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

                                 Before
             R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         KENNETH A. COLE
         CAPTAIN (O-6), MEDICAL SERVICE CORPS, U.S. NAVY

                           NMCCA 201300165
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 11 December 2012.
Military Judge: CAPT Eric C. Price, JAGC, USN.
Convening Authority: Commandant, Naval District Washington,
Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: J. Dennis Murphy, Jr., Esq.; Capt David
Peters, USMC.
For Appellee: Maj David Roberts, USMC; LT Ann Dingle, JAGC,
USN.

                              29 May 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

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 possession of
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 11 months and a dismissal. The
convening authority approved the dismissal and in accordance
with a pretrial agreement, disapproved the confinement.

     The appellant’s guilty plea was conditional, expressly
reserving his right to appeal an adverse pretrial ruling on a
motion to suppress. He now raises three assignments of error:
(1) that the military judge abused his discretion by failing to
grant the motion to suppress; (2) that the appellant’s rights
under the Fourth Amendment were violated when federal agents
participated in the execution of a search warrant issued by a
county judge to local law enforcement; and (3) that a dismissal
is an inappropriately severe sentence.

     After careful consideration of the record of trial, the
appellant's assignments of error, the pleadings of the parties,
and oral argument of the parties, 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.

                           Background

     An adult family member of the appellant’s, M, called a
child-protection hotline, reporting that he discovered child
pornography on the appellant’s computer. The Naval Criminal
Investigative Service (NCIS) began to investigate the
allegation.

     After interviewing M, the NCIS case agent applied to a
federal magistrate for a warrant to search the appellant’s home
in Maryland. The NCIS agent’s supporting affidavit said M had
certain mental disorders, was taking psychiatric medications,
and had previously suffered a mental breakdown. The affidavit
also said M reported being so upset by the child pornography on
the appellant’s computer that he banged his head against a wall
to get the images out of his head. The federal magistrate
denied the warrant.

     The NCIS agent then contacted a detective from the Anne
Arundel County Police Department (AAPD) to suggest a joint
investigation. The AAPD detective agreed and arranged to
conduct her own interview of M. During that interview, M
disclosed that he had certain mental disorders, was taking
psychiatric medications, and previously suffered a mental
breakdown. M did not mention during this interview that he had
banged his head against a wall.


                                2
     The AAPD detective then applied to a county judge for a
search warrant. She disclosed that M had certain mental
disorders, was taking psychiatric medications, and had
previously suffered a mental breakdown. The AAPD detective also
disclosed that NCIS was involved in the case and that a federal
magistrate had previously declined to issue a warrant. She did
not mention that M had supposedly banged his head against a wall
at some point.

     The county judge issued the warrant. Representatives from
NCIS and AAPD then went to the appellant’s home to execute the
warrant. NCIS seized several computers and other digital media.
A forensic examination of the seized media revealed child
pornography.

                     Issuance of the Warrant

     In Franks v. Delaware, the Supreme Court held that
suppression of evidence is an appropriate remedy if police
obtain a warrant by deliberate falsehood or reckless disregard
for the truth. 438 U.S. 154, 155-56 (1978). Though Franks
involved an affirmative misstatement of fact, improper omission
of a material fact in a warrant application can also lead to
suppression. “‘Franks protects against omissions that are
designed to mislead, or that are made in reckless disregard of
whether they would mislead, the magistrate.’” United States v.
Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (quoting United States
v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

      It is a question of fact whether an omission in a warrant
application was designed to mislead or was made in reckless
disregard of whether it would mislead. Id. The defense has the
burden to make a “substantial preliminary showing” of such an
allegation, and then to prove the allegation by a preponderance
of the evidence. MILITARY RULE OF EVIDENCE 311(g)(2), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.).

     In the trial court, the appellant argued that the AAPD
detective’s failure to tell the county judge that M had banged
his head against a wall was an intentional omission that
justified suppression. The military judge denied the motion.

     We review a military judge’s denial of a motion to suppress
for abuse of discretion. United States v. Leedy, 65 M.J. 208,
212 (C.A.A.F. 2007). Accordingly, we will not overturn a
military judge’s findings of fact unless they are clearly
erroneous or unsupported by the record. Id. at 213.

                                3
     In his ruling on the motion to suppress, the military judge
made a finding of fact that the AAPD detective omitted reference
to M banging his head against the wall for three reasons: (1)
she believed that her reference to M’s mental breakdown was more
significant, (2) she believed that M banging his head against a
wall was neither relevant nor helpful to a probable cause
determination, and (3) she had heard about M banging his head
against a wall only from the NCIS agent, not from M himself.
(Appellate Exhibit LXXXVIII, at 8-9). 1 This finding of fact is
not clearly erroneous. To the contrary, it is well-supported by
the AAPD detective’s testimony at the suppression hearing. The
first and third points are essentially quotes from that
testimony. As to the second point, when asked by the
appellant’s civilian defense counsel whether M “banging his head
against the wall is actually unhelpful to a determination of
probable cause” Detective Brown said “[t]hat didn’t lend
probable cause. So I didn’t include it.” Record at 1919.
While one can reasonably argue that the term ‘lending’ is
ambiguous, such argument is not a sufficient basis for this
court to rule that the military judge’s factual determination is
clearly erroneous. Accordingly, the military judge did not
abuse his discretion by denying the motion to suppress.

                        Execution of the Warrant

     The appellant argues that it was constitutional error for
NCIS agents to participate in the search of his home. We
disagree.

     Maryland law says a search warrant may be issued only to
certain state and local officers. Md. Code Ann., Crim. Proc. §
1-203 (LexisNexis 2014). Here, the county judge complied with
this requirement by addressing the warrant to, “Any duly
constituted police officer of the Anne Arundel County Police
Department.” AE VII, Attachment 3. The warrant went on to say,
“You are therefore commanded, with the necessary and proper
assistants, to search forthwith the premises, persons, or things
described herein . . . .” Id. This begs the question whether
the NCIS agents who participated in the search were “necessary
and proper assistants” of the AAPD.

     Although the AAPD detective testified at the suppression
hearing that her department was capable of searching the

1
  Though this finding is styled as a “Conclusion of Law” in the military
judge’s written ruling, this finding involves a pure credibility
determination rather than the application of a legal principle. As such, it
is a finding of fact.
                                     4
appellant’s home without any assistance from federal agents, we
do not see that testimony as necessarily establishing that their
participation violated the terms of the warrant. Rather, we
find merit in the military judge’s belief that “the necessary
and proper assistance” language was incorporated in response to
the request that the warrant be issued to AAPD and “federal law
enforcement agencies . . . .” Record at 910. This logic seems
especially compelling in light of the fact that the issuing
judge knew that this was a joint investigation. Accordingly, we
find that NCIS’s involvement was contemplated by the judge
issuing the warrant and that their participation did not violate
its terms.

     However, assuming arguendo that the necessary and proper
language was not broad enough to allow assistance from NCIS, it
does not automatically follow that their participation in the
search gave rise to a constitutional violation that would
justify applying the exclusionary rule. The crux of a Fourth
Amendment analysis is whether law enforcement’s conduct was
reasonable under the circumstances. Consequently, “mere
‘technical’ or ‘de minimis’ violations of a warrant’s terms are
not unreasonable, and do not warrant suppression.” United
States v. Cote, 72 M.J. 41, 45 (C.A.A.F. 2013) (citations
omitted).

     In determining whether the conduct of law enforcement was
reasonable under the circumstances, we consider whether a
limitation of the warrant’s scope was “directly tied to the
protection of individual rights.” United States v. Guzman, 52
M.J. 318, 321 (C.A.A.F. 2000); see also United States v. Allen,
53 M.J. 402, 406 (C.A.A.F. 2000). It is clear that limitations
on “the place to be searched” or “things to be seized” are
directly tied to the protection of individual rights. U.S. CONST.
amend. IV. It is not so clear that a limitation on who may
assist with a search is directly tied to the protection of an
individual right.

     For example, in Hill v. Maryland, the University of
Maryland Police were investigating a student suspected of
committing a crime on campus. 134 Md. App. 327 (Md. Ct. Spec.
App. 2000). The campus police obtained and executed a search
warrant for the student’s private, off-campus home in Prince
George’s County. The trial court denied a defense motion to
suppress, and the appellate court affirmed, writing:

     To be sure, appellant’s home in Riverdale was outside
     the concurrent jurisdiction of the University of

                                5
     Maryland Police. Yet, two Prince George’s County
     police detectives accompanied them to appellant's
     residence. Appellant is correct that the University
     of Maryland Police conducted the search, spoke with
     his mother, and seized the items from appellant’s
     room. That does not mean that the evidence seized was
     required to be suppressed. The Prince George’s County
     detectives may have played a limited role in executing
     the warrant, but the University of Maryland Police
     nevertheless were acting under color of authority of
     the Prince George's County Police Department.

Id. at 344. Since Maryland courts have declined to place
strict limits on who may execute a Maryland search warrant,
we will not adopt a different approach.

     Accordingly, we conclude that the “necessary and
proper” language in the search warrant was not directly
tied to the protection of an individual right. Thus, any
violation of that limitation would not rise to the level of
a constitutional error that warrants suppression of the
evidence.

                 Appropriateness of the Sentence

     This court reviews the appropriateness of a sentence de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves. United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). We engage in a review that gives
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the
character of the offender.’” United States v. Snelling, 14 M.J.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).

     Although the appellant had a long and distinguished naval
career, and presented a compelling case in extenuation and
mitigation, he was convicted of a very serious crime. Balancing
these factors, we conclude that the approved sentence of a
dismissal is not inappropriately severe.




                                6
                           Conclusion

     The findings and sentence as approved by the convening
authority are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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