              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39146
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                         William D. MASKE
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 22 March 2018
                         ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 3 years,
forfeiture of all pay and allowances, and reduction to the grade of E-3.
Sentence adjudged 20 May 2016 by GCM convened at Ramstein Air
Base, Germany.
For Appellant: Major Patrick A. Clary, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major
Amanda L. K. Linares, USAF; Major Rebecca A. Magnone, USAF; Major
Mary Ellen Payne, USAF; Gerald R. Bruce, Esquire.
Before JOHNSON, MINK, and DENNIS, Appellate Military Judges.
Judge DENNIS delivered the opinion of the court, in which Senior Judge
JOHNSON and Judge MINK joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

DENNIS, Judge:
   Contrary to his pleas, Appellant was convicted of one specification of at-
tempt to commit a sexual act upon a minor and two specifications of attempt
                       United States v. Maske, No. ACM 39146


to commit a lewd act upon a minor in violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880. Appellant was acquitted of one spec-
ification of wrongful possession of child pornography in violation of Article 134,
UCMJ, 10 U.S.C. § 834. Officer and enlisted members sentenced Appellant to
a dishonorable discharge, confinement for three years, total forfeiture of pay
and allowances, and reduction to the grade of E-3. The convening authority
approved the sentence as adjudged.
    Appellant was the subject of an undercover operation during which he en-
gaged in sexual conversation with a purported minor child. To facilitate their
investigation of Appellant’s suspected violation of Article 120b, UCMJ, law en-
forcement agents were granted authorization to search Appellant’s electronic
media. While executing the search, agents discovered an image that appeared
to be child pornography and, without authority, expanded their search to cover
the offense of possession of child pornography. Both at trial and now on appeal,
Appellant challenges the lawfulness of the search. Appellant also asserts that
one of the Government’s rebuttal witnesses lacked sufficient foundation to give
an opinion of Appellant’s character for truthfulness. Finding no error materi-
ally prejudicial to Appellant’s substantial rights, we affirm the findings and
sentence.

                                    I. BACKGROUND
   Appellant, a self-pronounced connoisseur of online chat rooms, discovered
a personal advertisement on Craigslist 1 entitled “Dependent Looking for Com-
pany.” The ad read,
          Looking for a military man with common interest ;-) Adven-
          turous, open minded, willing to try anything once ;-) I’m looking
          to share stories, experiences and more. If interested hit me up
          on Yahoo lets chat, swap pics, share some stories and take it
          from there. \\daddyluver3\\
Appellant responded to the ad using Yahoo! Messenger and began a conversa-
tion with an individual who soon identified herself as a 14-year-old dependent
child named “Tina.” Unbeknownst to Appellant, “Tina” was in fact an under-
cover agent with the Air Force Office of Special Investigations (AFOSI) and its
liaison with the Internet Crimes Against Children Task Force.
    Appellant’s communications to “Tina” continued intermittently over a pe-
riod of two months and included a variety of sexual language and pictures.
During this period, Appellant shared with “Tina”—in graphic detail—his
thoughts about what her “young” genitals would look and feel like, his desire

1   Craigslist is a website that hosts classified advertisements and discussion forums.


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                     United States v. Maske, No. ACM 39146


to perform oral sex on her and make her orgasm, and the sexual gratification
he received from thoughts of her. Appellant also sent “Tina” photographs of
himself, which included a nude photograph of his erect penis.
   The two eventually arranged for Appellant to meet “Tina” at her purported
on-base home. Appellant arrived as planned, knocked on the door, and was
immediately apprehended by law enforcement.

                                II. DISCUSSION
A. Search of Appellant’s Electronic Media
    Appellant asserts that AFOSI agents violated his rights under the Fourth
Amendment of the Constitution 2 when they searched his electronic media dur-
ing their investigation. Appellant’s claim gives rise to two separate questions:
(1) Was the search authorization overly broad? (2) Did the military judge err
in failing to suppress the evidence obtained from the search? We answer both
questions in the negative.
      1. Additional Facts
    On 3 December 2014, the date of Appellant’s planned encounter with
“Tina,” AFOSI agents sought four separate authorizations to search and seize
electronic media from Appellant’s person, residence, vehicle, and workspace,
respectively. The affidavit seeking these authorizations outlined Appellant’s
involvement in the undercover operation, including the fact that Appellant had
communicated with “Tina” through email and online chats. The affidavit also
indicated that Appellant had sent pictures of himself.
    The military magistrate ultimately granted search authorization for the
ostensible purpose of investigating the sexual abuse of a child in violation of
Article 120b, UCMJ, 10 U.S.C. § 920b. Each authorization permitted law en-
forcement to seize electronic communications and media storage devices, in-
cluding “mobile phones, computers, laptops, tablets, memory sticks, memory
cards, digital cameras, etc.” Specifically, AFOSI agents were looking for copies
of the images “Tina” received from Appellant’s profile to establish that Appel-
lant sent the images. There was no mention of child pornography in the 3 De-
cember 2014 search authorizations or corresponding affidavit.
    When the electronic media were seized, the lead AFOSI agent in Appel-
lant’s case asked a judge advocate in the base legal office whether AFOSI could
also search the media for child pornography. After initially indicating the need


2   U.S. CONST. amend. IV.




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                     United States v. Maske, No. ACM 39146


to research the issue, the legal office eventually affirmed that there was prob-
able cause to search for child pornography. When the agent received the “go
ahead” from the base legal office, he sent the electronic media to the Defense
Criminal Forensic Laboratory (DCFL) for forensic data extraction (FDE). 3 As
is customary, the agent also submitted a Forensic Service Request via DCFL
Form 1, requesting, inter alia, that DCFL extract all internet history and all
allocated and unallocated communications. The agent also asked DCFL to
“[e]valuate any questionable images/videos for suspected child pornography.”
AFOSI did not seek an expanded search authorization prior to asking DCFL to
evaluate the images for suspected child pornography.
    Approximately three weeks after AFOSI submitted its forensic service re-
quest, DCFL contacted the listed agent and informed him that the alleged of-
fense of child sexual abuse did not establish probable cause to search for child
pornography. DCFL indicated that it would not conduct such a search without
a written recommendation from the legal office. DCFL then completed the FDE
and returned the extracted items to AFOSI on an external hard drive. It con-
tained 435,163 image files and 1,353 movie files.
    When AFOSI received the FDE from DCFL, the lead agent on Appellant’s
case began reviewing the files, one by one, when he discovered an image that
appeared to be child pornography. The agent did not stop his search to seek an
expanded search authorization, choosing instead to continue his search until
his findings were complete. In the end, he discovered, magnified, and flagged
169 images of suspected child pornography as well as several other images of
what appeared to be Appellant and another Airman engaged in adultery. On
the final day of his search, the agent coordinated with a judge advocate in the
base legal office, who reviewed the identified images and agreed that they ap-
peared to depict child pornography.
    Using the images of suspected child pornography he had discovered, the
agent sought an additional search authorization. On 2 April 2015, he provided
an affidavit indicating he had “observed numerous photographs contained on
[Appellant’s] media devices that appeared to be child pornography.” The agent
also verbally described to the military magistrate some of the images he
viewed, though he did not provide the magistrate with any of the images. The
magistrate concluded there was probable cause to believe Appellant possessed
child pornography and granted AFOSI authorization to search the previously-
seized electronic devices for child pornography.



3 An FDE, in its simplest form, is the process by which DCFL extracts certain types of
electronic files from various devices and consolidates them onto an external hard drive.
It is commonly referred to as a “data dump.”


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                   United States v. Maske, No. ACM 39146


    The agent forwarded to DCFL the new search authorization along with 24
images he and the judge advocate had identified for “deep dive” analysis. Five
of these images became the basis of a charge against Appellant. Several other
images were introduced by the Government during trial to establish that Ap-
pellant’s possession of child pornography was not due to mistake or accident
and to rebut the Defense claim of entrapment.
    Trial defense counsel moved to suppress evidence related to the search and
seizure of electronic media and any derivative evidence pursuant to Military
Rule of Evidence 311 and the Fourth Amendment. After an extensive hearing,
the military judge found a violation of Appellant’s Fourth Amendment rights,
concluding that,
       [The agent] went well beyond the scope of the [3 December 2014]
       Search Authorizations, and the Court finds that he engaged in a
       general search of the electronic media in that he sought out,
       magnified, and tagged images related to suspicions of adultery
       and similarly magnified and tagged images of suspected child
       pornography. . . . The Court is also concerned by the fact that
       [the agent] failed to recognize the need to stop and seek addi-
       tional search authorization when he first encountered evidence
       of another crime. . . . [H]is determination to continue his exami-
       nation without seeking an expanded search authorization was
       objectively unreasonable.
    The military judge then addressed the agent’s reliance on the “169 images
of suspected child pornography as the basis for establishing probable cause” to
obtain the additional search authorization. He found “that the Government
ha[d] met its burden of showing that exclusion of the suspected child pornog-
raphy evidence is not warranted in this case based on the Plain View and In-
evitable Discovery exceptions.”
   Appellant was eventually charged with wrongful possession of child por-
nography for 5 of the 169 images. Over Defense objection, several other un-
charged images were included in a prosecution exhibit used to rebut Appel-
lant’s contention that the child sexual abuse offenses were the result of entrap-
ment by AFOSI.
   2. Law and Analysis
       a. Was the search authorization overly broad?
    We begin our analysis with a de novo review of whether the search author-
ization was overly broad, resulting in a general search prohibited by the Fourth
Amendment. United States v. Maxwell, 45 M.J. 406, 420 (C.A.A.F. 1996).
   The Fourth Amendment to the Constitution provides,


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                   United States v. Maske, No. ACM 39146


       The right of the people to be secure in their persons, houses, pa-
       pers, 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 particu-
       larly describing the place to be searched and the persons or
       things to be seized.
    Appellant alleges that this last requirement, particularity, was absent from
the 3 December 2014 search authorizations. Specifically, Appellant argues
that, at the time the search authorizations were granted, AFOSI already knew
which communications, images, and date range they were looking for, and the
magistrate should have tailored the authorizations accordingly. Instead, Ap-
pellant argues, “the authorization in this case was a dragnet for all digital ev-
idence.”
    Appellant correctly points out that because this was an undercover opera-
tion, AFOSI was generally aware of how Appellant had committed the alleged
offense of attempted child sexual abuse before they obtained the search au-
thorizations. The undercover agent who played the role of “Tina” had posses-
sion of the images Appellant was suspected of sending. AFOSI was also aware
of each message exchanged during the two-month operation. We cannot con-
clude that this knowledge alone should have resulted in more narrowly-tai-
lored search authorizations. Instead, we look to reasonableness, “the ultimate
touchstone of the Fourth Amendment.” Brigham City v. Stuart, 547 U.S. 398,
403 (2006).
    The question of reasonableness in the context of a search for electronic me-
dia was recently addressed in United States v. Richards, 76 M.J. 365 (C.A.A.F.
2017). In Richards, the United States Court of Appeals for the Armed Forces
(CAAF) upheld an authorization to search electronic media rather than nar-
rowing it to cover a certain time period or to cover only devices that could be
used for online communications. The court catalogued a series of federal circuit
cases supporting “the notion of achieving a balance by not overly restricting
the ability to search electronic devices.” Id. at 369. It added,
       In charting how to apply the Fourth Amendment to searches of
       electronic devices, we glean from our reading of the case law a
       zone in which such searches are expansive enough to allow in-
       vestigators access to places where incriminating materials may
       be hidden, yet not so broad that they become the sort of free-for-
       all general searches the Fourth Amendment was designed to
       prevent.




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                   United States v. Maske, No. ACM 39146


Id. at 370. Reasonableness lies within the zone outlined by the CAAF—one in
which searches are expansive enough to allow investigators access to incrimi-
nating materials, yet not so broad where any search becomes a general search.
We find that the 3 December 2014 search authorizations lie within that zone.
    The 3 December 2014 search authorizations identified the specific types of
devices on or by which electronic media could be stored or communicated as
well as the crime being investigated. They also specified, with an accompany-
ing affidavit, the means by which Appellant was alleged to have committed the
crime being investigated, including digital images and communications. To be
sure, the authorization could have been more specific in this case. After all,
AFOSI provided extensive detail about its investigation in its affidavit, so the
magistrate was aware of the nature of Appellant’s alleged crime before grant-
ing search authorization. Notwithstanding the imperfections, “the authoriza-
tion and accompanying affidavit did not give authorities carte blanche to
search in areas clearly outside the scope of the crime being investigated.” Id.
Greater specificity beyond those included in the 3 December 2014 search au-
thorizations and accompanying affidavit was not required to satisfy the partic-
ularity requirement of the Fourth Amendment.
       b. Did the military judge err in failing to suppress the evidence
       obtained from the search?
    We now turn to whether the military judge erred in failing to suppress the
evidence after he found Appellant’s Fourth Amendment rights had been vio-
lated. We review a military judge’s ruling on a motion to suppress for an abuse
of discretion, viewing the evidence in the light most favorable to the party pre-
vailing below. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015) (in-
ternal quotation marks and citations omitted). More specifically, we review the
military judge’s findings of fact for clear error and his conclusions of law de
novo. Id.
    Searches conducted pursuant either to a warrant or to authorization based
on probable cause are presumed reasonable. United States v. Hoffmann, 75
M.J. 120, 123–24 (C.A.A.F. 2016) (internal quotation marks and citations omit-
ted). Warrantless searches, on the other hand, are presumptively unreasona-
ble unless they fall within a specifically established and well delineated excep-
tion. Id. Here, the military judge found that Appellant’s Fourth Amendment
rights were violated when the agent expanded the scope of his search without
authority. Appellant argues that the exclusionary rule should apply.
    The exclusionary rule is a judicially created remedy for evidence directly
obtained through violation of the Fourth Amendment as well as evidence that
is the indirect product or “fruit” of unlawful police activity. United States v.
Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014) (citing Wong Sun v. United States, 371


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                    United States v. Maske, No. ACM 39146


U.S. 471, 488 (1963)). “‘[S]uppression is not an automatic consequence of a
Fourth Amendment violation,’ but turns on the applicability of specific excep-
tions as well as the gravity of government overreach and the deterrent effect
of applying the rule.” Wicks, 73 M.J. at 103 (alteration in original) (quoting
United States v. Herring, 555 U.S. 135, 137 (2009)).
    The military judge found that the plain view and inevitable discovery ex-
ceptions applied in Appellant’s case. In his ruling on the application of the
plain view doctrine, the military judge properly found that the agent was exe-
cuting a valid search when he first discovered an image he believed to be child
pornography. The judge concluded that “the agent would have had the author-
ity to seize that image . . . then be able to properly present a description or the
actual image to the Magistrate for a timely expansion of the Search Authori-
zation.” We agree. As to the application of the inevitable discovery exception,
the military judge was “satisfied that the Magistrate would have granted the
expanded Search Authorization” based on the image or description provided.
Again, we agree.
    Still, Appellant asserts that there was “one important conclusion over-
looked by the military judge—AFOSI’s search of the digital media was at all
times an attempt to uncover evidence of child pornography and was not limited
to the ‘Tina’ offenses.” But Appellant’s argument hinges on the conclusion that
the 3 December 2014 search authorizations were invalid. As previously dis-
cussed, the search authorizations satisfied the requirements of the Fourth
Amendment, leaving open the possibility of legally finding other evidence in
plain view. Although Appellant focuses on what he believes were the agent’s
motivations in conducting the search, those motivations have little bearing on
our analysis because “though inadvertence is a characteristic of most legiti-
mate ‘plain view’ seizures, it is not a necessary condition.” Horton v. California,
496 U.S. 128, 130 (1990).
    Even assuming arguendo that the agent in Appellant’s case was attempting
to uncover evidence of child pornography, the agent’s motives would not inval-
idate an otherwise valid exception to the Fourth Amendment’s warrant re-
quirement. Notably, the officer in Horton testified that “while he was searching
for the [property authorized by the search warrant], he was also interested in
finding other evidence” connecting Horton to the crime. Id. at 131. Yet, the
United States Supreme Court found that as long as the officer’s search was
conducted pursuant to a valid warrant and the items were in plain view, the
fact that discovery of the evidence was not inadvertent did not warrant its ex-
clusion. Id.
   As a final matter, the military judge also found that the agent’s actions
were not taken “with any intent to deprive the accused of his rights or with
reckless disregard for the protections of the Fourth Amendment.” He added,

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                     United States v. Maske, No. ACM 39146


“[t]his type of conduct, while far from acceptable, is not of a nature warranting
the harsh remedy of exclusion.” Having reviewed the entire record, including
the information regarding how the searches were conducted in this case, we
are likewise persuaded that exclusion of the evidence is not warranted in this
case. 4
B. Opinion Testimony
    At trial, the Defense findings case-in-chief consisted of a sole witness, Ap-
pellant, who testified that he did not believe “Tina” was the 14-year-old de-
pendent she claimed to be. Sharing his experiences of adopting various per-
sonas online, he testified that he believed “Tina” was actually an adult adopt-
ing the persona of an underage girl. When given the opportunity for rebuttal,
the Government called, over Defense objection, MSgt PN, who testified to Ap-
pellant’s character for untruthfulness. As he did at trial, Appellant maintains
that MSgt PN lacked sufficient foundation to offer an opinion as to Appellant’s
character for untruthfulness.
    We review a military judge’s decision to admit opinion evidence for an
abuse of discretion. United States v. Goldwire, 55 M.J. 139, 142 (C.A.A.F. 2001)
(citing United States v. Johnson, 46 M.J. 8, 10 (C.A.A.F. 1997)). “The abuse of
discretion standard is a strict one, calling for more than a mere difference of
opinion. The challenged action must be ‘arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous.’” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F.
2010) (internal quotation marks and citations omitted).
   “Opinion-or-reputation-type evidence may only be introduced when a
proper foundation has been laid.” United States v. Toro, 37 M.J. 313, 317
(C.M.A. 1993). “To lay a proper foundation for opinion evidence, the proponent
must show that the character witness personally knows the witness and is ac-
quainted with the witness well enough to have had an opportunity to form an
opinion of the witness’ character for truthfulness.” Id.
   Here, the military judge held a hearing outside the presence of the mem-
bers to assess the basis of MSgt PN’s opinion. During the hearing, MSgt PN,
who had once served as Appellant’s acting first sergeant, identified two specific


4 We note that evidence in the record raises the issue of whether Appellant consented
to the search at issue. Under direct examination during the Defense findings case-in-
chief, Appellant testified that when questioned on 3 December 2014, he “had nothing
to hide” and “gave [AFOSI] free access to everything.” When asked for clarification on
cross-examination, Appellant confirmed that he gave AFOSI consent to search his
house and vehicle. There is no record of his consent in the Report of Investigation nor
any mention of it in the extensive suppression hearing. The Government also does not
raise consent in its answer to Appellant’s Assignment of Errors. We therefore decline
to address it in our analysis.


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                   United States v. Maske, No. ACM 39146


instances forming his opinion of Appellant. In the first instance, Appellant lied
to MSgt PN about the nature of Appellant’s relationship with a co-worker who
was not his wife. Appellant acknowledged the lie when confronted with evi-
dence. In the second instance, MSgt PN learned Appellant had been in a sub-
ordinate’s dorm room with his battle uniform blouse off. MSgt PN clarified that
the second instance informed his opinion about whether Appellant was a good
noncommissioned officer and did not inform his opinion about Appellant’s char-
acter for untruthfulness.
    Citing Goldwire, among other cases, Appellant argues that MSgt PN’s lim-
ited interaction with Appellant and the single lie Appellant allegedly told MSgt
PN did not provide an adequate foundation to form the basis for an opinion of
Appellant’s character for truthfulness. 55 M.J. at 144. Notably, these facts
were both addressed by the military judge in ruling on Appellant’s objection.
The military judge acknowledged that “[t]he unique nature of military society
does not justify a finding that a single lie would constitute an adequate basis
for opinion testimony regarding a witness’s character for truthfulness.” Id. But
like the CAAF did in Goldwire, the judge found that the nature of MSgt PN’s
relationship with Appellant while serving as his acting first sergeant was suf-
ficient to justify one lie serving as the basis for MSgt PN’s opinion.
    As to Appellant’s assertions that there were limited interactions between
MSgt PN and Appellant, the military judge considered MSgt PN’s having
served as Appellant’s acting first sergeant, MSgt PN’s approximately 12 inter-
actions with Appellant during the one to two weeks Appellant was being inves-
tigated for having an unprofessional relationship, and the fact that Appellant
“was less than forthcoming” during his interaction with MSgt PN. Careful con-
sideration of these facts led the military judge to find a sufficient foundation
for MSgt PN’s testimony. The military judge’s decision to admit the evidence
was neither arbitrary, fanciful, clearly unreasonable, nor erroneous. Thus, we
find no abuse of discretion.

                               III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




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              United States v. Maske, No. ACM 39146


Accordingly, the findings and the sentence are AFFIRMED.


            FOR THE COURT



            CAROL K. JOYCE
            Clerk of the Court




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