              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
            J.A. FISCHER, K.J. BRUBAKER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      GREGORY S. MAYO
      FIRE CONTROL TECHNICIAN THIRD CLASS (E-4), U.S. NAVY

                           NMCCA 201400193
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 4 Mar 2014.
Military Judge: CAPT R.B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: CDR C. Eric Roper, JAGC, USN.
For Appellee: LT Amy Freyermuth, JAGC, USN; LT Ann E.
Dingle, JAGC, USN.

                             28 April 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of receiving child pornography and one
specification of possessing child pornography, in violation of
Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The military judge sentenced the appellant to confinement for
twenty months, reduction to pay grade E-1, a $2,000.00 fine, and
a dishonorable discharge. In accordance with a pretrial
agreement (PTA), the convening authority (CA) approved the
twenty months of confinement, reduction to pay grade E-1, a
$2000.00 fine, and a bad-conduct discharge. Also pursuant to a
PTA the CA suspended six months of confinement.

     The appellant’s sole assignment of error (AOE) claims that
the military judge erred by relying on the independent source
and inevitable discovery exceptions to the exclusionary rule in
deciding that the evidence derived from the appellant’s password
protected laptop was admissible. 1 We disagree.

     After careful consideration of the record of trial, the
appellant’s AOE and the parties’ pleadings, we conclude that the
findings and the sentence are correct in law and fact and that
no error materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ. Thus, we
decline to grant relief.

                                 Background

     The appellant was deployed aboard the USS ROBERT G. BRADLEY
(FFG 49) when another Sailor, Information Systems Technician
Second Class (IT2) R, also attached to the ship, accessed the
ship’s intranet (LAN) through his personal laptop. While
searching the LAN’s shared files for a movie to watch, IT2 R
discovered a folder called “Rain,” which contained suspected
images of child pornography. IT2 R traced the folder’s source
to “MAYO-PC,” and then immediately reported what he found to his
supervisor, Information Systems Technician First Class (IT1) M.
IT1 M tried to find the “Rain” file on the LAN, but was unable
to do so. IT1 M then notified the appellant’s supervisor, Fire
Controlman First Class (FC1) McC that the appellant’s computer
may contain child pornography.

     FC1 McC testified during the suppression hearing that he
felt a “moral imperative” to investigate the situation. He
found the appellant’s laptop in the division office where the

1
  The PTA included a specially negotiated provision allowing the appellant to
plead guilty on the condition that he retains the right, on appeal, to
challenge the military judge’s denial of his motion to suppress. The
military judge approved the conditional plea at trial.
                                      2
appellant worked. The laptop was password protected, so he
asked another member of the crew who had the password to grant
him access to the computer. FC1 McC proceeded to search the
appellant’s laptop until he found images of suspected child
pornography.

     Soon thereafter, FC1 McC provided the laptop “up to the
chain of command.” 2 The commanding officer (CO) was then
apprised of the situation; without viewing the laptop, he
immediately ordered it returned to the appellant so he could
delete any pornographic images from his machine. In accordance
with the CO’s order, the laptop was returned to the appellant
that same day.

     The CO then convened a preliminary investigation and, after
reviewing statements taken from IT1 R and FC1 McC, he directed
that the appellant’s living and workspaces be searched to
retrieve the returned laptop. This occurred approximately four
days after the computer was first returned. After Lieutenant
Junior Grade P and Sonar Technician Surface Second Class B
advised the appellant of his rights, the appellant consented to
a search of his living and work spaces to locate the laptop.
Concurrently, the CO had executed a command authorization for
the search and seizure of the appellant’s personal laptop.

     The next day, the Naval Criminal Investigative Service
(NCIS) assumed investigative responsibility over the case.
After issuing a cleansing warning, NCIS agents sought the
appellant’s permission to conduct an additional search of his
living and work spaces. The appellant again consented to a
search. NCIS also obtained a second search authorization from
the CO for the laptop and other personal electronics that same
day based on affidavits from both IT2 R and FC1 McC.

     In a pretrial motion, the appellant moved to suppress all
evidence obtained from his laptop arguing that FC1 McC’s
warrantless search and seizure of his laptop was unlawful. At
trial, the military judge denied the appellant’s motion
determining: 1) that even if FC1 McC’s search was unlawful, the
subsequent return of the computer dispelled any taint that would
preclude consent for future searches; and 2) that the evidence

2. Record at 31.
                                3
found on the appellant’s laptop would have been inevitably
discovered based on IT2 R’s statement alone. The military
judge’s ruling, Appellate Exhibit XII, included extensive
findings of fact and conclusions of law.

     Additional facts necessary for the resolution of this AOE
are included below.

                       Standard of Review

     We review a military judge's decision to deny a motion to
suppress under an abuse of discretion standard. In doing so, we
“‘consider the evidence “in the light most favorable to the”
prevailing party. ’” United States v. Rodriguez, 60 M.J. 239,
246 (C.A.A.F. 2004) (quoting United States v. Reister, 44 M.J.
409, 413 (C.A.A.F. 1996)) (additional citations omitted). We
review the military judge’s “factfinding under the clearly-
erroneous standard and [his] conclusions of law under the de
novo standard.” United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995) (citations omitted). We will find an abuse of
discretion only if the military judge’s “findings of fact are
clearly erroneous or his conclusions of law are incorrect.” Id.

        Admissibility of Evidence Derived from the Laptop

     The military judge found that even if FC1 McC’s search was
unlawful, the subsequent return of the appellant’s laptop
dispelled any taint that may have been caused by FC1 McC’s
actions. We agree and find the military judge’s findings of fact
are supported by the record and his legal conclusions properly
applied those facts to the law.

     “Evidence derivative of an unlawful search, seizure, or
interrogation is commonly referred to as the ‘fruit of the
poisonous tree’ and is generally not admissible at trial.”
United States v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006)
(footnote omitted). “[G]ranting of consent to search may
sufficiently attenuate the taint of a prior violation.” Id. at
338.   “The threshold question is whether consent is voluntary,
without influence of the prior unlawful search.” United States
v. Dease, 71 M.J. 116, 122 (C.A.A.F. 2012); see also Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (finding that the key
issue is whether the evidence sought to be suppressed was found

                                4
“by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint”)
(citation and internal quotation marks omitted). “To determine
whether the defendant’s consent was an independent act of free
will, breaking the causal chain between the consent and the
constitutional violation, we must consider three factors: (1)
the temporal proximity of the illegal conduct and the consent;
(2) the presence of intervening circumstances; and (3) the
purpose and the flagrancy of the initial misconduct.” Conklin,
63 M.J. at 338-39 (citation and internal quotation marks
omitted); see also Brown v. Illinois, 422 U.S. 590, 603-04
(1975).

     In applying the three-prong test to the facts of this case,
the military judge found that all three factors favor the
Government. First, weighing the temporal proximity of the
unlawful conduct and the consent, the facts indicate that four
days elapsed between when the appellant learned of FC1 McC’s
search and when he was asked to consent to the first permissive
search. Four days, especially in light of the context of the
return, was sufficient for the appellant to be freed from the
pressure to yield to the requests of the command and NCIS when
they sought permission to search his spaces and belongings. Cf.
Conklin, 63 M.J. at 339 (finding that three hours was not
sufficient to yield the requisite voluntariness for consent).
Additionally, when the laptop was first returned to the
appellant, he was instructed to delete the images. At that
point, the CO had no plan for further investigation.

     Second, the military judge found, and this Court agrees,
that the intervening circumstances were sufficient to remove the
taint from FC1 McC’s actions. When FC1 McC initially reported
that he found child pornography on the appellant’s laptop, the
CO declined to keep the laptop until he had an opportunity to
review IT2 R’s affidavit explaining how he found the child
pornography on the appellant’s laptop. Only after reviewing IT2
R’s affidavit was the CO persuaded to initiate a more formal
investigation and involve NCIS. This strongly implies that the
CO’s motive to search and seize the appellant’s laptop was not
based on FC1 McC’s observations, but rather those of IT2 R – the
Sailor who first discovered the images. Further, the record

                                5
indicates that the CO and NCIS would have investigated the
allegations on the statement of IT2 R alone.

     Finally, turning to the third factor — flagrancy of the
illicit conduct, we examine the actions of FC1 McC. We find
nothing in the record to establish that FC1 McC acted with an
eye towards prosecution, or with the intent to bypass acceptable
investigatory procedures. Further, the CO’s actions when
presented with the laptop and statement of FC1 McC, convince us
that the command did not exploit the fruits of FC1 McC’s search.
Instead, upon hearing the allegations brought by FC1 McC, the CO
attempted to cure any infringement on the appellant’s rights by
returning the laptop to the appellant with instructions to the
appellant to delete the child pornography.

                        Inevitable Discovery

     In this case, the military judge also concluded that even
if the original search by FC1 McC was unlawful, the images of
child pornography would have inevitably been discovered through
the information provided by IT2 R who provided the file names
and description of the images he found on the appellant’s
laptop. We agree.

      The inevitable discovery doctrine “allow[s] admission of
evidence that, although obtained improperly, would have been
obtained by another lawful means.” United States v. Wallace, 66
M.J. 5, 10 (C.A.A.F. 2008) (citing Nix v. Williams, 467 U.S.
431, 444 (1984)); see also MILITARY RULE OF EVIDENCE 311(b)(2), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (stating that “[e]vidence
that was obtained as a result of an unlawful search or seizure
may be used when the evidence would have been obtained even if
such unlawful search or seizure had not been made”). When
routine procedures of a law enforcement agency would have
discovered the same evidence, the inevitable discovery rule
applies even in the absence of a prior or parallel
investigation. See United States v. Owens, 51 M.J. 204, 210-11
(C.A.A.F. 1999).

     Here, we agree with the military judge that the inevitable
discovery doctrine applies. The evidence established that there
was sufficient information outside of the search and statement
of FC1 McC to conclude that probable cause existed for both

                                  6
command authorized searches. MIL. R. EVID. 315(f)(2) provides
that “[p]robable cause to search exists when there is a
reasonable belief that the person, property, or evidence sought
is located in the place or in the person to be searched.” “When
a commander is asked to authorize a search, the question is
‘whether, given all the circumstances set forth in the affidavit
before him, . . .a fair probability’ exists that the suspected
evidence will be found in the place to be searched.” Owens, 51
M.J. at 211 (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)).

     We find that under the facts of this case, the military
judge did not abuse his discretion in ruling that the images of
child pornography derived from the appellant’s laptop were
admissible. We agree with the military judge that: 1) any taint
attributed to FC1 McC’s search and seizure of the appellant’s
laptop was dispelled by its return to the appellant; and 2) the
images of child pornography would have been inevitably
discovered based on IT2 R’s affidavit alone.

                           Conclusion

     Accordingly, the findings and the sentence as approved by
the CA are affirmed.


                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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