

   
   
   
   U.S. v. Fogg



United States, Appellee
v.
Felix G. FOGG, Staff Sergeant
U.S. Marine Corps, Appellant
 
No. 98-0910
Crim. App. No. 96-1958
 
United States Court of Appeals for the Armed
Forces
Argued March 3, 1999
Decided September 30, 1999
CRAWFORD, J., delivered the opinion of the
Court in part. COX, C.J., concurred in part and in the result without opinion.
SULLIVAN and EFFRON, JJ., filed opinions concurring in part and in the
result. GIERKE, J., filed a dissenting opinion.

Counsel
For Appellant: Mary T. Hall (argued);
Major S.D. Chace, USMC (on brief).
For Appellee: Lieutenant Janice K. O'Grady,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC; Commander
Eugene E. Irwin, JAGC, USN and Captain D.R. Fields, USMC (on brief).
Amicus Curiae Urging Reversal:
Berna M. Lee (Law Student) (argued); Steven H. Goldblatt
(on brief) - For Appellate Litigation Program, Georgetown University Law
Center
Military Judge: Craig L. Carver
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.


Judge CRAWFORD delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN and EFFRON, JJ., joined in part.
Pursuant to his pleas, appellant was convicted
of conspiracy to distribute cocaine;1
distribution of cocaine (3 specifications); and possession of marijuana
with intent to distribute, in violation of Articles 81 and 112a, Uniform
Code of Military Justice, 10 USC §§ 881 and 912a, respectively.
Contrary to his pleas, he was convicted by officer members of distributing
marijuana and cocaine; rape; indecent assault; and committing indecent
acts, in violation of Articles 112a, 120, and 134, UCMJ, 10 USC §§
912a, 920, and 934, respectively. The convening authority approved the
sentence of a dishonorable discharge, confinement for life, and reduction
to the lowest enlisted grade. The Court of Criminal Appeals affirmed the
findings and sentence except for confinement in excess of 30 years. We
granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING
THE DEFENSE MOTION TO SUPPRESS VIDEOTAPES WHICH WERE VIEWED AND SEIZED
DURING A SEARCH OF APPELLANTS RESIDENCE, WHEN THE WARRANT FOR THE SEARCH,
ITS APPLICATION, AND ACCOMPANYING AFFIDAVIT MADE NO MENTION OF VIDEO CAMERAS
OR VIDEOTAPES.

We hold that seizure of the videotapes was reasonable
for the reasons set forth below.2

FACTS
An informant identified appellant as trafficking
in drugs, and he was targeted by the civilian police for controlled drug
buys. The informant introduced appellant to an undercover police officer,
Detective Sergeant Ralph Hines, who subsequently made three purchases of
cocaine. A fourth buy was scheduled, at which the police intended to arrest
appellant, but appellant failed to show up.
For the first buy, the informant paged appellant
to set up the meeting in a Burger King parking lot and then used a pre-arranged
signal to indicate to him that they were ready to buy drugs. The informant
asked for $50 worth of crack cocaine, which appellant produced and she
bought. Detective Hines said to appellant, "Well, that looks pretty good,
and asked him if [he] could get another $50." Appellant hesitated, then
walked away for about 5 minutes, and, when he returned, told Detective
Hines that he only had $30 worth. Appellant told the detective to contact
him "through the informant" for future purchases because his phone was
"rigged" to detect whether incoming calls were using recording devices.
The second buy, also at Burger King, was interrupted
when appellant and his look-out, who was later identified as appellants
son, became suspicious because an unmarked police car drove by the parking
lot. When the buy resumed, Detective Hines talked with appellant about
appellants "operational techniques." Appellant "pointed to the Burger
King camera, [and] said that he had somebody in there monitoring that."
The informant also told Detective Hines that appellant was taking pictures
of those purchasing drugs from him so that he could "check them out." Detective
Hines, the informant, and others described appellant as "high tech" and
an "upper class" dealer who "kept records and a gun sometimes...."
By the time of the third buy, the police department
had identified appellant as a Marine and was cooperating with the Naval
Criminal Investigative Service, which assisted with surveillance, including
videotaping the Burger King parking lot. Detective Hines testified that
surveillance is sometimes used in drug enforcement work. In addition to
the police using video and other surveillance equipment, it was common
knowledge in the law enforcement community that drug dealers also often
used such equipment.
While waiting at the Burger King for the third
buy, appellant called Detective Hines and the informant at a pay phone
and said that the police were in the area. As a result, appellant wanted
to meet them elsewhere. As they pulled out of the parking lot, Detective
Hines saw appellants van and thought that appellant was probably engaged
in surveillance of them. Detective Hines radioed his back-up "not to follow"
them as that would tip off appellant to his true identity. Eventually,
they met for the third buy and appellant quickly gave Detective Hines some
cocaine. Testing appellants underworld acumen, the detective remarked
that a car across the street belonged to the Jacksonville Police Department,
when in fact it did not. Appellant replied, no, and then described in detail
how he identified their unmarked cars.
At the third buy, appellant promised to trade
"two blocks of crack cocaine for a pound of marijuana," in which Detective
Hines had previously indicated he trafficked. Detective Hines was not wearing
a body wire to record this conversation because he knew that appellant
sometimes used an RF detector, which could detect a wire, and thought that
he could be using it then. Appellant failed to show up for this fourth
buy because the informant told appellant that Detective Hines was an undercover
police officer.
Because appellant had been tipped off, the
police thought it was important to move quickly to obtain a search warrant
before he destroyed any evidence and the value of this operation was lost
entirely. Detective Hines indicated that there were a number of items that
they were looking for, such as counter-surveillance equipment, which were
mentioned in his affidavit attached to the search-warrant application but
not on the application itself. This difference was simply the product of
their being "rushed." Detective Hines testified that counter-surveillance
equipment includes "RF detectors, photos, cameras, binoculars, anything
that can be used for surveillance, video."
The warrant authorized seizure of "crack cocaine,
packaging and repackaging equipment, papers proving occupancy, records,
weapons, pagers, RF detectors, photos, cellular phone[s], police scanners,
scales/paraphernalia." During the search of appellants bedroom, Detective
Hines picked up a video camera and noticed a tape inserted in it. He decided
to view the tape to see if he had been caught on film in appellants surveillance
operations.
Detective Hines also testified:

Q. When you were viewing these things, what
gave you the authorization to search a cam corder? Is cam corder specifically
listed on your search warrant?
A. No, sir.
Q. Why did you think you had authorization
to search for a cam corder?
A. For the counter-surveillance equipment.
Q. Is there any other reason?
A. (No response.)
Q. Did the fact that photos was listed ----
A. Photos also, yes, sir.
Q. When you were looking at the cam corder,
did you believe that that was something you had authority to look for?
A. Yes, sir.
Q. You stated that you took that first tape
out. What did you do after that?
A. I put in the other tape.
Q. What were you going to do with that first
tape?
A. Hold it for evidence.
Q. Why? What did you believe it was evidence
of?
A. The marijuana growing in the -- see, I am
looking through an eyepiece that's the size of a quarter. You can't really
tell, but you can see something growing inside of it, and you can't tell
what it is until you put it up on something bigger.
Q. At that point, you then determined that
that was seizable?
A. Yes, sir.
Q. What happened with the second tape?
A. The second tape showed a scene with a girl
in it.
Q. Did you believe that the second tape was
evidence of some crime?
A. Yes, sir.
Q. Without elaborating greatly, describe why
you believed it was evidence of a crime.
A. Contributing to the delinquency of a minor.
It looked like she might have been a little intoxicated, and he is the
only person there at the residence that I knew who was old enough to buy
beer or liquor, and as I am rewinding that, it shows him setting up the
camera.
Q. Him being the accused?
A. Yes, sir.
Q. What did you then elect to do with that
tape?
A. I just told them to seize the whole bag
and we'll sort it all out, because it was at least contributing to the
delinquency of a minor if nothing else.

On cross-examination, Detective Hines indicated
that the tape had no outwardly "apparent evidentiary value." But he thought
the videotape "could have been counter- surveillance taped footage of the
buy occurring or something to that effect with me on it." He further admitted
that a videotape was not a photograph. Detective Hines believed that this
tape contained pictures of intoxicated young girls and a person believed
by the officer to be one of appellants sons engaged in sexual activities
with them. According to the court below:

Using the seized cassette, the police eventually
identified, located, and interviewed three young girls (aged 13 to 15)
shown on the tape. The police also questioned the appellant's two sons
about the content of the seized videos. During the interviews with the
girls and the sons, the police obtained the evidence used by the Government
to convict the appellant of the contested offenses. That derivative evidence
established that the appellant directed his sons to invite the girls to
his house; provided alcohol or drugs to the girls so that they would become
incapacitated; video taped two of the incapacitated girls being sexually
compromised by one of the sons at his direction; and raped one of the incapacitated
girls.

Unpub. op. at 4.
In a motion to suppress the search results,
the defense argued that the search warrant was unconstitutionally vague
and the officers exceeded the scope of the search warrant. The judge denied
the motion by ruling that the word "photos" in the warrant gave the police
authority to seize and view the videotapes. He also found the officers
acted in good faith.
While the Government argued at trial that the
video- tapes might be part of "counter-surveillance equipment," this "factual
proposition" was never "presented to the magistrate." Unpub. op. at 6.
While the court below determined that photos do not include cassettes,
it nevertheless applied the good-faith exception and found the tapes to
be admissible. Id. at 6-7. The court indicated that the officers
acted in good faith, that "[t]heir testimony, along with their reference
to counter-surveillance equipment in the affidavit, demonstrates that
they were concerned that the appellant had obtained the visual image of
the undercover detective." Id. at 7. Because appellant might have
recorded some of the controlled drug deals, the police wanted to ensure
that the identity of the undercover officer was not compromised.
Appellant implies that the military judge erred
when he found that appellant "told [Detective] Hines that he had a friend
who worked in the Burger King and that the friend could direct the Burger
King drive-up video camera to the parking lot to video any transactions
and look for police," as well as "that the accused often took pictures
of those who bought from him and passed them around to see if they were
law enforcement agents." Appellant contends that two issues arise out of
these erroneous findings of fact.

I. VALID WARRANTED SEIZURE
The Fourth Amendment provides:



The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.



This Amendment protects the right to privacy against
unreasonable searches. Warrants must be based on probable cause and specifically
describe the things to be seized and the place to be searched.
We hold that there was a valid, warranted seizure
of the videotape because the video tapes were covered by the scope of the
search warrant.
Officers in executing a search warrant are
often required to exercise judgment as to the items or things to be seized.
Strauss v. Stynchcombe, 165 S.E.2d 302, 303 (Ga. 1968). In exercising
this judgment, the police are "not obliged to interpret [the warrant] narrowly."
Hessel v. O'Hearn, 977 F.2d 299, 302 (7th Cir. 1992);
see also United States v. Stiver, 9 F.3d 298 (3d Cir.
1993), cert. denied, 510 U.S. 1136, 114 S. Ct. 1115 (1994).
While police officers are required to make realistic, commonsense determinations
as to what constitutes evidence, this determination must be based on probable
cause. The issue we address in this section is whether the videotapes could
be seized within the scope of the search warrant.
We hold that the action of the police in seizing
the videotapes fell within the scope of the search warrant, which authorized
seizure of "photos." "Photos," as defined by both Mil.R.Evid. 1001(2),
Manual for Courts-Martial, United States (1995 edition),3
and North Carolina Rule of Evidence 1001(2), include videotapes. While
these rules are not controlling in this case, they are indicative of the
plain meaning of the word. Additionally, case law supports this seizure.
In United States v. Lowe, 50 F.3d 604
(8th Cir.), cert. denied, 516 U.S. 900, 116 S.
Ct. 260 (1995), a case similar to the one at bar, Lowe, a convicted felon,
was indicted for distribution of cocaine. Police officials applied for
a warrant to search Lowe's residence for various evidence, including "photographs"
and other "[i]tems of personal identification" which would tend to show
the identity of Lowe's co-conspirators. During the search, police came
across a videotape. The videotape contained pictures of Lowe and his co-conspirators
holding firearms. After viewing the tape, the prosecution also charged
Lowe as a felon in possession of ammunition and firearms.
The videotape was the only incriminating evidence
on the firearms-possession charge. The Eighth Circuit applied a standard
of "practical accuracy" in reviewing the sufficiency of the warrant and
recognized that "specificity ... hinges on the circumstances of each case."
In upholding the trial courts admission of the videotape and concluding
the warrant was constitutionally valid, the court determined that the videotape
"depicted" Lowe; it was evidence of identification of Lowe and his co-conspirators;
and the videotape did not exceed the scope of the search warrant even though
it did not explicitly mention the word "videotape." The Eighth Circuit
observed: "The failure of the warrant to anticipate the precise form in
which pictorial identification of [the defendant] . . . would appear is
not fatal." Id. at 607.
In analogous situations, courts have upheld
seizure of audiotapes. In United States v. Reyes, 798 F.2d 380 (10th
Cir. 1986), the court held that a warrant authorizing seizure of
"drug trafficking records" included records contained on an audio cassette
tape. In upholding admission of the audio tapes, the court stated that
"in the age of modern technology and commercial availability of various
forms of items, the warrant could not be expected to describe with exactitude
the precise form the records would take." Id. at 382-83. Additionally,
in United States v. Peters, 92 F.3d 768, 769, 770 (8th
Cir. 1996), unmarked audio tapes found during a search were held to be
within the scope of a search warrant authorizing the search and seizure
of "any records or documents associated with cocaine distribution." See
also United States v. Lucas, 932 F.2d 1210, 1215-16
(8th Cir. 1991)(answering machine tape was sufficiently described as "records"
in search warrant), cert. denied, 502 U.S. 869 (1991); United
States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990)(warrant
authorizing seizure of phone numbers sufficient to cover phone number seized
from pager; court interpreted the warrant as authorizing seizure of numbers
"in whatever form they may appear"); United States v. Truglio, 731
F.2d 1123, 1128 (4th Cir.)("audio cassettes fit the description
of records within a practical margin of flexibility"), cert. denied,
469 U.S. 862 (1984), overruled on other grounds in United States
v. Burgos, 94 F.3d 849, 861-62 (4th Cir. 1996), cert.
denied, 519 U.S. 1151 (1997); United States v. Gomez-Soto,
723 F.2d 649, 655 (9th Cir.)(microcassette properly seized; failure
of warrant to anticipate "precise container" in which evidence might be
found was "not fatal"), cert. denied, 466 U.S. 977
(1984); United States v. Beusch, 596 F.2d 871, 877 (9th Cir.
1979)(holding that if seized item is "reasonably related to the purposes
of the search," it should not be suppressed). Therefore, we hold that the
military judge properly ruled that the word "photos," which were covered
by the warrant, included videotapes.
Although not necessary for our opinion and
not part of our holding, there are, in my view, three alternative theories
which support upholding the search in this case: (II) the plain-view doctrine;
(III) the good-faith exception; and (IV) the independent-source doctrine.4

(II) Plain View
The "plain-view doctrine" allows law enforcement
officials conducting a lawful search to seize items in plain view if: 1)
they are acting within the scope of their authority, and 2) they have probable
cause to believe the item is contraband or evidence of a crime. See
Mil. R. Evid. 316(d)(4)(C), Manual, supra; see also
United States v. Wisniewski, 21 MJ 370 (CMA 1986)(holding that sergeant
peering into window of appellant's barracks room did not violate legitimate
expectation of privacy because sergeant made plain-view observation from
common walkway where any passerby could have made the same observation),
cert. denied, 476 U.S. 1160 (1986); United States v. Bonfiglio,
713 F.2d 932 (2d Cir. 1983); United States v. Whitten,
706 F.2d 1000 (9th Cir. 1983), cert. denied, 465
U.S. 1100 (1984); but see United States v. Kaliski,
37 MJ 105, 108 (CMA 1993)(law enforcement officers were not lawfully present
on patio at the time of observation so search was unlawful).
"The seizure of property in plain view involves
no invasion of privacy and is presumptively reasonable, assuming that there
is probable cause to associate the property with criminal activity." Payton
v. New York, 445 U.S. 573, 587 (1980); see also Texas
v. Brown, 460 U.S. 730, 741-42 (1983)(plurality opinion). Detective
Hines was lawfully present at the time of the seizure. The issue is whether
Detective Hines had reasonable grounds to believe the videotape probably
constituted evidence of a crime. We hold that he did. The detectives knew
generally that drug dealers will keep records and note by various means
who was present at their sales transactions in order to protect themselves
and to obtain payment. Cf. United States v. Reyes, supra.
In addition, these detectives had specific information that this dealer
used video and other "high-tech" equipment to record his drug transactions
and keep tabs on his buyers.
Obviously, appellant's statement to Detective
Hines that he "had somebody in there monitoring" while pointing to a camera,
implies that the person and appellant were associates or that, at least,
appellant wanted Detective Hines to believe they were associates. The military
judge's finding that appellant's "friend" monitored the drug transfer by
video was accurate. Whether appellant could actually access the monitoring
equipment or record activities in the parking lot for his own use is not
the issue. The issue is what Detective Hines believed based on what the
informant and appellant told him during these controlled drug transactions.
The military judge's finding of fact is based on Detective Hines' reasonable
beliefs about appellant's illicit activities at the time the detective
applied for and executed the warrant. His finding that appellant told the
detective that his "friend could direct the Burger King drive-up video
camera to the parking lot to video any transactions and look for police"
is supported by Detective Hines' testimony. Further, neither appellant
nor any other witness testify that appellant did not have a "friend"
monitoring the video camera in the Burger King or that he could not
video transactions and look for police. Therefore, absent any evidence
to the contrary, we conclude that the military judge's finding of fact
on this issue is fully supported by the record.
Appellant claims that this was error because
Detective Hines subsequently testified that the informant had told him
that appellant would want to see a picture identification of him to check
him out for the sale. Further, the detective testified that he had not
personally seen any counter-surveillance equipment. Appellant contends
that, thus, "there was insufficient reason to believe" that there would
be photos and counter-surveillance equipment in appellants home. Final
Brief at 8. Though the detective scrupulously avoided ever handing his
photograph to appellant, to suggest that this is the only method that appellant
could have had for obtaining some record of Detective Hines identity is
to ignore the balance of the detectives testimony. Appellant's own statements
to the detective about his use of sophisticated recording devices and a
video monitor at the Burger King drive-through dictate against such a conclusion.
At the very least, the statements were smoke-and-mirrors
used by a drug dealer to leave his buyer with the distinct impression that
he was being watched and could be later identified for some nefarious purpose
should he forget his place in this power relationship. Additionally, the
conduct and behavior which Detective Hines observed - appellants son
surreptitiously warning appellant of a nearby unmarked police car; appellants
last minute change in the location of the third buy because of suspected
police surveillance; the positioning of appellants van as if to watch
the detective when appellant changed that location; and appellants acute
skill in identifying unmarked police vehicles - all support Detective
Hines belief that appellants statements were accurate and truthful. This
is above and beyond the general knowledge the detective already had from
years of experience in drug enforcement and undercover work.
Thus, even if the videotapes were not within
the scope of the warrant, they were properly seized by virtue of the plain-view
doctrine.

(III) Good-Faith Exception
An alternative ground for upholding the search
is the good-faith exception. Mil.R.Evid. 311(b)(3); see also
United States v. Chapple, 36 MJ 410 (CMA 1993); United States
v. Lopez, 35 MJ 35 (CMA 1992).
In United States v. Leon, 468 U.S. 897
(1984), the Court applied the good-faith exception to a facially valid
search warrant. The "marginal or nonexistent benefits produced by suppressing
evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of exclusion."
Id. at 922. This exception will not apply if the officers do not
"have a reasonable knowledge of what the law prohibits." Id. at
920 n.20. Nor will it apply to "bare bones" affidavits; there must be some
meat into which the magistrate authorizing the search can sink his teeth.
Id. at 915; Lopez, supra at 42. Nor will the good-faith
exception apply if the information in the affidavit is false or provided
recklessly. 468 U.S. at 914; 35 MJ at 41. This exception also would not
apply when the officers search is not reasonably limited to "only those
places and for those objects that it was reasonable to believe were covered
by the warrant." 468 U.S. at 918 n.19.
None of these exceptions to the good-faith
doctrine are implicated by the facts of this case. Detective Hines did
not specifically include videotapes in his affidavit because he and the
other officers believed that evidence might be destroyed and so they rushed.
In effect, by seeking the warrant he was protecting appellant's rights.
There were good grounds for the police to believe that because appellant
was tipped off by the informant, the evidence might be destroyed and a
warrantless search based on exigent circumstances could have been made.
The police should not be penalized for seeking a warrant, however hastily.
Furthermore, the exclusionary rule, suppressing
evidence from unreasonable searches and seizures, is not a constitutional
right but "a judicially created remedy designed to safeguard Fourth Amendment
rights...." United States v. Calandra, 414 U.S. 338, 348 (1974).
Certainly the search in this case was such that a thoughtful and competent
judge signed the warrant. As in Leon, the extreme sanction of the
exclusionary rule would be inappropriate. The officers were not trying
to ignore or subvert the Fourth Amendment; in fact, they were protecting
the right to privacy by obtaining a search warrant, rather than making
a warrantless entry. A dispute as to what the word "photos" means is not
sufficient to justify invoking the exclusionary rule in light of the case
law cited above regarding the scope of the search, the good-faith exception,
and the plain-view doctrine. By seeking a warrant, the police interjected
into unexpectedly disordered circumstances an orderly procedure by a neutral
and detached magistrate who determined what actions could be taken.

(IV) Independent Source Doctrine
Assuming for the sake of argument that the
foregoing was not applicable to the videotapes seized and appellant had
prevailed in his challenge, the evidence of the sexual offenses derived
from the tapes would still be admissible. The independent-source doctrine
may be applied when the evidence is actually obtained through the independent
and voluntary acts of third parties. See United States v. Ceccolini,
435 U.S. 268 (1978); Wong Sun v. United States, 371 U.S. 471, 488
(1963) ("[T]he more apt question ... is whether, granting establishment
of the primary illegality, the evidence to which instant objection is made
has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint." (Citation
omitted)). Certainly, there is an independent source in the testimony of
the victims which, in this case, was the product of their voluntary acts.
Once questioned, all of the victims were willing to come forward as cooperative
witnesses.
In United States v. Karathanos, 531
F.2d 26, 35 (2d Cir.), cert. denied, 428 U.S. 910 (1976),
"[t]he purpose of the search, as described in the application for the warrant,
was to seize the illegal aliens; it is these same aliens who are now the
governments prospective witnesses." Thus, the court considered their testimony
to be far from voluntary. Here, however, there is no "close connection"
between the initial illegal search and the testimony of the victims which
the Government seeks to use at trial. 531 F.2d at 35. The officers neither
employed any influence nor made use of the power of their position
to coerce these scared and embarrassed young women to testify about the
acts perpetrated upon them, making them witnesses of a very different type
from the illegal immigrants in Karathanos.

CONCLUSION
The police search and seizure of the videotapes
was proper. The police had a reasonable basis for believing that the videotapes
might contain pictures of criminal activities. Furthermore, the police
had a reasonable belief that the videotapes might contain pictures which
could expose the undercover officers true identity. Finally, it is reasonable
for the police to have believed that the scope of the warrant, which authorized
seizure of photos, encompassed all forms of photos, including videotapes.
It is the reasonable beliefs in the minds of the officers executing the
search that frames our inquiry, not the words in the affidavit attached
to the application.
Furthermore, under any of the alternative theories
presented in this opinion -- the plain-view doctrine, the good-faith exception,
and the independent-source doctrine -- the evidence would be admissible.
The exclusionary rule should not be applied to exclude relevant and reliable
evidence. To rule otherwise would be to impose too high a cost on society.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Appellant pleaded
guilty except for the words "Omar Fogg and." Prior to findings these words
were stricken from the specification, and appellant then pleaded guilty
to the specification as amended.
2
This case was argued at Georgetown University Law Center, Washington, D.C.,
as part of the Courts "Project Outreach." See 38 MJ 136, 137 n.1
(CMA 1993).
3
All Manual provisions are cited to the version applicable at trial. The
1998 version is unchanged, unless otherwise indicated.
4
Chief Judge Cox agrees with alternative theories II and III, and reserves
judgment as to alternative theory IV. Judges Sullivan and Effron do not
agree with any of the alternative theories.
 
 
SULLIVAN, Judge (concurring in part and in
the result):
I would affirm this case on the basis that
the challenged videotape evidence was seized during a lawful search conducted
pursuant to and within the scope of a valid warrant. See United
States v. Lowe, 50 F.3d 604, 607 (8th Cir.), cert. denied,
516 U.S. 900, 116 S.Ct. 260 (1995).
 
 
EFFRON, Judge (concurring in part and in the
result):
I agree with the majority's holding and the
analysis as reflected in Part I. I agree with Judge Gierke's analysis with
respect to Parts II, III, and IV.
 
 
GIERKE, Judge (dissenting):
I disagree with the majoritys holding that
the videotapes were included within the scope of the warrant. The court
below held that videotapes were not within the scope of the warrant. Unpub.
op. at 6. The agent who executed the warrant did not believe that the term
"photos" included videotapes. The case cited by the majority, United
States v. Lowe, 50 F. 3d 604 (8th Cir. 1995), does not,
in my view, support the position that the term "photos" includes videotapes.
In Lowe the warrant authorized seizure of items "of personal identification,"
and the videotapes that were seized were labeled with the defendants "street
name." Id. at 607. Lowe stands for the proposition that videotapes
labeled with the defendants name were items of "personal identification";
it does not support the proposition that videotapes are "photos."
A warrant must specifically list the items
to be seized. Lo-Ji Sales v. New York, 442 U.S. 319, 325 (1979).
"As to what is to be taken, nothing is left to the discretion of the officer
executing the warrant." Marron v. United States, 275 U.S. 192, 196
(1927). In this case, the videotapes were not within the scope of the warrant.
The decision to seize and view appellants videotapes was the product of
discretion exercised by the same NCIS agent who had testified that he did
not think that videotapes were within the scope of the warrant.
In United States v. Melendez, 1990 WL
109201 at 4 (E.D.N.Y. July 20, 1990), a federal district court held that
photos seized under a warrant that authorized seizure of videotapes were
illegally seized, because they were not within the scope of the warrant.
In People v. Burke, 690 NYS 2d 897 (N.Y.Sup.Ct. 1999), a New York
trial court held that a warrant for "photographs of the complaining witnesses
as well as other children, as well as diaries, journals, computer disks,
NAMBLA [North American Man-Boy Love Association] literature, child-related
paraphernalia, photographic equipment, receipts from photo developing stores,
and photo albums," id. at 905, did not authorize seizure of "apparently
unmarked" videotapes "strewn about the apartment" and not stored with identifiable
pornographic materials that were lawfully seized. Id. at 906, 905.
Similarly, in Commonwealth v. Friedman,
602 A.2d 371, 378, 380 (1992), the Superior Court of Pennsylvania held
that videotapes were not within the scope of a warrant authorizing seizure
of photos and sketches. While the Pennsylvania Constitution has a more
stringent requirement for particularity in a warrant than the United States
Constitution, Friedman is persuasive authority for the proposition
that the word "photos" does not include videotapes. Friedman relies
on the distinction between "visual information" such as "photos and sketches,"
where the evidentiary value is immediately apparent, and items such as
movie film and videotapes that require a second intrusion into the owners
privacy in order to determine if they have evidentiary value. This same
distinction was made by the Supreme Court in Walter v. United States,
447 U.S. 649, 654-57 (1980) (opinion of Stevens, J.).
I also disagree with the lead opinions conclusion
that the search can be upheld under the good-faith exception, plain view,
or the independent-source doctrine. The good-faith exception applies only
when the police rely on the terms of the warrant. See United
States v. Leon, 468 U.S. 897, 922-23 (1984) (good-faith exception requires
reliance on a warrant that is objectively reasonable); cf. Massachusetts
v. Sheppard, 468 U.S. 981, 988, 989-91 (1984) (good-faith exception
applied where officers searched for items not in fact authorized by warrant
after being assured by magistrate that the warrant was sufficient to cover
items sought). I find it hard to say there was good-faith reliance
on the warrant when the agent who executed the warrant did not believe
that "photos" included videotapes.
I likewise disagree with the lead opinions
conclusion that the videotapes were lawfully seized because they were in
plain view. The NCIS agents were investigating a drug case. There was nothing
on or around the tapes that identified them as evidence of a crime. See
Walter, 447 U.S. at 653, 659-60 (opinion of Stevens, J.) ("plain
view" rejected where contents of films "could not be determined by mere
inspection" without use of a projector); see also Burke,
690 NYS 2d at 906 (plain view doctrine not applied where videotapes were
unmarked and not stored with other pornographic materials); DePugh v.
Penning, 888 F. Supp. 959, 997 (N.D. Ia. 1995) (plain view rejected
where photo, film, cassettes, and address book were not "of an obvious
incriminating character"); Ross v. State, 59 Md. App. 251, 475 A.2d
481, 486-87 (1984) (plain view rejected where videotapes had no markings
or labels indicating pornographic content).
I also disagree with the notion that the independent-source
doctrine applies to this case. Appellant was not suspected of pornography
or any sexual crimes. There is no evidence suggesting that the girls would
have been identified and located or that they would have voluntarily come
forward if the videotapes had not been seized.
In my view, there was no legal justification
for seizing and viewing the videotapes. Accordingly, I dissent.

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