidence on these points;
Ms. Yankee did not testify she used the drive in this manner. Rather, the
forensic report indicated that some web artifacts “reference Facebook
profiles” for Appellee and Ms. Yankee, with no further explanation of what
that entailed. 110 Where the Government had the burden of proof by clear and
convincing evidence to justify Ms. Yankee’s consent to search, 111 we will not
deduce from this cryptic notation in the forensic report that Ms. Yankee ever
did such a thing. Because Ms. Yankee had used Appellee’s computer, which
was backed up on the purple-taped drive using the Time Machine backup
program, any web artifacts or references to Ms. Yankee’s accounts could be
the result of her prior use, with Appellee’s permission, of his laptop. Such web
traces do not prove joint use of the hard drive itself.
    Aside from the forensic report and the Government’s interpretations of it,
the Defense forensic examiner could find no evidence that the drive had been
used any time after 2013—apparently contradicting Ms. Yankee’s testimony
that she used the drive once or twice per year. Considering the military
judge’s finding of fact that Ms. Yankee had lied or apparently lied in connec-
tion with this case, we consider the forensic evidence more credible than
Ms. Yankee’s statements. We therefore consider whether Ms. Yankee’s act in
storing her photographs on the purple-taped drive once during marriage is
sufficient to constitute joint use such that she could consent to search of the
drive, years later, after her divorce from Appellee.
    The Government argues Ms. Yankee’s use of the drive, even if just to
store her photos, justifies her ability to consent. They argue that a “hard
drive is a ‘persistent storage’ technology” on which information is “preserved
even when [the device] is not powered.”112 Then they equate storage to use,
analogous to leaving an item in a “warehouse, library, or computer
memory.” 113 And they argue Ms. Yankee’s “use” by means of storing certain
data was a continuous use that persisted until she turned the items over to
NCIS agents.
    Under these facts, we reject this continuous use argument. This case is
distinguishable from the joint-use cases the Government cites. In United



   110   App. Ex. XI at 30.
   111   See Mil. R. Evid. 314(e)(5).
   112 Appellant’s Reply Brief of 9 Dec 2019 at 5. (alteration in original) (citation
omitted).
   113   Id. (quoting Store, Merriam-Webster.com).




                                          22
                   United States v. Taylor, NMCCA No. 201900242
                                Opinion of the Court

States v. Matlock, the appellant and his roommate were joint occupants of a
bedroom, and at the time his roommate consented to the search, they
variously represented themselves as a married couple. 114 Likewise, in Frazier
v. Cupp, a duffel bag was actively being shared between the owner and his
cousin, and Frazier left the duffel bag in his cousin’s home. 115 In each case,
there was an ongoing intention, at the time the third party consented to
search, for the rightful owner to share the property or premises with the
person who consented to the search. In each case, there was an action on the
part of the true owner to assume the risk that the joint occupant or user
would consent to a search. 116 We find no such action here.
   Therefore, we find Ms. Yankee lacked actual authority to consent as an
owner or joint user of the three items of media.

F. Common Authority or Sufficient Relationship
   In United States v. Matlock, the Supreme Court held that a third party
could give valid consent to search if she possesses “common authority over or
other sufficient relationship to the . . . effects sought to be inspected.” 117 The
Court, in a footnote, defined “common authority” as resting:
          on mutual use of the property by persons generally having joint
          access or control for most purposes, so that it is reasonable to
          recognize that any of the co-inhabitants has the right to permit
          the inspection in his own right and that the others have as-
          sumed the risk that one of their number might permit the
          common area to be searched. 118
    The Supreme Court did not specifically define an “other sufficient rela-
tionship” in Matlock, but our superior court interpreted both “common
authority” and “other sufficient relationship” in the marital context in United
States v. Clow. 119



   114   415 U.S. 164 (1974).
   115   394 U.S. 731 (1969).
   116  “By allowing the cousin the use of the bag, and by leaving it in his house,
Frazier was held to have assumed the risk that his cousin would allow someone else
to look inside.” Matlock, 415 U.S. at 171 (citing Frazier, 394 U.S. at 740).
   117   Id.
   118   Id. at 171 n.7.
   119   26 M.J. 176 (1988).




                                        23
                   United States v. Taylor, NMCCA No. 201900242
                                Opinion of the Court

    In Clow, the CAAF first outlined several federal and state cases involving
third party consent to a spouse’s property by an estranged spouse. The court
held that “absent a clear showing that one spouse ha[d] ‘exclusive use’ of
some area within the marital residence[,] . . . a spouse’s access to the marital
residence should be treated as access to all parts of that residence and to the
contents of any furniture or containers located there.” 120
    The court affirmed that Clow’s husband could consent to search within a
piece of furniture in her room. The couple was still married, although the
husband had moved out. The appellant had her own room, even when the
couple cohabitated. But the appellant never changed the apartment door lock
and the husband: still had two sets of keys; came and went without announc-
ing himself and stayed overnight; and maintained some property in the home
but said the appellant could dispose of it if she wanted. As such, the appellant
in Clow either actively permitted or passively condoned the husband’s
continued access to the premises, which justified his ability to consent to the
search. The court held that “[h]is ability to give valid consent to a search . . .
stemmed from his own ‘relationship to the premises.’ ” 121
    Also in Clow, the CAAF cited several cases involving third party consent
in the context of a martial split, as that split was ongoing and the couple still
jointly occupied a residence to some degree. Each person had common access
to the martial home and control of the premises. Having a key, with
knowledge of the other cohabitant, was viewed as common access.
    The Government argues the military judge failed to adequately address
common authority or analyze whether an “other sufficient relationship”
existed. We disagree. In his ruling in this case, the military judge appropri-
ately noted that “common authority” is a separate issue from property law. 122
He quoted United States v. Matlock, footnote 7 (quoted above), and then,
considering both Ms. Yankee’s lack of ownership and wrongful possession,
concluded she could not lawfully consent to the search. 123 The military judge
cited both Matlock and Clow and specifically recited that an “other sufficient
relationship” could justify third-party consent. 124 Furthermore, in Clow, our
superior court treated “common authority” and “other sufficient relationship”


   120   Id. at 187.
   121   Id. at 187-88 (quoting Matlock, 415 U.S. at 171).
   122   App. Ex. XXIII at 10.
   123   Id.
   124   Id. at 9-10.




                                            24
                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

as being similar. Discussing the facts of a New Mexico case, the CAAF wrote
that a “ ‘sufficient relationship’ existed [in that case], because defendant’s
‘wife had a key’ and ‘a right to occupy the premises’ and because she had
‘use[d] the residence to some extent.’ ” 125 We do not find that the military
judge’s handling of these issues constituted an abuse of discretion, and we
agree with the military judge’s conclusion that Ms. Yankee lacked authority
to consent.
   The Government argues that Ms. Yankee had a sufficient relationship
with the drives and could consent to search them because she had free access
to them in the home and because she used the purple-taped drive. We
address these issues in turn.

   1. Common authority based on past access in the marital home
    The Government argues the holding in Clow requires this Court find
Ms. Yankee could consent to a search of the media. It appears that
Ms. Yankee had free access to the 12 media devices while she lived together
with Appellee as husband and wife. The Government seeks to have us parlay
Ms. Yankee’s unfettered access while living with Appellee into her ability to
consent, years later, to a search of his property that she had barred him from
retrieving and then wrongfully retained after the marriage ended. We believe
this case is altogether different from Clow and other common authority cases
cited by the Government.
    By contrast to the facts in Clow, this case is more similar to Illinois v.
Rodriguez.126 In Rodriguez, the Supreme Court held that a third party ex-
girlfriend, who had a key that she took without the appellant’s knowledge,
did not have common authority to consent to a search of the premises. 127
   We find that Clow, and the logic underlying the cases outlined within it,
does not control the outcome in this case. Appellee did nothing to actively
permit or knowingly condone Ms. Yankee’s possession or use of the media. He
did nothing to “assume[ ] the risk” that Ms. Yankee would consent to the


   125 Clow, 26 M.J. at 186 (alteration in original) (quoting State v. Madrid, 574 P.2d
594, 597 (N.M. Ct. App. 1978)).).
   126   497 U.S. 177 (1990).
   127 Id. at 181-82 (finding third party had no common authority over the searched
apartment when she had moved out a month before the search, only went to the
house with permission, did not pay rent, and had a key only because she took it
without permission, but remanding for lower court to determine whether the search
was justified by apparent authority).




                                          25
                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

search. 128 By the time Ms. Yankee was approached for the PASS in November
2018, Appellee had been out of the marital home with no further unrestricted
access to his property for 33 months, and the couple’s divorce had been
finalized for 18 months. Nothing Appellee actually did in November 2018
gave Ms. Yankee authority over his property. In fact, Appellee had been
repeatedly thwarted from retrieving his property and had even tried to evict
Ms. Yankee from the home. Had he succeeded in the eviction, she would not
even have had access to, much less authority over, his personal property.
    The facts of this case are thus drastically different from the cases in
which courts have found a common authority or other sufficient relationship
existed, where there is typically a temporal aspect to the property owner’s
actions giving rise to common authority by the third party. In Clow, Matlock,
and Frazier, the true property owner was involved in some voluntary action
or inaction vis-à-vis the property or premises (electing not to change the locks
even though a third party kept using his key, for example) that was close in
time to the third party giving valid consent to search.
   There is no similar temporal link present here. Although the couple
shared his computer and shared items in the marital home during the
marriage, Appellee evidenced an intention to exclude Ms. Yankee from his
property as the couple was divorcing and after they divorced. He changed the
passwords to his accounts, and he repeatedly petitioned to have his personal
property returned. We do not extrapolate Ms. Yankee’s past permissive
access to Appellee’s media into giving Ms. Yankee common authority over his
items after she wrongfully withheld them and after the couple eventually
divorced.

   2. Common authority based on Ms. Yankee’s past use of the purple-taped
drive
    In this case, Ms. Yankee’s relationship to the purple-taped drive was that
she had previously stored files on it. The apparent last-accessed date was in
2013, although the Defense expert stated the accuracy of this date depended
upon the accuracy of the clock of the computer to which the drive was
attached. Viewing the evidence in the light most favorable to the party
prevailing below, we will view the drive as having been unused since 2013. 129




   128   Frazier, 394 U.S. at 740.
   129   Even according to Ms. Yankee’s testimony, she used the drive infrequently.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

Other than this use, Ms. Yankee had the drive only because she essentially
stole it. 130
    We must determine whether use, years prior, of another’s electronic me-
dia gives that user continued common authority over the device to consent to
a search of that media years later. We hold that it does not. The consequences
of a contrary holding would be astounding. If a person permitted a friend to
use his personal computer to check email and the friend saved a file to the
computer, we would not hold that the friend could then consent to a search of
the computer years later, even after the relationship was severed. The result
would be absurd whether or not the friend intended to seek return of the
saved file years later, and the result would be absurd whether or not the
computer’s owner knew the friend intended to save a file to the computer. 131
The same logic applies to Ms. Yankee’s use of Appellee’s purple-taped drive.
    Nothing in United States v. Rader, 132 cited by the Government, dictates a
different result. In Rader, the appellant permitted his roommates to access
his computer without any limitations, and this shared access was ongoing,
with Rader’s full knowledge and agreement, at the time one of Rader’s
roommates consented to search the computer. Although in this case
Ms. Yankee and Appellee may have shared access akin to that in Rader at
some point, 133 the situation had changed significantly by May 2018 (when
Ms. Yankee turned over the items to NCIS) and November 2018 (when she
executed a PASS for the items). By the time Ms. Yankee gave consent to
search Appellee’s electronics, they were less than friends or even former
houseguests—they were antagonistic, mutually-opposed parties. While
Ms. Yankee still had the items of media in her possession, this was not
because of any thought-out division of property or affirmative choice on
Appellee’s part to specifically abandon the property or give it to Ms. Yankee.




   130 The military judge found that Ms. Yankee was “not in lawful possession of the
devices when she turned them over to NCIS on 21 May 2018.” App. Ex. XXIII at 10
(Conclusion (4)). We agree.
   131  Another analogy would be permitting a guest to leave a small item of property
in the owner’s house and finding that, years later, that guest could consent to search
of the entire house.
   132   65 M.J. 30 (C.A.A.F. 2007).
   133 Even by Ms. Yankee’s testimony, her use was infrequent, which is less than
the ongoing use in Rader.




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

   In sum, that Ms. Yankee had the items of media in her possession in May
2018 does not convince us that she had common authority over them or
another sufficient relationship to justify her consent to a search. Common
authority is based upon assumption of the risk. We do not believe
Ms. Yankee’s permissive use of the purple-taped drive during marriage
caused Appellee to assume the risk that his ex-wife would then consent to a
search of the drive she wrongfully retained years later.

G. Apparent Authority to Consent
   Based on substantial information showing Ms. Yankee’s animosity toward
Appellee, and her statements disclaiming ownership of the media, the
military judge ruled the NCIS agents could not reasonably believe she could
consent. We agree.
    As an initial matter, we note that the operative times to analyze regard-
ing the reasonableness of the special agents’ belief are the time they received
the evidence (seizure) and the time they solicited permission to search it (by
asking Ms. Yankee to sign a PASS). To hold otherwise would allow post-hoc
rationalization—after the benefit of consultation with counsel—to justify
actions that took place earlier in time. Therefore, when considering apparent
authority, we look only to the facts known to the NCIS agents at the time of
seizure and of obtaining consent to search.
    In an effort to meet its burden on this point, the Government presented
the testimony of NCIS Special Agent Edward Alpha, the agent who asked
Ms. Yankee to sign the PASS. Initially, the agent testified on direct examina-
tion that Ms. Yankee portrayed all of the devices as jointly-used family
devices that Appellee had abandoned. The agent confirmed that “based off of
this understanding of the devices,” he requested a PASS. 134 He also testified
he believed Ms. Yankee could consent because Ms. Yankee claimed Appellee
had numerous chances to request and receive return of his property—
requests with which Ms. Yankee claimed she complied. Therefore, the agent
testified that he concluded Appellee had abandoned the devices and
Ms. Yankee could consent to search them.
    On cross-examination, however, it became apparent that Special Agent
Alpha was conflating his March 2019 interview with Ms. Yankee with his
November 2018 interview. As such, he was, perhaps inadvertently, imparting
his later knowledge to his decision-making process in November 2018. This is



   134   Record at 388 (emphasis added).




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                  United States v. Taylor, NMCCA No. 201900242
                               Opinion of the Court

not the proper analysis for apparent authority to consent. All of the details
about claimed joint use and abandonment were included in the report of
Ms. Yankee’s March 2019 interview, not her November 2018 interview. None
of these later details could have influenced the agents’ decision-making
process in November 2018, which is the relevant time period for assessing the
reasonableness of the agents’ actions. 135
    Confining our review to the information known to the NCIS agents at the
time they asked Ms. Yankee to consent to search, we find there was not
apparent authority for the same two reasons the military judge identified.
First, the agents knew Ms. Yankee was purporting to consent to search
electronics she unequivocally stated did not belong to her. Second, the agents
had reason to know that Ms. Yankee was acting out of animosity toward
Appellee.
    As for the first reason, we note that Ms. Yankee made contradictory
statements about the ownership of the electronics. According to the facts
known to them at the time, as detailed above, the agents actually believed
the items all belonged to Appellee—not to Ms. Yankee. 136 By the time of the
Article 39(a), UCMJ, hearing, the trial counsel apparently contested the
accuracy of the NCIS reports on this point. Whatever the accuracy of NCIS’s
reports, the Government relied upon them 137 and the reports document what
the NCIS agents knew and thought about the ownership of the devices. They
believed—and recorded in their official reports—that Ms. Yankee was
consenting to search devices she clearly stated she did not own. As relates to
apparent consent, we find it was not reasonable for the agents to believe
Ms. Yankee could consent to the search.
   Second, when considering apparent consent, this Court may consider
animosity among the parties, and when the law enforcement official should
reasonably know the third party is motivated by animus, a search may not be




   135  Special Agent Alpha testified that he could recall, in July 2019, that
Ms. Yankee had said in November 2018 that the items were abandoned. He conceded
that detail was not included in the November 2018 report and stated that “[n]ot every
detail always ends up in reports,” but that “[o]ften times, there are notes that are
taken.” Record at 399. No notes in the record document this statement by
Ms. Yankee.
   136 See supra, Para III(E)(1), discussing Ms. Yankee’s statements regarding own-
ership of the drives.
   137   App. Ex. X at 76, 80 (referring to “his” hard drive and “his” MicroSD card).




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                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

justified by apparent consent. 138 Here, Ms. Yankee acted out of hostility
toward Appellee, and there was substantial evidence of this known to NCIS
at the time they asked her consent to search. The military judge listed the
pertinent facts in his ruling. In addition to those facts, the agents also knew
that Ms. Yankee’s allegations against Appellee grew as time passed. Whereas
she initially did not believe the alleged victim, she later made allegations of
her own. She alleged Appellee raped her, searched for barely-legal pornogra-
phy, fraternized and committed adultery soon after they were married, and
sent nude photographs to a 16-year-old girl. Whether the allegations are true
or false, at a minimum, they demonstrate that, in November 2018, agents
had reason to believe Ms. Yankee bore significant animosity against Appel-
lee. Therefore, we do not believe the search can be justified based on appar-
ent consent.
   We find Ms. Yankee could not consent to a search of the three devices, nor
could she apparently consent. Therefore, the search was unlawful.

H. Good Faith, Inevitable Discovery, and the Military Rule of Evi-
dence 311(a)(3) Balancing Test
   The Government does not contest the propriety of the military judge’s
conclusions of law on these points. We review them briefly and find the
military judge’s conclusions did not constitute an abuse of discretion,
reviewing his findings of fact under a clearly erroneous standard and his
conclusions of law de novo.
    First, the MRE 311(c)(3) good faith exception is only implicated when
agents rely in good faith on a search authorization. The exception does not
apply in this case, where the agents did not seek or receive a search authori-
zation.
   Second, as relates to inevitable discovery, the military judge noted that
Special Agent Alpha testified that “NCIS was not pursuing evidence of child
pornography” offenses at the time of the search. 139 He also noted that the
agents “allowed the 12 devices to sit for 165 days” without seeking a com-
mand authorization for search and seizure. 140 His conclusion that the
evidence would not have been inevitably discovered does not constitute an
abuse of discretion.



   138   Clow, 26 M.J. at 188 n.14.
   139   App. Ex. XXIII at 19.
   140   Id. at 17.




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                      United States v. Taylor, NMCCA No. 201900242
                                   Opinion of the Court

    Finally, as relates to the MRE 311(a)(3) balancing test, we agree with the
military judge’s conclusion that the test weighs in favor of exclusion, 141 since
“exclusion of the evidence results in appreciable deterrence of future unlawful
searches or seizures and the benefits of such deterrence outweigh the costs to
the justice system.” 142 We agree with the military judge’s conclusion that the
costs to the justice system would be “minimal” because the evidence is of
“questionable . . . admissibility,” may not even be relevant to this case, 143 and
is “ancillary to the charged offense[s];” 144 hence, no specification will have to
be dismissed as a result of the suppression of this evidence. As compared to
these minimal costs to the justice system, we agree with the military judge’s
conclusion that “appreciable deterrence would result from exclusion of the
evidence.” 145 We too, are concerned that the agents apparently took no action
for months, potentially because they knew they lacked probable cause, and
then pursued the unreasonable course of asking for Ms. Yankee’s consent to
search property she said belonged to her ex-husband, against whom she bore
substantial ill will. The military judge’s application of the MRE 311(a)(3)
balancing test does not constitute an abuse of discretion.

                                    IV. CONCLUSION

   We find we have jurisdiction to consider the Government’s appeal as it
pertains to:
    (1) the iMicro brand hard drive held together purple tape [purple-taped
drive];
   (2) the 500GB Western Digital brand hard drive [Western Digital drive];
and
   (3) the 2GB MicroSD memory card [memory card].




   141   The Government did not contest MRE 311(a)(1) or (2).
   142   Mil. R. Evid. 311(a)(3).
   143App. Ex. XXIII at 18. Specifically, the child depicted in the non-pornographic
images is not identifiable and may not be the alleged victim, and the evidence that
Appellee knowingly possessed child pornography is “weak.” Id.
   144   Id.
   145   Id. at 17.




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              United States v. Taylor, NMCCA No. 201900242
                           Opinion of the Court

   As pertains to these three items, the Government’s appeal pursuant to
Article 62, UCMJ is hereby DENIED. The record of trial is returned to the
Judge Advocate General for further action not inconsistent with this opinion.
   Judges LAWRENCE and STEPHENS concur.


                               FOR THE COURT:




                               RODGER A. DREW, JR.
                               Clerk of Court




                                     32
