         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201700153
                         _________________________

                 UNITED STATES OF AMERICA
                                 Appellant
                                     v.

                   CHRISTOPHER M. MOTTINO
                      Lieutenant (O-3), U.S. Navy
                                Appellee
                        _________________________

   Review of Government Appeal Pursuant to Article 62(b), UCMJ

        Military Judge: Captain Ann K. Minami, JAGC, USN.
     Convening Authority: Commander, Navy Region Northwest,
                           Silverdale, WA.
             For Appellant: Major Kelli A. O’Neil, USMC.
       For Appellee: Lieutenant Doug Ottenwes s, JAGC, USN.
                       _________________________

                          Decided 27 July 2017
                         _________________________

  Before M ARKS , C AMPBELL , and J ONES , Appellate Military Judges
                        _________________________

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:
   The United States has appealed, pursuant to Article 62(a)(1)(B), Uniform
Code of Military Justice (UCMJ), the military judge’s ruling that excluded all
evidence of child pornography found during searches of the appellee’s cellular
phone. The government asserts the military judge failed to make the
requisite determination, prior to excluding evidence of an unlawful search,
that “the exclusion of the evidence results in the appreciable deterrence of
future unlawful searches or seizures and the benefits of such deterrence
outweigh the costs to the justice system.” MILITARY RULE OF EVIDENCE (MIL.
                      United States v. Mottino, 201700153


R. EVID.) 311(a)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016
ed.).
   We hold that the military judge’s findings of fact are not clearly
erroneous, but that her analysis and application of the law do not include the
balancing test required under MIL. R. EVID. 311(a)(3). The appeal is granted.
                              I. BACKGROUND
    In February 2016, the Kitsap County Sheriff’s Office, in the state of
Washington, conducted a proactive prostitution sting operation. The appellee
was arrested soliciting a prostitute, and his cellular phone was seized. The
appellee denied Detective M permission to search his phone, but did provide
the passcode to unlock it. Detective M obtained a search warrant to extract
call logs, phone contacts, web browser history, text message conversations,
digital photo albums, and videos from the phone.
    Detective M then used a Cellebrite machine, which contains software that
allows law enforcement to select specific portions of a device, such as a smart
phone, for extraction. In spite of this, she downloaded almost everything from
the phone. Simultaneously, she manually searched the phone, opening a Kik
messaging application and viewing child pornography contained in a
conversation the appellee had with an unknown user. In a second
conversation, she saw that the appellee also sent child pornography. She then
sought an additional search warrant for evidence of alleged possession and
distribution of child pornography. After searching the phone again, she
discovered that the appellee used a file hosting service to send and receive
child pornography, so she secured a third warrant. Ultimately, more than
9,000 child pornography files were found either on the appellee’s phone or in
his account with the file hosting service.
   Civilian authorities indicted the appellee on charges relating to the
possession and distribution of child pornography. The defense moved to
suppress all evidence from the phone based on the initial search warrant
being overbroad. The Kitsap County Superior Court agreed and suppressed
the evidence in a ruling that the initial warrant lacked sufficient
particularity, that there was an insufficient nexus between patronizing a
prostitute and a search of the entire phone of the appellee, and that the Kik
application opened by the detective was not related to soliciting a prostitute.
The state court further ruled that the original affidavit describing the
detective’s training and experience did not sufficiently support probable
cause to search all of the areas granted in the warrant. All charges were
dropped.
   On 3 March 2017, the appellee was arraigned at a general court-martial
on three specifications of wrongful possession of child pornography, in


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                          United States v. Mottino, 201700153


violation of Article 134, UCMJ, 10 U.S.C. § 934. The defense promptly filed a
suppression motion, which was granted by the military judge on 28 April
2017. The military judge’s written ruling echoed the rationale of the Kitsap
County Superior Court and concluded that: (1) there was insufficient
probable cause to search much of the phone; (2) the warrant lacked sufficient
particularity; (3) the plain view, inevitable discovery, and good faith
exceptions were inapplicable; and (4) “[s]uppression will serve the
exclusionary rule’s goal of deterrence.”1
                                   II. DISCUSSION
    “In an Article 62, UCMJ, appeal, this [c]ourt reviews the military judge’s
decision directly and reviews the evidence in the light most favorable to the
party which prevailed at trial.” United States v. Henning, 75 M.J. 187, 190-91
(C.A.A.F. 2016) (citation and internal quotation marks omitted). “We review a
military judge’s ruling on a motion to suppress for abuse of discretion. . . .
[W]e review factfinding under the clearly-erroneous standard and conclusions
of law under the de novo standard.” Id. (citations and internal quotation
marks omitted). “[W]here the military judge places on the record h[er]
analysis and application of the law to the facts, deference is clearly
warranted.” United States v. Flesher, 73 M.J. 303, 312 (C.A.A.F. 2014)
(citations and internal quotation marks omitted).
    The rule regarding evidence obtained from unlawful searches and
seizures states:
         (a) General rule. Evidence obtained as a result of an unlawful
         search or seizure made by a person acting in a governmental
         capacity is inadmissible against the accused if:
             (1) the accused makes a timely motion to suppress or an
         objection to the evidence under this rule;
             (2) the accused had a reasonable expectation of privacy in
         the person, place, or property searched; the accused had a
         legitimate interest in the property or evidence seized when
         challenging a seizure; or the accused would otherwise have
         grounds to object to the search or seizure under the
         Constitution of the United States as applied to members of the
         Armed Forces; and
             (3) exclusion of the evidence results in appreciable deterrence
         of future unlawful searches or seizures and the benefits of such
         deterrence outweigh the costs to the justice system.


   1   Appellate Exhibit VII, pages 21-22.


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                       United States v. Mottino, 201700153


MIL. R. EVID. 311(a) (second emphasis added).
    Although the military judge concluded that “[s]uppression will serve the
exclusionary rule’s goal of deterrence,”2 her ruling is devoid of any analysis
regarding prong three. She did not quantify how appreciable that deterrence
is, nor did she balance the benefits of such deterrence against the costs to the
justice system, as required by MIL. R. EVID. 311(a)(3). See United States v.
Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (military judge’s ruling clearly
identified three factors favoring exclusion). The military judge abused her
discretion by concluding that exclusion was appropriate without conducting
the required balancing test, and we decline the parties’ invitation to conduct
that analysis on the military judge’s behalf.
                              III. CONCLUSION
    The appeal is granted, and the military judge’s ruling suppressing the
evidence is set aside. The stay of proceedings is lifted. The record of trial is
returned to the Judge Advocate general for transmittal to the convening
authority. The military judge may rule on the defense motion to suppress
after compliance with MIL. R. EVID. 311(a)(3).
                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




   2   Id. at 22.


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