      This opinion is subject to revision before publication




        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                         Appellant
                               v.
             Justin A. GURCZYNSKI, Private
               United States Army, Appellee
                         No. 17-0139
                   Crim. App. No. 20160402
        Argued March 15, 2017—Decided July 24, 2017
               Military Judges: Jeffery R. Nance
   For Appellant: Captain Tara O’Brien Goble (argued); Colo-
   nel Mark H. Sydenham, Lieutenant Colonel A. G. Courie
   III, and Captain Samuel E. Landes (on brief); Captain Car-
   ling M. Dunham.
   For Appellee: Captain Cody Cheek (argued); Colonel Mary
   J. Bradley, Lieutenant Colonel Christopher D. Carrier,
   Captain Joshua B. Fix, Captain Ryan T. Yoder, and Cap-
   tain Scott Ashby Martin (on brief); Major Christopher D.
   Coleman.
   Amicus Brief for Appellant: Colonel Valerie C. Danyluk,
   USMC, and Lieutenant Commander Justin C. Henderson,
   JAGC, USN (on brief) for Navy-Marine Corps Appellate
   Government Division.
   Judge RYAN delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   OHLSON, and SPARKS, joined.
                     _______________

   Judge RYAN delivered the opinion of the Court.

    It is unlikely that the Government would argue it is con-
stitutionally reasonable to search a home based on a war-
rant previously issued for a crime the homeowner had al-
ready been convicted of, and to also direct the searchers to
look for evidence of offenses not named in the warrant. In
this case, however, the Government asserts the right to do
just that, but for a portable hard drive (thumb drive) rather
than a home. We recognize the differences between a home
and a thumb drive and the unique challenges in applying
           United States v. Gurczynski No. 17-0139/AR
                      Opinion of the Court

the Fourth Amendment in a digital context. See generally
Josh Goldfoot, The Physical Computer and the Fourth
Amendment, 16 Berkeley J. Crim. L. 112 (2011); Orin S.
Kerr, Searches and Seizures in a Digital World, 119 Harv. L.
Rev. 531 (2005). But the Fourth Amendment compels us to
treat them the same in this case. We hold that the military
judge did not abuse his discretion in concluding that evi-
dence of an offense not named in the warrant was outside
the scope of the warrant and must be suppressed. Further-
more, based on the facts found by the military judge, we con-
clude, as a matter of law, that the search was not constitu-
tionally reasonable under the particular circumstances of
this case. Accordingly, we affirm the United States Army
Court of Criminal Appeals (ACCA).

          I. FACTS AND PROCEDURAL HISTORY
    On June 19, 2014, a military judge sitting as a general
court-martial convicted Appellee, consistent with his pleas,
of one specification of making a false official statement, in
violation of Article 107, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 907 (2012). The military judge convict-
ed Appellee, contrary to his pleas, of two specifications of
taking indecent liberties with a child and two specifications
of abusive sexual contact with a child, in violation of Article
120, UCMJ, 10 U.S.C. § 920 (2006).1 The military judge sen-
tenced Appellee to a bad-conduct discharge, confinement for
forty months, forfeiture of all pay and allowances, and a re-
duction to the grade of E-1. The convening authority ap-
proved the sentence as adjudged. The ACCA dismissed one
specification of taking indecent liberties with a minor and
affirmed the remaining findings of guilty and the sentence
following a sentence reassessment. United States v.
Gurczynski, No. ARMY 20140518, 2016 CCA LEXIS 530,
2016 WL 4547640 (A. Ct. Crim. App. Aug. 31, 2016).

   Five months after Appellee’s conviction for these charges,
the digital forensic examiner (DFE), relying on a warrant


   1 Probable cause to search Appellee’s devices for evidence of
abusive sexual contact does not, without more, provide probable
cause to search the devices for evidence of child pornography. See
United States v. Hoffmann, 75 M.J. 120, 126–28 (C.A.A.F. 2016).



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          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

issued to search electronic media for these charges, searched
Appellee’s thumb drive with a direction to find evidence of
child pornography, an offense not mentioned in either the
warrant or the supporting affidavit. We adopt the facts rele-
vant to the issues before us as set forth in the ACCA’s opin-
ion:
          The charges against [Appellee] are premised on
      child pornography discovered during a digital fo-
      rensic examination (DFE) of a thumb drive and
      hard drive seized on 24 January 2014 by the Army
      Criminal Investigation Command (CID) from [Ap-
      pellee]’s residence pursuant to a warrant. CID’s in-
      vestigation stemmed from allegations [Appellee]
      sexually abused a child. At trial, defense counsel
      moved under [Military Rule of Evidence (M.R.E.)]
      311 to suppress the evidence on the thumb drive
      and a computer hard drive on the basis that CID
      exceeded the scope of the warrant during the DFE.
      The military judge granted the motion upon deter-
      mining CID obtained the evidence by conducting an
      unlawful search and seizure in violation of the
      Fourth Amendment to the United States Constitu-
      tion and [M.R.E.] 311.
          In granting the defense motion to suppress, the
      military judge made detailed findings of fact con-
      cerning the scope of the warrant and the search ac-
      tually conducted, which we briefly summarize here.
          First, the military judge found the warrant ob-
      tained by CID to search [Appellee]’s residence al-
      lowed agents to search for computers and associat-
      ed peripheral devices for evidence of “attempted
      sexual abuse of a child, abusive sexual contact with
      a child and other offenses related” to the allega-
      tions against [Appellee]. The warrant authorized
      CID to search items seized for evidence [Appellee]
      used the devices to communicate with the alleged
      victim of his abuse in order to arrange the meeting
      where [Appellee] ultimately engaged in indecent
      acts and sexual contact with the child.
          Second, a little over a month after the search of
      [Appellee]’s residence, CID Special Agent (SA) JT
      sent the thumb drive and other seized digital items
      to the Digital Forensics Lab at the Fort Lewis,
      Washington CID office for the DFE. The items were
      accompanied by a DD Form 2922, Forensic Labora-



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    United States v. Gurczynski No. 17-0139/AR
               Opinion of the Court

tory Examination Request, with instructions that
the DFE search the thumb drive for “child pornog-
raphy or correspondence” with the alleged victim.
The request specified that other digital items seized
should be searched for child pornography and e-
mails, online chats, online messages, and other
forms of communication between [appellee] and the
alleged victim.
    Third, when SA CP opened the thumb drive
during the DFE, he saw several file names of videos
normally associated with child pornography, as
well as a photo of [Appellee]. SA CP, suspecting the
video files contained child pornography, and with-
out obtaining a new or expanded search warrant,
opened one of the files and concluded, based on his
professional experience, that it was child pornogra-
phy. After that, SA CP searched other media seized
from [Appellee]’s home and found additional child
pornography on a computer hard drive.
    Fourth, SA CP, relied upon both the DA Form
2922 and the search warrant in determining the
scope of the DFE he conducted.
    Based on these facts, the military judge con-
cluded CID exceeded the scope of the warrant in
searching the thumb drive and granted [Appellee]’s
motion to suppress the child pornography found on
the thumb drive and computer hard drive. First,
the military judge found CID had probable cause
within the meaning of [M.R.E.] 315(f) and a valid
warrant to search for communications. Noting that
search warrants must be specific, the military
judge found the same was not true for child pornog-
raphy because nothing in the warrant or support-
ing affidavit mentioned anything “even closely ap-
proximating evidence of child pornography.” See
United States v. Carey, 172 F.3d 1268 (10th Cir,
1999). In this respect, the DA Form 2922, relied
upon by SA CP, impermissibly expanded on the
scope of the warrant. The military judge also noted
the nature of the charges, given their plain statuto-
ry meaning, did not remotely contemplate the pos-
session, creation or distribution of child pornogra-
phy. Second, to search for child pornography upon
seeing the video files, SA CP was required to obtain
a new or expanded warrant. See U.S. v. Walser, 275
F.3d 981, 986 (10th Cir. 2001). Third, the military
judge determined that the inevitable discovery doc-


                         4
          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

      trine set forth in [M.R.E.] 311(c)(2) did not apply
      since CID did not have probable cause to search for
      child pornography in the first instance. See United
      States v. Hoffmann, 75 M.J. 120, 127 (“Without
      probable cause, the inevitable discovery doctrine
      fails.”).
United States v. Gurczynski, No. ARMY 20160402, 2016
CCA LEXIS 541, at *1–5, 2016 WL 4708565, at *1–2 (A. Ct.
Crim. App. Sept. 6, 2016) (footnote omitted).

    The Government appealed the ruling pursuant to Article
62, UCMJ, 10 U.S.C. § 862 (2012), and the ACCA affirmed
the military judge’s ruling. After affirming the military
judge’s conclusion that the Government exceeded the scope
of the warrant by searching the thumb drive for child por-
nography, the ACCA declined to apply the plain view and
inevitable discovery doctrines, reasoning that exceptions to
the warrant requirement cannot apply in the absence of
probable cause to search in the first instance. 2016 CCA
LEXIS 541, at *5 n.3, 2016 WL 4708565, at *2 n.3 (cit-
ing Hoffmann, 75 M.J. at 127). The ACCA also denied the
Government’s motion for en banc reconsideration.

   The Judge Advocate General of the Army then certified
the following issue, pursuant to Article 67(a)(2), UCMJ, 10
U.S.C. § 867(a)(2) (2012):
      Whether the military judge erred in suppressing
      evidence of child pornography a digital forensic ex-
      aminer discovered during a search for Appellee’s
      communications with a child victim.
Following oral argument, we ordered that the parties file
additional briefs on the following issue:
      The Fourth Amendment prohibits unreasonable
      searches. Was the search of [Appellee’]s thumb
      drive unreasonable, despite being executed pursu-
      ant to a facially valid warrant, in light of the facts
      that: 1) [Appellee] was convicted of the offense for
      which the search warrant was issued five months
      prior to the search; and 2) over nine months had
      passed between the issuance of the search warrant
      and the digital examination of the seized devices?




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           United States v. Gurczynski No. 17-0139/AR
                      Opinion of the Court

                        II. DISCUSSION
    “In an Article 62, UCMJ, appeal, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the party which prevailed at tri-
al.” United States v. Henning, 75 M.J. 187, 190–91 (C.A.A.F.
2016) (internal quotation marks omitted) (quoting United
States v. Buford, 74 M.J. 98, 100 (C.A.A.F. 2015)). “We re-
view a military judge’s ruling on a motion to suppress for
abuse of discretion.” Id. at 191 (internal quotation marks
omitted) (citations omitted). “In reviewing a military judge’s
ruling on a motion to suppress, we review factfinding under
the clearly-erroneous standard and conclusions of law under
the de novo standard.” Id. (internal quotation marks omit-
ted) (citation omitted). When an appeal presents a mixed
question of law and fact, a military judge abuses his discre-
tion if his findings of fact are clearly erroneous or his conclu-
sions of law are incorrect. See Buford, 74 M.J. at 100.

    The Government argues that the search was constitu-
tionally reasonable because it was conducted pursuant to a
facially valid warrant, regardless of the status of the offens-
es for which it was issued, and that the child pornography
uncovered by the DFE is admissible under the plain view
exception. We disagree.

    At bottom, we find reliance on the warrant to justify the
search for child pornography constitutionally unreasonable
under the circumstances. First, Appellee had already been
convicted of the offenses for which the warrant was issued.
Second, the warrant and supporting affidavits did not men-
tion child pornography. Third, SA JT nonetheless directed
the DFE to search for child pornography. We focus on one of
the military judge’s observations in particular:
       On this point it is interesting to note that when SA
       [T] sent [the] 2922 to [P] he listed Child [sic] por-
       nography first in both places where he explained to
       the DFE what he should be looking for. The com-
       munications between the accused and the victim
       that were the real object of the investigation almost
       appear as an afterthought in the request. The court
       will not speculate as to the reason for this change of
       course as there is no evidence to explain it. The
       court simply notes that this is troubling as it im-



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          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

      properly oriented DFE [P] outside the parameters
      of the warrant.
It is clear that it was constitutionally unreasonable to exe-
cute a search warrant oriented in such a manner to discover
evidence of an offense not mentioned in the warrant nine
months after the issuance of the warrant and five months
after Appellee’s conviction for the offenses that were men-
tioned in the warrant.

                              A.
    The Fourth Amendment protects “[t]he right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.
amend. IV. “That Amendment grew out of colonial opposi-
tion to the infamous general warrants known as writs of as-
sistance, which empowered customs officers to search at
will, and to break open receptacles or packages, wherever
they suspected uncustomed goods to be.” Payton v. New
York, 445 U.S. 573, 608 (1980) (citations omitted). At the ep-
icenter of the panoply of rules intended to effectuate protec-
tion against “dragnet searches for evidence of any crime,”
Kerr, supra p. 2, at 536, are the requirements that a search
warrant must: (1) be based on probable cause; (2) be sup-
ported “by Oath or affirmation”; and (3) “particularly
describ[e] the place to be searched, and the persons or things
to be seized.” U.S. Const. amend. IV. But “[t]he ultimate
touchstone of the Fourth Amendment is ‘reasonableness.’ ”
Kentucky v. King, 563 U.S. 452, 459 (2011) (alteration in
original) (quoting Brigham City v. Stuart, 547 U.S. 398, 403
(2006)).

    “Searches conducted after obtaining a warrant or author-
ization based on probable cause are presumptively reasona-
ble whereas warrantless searches are presumptively unrea-
sonable unless they fall within a few specifically established
and well-delineated exceptions.” Hoffmann, 75 M.J. at 123–
24 (internal quotation marks omitted) (quoting United
States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014)). While a
warrant makes a search presumptively reasonable, a war-
rant “does not guarantee the constitutionality” of a search
“or relieve the Government of the burden of establishing
that the warrant did not authorize an unreasonable


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           United States v. Gurczynski No. 17-0139/AR
                      Opinion of the Court

search.” United States v. Smeal, 23 C.M.A. 347, 350, 49
C.M.R. 751, 754 (1975); see also Camara v. Municipal Court
of San Francisco, 387 U.S. 523, 539 (1967) (“The warrant
procedure is designed to guarantee that a decision to search
private property is justified by a reasonable government in-
terest. But reasonableness is still the ultimate standard.”).
To assess whether a search is reasonable, we must assess,
“on the one hand, the degree to which [the search] intrudes
upon an individual’s privacy and, on the other, the degree to
which it is needed for the promotion of legitimate govern-
mental interests.” Riley v. California, 134 S. Ct. 2473, 2484
(2014) (internal quotation marks omitted) (quoting Wyoming
v. Houghton, 526 U.S. 295, 300 (1999)).

    In the absence of some exception to the warrant re-
quirement, to allow the seizure of objects not particularly
described in the warrant would violate the “familiar princi-
ple . . . that no amount of probable cause can justify a war-
rantless search or seizure.” Coolidge v. New Hampshire, 403
U.S. 443, 468 (1971); see also Maryland v. Garrison, 480
U.S. 79, 84 (1987). Searches conducted pursuant to a war-
rant are necessarily limited in scope, thus preventing a gen-
eral rummaging about. See Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011) (citing Stanford v. Texas, 379 U.S. 476, 485
(1965)); see also Stanford, 379 U.S. at 485–86 (“As to what is
to be taken, nothing is left to the discretion of the officer ex-
ecuting the warrant.” (internal quotation marks omitted)
(citation omitted)).

                               B.
    Given the amount of time that passed between the issu-
ance and execution of the warrant, the fact that Appellee
had already been convicted of the offenses for which the
warrant had been issued, and the Government’s instruction,
in fact orientation, to the DFE to venture beyond the scope
of the warrant, we conclude that the Government had no le-
gitimate interest in executing the search warrant and
searching Appellee’s thumb drive.

    We are well aware that neither the Fourth Amendment
nor the Federal Rules of Criminal Procedure impose dead-
lines for the digital examination of seized devices, nor did
this specific warrant specify any deadline. But the constitu-


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          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

tional principle of reasonableness necessarily bears some
relation to the scope of the warrant, the execution of the
search warrant, and the timing of the search. See United
States v. Ramirez, 523 U.S. 65, 71 (1998); United States v.
Jacobsen, 466 U.S. 109, 124 (1984). Even in the absence of a
time limit, the government “nevertheless remains bound by
the Fourth Amendment to the extent that all seizures must
be reasonable in duration.” United States v. Cote, 72 M.J. 41,
44 n.6 (C.A.A.F. 2013). Therefore, the extraordinary length
of time between the issuance of the warrant and the digital
examination of the thumb drive—over nine months—has
some bearing on the question whether the search was con-
stitutionally reasonable.

    More important than the mere passage of time, however,
is the fact that Appellee had already been convicted of the
offenses specified in the warrant. Simply put, the Govern-
ment had no legitimate interest here in uncovering evidence
of the offenses covered by the warrant. Our holding today is
narrow: the unique facts in this case compel us to conclude
that the Government no longer had a legitimate governmen-
tal interest in searching for evidence of the offenses covered
by the warrant following Appellee’s convictions, and so the
search was constitutionally unreasonable.

    Were we to conclude otherwise, we would effectively al-
low a digital forensic examination “for a period of unlimited
duration and an examination of unlimited scope” based on a
warrant issued at some time. Cf. United States v. Kim, 103
F. Supp. 3d 32, 59 (D.D.C. 2015). That level of discretion is
incompatible with the requirements of particularity and is-
suance by an independent magistrate weighing probable
cause for each offense individually—in other words, the re-
quirements that “make[] general searches . . . impossible
and prevents the seizure of one thing under a warrant de-
scribing another.” United States v. Leary, 846 F.2d 592, 600
(10th Cir. 1988) (alterations in original) (internal quotation
marks omitted) (citation omitted). We decline to grant the
Government the unbridled discretion to conduct what is
functionally a “general, exploratory rummaging in a person’s
belongings,” Coolidge, 403 U.S. at 467, by relying on a war-
rant no longer justified by any legitimate government inter-
est to assert that other evidence was in plain view.


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          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

                                C.

    It is true that one exception to the warrant requirement
for items not otherwise subject to a lawful search is the plain
view doctrine, which allows law enforcement officials con-
ducting a lawful search to seize items in plain view if they
are acting within the scope of their authority and have prob-
able cause to believe the item is contraband or evidence of a
crime. See United States v. Fogg, 52 M.J. 144, 149 (C.A.A.F.
1999) (citing M.R.E. 316(d)(4)(C)). This exception applies
even if “an officer is interested in an [unauthorized] item of
evidence and fully expects to find it” there. Horton v. Cali-
fornia, 496 U.S. 128, 138 (1990).

    Courts have struggled to apply the plain view doctrine to
searches of digital devices, given the vast amount of infor-
mation they are capable of storing, see Kerr, supra p. 2, at
541–42; Riley, 134 S. Ct. at 2489–91 (explaining the signifi-
cant intrusion upon privacy rights arising from the seizure
of a cell phone, the seizure of which “differ[s] in both a quan-
titative and qualitative sense from” other types of physical
seizures), and “the difficulty inherent in tailoring searches of
electronic data to discover evidence of particular criminal
conduct.” United States v. Lustyik, No. 2:12-CR-645-TC,
2014 U.S. Dist. LEXIS 54819, at *37, 2014 WL 1494019, at
*12 (D. Utah Apr. 16, 2014). In light of these difficulties, the
application of the plain view doctrine in a digital context
poses “a serious risk that every warrant for electronic infor-
mation will become, in effect, a general warrant, rendering
the Fourth Amendment irrelevant.” United States v. Com-
prehensive Drug Testing, Inc., 579 F.3d 989, 1005 (9th Cir.
2009), revised and superseded by United States v. Compre-
hensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010); see
also James Saylor, Note, Computers as Castles: Preventing
the Plain View Doctrine from Becoming a Vehicle for Over-
broad Digital Searches, 79 Fordham L. Rev. 2809, 2830
(2011) (comparing the different approaches the federal
courts of appeals have taken).

   But we need not venture into this thicket today. A pre-
requisite for the application of the plain view doctrine is that
the law enforcement officers must have been conducting a
lawful search when they stumbled upon evidence in plain


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          United States v. Gurczynski No. 17-0139/AR
                     Opinion of the Court

view. As noted, the officers in this case were not conducting
a lawful search because the execution of the warrant was
constitutionally unreasonable.

                     III. JUDGMENT
    We hold that the military judge did not abuse his discre-
tion in suppressing the evidence obtained from the thumb
drive seized from Appellee’s home. We therefore answer the
certified issue in the negative and the specified issue in the
affirmative. Accordingly, the judgment of the United States
Army Court of Criminal Appeals is affirmed.




                             11
