UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                      CAMPANELLA, SALUSSOLIA, and CELTNIEKS
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                    Warrant Officer One GRAHAM H. SMITH
                         United States Army, Appellant

                                    ARMY 20160150

                            Headquarters, Fort Rucker
                         Deidra J. Fleming, Military Judge
            Lieutenant Colonel Andras M. Marton, Staff Judge Advocate


For Appellant: Bryan D. DePowell, Esquire (argued); Captain Daniel C. Kim, JA;
Bryan D. DePowell, Esquire (on brief).

For Appellee: Captain Meredith M. Picard, JA (argued); Major Michael E. Korte,
JA; Captain Meredith M. Picard, JA (on brief); Colonel Tania M. Martin, JA; Major
Michael E. Korte, JA; Captain Meredith M. Picard, JA (on brief in response to
specified issues).


                                    28 February 2018

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

SALUSSOLIA, Judge:

       In this case, appellant asserts for the first time that the military judge abused
her discretion by not granting his suppression motion. We hold the asserted error
was waived, and that even if not waived, the good faith exception to the
exclusionary rule would apply because the law enforcement officers who seized and
conducted the digital forensic examination of appellant’s computer and Apple
iPhone (iPhone) reasonably relied on a military magistrate’s authorizations.

      A military judge sitting as a general court-martial convicted appellant,
contrary to his plea, of indecent recording in violation of Article 120c, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920c (2012 & Supp. I 2014). The
convening authority approved the adjudged sentence of a dishonorable discharge and
confinement for two months.
SMITH—ARMY 20150498

       We review this case under Article 66, UCMJ. Appellant raises four
assignments of error, one of which requires discussion, none of which merit relief.
Upon consideration of the assignment of error “the military judge abused her
discretion by denying the defense motion to suppress evidence obtained from
[appellant’s] cellular telephone because [the] evidence was obtained in violation of
the Fourth Amendment of the United States Constitution and Military Rule of
Evidence 311,” this court specified additional issues pertaining to the lawfulness of
the government’s search and seizure.

                                  BACKGROUND

                           A. Report to Law Enforcement

       On 15 July 2014, while shopping at the post commissary, Ms. JW noticed
appellant walking closely alongside her. Ms. JW then observed appellant crouch
down next to her and take a photograph aimed underneath her dress, using his
iPhone. Quickly reacting, Ms. JW attempted to confront appellant and yelled for
assistance. Appellant ran towards the exit of the commissary, but was blocked by a
senior noncommissioned officer (NCO). Having observed some of the interaction
between Ms. JW and appellant and seeing appellant fumbling with his iPhone, the
senior NCO took the iPhone from appellant–to prevent appellant from further
accessing it—and turned appellant’s iPhone over to military police upon their arrival
to the commissary.

                             B. The Search and Seizure

      Based on the report from Ms. JW, Military Police Investigator (Investigator)
Kessler contacted the part-time military magistrate, Major (MAJ) Farmer, from
whom he sought and obtained verbal authorization to search appellant’s iPhone for
photographs.

      After appellant was released from custody, Investigator Kessler sought
authorization to search appellant’s residence for Apple brand digital devices
containing the nonconsensual pictures of a person’s private area. Investigator
Kessler’s affidavit in support of the authorization stated, in relevant part:

             based on technology and capability built in to Apple
             [p]roducts, known as the iCloud we have reason to believe
             any pictures taken with [appellant’s] iPhone have been
             synchronized wirelessly with the iCloud allowing them to
             be synchronized with all Apple products linked to Smith’s
             Apple account. In addition those items can be accessed by
             the internet to be viewed and/or distributed to other
             parties electronically.



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SMITH—ARMY 20150498

       During a telephonic briefing with the military magistrate, Investigator Kessler
discussed the basis for the follow-on search request for other digital devices. He
stated based on his investigative experience and knowledge of Apple technology,
appellant’s iPhone had the capability to be automatically linked with the iCloud. He
opined that photographs or videos taken of Ms. JW could be accessed by other Apple
devices and maintained or further distributed. The military magistrate asked if only
Apple devices could access the iCloud. Investigator Kessler said no, other devices
could access the iCloud as well. Based on this information, the military magistrate
provided authorization to search for any electronic devices that could access the
iCloud and obtain the sought images taken by appellant’s iPhone. Investigator
Kessler searched appellant’s residence and seized several digital devices to include
three computers, an iPad, and a digital camera. 1

       A few weeks later, the Fort Rucker office of U.S. Army Criminal
Investigation Command (CID) assumed investigative responsibility for the case and
took possession of appellant’s iPhone and the digital devices seized from his
residence. In reviewing the first authorization, Special Agent (SA) Howell believed
it provided authority to seize, but not search, the devices. As a result, he obtained a
second authorization from the same military magistrate so the devices could be sent
to Fort Benning’s CID office for a digital forensic examination (DFE). In obtaining
the second authorization, SA Howell relied on the same information Investigator
Kessler had provided for the first authorization.

      Pursuant to the military magistrate’s search authorizations, SA Pugliese, Fort
Benning CID office, conducted a DFE of all digital devices. Special Agent Pugliese
found no evidence of criminal activity on the digital devices obtained from
appellant’s residence. Because appellant’s iPhone was password-protected and
locked, SA Pugliese used a computer seized from appellant’s residence to unlock it. 2

      Once he unlocked the iPhone, SA Pugliese used forensic software to extract
data on the phone and search portions of the data that were within the search
parameters to which he believed he had authorization to search in light of the
authorizations and the lab request. Special Agent Pugliese’s subsequent examination
of appellant’s iPhone identified eight “up-skirt” videos involving Ms. JW and an
unknown female while they shopped at the commissary.


1
 The military magistrate later reduced her oral search authorization provided to
Investigator Kessler to writing in December 2014.
2
 When the iPhone was connected to the computer, the devices were set to trust each
other and allow communication back and forth. Special Agent Pugliese used the link
between the laptop and iPhone to unlock the iPhone.




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SMITH—ARMY 20150498

                            C. The Suppression Motion

       At trial, appellant moved the court to suppress the eight videos found on his
iPhone. In appellant’s written motion, he asserted two distinct grounds for
suppression. First, the senior NCO’s actions in relieving appellant of his iPhone
constituted an unlawful seizure under both the Fourth Amendment and Military Rule
of Evidence (Mil. R. Evid.) 311. Second, the search of the digital devices seized
from appellant’s residence was not based on probable cause and thus any evidence
obtained from these devices should be suppressed.

       At the suppression hearing, in response to the military judge’s inquiry,
appellant clarified the specific grounds for his motion to suppress focusing only on
the iPhone. He challenged the seizure of the iPhone by MSG Clark as unlawful and
the subsequent authorization to search the iPhone as too broad–requiring the eight
videos obtained from the phone be suppressed. At no time during the initial
suppression hearing, did appellant challenge the search of the iPhone because it was
opened by a computer illegally seized from appellant’s residence.

      The military judge initially granted appellant’s motion to suppress videos
obtained from appellant’s iPhone, finding the government did not meet its burden by
a preponderance of the evidence under Mil. R. Evid. 311. The government then
sought reconsideration of the military judge’s motion, which was granted. The
government called additional witnesses and introduced evidence of the search.

       During reconsideration, appellant appeared to concede the lawfulness of the
seizure of the iPhone, but again challenged the search of the phone arguing it was
overbroad and lacking in particularity. Although appellant knew the digital forensic
examiner used one of appellant’s computers to open the phone, he again never
challenged the search of the iPhone based on this fact.

       After receiving additional evidence, the military judge denied appellant’s
motion to suppress concluding even if the authorizations were “deemed deficient,”
and the scope of the search on the iPhone too broad, the government met its burden
by a preponderance of the evidence that the seized videos were obtained by officials
who reasonably, and with good faith, relied on the issuance of an authorization to
search and seize. In the alternative, she found the seized evidence would have been
obtained under the inevitable discovery doctrine.

        D. New Ground for Suppression Raised for the First Time on Appeal

       On appeal, appellant concedes the seizure of the iPhone and the scope of the
actual search of it was proper. Appellant, however, now asserts the military judge
abused her discretion by denying his motion to suppress, relying on a new theory
raised for the first time on appeal. Appellant now argues that since his iPhone was



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SMITH—ARMY 20150498

locked and not otherwise accessible, but for a computer illegally seized from his
home, the eight videos obtained from the iPhone represent fruit of an illegal search
and therefore should have been suppressed. 3 We disagree.

                             LAW AND DISCUSSION

                               A. Standard of Review

       We review a military judge’s denial of a motion to suppress for an abuse of
discretion. United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016).

                                      B. Waiver

      Before confronting the merits of the asserted error, we first look to whether
appellant waived this new ground for suppression by failing to raise it at trial.

       If an appellant makes a timely motion to suppress, evidence deemed
inadmissible as a result of an unlawful search and seizure may not be received in
evidence. Mil. R. Evid. 311(a). If the defense moves to suppress evidence, the
prosecution has the burden of establishing that the evidence is admissible by a
preponderance of the evidence. Mil. R. Evid. 311(d)(5)(A). A military judge may
require the defense to state specifically the grounds upon which the defense moves
to suppress evidence. Mil. R. Evid. 311(d)(3). In that circumstance, the burden
upon the prosecution extends only to the grounds upon which the defense moved to
suppress the evidence. Mil. R. Evid. 311(d)(5)(C). Failure to object or to move to
suppress constitutes waiver. See Mil. R. Evid. 311(d)(2); Rule for Courts-Martial
(R.C.M.) 905(e). 4

      In this case, the appellant did more than merely object or generally move to
suppress the evidence. Rather, he specifically stated the grounds for his motion in


3
  At oral argument, when asked “How can we now review the judge’s non-decision
for an abuse of discretion when she never made a decision because you never raised
the ground?” appellant’s counsel responded, “our case was prior to [United States v.]
Nieto [76 M.J. 103, 108 (C.A.A.F. 2017)], so obviously looking at Nieto and looking
at CAAF’s position on this it helped clarify my position.”
4
  As a general rule, federal appellate courts do not review issues not decided in the
trial court. Singleton v. Wulff, 428 U.S. 106, 120 (1976); Hormel v. Helvering, 312
U.S. 552, 556 (1941). The logic behind the rule is obvious—an appellate court can
only properly review matters that have been adequately developed in the record of
trial.




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SMITH—ARMY 20150498

both a detailed written motion and a response to the government’s request for
reconsideration. At the suppression hearing, in response to the military judge’s
inquiry, appellant narrowed the grounds upon which he sought to suppress the
evidence at issue—the eight videos. Appellant did not at any time during the trial
assert the ground he now asserts on appeal.

       There are two ways to view appellant’s failure, both arriving at the same
result. First, appellant’s failure to raise this theory of suppression to the military
judge waived the issue. United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017);
Mil. R. Evid 311 (d)(2)(A); R.C.M. 905(e). Alternatively, by failing to articulate
this specific ground for relief, the burden never shifted to the government. As such,
the military judge did not err as a matter of law because the defense failed to meet
its burden when the matter was never brought to the attention of the military judge.

       While this court may notice an issue not raised at trial, we decline appellant’s
invitation to address his new ground for suppression. Even if we were to address
this new ground for suppression, we find the government would still prevail based
on the good faith exception.

                              C. Good Faith Exception

       If a military magistrate did not have a substantial basis to find probable cause
in a specific case, military courts ordinarily apply the exclusionary rule unless an
exception to the rule applies. See Mil. R. Evid. 311(a). 5 In this case, while the
government concedes no substantial basis for probable cause existed to seize
appellant’s laptop, the government argues that law enforcement acted in good faith
in seizing the device. 6 We agree.


5
  The exclusionary rule is “‘a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.’” United States v. Leon, 468 U.S. 897,
906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). The
Supreme Court has recognized that the exclusionary rule “cannot be expected, and
should not be applied, to deter objectively reasonable law enforcement activity.” Id.
at 918-19. This has become known as the good faith exception to the exclusionary
rule.
6
  Appellant argues that the magistrate did not have a substantial basis to conclude
that probable cause existed when she issued the search authorization of appellant’s
residence for the digital devices, to include computers, that possibly contained
evidence of the offense of photographing or videoing Ms. JW, therefore, the search
authorization was invalid. The government concedes the magistrate did not have a

                                                                       (continued . . .)


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SMITH—ARMY 20150498

       The good faith exception to the exclusionary rule is applicable when
investigators “act with an objectively ‘reasonable good faith belief’ that their
conduct is lawful.” Davis v. United States, 564 U.S. 229, 238 (2011) (citing Leon,
468 U.S. at 909). The test is “whether a reasonably well-trained officer would have
known that the search was illegal” in light of “all of the circumstances.” Herring v.
United States, 555 U.S. 135, 145 (2009) (citing Leon, 468 U.S. at 922, n. 23). This
standard takes into account the officer’s training and experience, but not his or her
subjective intent. Id. at 145-46. The good faith exception applies to conduct
involving only “simple, isolated negligence,” but not to conduct amounting to a
deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights.”
Davis, 564 U.S. at 238. The good faith exception recognizes that the exclusionary
rule “cannot be expected, and should not be applied, to deter objectively reasonable
law enforcement activity.” Leon, 468 U.S. at 918-19. The exclusionary rule “is
designed to deter police misconduct rather than to punish the errors of judges and
magistrates” who “as neutral judicial officers . . . have no stake in the outcome of
particular criminal prosecutions,” so “[t]he threat of exclusion thus cannot be
expected significantly to deter them.” Id. at 916-17.

       The President, exercising his authority under Article 36, UCMJ, promulgated
a military good faith exception rule. Evidence obtained as a result of an unlawful
search or seizure may be used if:

             (A) The search or seizure resulted from an authorization to
             search, seize or apprehend issued by an individual
             competent to issue the authorization under Mil. R. Evid.
             315(d) or from a search warrant or arrest warrant issued
             by competent civilian authority;

             (B) The individual issuing the authorization or warrant
             had a substantial basis for determining the existence of
             probable cause; and

             (C) The officials seeking and executing the authorization
             or warrant reasonably and with good faith relied on the
             issuance of the authorization or warrant. Good faith is to
             be determined using an objective standard.

Mil. R. Evid. 311(c)(3).


(. . . continued)
substantial basis for concluding that probable cause existed to search appellant’s
residence for such digital devices. We accept this concession.




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SMITH—ARMY 20150498

       Military Rule of Evidence 311(c)(3) embodies the good faith exception as
articulated in Leon and Massachusetts v. Sheppard, 468 U.S. 981 (1984), which
specifically address the scenario when law enforcement officers rely on a
subsequently invalidated search warrant. United States v. Carter, 54 M.J. 414, 421
(C.A.A.F. 2001).

      The government has the burden of proving, by a preponderance of the
evidence, the requirements of the good faith exception have been met. Mil. R. Evid.
311(d)(5). Here, the military magistrate possessed authority to issue a search
authorization. We now turn to the second and third requirements.

       In finding the government met prong (B) of Mil. R. Evid. 311(c)(3), we look
to Carter, where our superior court determined that with respect to prong (B) of Mil.
R. Evid. 311(c)(3), the phrase “substantial basis” does not have the same meaning as
the term “substantial basis” in Illinois v. Gates, 462 U.S. 213, 238 (1983). 7 54 M.J.
at 421. Rather, “substantial basis” as an element of good faith “is satisfied if the
law enforcement official has an objectively reasonable belief that the magistrate had
a ‘substantial basis’ for determining the existence of probable cause.” Id. at 422.

       Here, Investigator Kessler provided a detailed affidavit to support his request
to search appellant’s residence for other digital devices that could have accessed the
iCloud and retrieved evidence of the videos. We do not find the military magistrate
abdicated her role. She discussed the request at length with Investigator Kessler and
questioned the basis for his conclusions and limited the scope of his search.
Moreover, we find no evidence that Investigator Kessler provided or omitted
information in an attempt to mislead the magistrate. Based on this exchange, an
objectively reasonable law enforcement official executing the authorized search
would have believed the military magistrate had a substantial basis for determining


7
  In United States v. Nieto, 76 M.J. 103, 108 (C.A.A.F. 2017), our superior court
noted a tension in their analysis of prong (B) of the good faith doctrine in Carter
and Hoffmann. 76 M.J. at 108 n.6. The tension arises because in Carter, the court’s
determination of whether this prong was met focused on whether law enforcement
officials had a reasonable belief that the magistrate had a substantial basis for
determining the existence of probable cause. Carter’s approach to the good faith
exception is consistent with the Supreme Court’s application of the exception in
Leon and Herring. Although not overruling Carter, the court in a subsequent
decision, Hoffmann, focused on the issuer (i.e., the magistrate) having a substantial
basis for concluding the existence of probable cause. 75 M.J. at 125. Because
Carter has not been overruled, is consistent with the Supreme Court’s application of
the good faith exception, and gives purpose to Mil. R. Evid 311(c)(3), we follow its
approach in analyzing prong (B).




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SMITH—ARMY 20150498

probable cause with respect to a search for digital devices capable of linking to the
iCloud.

       With respect to prong (C) of Mil. R. Evid. 311(c)(3), we also find the
government has met its burden because the official seeking and executing the
authorization that resulted in the seizure of the computer acted reasonably.
Investigator Kessler not only sought the search authorization, but also limited his
search of appellant’s residence to the parameters of the magistrate’s verbal
authorization. Thus, we hold the computer used to open the iPhone was seized in
good faith.

       We also find that SA Pugliese acted in good faith when he conducted a search
of the computer although it revealed no evidence at issue in this case. Lastly, we
find nothing unlawful in SA Pugliese’s reliance on his technological acumen to use
the laptop as a “key” to open the locked iPhone. We, therefore, conclude the eight
videos obtained from appellant’s iPhone were not tainted as a result of an unlawful
search and were otherwise admissible.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge CAMPANELLA and Judge CELTNIEKS concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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