                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                          BERGER, CAMPANELLA, and FLEMING
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                     Private First Class JEFFREY G. EUGENE
                           United States Army, Appellant

                                      ARMY 20160438

                         Headquarters, 25th Infantry Division
                      Colonel Mark A. Bridges, Military Judge
                     Colonel Ian R. Iverson, Staff Judge Advocate


For Appellant: Captain Daniel C. Kim, JA (argued); Lieutenant Colonel Christopher
D. Carrier, JA; Major Julie L. Borchers, JA; Captain Daniel C. Kim, JA (on brief).

For Appellee: Captain Marc B. Sawyer, JA (argued); Colonel Tania M. Martin, JA;
Major Michael E. Korte, JA; Captain Catharine M. Parnell, JA; Captain Marc B.
Sawyer, JA (on brief).


                                      28 February 2018

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BERGER, Chief Judge:

       This case is before us for review under Article 66, UCMJ. A military judge
sitting as a general court-martial convicted appellant, contrary to his pleas, of two
specifications of attempted viewing of child pornography and four specifications of
attempted sexual abuse of a child in violation of Article 80, Uniform Code of
Military Justice, 10 U.S.C. § 880 (2012 & Supp. I 2014). The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for
twenty-six months, and reduction to the grade of E-1. This court specified three
EUGENE—ARMY 20160438

issues relating to appellant’s single assignment of error, arising out of the
warrantless search of his cellphone. 1 Oral argument was held on these issues. 2

      First, we find appellant’s wife lawfully authorized the search of appellant’s
cellphone. Second, we hold the military judge did not abuse his discretion in
determining appellant’s request that his cellphone be returned did not amount to
withdrawal of consent to search based on the totality of the circumstances. Third,
we find, even if consent had been withdrawn, the inevitable discovery doctrine
would apply. We therefore affirm.

                                  BACKGROUND

       On 1 June 2015, appellant went to a field exercise with his unit on Schofield
Barracks, Hawaii. Prior to going to the field exercise, appellant gave his cellphone
to his wife, Mrs. BE. He gave her the cellphone both so she could pay bills and also
because he was not allowed to take the cellphone to the field. Appellant previously
allowed Mrs. BE to register her fingerprint on the phone, and he never placed any
restrictions on her use of the cellphone.

       On 2 June, Mrs. BE accessed the cellphone in order to retrieve a code to pay
rent. While on the cellphone, she accessed the Kik messenger application. The
application was clearly displayed and was accessible without a password. Mrs. BE
discovered communications with other females, including conversations, nude
pictures, and videos. Mrs. BE engaged with some of the females through the Kik
messenger. In Kik messenger conversations with appellant and with Mrs. BE, two of
the females stated they were fourteen years old, and another stated she was sixteen
years old. Mrs. BE contacted appellant’s platoon sergeant, to whom she forwarded
some of the conversations and pictures. The platoon sergeant forwarded some of the
conversations to the company first sergeant, and he advised Mrs. BE to go to the
Military Police (MP) Station.

      The MPs directed Mrs. BE to the Schofield Barracks Criminal Investigation
Command (CID) office. There, she met Special Agent (SA) GN, who had already
been briefed by the MPs and was aware Mrs. BE had found nude pictures of apparent

1
 After due consideration, we find the matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not merit
relief.
2
  Oral argument in this case was heard in Boston, Massachusetts, on 11 January
2018 at the New England Law Boston* as part of the Outreach Program of the
United States Army Court of Criminal Appeals.

* Corrected


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underage females on appellant’s phone. After learning appellant voluntarily turned
over possession of his cellphone to Mrs. BE, that she had fingerprint access to the
phone, and that she had accessed the communications and images, SA GN obtained
Mrs. BE’s written consent to both seize and search the cellphone. Additionally, SA
GN obtained Mrs. BE’s sworn statement, where she corroborated the information
about apparent underage girls described above.

       On 2 June, SA GN conducted a logical extraction of the cellphone that did not
uncover any evidence relating to the Kik messenger application. On 3 June, SA GN
interviewed the platoon sergeant and the first sergeant, both of whom corroborated
that they had seen sexual communications with apparent underage girls, including
images and/or videos, sent by Mrs. BE from appellant’s phone.

       On 5 June, SA GN interviewed appellant. During the approximately three-
hour interview, appellant admitted to communication with underage girls on the Kik
application, including receipt of naked and masturbation pictures and videos and
transmission of naked pictures of himself. After the interview, appellant requested
that his cellphone be returned. SA GN denied that request.

       CID subsequently conducted a forensic examination of the cellphone, without
obtaining a warrant. This later, more thorough, search yielded additional evidence
that formed the basis of the charged misconduct. The conversations Mrs. BE
discovered were not included in the charged misconduct.

       During his court-martial, appellant filed a motion to suppress the results of
the forensic extraction. Appellant’s primary argument on appeal is the military
judge erred by concluding appellant’s request that his phone be returned did not
amount to a withdrawal of consent to search.

                               LAW AND ANALYSIS

                                 Standard of Review

       We review a military judge’s evidentiary ruling on a motion to suppress for an
abuse of discretion. United States v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007) (citing
United States v. Khamsouk, 57 M.J. 282, 286 (C.A.A.F. 2002)). We review findings
of fact for clear error and conclusions of law de novo. United States v. Gallagher,
66 M.J. 250, 253 (C.A.A.F. 2008). Evidence is considered in the light most
favorable to the prevailing party. United States v. Leedy, 65 M.J. 208, 213
(C.A.A.F. 2007). Under the abuse of discretion standard, “[t]he challenged action
must be ‘arbitrary, fanciful, clearly unreasonable, or clearly erroneous.’” United
States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (quoting United States v. White,
69 M.J. 236, 239 (C.A.A.F. 2010)).




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                            Consent to Seize and Search

       “The ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”
Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “[A] search conducted without a
warrant issued upon probable cause is per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (internal quotations and citations omitted). A
search conducted with consent is one such exception. United States v. Hoffmann, 75
M.J. 120, 124 (C.A.A.F. 2016). This exception extends to the consent of a third
party who possesses common authority over the premises or effects to be searched.
Rader, 65 M.J. at 32. Someone has common authority where he has “joint access or
control for most purposes, so that it is reasonable to recognize . . . the right to
permit the inspection in his own right and that the others have assumed the risk that
one of their number might permit the search.” Id. at 33 (quoting United States v.
Matlock, 415 U.S. 164, 171 (1974)). A search may also be upheld where a third
party has apparent authority—that is, where law enforcement reasonably believes
that party has actual authority. Gallagher, 66 M.J. at 253.

       Here, the military judge found appellant previously authorized Mrs. BE to use
his cellphone, permitted her to register her fingerprint to allow access to the
contents, and provided her with the phone on this occasion not only because he was
not permitted to take it to the field, but also so she could pay bills. The military
judge further determined SA GN knew at the time Mrs. BE provided her consent that
appellant had given Mrs. BE exclusive possession of the cellphone and that she had
accessed the cellphone via her registered fingerprint. The military judge concluded
the government established by clear and convincing evidence that Mrs. BE possessed
common authority over the cellphone and could therefore lawfully authorize its
seizure and search. We find the military judge’s findings are supported by law and
fact.

                           Withdrawal of Consent to Seize

       An appellant cannot withdraw consent to seize after seizure is complete.
Military Rule of Evidence (Mil. R. Evid.) 314(e)(4), which governs the voluntariness
of consent searches, states “[c]onsent may . . . be withdrawn at any time.” The
phrase “any time” suggests no expiration, but our higher court has provided a
terminus: “Consent . . . may be withdrawn at any time, provided of course that the
search has not already been conducted.” United States v. Dease, 71 M.J. 116, 120
(C.A.A.F. 2012). Mil. R. Evid. 316(d)(2) states the consent requirements of Mil. R.
Evid. 314 apply to consent seizures. The same reasoning therefore applies, and
consent may be withdrawn at any time, provided that the seizure has not already
been completed.




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       “A seizure of property occurs when there is some meaningful interference
with an individual’s possessory interests in that property.” Hoffmann, 75 M.J. at
124 (internal quotation marks and citation omitted). This requires law enforcement
to exercise a fair degree of dominion and control over the property. United States v.
Jacobsen, 466 U.S. 109, 120 (1984). Here, meaningful interference occurred on 2
June, when appellant’s wife consented to seizure of the cellphone and provided it to
CID. The seizure was therefore complete. Under the facts of this case, we find
appellant’s 5 June request that his phone be returned was too late to constitute legal
withdrawal of consent to seize.

                    Withdrawal of Third-Party Consent to Search

       Appellant argues that he withdrew his wife’s third-party consent, which begs
the question: can one individual withdraw another person’s consent, at least where
he has a greater property interest in the evidence being searched? This appears to be
a matter of first impression in this court.

       Military Rule of Evidence 314(e)(4) states “[c]onsent [to search] may be
limited in any way by the person granting consent . . . and may be withdrawn at any
time.” (emphasis added). Neither this rule nor any other specifically addresses
whether one person can withdraw another person’s consent. Likewise, we have
found no binding precedent from our superior court.

       On the one hand, cases upholding searches based on third-party consent imply
an appellant cannot revoke third-party consent. For example, in United States v.
Weston, our superior court upheld as reasonable the search of a dwelling based on a
spouse’s consent that was granted after the appellant explicitly nonconsented. 67
M.J. 390, 391 (C.A.A.F. 2009). This is one of many cases that distinguish Georgia
v. Randolph, 547 U.S. 103 (2006), confirming law enforcement can rely on the
consent of one person with common authority, even over the express objection of
another person, as long as that objection is not contemporaneous. Such cases imply
that, except for the contemporaneous objection scenario, one person’s consent is
enough.

       On the other hand, our superior court has held that an appellant retains a
privacy interest in property with evidentiary value even after it has been seized. See
Dease, 71 M.J. at 120-21. If an appellant retains a privacy interest even after law
enforcement lawfully and meaningfully interferes with an individual’s possessory
interest in his property, surely the same appellant retains a privacy interest when a
third party meaningfully interferes with the same interest.

      We find the second of these competing arguments is more persuasive. We
recognize there is tension between this conclusion and Weston. As our holding
suggests, Weston may have resulted in a different outcome if appellant had voiced



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his objection a second time after his wife consented to the search. That said, we do
not extinguish the possibility that there may exist a situation in which a review of
the totality of the circumstances may allow for withdrawal of third-party consent to
search personal property. Such factors may include whether an appellant has a
greater property interest than the other party, whether the greater property interest is
known by law enforcement at the time consent is withdrawn, and the known
evidentiary value of the item at the time it was seized. We need not decide whether
appellant could revoke his wife’s consent to search because of our holding below.

                           Withdrawal of Consent to Search

        Search and seizure are separate concepts that “necessitate separate analyses
under the Fourth Amendment.” United States v. Wallace, 66 M.J. 5, 8 (C.A.A.F.
2008). “If searches and seizures are separate concepts, consent to one is not,
without more, consent to the other; similarly, revoking consent to one does not of
itself revoke consent to the other.” Id. Furthermore, individuals can retain a
privacy interest in property such as bodily fluids and computer hard drives, items
“whose evidentiary value is unknown until it is examined by forensic experts,” after
that property has been seized but before forensic analysis. Dease, 71 M.J. at 120-21.
Here, even though seizure was complete, appellant continued to retain a privacy
interest in the contents of his cellphone at the time of his 5 June request that it be
returned.

      Nonetheless, after receiving written consent to search property, law
enforcement “is entitled to clear notice that this consent has been withdrawn.”
United States v. Stoecker, 17 M.J. 158, 162 (C.M.A. 1984). The standard for
withdrawal of consent “is that of objective reasonableness -- what would the typical
reasonable person have understood by the exchange between the officer and the
suspect?” Wallace, 66 M.J. at 8 (internal quotation marks and citation omitted).

       The military judge found appellant’s request that his cellphone be returned
did not amount to withdrawal of consent to search. The military judge stated instead
that “it appears the accused wanted the phone back, most likely so he could continue
to use it.” We note appellant waived his rights and made a lengthy incriminating
sworn statement as part of an approximately three-hour interview. In that statement,
he acknowledged there were nude pictures of minors and masturbation videos of
minors on his cellphone, which he received through the Kik messenger application.
Appellant provided his phone number, Kik messenger name, Kik messenger
password, and email address to the agent who interviewed him. Our review of the
evidence does not indicate appellant ever asked that his cellphone not be searched.

      Under the totality of the circumstances in this case, the typical reasonable
person would understand appellant’s request that his phone be returned as merely an
attempt to regain control over his personal property for personal convenience.



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Under these facts, we hold that the military judge’s finding was not clearly
erroneous, and we therefore affirm.

       Additionally, we note that appellant testified in a suppression hearing as to
the reason he asked for his phone back:

             Q.     Why did you ask for your phone back?

             A.    It’s my only phone and we are in the military, it is
             kind of hard not to have a phone. You miss a lot of
             appointments and stuff. It was my only phone.

       The record is not clear as to whether this information was known to the CID
agent at the time appellant requested his cellphone be returned. But to the extent
appellant conveyed similar information to the agent, this case would be remarkably
similar to Wallace. In that case, appellant made incriminating statements before
consenting to the search and seizure of his computer, but he later objected to the
computer’s removal, stating:

             [The computer] has our life on it. It has our photo albums
             on it. It’s got our banking on it. All of our financial stuff
             is on there. You know, I use it to do all of our bill paying
             and everything else. Our online business is on there. I
             was like “You can’t take it.” Then my wife even started
             going nuts at that time.

       Appellant’s statement here is like that in Wallace. Both suggest any request
that the property be returned was out of concern for its continued use by appellant
and not to withdraw consent to search.

                                 Inevitable Discovery

       We also find that even if appellant had withdrawn consent to search, the
inevitable discovery doctrine would apply.

       “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.” Wallace, 66 M.J. at 10 (citing Nix v.
Williams, 467 U.S. 431, 444 (1984)). Under this doctrine, an unlawful search is
upheld where: 1) there is “overwhelming probable cause”; and 2) “routine police
procedure made discovery of the evidence inevitable.” Id. (citing United States v.
Owens, 51 M.J. 204, 210-11 (C.A.A.F. 1999)). Both conditions are met here.




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      There is overwhelming probable cause. Not only did appellant confess to
exchanging messages, pictures, and videos with underage girls on the Kik messenger
application on his cellphone, but his spouse, platoon sergeant and first sergeant all
provided sworn statements confirming they viewed similar evidence originating from
appellant’s phone.

       Special Agent GN testified that he would have contacted a military magistrate
to get a search authorization if he believed he did not have consent, and that this was
his standard operating procedure. This testimony parallels investigators’ statements
in Wallace regarding routine procedures.

       We pause to note that while the evidence does not rise to the level of inferring
intentional evasion of the warrant requirement by SA GN and SA ST, it is
nonetheless concerning.

       The military judge found that on 5 June, appellant requested his cellphone be
returned. We are left to accept the military judge’s factual finding in this regard.

       On 15 June, SA GN acknowledged, in his Case Activity Summary notes, that
he had been directed to seek a federal search warrant. This indicates investigators
gave some thought to obtaining a warrant, although, the record does not indicate
why investigators were thinking along these lines if they believed they possessed
consent to search the phone. Further, contradicting CID’s assertion that they
believed they possessed consent to search appellant’s phone, SA ST annotated on 16
June in the case notes that he would obtain appellant’s consent to search his
cellphone. Despite the CID agents’ case notes, there is no evidence before us that
the agents actually sought a search authorization or appellant’s consent to search his
cellphone—despite the fact that CID possessed the cell phone and, accordingly, no
risk of evidence tampering or loss was present.

      The simple practice of obtaining a search authorization in a case such as this,
where no exigency is evidenced, would have extinguished the concerns noted herein.

      Despite these concerns, this case falls within the holding in Wallace, and we
are bound by that decision. We therefore arrive at the conclusion that the inevitable
discovery doctrine applies. Finding no error in the military judge’s denial of
appellant’s motion to suppress, we affirm.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge FLEMING concur.




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                       FOR THE
                       FOR THE COURT:
                               COURT:




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




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