       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                 Luis G. NIETO, Specialist
                United States Army, Appellant
                          No. 16-0301
                    Crim. App. No. 20150386
     Argued October 11, 2016—Decided February 21, 2017
                Military Judge: Michael J. Hargis
   For Appellant: Captain Joshua G. Grubaugh (argued);
   Lieutenant Colonel Charles D. Lozano and Captain
   Heather L. Tregle (on brief).
   For Appellee: Captain Tara E. O’Brien Goble (argued);
   Colonel Mark H. Sydenham, Lieutenant Colonel A. G.
   Courie III, and Major Steven J. Collins (on brief); Major
   Daniel D. Derner.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN and Judges RYAN and
   SPARKS joined. Judge STUCKY filed a separate dis-
   senting opinion.
                     _______________

   Judge OHLSON delivered the opinion of the Court.
    Pursuant to Appellant’s conditional pleas, a military
judge sitting alone as a general court-martial convicted Ap-
pellant of four specifications of abusive sexual contact and
one specification each of being absent without leave, violat-
ing a general order, making a false official statement, and
making an indecent visual recording, in violation of Articles
86, 92, 107, 120, and 120c, Uniform Code of Military Justice,
10 U.S.C. §§ 886, 892, 907, 920, 920c (2012). The military
judge sentenced Appellant to a reduction to E-1, forfeiture of
all pay and allowances, confinement for five years, and a
bad-conduct discharge. In accordance with the pretrial
agreement, the convening authority reduced the sentence of
confinement to four years, but otherwise approved the ad-
judged sentence.
             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

    As provided for in the pretrial agreement, Appellant
challenged on appeal the military judge’s denial of his mo-
tion to suppress evidence from his laptop computer. The
United States Army Court of Criminal Appeals summarily
affirmed the approved findings and sentence. We granted
review on the following assigned issue:
      Whether the military judge erred in denying Appel-
      lant’s motion to suppress the evidence seized from
      Appellant’s laptop computer.
United States v. Nieto, 75 M.J. 292 (C.A.A.F. 2016).
   Upon review of this issue, we conclude that there was an
insufficient particularized nexus linking Appellant’s mis-
conduct to his laptop. Therefore, the military magistrate did
not have a substantial basis for concluding that probable
cause existed to seize the laptop. We further conclude that
the inevitable discovery doctrine and the good-faith doctrine
do not apply in this case. The military judge therefore
abused his discretion in denying Appellant’s motion to sup-
press evidence. Accordingly, we reverse the decision of the
United States Army Court of Criminal Appeals.
                        I. Background
    In May of 2013, Corporal (CPL) RAO and another soldier
provided sworn statements to the Army Criminal Investiga-
tion Division (CID). They averred that Appellant had used
his cell phone to record them using the latrine at Forward
Operating Base (FOB) Azizullah, Afghanistan, without their
consent. CPL RAO further stated that after Appellant had
been identified as the person using the cell phone, two non-
commissioned officers “look[ed] through the subject’s cellular
phone for any photographs or videos, which they did not
find.” His statement did not reference Appellant’s laptop.
Special Agent (SA) Sandefur, who had fifteen years of inves-
tigative experience, was in charge of the Kandahar Airfield
CID office and initially supervised the investigation into
these allegations.
   In the course of the investigation, SA Sandefur was told
by his agents that “somebody” had previously seen a cell
phone and laptop on Appellant’s bunk in his tent. SA
Sandefur subsequently sought from a part-time military
magistrate a search authorization to search Appellant’s


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              United States v. Nieto, No. 16-0301/AR
                      Opinion of the Court

bunk and to seize the cell phone and laptop. SA Sandefur
testified that he did not “have any direct evidence” that im-
ages and videos were on the laptop, did not know whether
the files on the cell phone were transferable to the laptop,
and did not know the memory storage capacity of the cell
phone. He also did not know whether Appellant took photo-
graphs in the latrine, but “the investigation suggested” that
Appellant had taken photographs that would have been “in a
file format.” SA Sandefur supported the search authoriza-
tion of the laptop with three sources of information: (1) CPL
RAO’s sworn statement, cited above, that Appellant had
used a cell phone in the latrine; (2) SA Sandefur’s own affi-
davit, cited below, which makes no mention of a laptop com-
puter; and (3) SA Sandefur’s in-person meeting with the mil-
itary magistrate, also cited below.
   SA Sandefur’s affidavit in support of the search authori-
zation stated, in relevant part:
         On 18 May 2013, this office was notified of an
      incident at FOB Azi Zullah [sic] that involved a
      male Soldier viewing other male Soldiers in bath-
      room stalls.
         Preliminary investigation revealed that [Appel-
      lant] was using his Samsung telephone to view and
      possibly record other male Soldiers while they were
      on the toilet. Victims reported that they observed
      someone holding a cellular telephone over the wall
      of the bathroom stall while they were exposed and
      utilizing the toilet. [Appellant] was later identified
      by a Soldier as he was departing the latrine.
         .…
          About 1300, 18 May 13, SA [JF], this office in-
      terviewed Cpl [RAO] … who provided a sworn
      statement … wherein he related on 12 May 13, he
      noticed a cellular telephone being held over the
      wall of his latrine stall. He further related [to] his
      fellow Soldier SPC [CS] what happened. He indi-
      cated that he and SPC [CS] … then waited outside
      the latrine stall as CPL [RAO] notified leadership.
      SPC [CS] identified [Appellant] exit the stall and
      reported him to leadership.




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              United States v. Nieto, No. 16-0301/AR
                      Opinion of the Court

During the in-person meeting with the military magistrate
to review the search authorization request, SA Sandefur in-
formed the military magistrate about his:
       knowledge in reference to Soldiers using their cell
       phones to photograph things, … and that those
       phones are normally downloaded, the photos they
       take, if they’re taking scene photos or photos of
       their friends or whatever while they’re out on--on
       missions or on the FOB, they’ll back those up to
       their laptops so that when they get to the--a place
       where they can get Internet, they can post those or
       send those home to family or whatever.
SA Sandefur also briefed the military magistrate about “the
preliminary information that [he] received from the agents
on the ground at the FOB” about Appellant “using the cell
phone underneath the stall to … film or … take pictures of
individuals in the stall next to him.” He further informed the
military magistrate about the type of cell phone Appellant
owned (a “White Samsung Galaxy cellular Telephone”), but
did not provide any details about any laptop that Appellant
may have owned.
    Relying on these three sources of information, on May 20,
2013, the military magistrate issued a search and seizure
authorization to search Appellant’s bunk and seize any cell
phone or laptop computer that was found there. Upon seiz-
ing the two items that same day, CID agents sent them to a
CID digital forensic examiner. On June 4, 2013, CID agents
interviewed Appellant and he confessed to recording soldiers
who were using the latrine. 1
    Before conducting a search of the laptop and the cell
phone, the forensic examiner requested that CID obtain an
additional search authorization tailored to that purpose.
This request prompted SA Dunn, who had become the pri-
mary case agent in June of 2013, to seek a search authoriza-
tion from another part-time military magistrate at Kanda-
har Airfield in July 2013. In support of this July search
authorization, SA Dunn relied on Cpl RAO’s sworn state-


    1 This was Appellant’s second interview with CID. In the first,
he falsely denied holding his phone over the top of a bathroom
stall.



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             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

ment, as well as on an affidavit that mirrored SA Sandefur’s
previous affidavit, except for the following additional para-
graphs:
           About 1024, 4 Jun 13, [Appellant] admitted to
       using his cellular telephone to view and record Sol-
       diers utilizing the latrine while at FOB Azi Zullah
       [sic], Afghanistan. [Appellant] admitted to mastur-
       bating to the images on his cellular telephone of
       Soldiers utilizing the latrine.
          It is my [i.e., SA Dunn’s,] experience as a CID
       Special Agent that persons who would use a porta-
       ble digital media recorder would also transfer the
       media from a portable device to a computer station
       or storage device. Persons who view and record
       sexual acts often times store and catalog their im-
       ages and videos on larger storage devices such as a
       computer or hard drive.
   On July 17, 2013, the military magistrate authorized the
search of the laptop and cell phone. The CID forensic exam-
iner’s search of the cell phone “revealed nothing relevant to
[CID’s] investigation.” However, the laptop contained a
number of incriminating videos and pictures, which ulti-
mately led to additional criminal charges.
    During the court-martial proceedings, Appellant moved
to suppress evidence obtained from the laptop. He asserted
that the facts presented to the military magistrates “were
insufficient to support a finding of probable cause.” The mili-
tary judge denied the motion on the basis that the military
magistrates “were provided with a substantial basis for de-
termining the existence of probable cause as to images being
found on the accused’s laptop.” The military judge cited the
following points:
       The normal inference to be drawn from the accused
       placing a cell phone over a latrine stall … is that
       the accused was recording images….
          It is also a normal inference to be drawn—as
       was done in [United States v. Clayton, 68 M.J. 419
       (C.A.A.F. 2010)]—that data is transferred from one
       digital device to another. Both SA Sandefur and SA
       Dunn told [the military magistrates] as much.
This ruling is at issue in this appeal.




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             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

               II. Applicable Legal Principles
    We review a military judge’s denial of a motion to sup-
press for an abuse of discretion. United States v. Hoffmann,
75 M.J. 120, 124 (C.A.A.F. 2016). Accordingly, when review-
ing a military magistrate’s issuance of a search authoriza-
tion, we “do not review [the military magistrate’s] probable
cause determination de novo.” Id. at 125. Instead, we exam-
ine whether a military “magistrate had a substantial basis
for concluding that probable cause existed.” United States v.
Rogers, 67 M.J. 162, 164–65 (C.A.A.F. 2009). A substantial
basis exists “when, based on the totality of the circumstanc-
es, a common-sense judgment would lead to the conclusion
that there is a fair probability that evidence of a crime will
be found at the identified location.” Id. at 165 (citing Illinois
v. Gates, 462 U.S. 213, 238 (1983); United States v. Leedy, 65
M.J. 208, 213 (C.A.A.F. 2007)). We give “great deference” to
the magistrate’s probable cause determination because of
“the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant.” Gates, 462 U.S. at 236
(citation omitted) (internal quotation marks omitted). How-
ever, this deference is “not boundless,” and a reviewing court
may conclude that “the magistrate’s probable-cause deter-
mination reflected an improper analysis of the totality of the
circumstances.” United States v. Leon, 468 U.S. 897, 915
(1984). However, if a military magistrate has “a substantial
basis to find probable cause, a military judge [does] not
abuse his discretion in denying a motion to suppress.” Leedy,
65 M.J. at 213.
    The Fourth Amendment is predicated on “[t]he right of
the people to be secure in their persons, houses, papers, and
effects.” U.S. Const. amend. IV. It safeguards against “un-
reasonable searches and seizures” and requires warrants to
be supported by probable cause. Id. The military has imple-
mented the Fourth Amendment through the Military Rules
of Evidence (M.R.E.) 311–17. Hoffmann, 75 M.J. at 123.
These rules reflect “the limits which military society, speak-
ing through its Commander-in-Chief, is willing to” place up-
on the protections afforded under the Fourth Amendment in
a military context. See United States v. McCarthy, 38 M.J.
398, 402 (C.M.A. 1993); see also United States v. Taylor,
41 M.J. 168, 171 (C.M.A. 1994). This Court is ordinarily


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             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

bound by the Military Rules of Evidence. See Taylor, 41 M.J.
at 171. 2
    The Military Rules of Evidence provide that when a sei-
zure is made pursuant to a search authorization, the search
authorization “must be based upon probable cause.” M.R.E.
315(f)(1); M.R.E. 316(c)(5)(A); see also United States v. Hes-
ter, 47 M.J. 461, 463 (C.A.A.F. 1998). Probable cause to seize
exists if there is “a reasonable belief that the property or ev-
idence is … evidence of crime.” M.R.E. 316(c)(1); cf. M.R.E.
315(f)(2). “[P]robable cause determinations are inherently
contextual, dependent upon the specific circumstances pre-
sented as well as on the evidence itself,” and “probable cause
is founded … upon the overall effect or weight of all factors
presented to the magistrate.” Leedy, 65 M.J. at 213; see also
Gates, 462 US. at 232 (observing that “probable cause is a
fluid concept—turning on the assessment of probabilities in
particular factual contexts”). Stated differently, in order for
there to be probable cause, a sufficient nexus must be shown
to exist between the alleged crime and the specific item to be
seized. See Rogers, 67 M.J. at 166; United States v. Gallo,
55 M.J. 418, 421 (C.A.A.F. 2001) (stating that probable
cause “definition encompasses showing a nexus”). “The ques-
tion of nexus focuses on whether there was a ‘fair probabil-
ity’ that contraband or evidence of a crime will be found in a
particular place.” Clayton, 68 M.J. at 424 (quoting Leedy, 65
M.J. at 213). A nexus may “be inferred from the facts and
circumstances of a particular case,” including the type of
crime, the nature of the items sought, and reasonable infer-
ences about where evidence is likely to be kept. Id.; Gallo,
55 M.J. at 421.
   A law enforcement officer’s professional experience may
be useful in establishing such a nexus. See Leedy, 65 M.J. at
215–16; see also United States v. Soto, 799 F.3d 68, 85 (1st

   2  We note that in the instant case the Government has not ar-
gued that we should apply the Military Rules of Evidence in a dif-
ferent manner because this incident took place at a forward oper-
ating base. Therefore, we do not address whether, due to any
combat exigencies, the rules governing searches and seizures
might apply differently here, nor do we address whether the mili-
tary magistrate’s probable cause determination might be due ad-
ditional deference under the attendant circumstances.



                                7
             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

Cir. 2015). However, a law enforcement officer’s generalized
profile about how people normally act in certain circum-
stances does not, standing alone, provide a substantial basis
to find probable cause to search and seize an item in a par-
ticular case; there must be some additional showing that the
accused fit that profile or that the accused engaged in such
conduct. See United States v. Macomber, 67 M.J. 214, 220
(C.A.A.F. 2009). “[W]hile courts have relied on such profiles
to inform search determinations, ... a [law enforcement of-
ficer’s] profile alone without specific nexus to the person
concerned cannot provide the sort of articulable facts neces-
sary to find probable cause to search” or seize. Id.
    If a military magistrate did not have a substantial basis
to find probable cause in a specific case, this Court ordinari-
ly applies the exclusionary rule. Hoffmann, 75 M.J. at 124
(citing M.R.E. 311(a)). However, there are exceptions to this
rule, including the inevitable discovery doctrine and the
good-faith doctrine. See M.R.E. 311(c)(2), (3).
   For the inevitable discovery doctrine to apply, the Gov-
ernment must establish:
      by a preponderance of the evidence, “that when the
      illegality occurred, the government agents pos-
      sessed, or were actively pursuing, evidence or leads
      that would have inevitably led to the discovery of
      the evidence and that the evidence would inevita-
      bly have been discovered in a lawful manner had
      not the illegality occurred.”
Hoffmann, 75 M.J. at 125 (quoting United States v. Dease,
71 M.J. 116, 122 (C.A.A.F. 2012)); see also M.R.E. 311(c)(2).
    For the good-faith doctrine to apply, the Government
must establish that law enforcement’s reliance on a defective
authorization is objectively reasonable. Hoffmann, 75 M.J.
at 127. In the military, the good-faith doctrine applies if:
(1) the seizure resulted from a search and seizure authoriza-
tion issued, in relevant part, by a military magistrate;
(2) the military magistrate had a substantial basis for de-
termining probable cause existed; and (3) law enforcement
reasonably and in good faith relied on the authorization.
M.R.E. 311(c)(3); see also United States v. Carter, 54 M.J.
414, 420 (C.A.A.F. 2001).



                               8
             United States v. Nieto, No. 16-0301/AR
                     Opinion of the Court

                        III. Discussion
    We conclude that the military judge abused his discre-
tion in denying Appellant’s motion to suppress evidence
from the laptop. We reach this conclusion because (1) the
military magistrate had no substantial basis for finding
probable cause even after according the military magistrate
great deference, and (2) neither the good-faith doctrine nor
the inevitable discovery doctrine applies. We discuss each
conclusion below.
                     A. Probable Cause
    Turning our attention to the military magistrate’s proba-
ble cause determination, we first note the United States Su-
preme Court’s observation that cell phones, such as the one
possessed by Appellant, are “in fact minicomputers” that
have “immense storage capacity” allowing them to store
“thousands of pictures, or hundreds of videos.” Riley v. Cali-
fornia, 134 S. Ct. 2473, 2489 (2014). Indeed, Appellant’s cell
phone, by itself, had the ability to serve both as the instru-
mentality of the crime and as a storage device for the fruit of
that crime. Therefore, in this age of “smart phones,” SA
Sandefur’s generalized profile about how servicemembers
“normally” store images was technologically outdated and
was of little value in making a probable cause determina-
tion.
    We further note that the affidavits accompanying the
search authorization did not reference a laptop or data
transfers from Appellant’s cell phone. Accordingly, we con-
clude that SA Sandefur’s generalized profile was not based
on a firm factual foundation. As a result, the information
provided by SA Sandefur to the magistrate did not inde-
pendently establish a particularized nexus between (a) the
crime the accused was alleged to have committed with his
cell phone in the latrine and (b) the laptop that was previ-
ously seen by “somebody” on Appellant’s bunk. In order to
identify a substantial basis for concluding that probable
cause existed to believe that Appellant’s laptop was linked to
the crime, we conclude that—at a minimum—there needed
to be some additional showing, such as the fact that Appel-
lant actually downloaded images (illicit or otherwise) from
his cell phone to his laptop, stored images on his laptop, or



                               9
              United States v. Nieto, No. 16-0301/AR
                      Opinion of the Court

transmitted images from his laptop. And yet, there was no
such showing in this case. 3 Therefore, SA Sandefur’s affida-
vit, his generalized profile, and CPL RAO’s affidavit provid-
ed no basis, substantial or otherwise, for the military magis-
trate to conclude that probable cause existed to seize the
laptop. See Warden v. Hayden, 387 U.S. 294, 307 (1967) (re-
quiring “a nexus … between the item to be seized and crimi-
nal behavior”).
    SA Sandefur’s oral discussion with the military magis-
trate also failed to adequately support the search authoriza-
tion. See M.R.E. 315(f)(2)(B) (noting that probable cause de-
termination can be based on oral statements). Except for the
generalized profile discussed and discredited above, the mili-
tary magistrate was not provided with substantive oral in-
formation linking Appellant’s misconduct to the laptop. This
point is underscored by the fact that SA Sandefur testified
that he did not have “any direct evidence” that images were
on the laptop and did not know whether the files on the cell
phone were transferable to the laptop, and by the fact that
SA Sandefur made no proffer to the military magistrate that
anyone had ever seen Appellant download material from his
cell phone to a laptop. In fact, even Appellant’s ownership of
the laptop in question was predicated on suspect infor-
mation and credited to an unknown source. 4 Cf. Hoffmann,
75 M.J. at 125 (noting that probable cause determination
considers veracity and basis of knowledge of those supplying

   3  In reaching this conclusion, we are not creating a heightened
standard for probable cause or requiring direct evidence to estab-
lish a nexus in cases where technology plays a key role. Rather,
the traditional standard that a nexus may “be inferred from the
facts and circumstances of a particular case,” Clayton, 68 M.J. at
424, still holds in cases involving technological devices such as cell
phones and laptops. We merely conclude that in the instant case
there is an insufficient nexus between Appellant’s cell phone and
his laptop that can be inferred based on the particular facts pre-
sented to the military magistrate. We have provided some non-
exhaustive examples as to how a sufficient nexus might be in-
ferred in order to demonstrate that this burden on the Govern-
ment is far from onerous.
    4 CID only knew that a laptop was on Appellant’s “bunk in his
tent.” When pressed on this specific point, SA Sandefur could not
explain how CID learned of the laptop.



                                 10
              United States v. Nieto, No. 16-0301/AR
                      Opinion of the Court

hearsay information). Moreover, the military magistrate
could not draw any reasonable inferences linking the crime
and the laptop based on the limited information and gener-
alized profile offered by SA Sandefur. Therefore, we hold
that the military magistrate did not have a substantial basis
for concluding that probable cause existed to seize Appel-
lant’s laptop. 5
       B. Good-Faith and Inevitable Discovery Doctrines
    The Government argues that, even if the military magis-
trate did not have a substantial basis for concluding that
probable cause existed to seize Appellant’s laptop, the evi-
dence from the laptop was admissible under the good-faith
doctrine as well as under the inevitable discovery doctrine.
In order to prevail, the Government has the burden of estab-
lishing both doctrines by a preponderance of the evidence.
See M.R.E. 311(d)(5)(A). We conclude that the Government
has not met its burden of establishing the good-faith doc-
trine. See M.R.E. 311(c)(3). 6
    The Government also has failed to establish the applica-
bility of the inevitable discovery doctrine. In reaching this
conclusion, we note that the Government has failed to iden-

    5 In reaching this conclusion, we are mindful that a contrary
holding could be construed as providing law enforcement with
broad authority to search and seize all of an accused’s electronic
devices and electronic media merely because the accused used a
cell phone in furtherance of a crime. This result, based on general-
ized profiles created by law enforcement and on the generalized
observation about “the ease with which [digital] media may be
replicated on” a multitude and array of electronic devices, would
run counter to the principle that law enforcement officials must
provide specific and particular information in order for a magis-
trate to determine that there is “a fair probability that contraband
or evidence of a crime will be found in a particular place.” See
Clayton, 68 M.J. at 424 (citation omitted) (internal quotation
marks omitted); see also M.R.E. 316(c)(1); United States v. Brown,
828 F.3d 375, 382 (6th Cir. 2016).
   6  We recognize the tension between our discussion of the good-
faith doctrine in Hoffmann, 75 M.J. at 127–28, and Carter, 54 M.J.
at 419–22. We leave for another day resolution of this tension be-
cause we conclude that under either understanding of the good-
faith doctrine the Government has not met its burden of establish-
ing this exception to the exclusionary rule in Appellant’s case.



                                11
            United States v. Nieto, No. 16-0301/AR
                    Opinion of the Court

tify any evidence that law enforcement possessed, or was ac-
tively pursuing at the time of the seizure, that would have
made the lawful discovery of the laptop evidence inevitable.
See Hoffmann, 75 M.J. at 125–26. We will not rely on “spec-
ulation and conjecture” to make this conclusion. See United
States v. Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996). There-
fore, the Government has not established the applicability of
the inevitable discovery doctrine.
                      IV. Conclusion
    We hold that the military magistrate did not have a sub-
stantial basis to determine that probable cause existed to
seize Appellant’s laptop and that the inevitable discovery
and good-faith exceptions do not apply in this case. Because
the seizure of the laptop was unlawful, the subsequent
search is likewise unlawful. See Wong Sun v. United States,
371 U.S. 471, 488 (1963); United States v. Conklin, 63 M.J.
333, 334 (C.A.A.F. 2006); see also M.R.E. 311(a). The mili-
tary judge therefore abused his discretion in denying Appel-
lant’s motion to suppress evidence from the laptop.
                        V. Decision
   The decision of the United States Army Court of Crimi-
nal Appeals is reversed. The findings and sentence are set
aside. The record of trial is returned to the Judge Advocate
General of the Army for proceedings consistent with this
opinion.




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             United States v. Nieto, No. 16-0301/AR


   Judge STUCKY, dissenting.

    Crucial to the sensible legal treatment of modern tech-
nology is an understanding of its functioning and the com-
monsense application of well-established doctrine in the face
of novel situations. In my view, the majority fails in both of
these regards, and I therefore respectfully dissent.
   Before engaging the technology at issue in this case, the
majority omits mention of material precedent from this
Court in its presentation of the law of probable cause.
    “Probable cause exists where ‘there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’” United States v. Grubbs, 547 U.S. 90, 95
(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). It
“is a fluid concept—turning on the assessment of probabili-
ties in particular factual contexts—not readily, or even use-
fully, reduced to a neat set of legal rules.” Gates, 462 U.S. at
232. Pertinently, we have stated that probable cause re-
quires
       more than bare suspicion, but something less than
       a preponderance of the evidence. Thus, the evi-
       dence presented … need not be sufficient to support
       a conviction, nor even to demonstrate that an in-
       vestigator’s belief is more likely true than false …;
       there is no specific probability required, nor must
       the evidence lead one to believe that it more proba-
       ble than not that contraband will be present.
United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007) (ci-
tations omitted). Such conclusions must also be “founded not
on the determinative features of any particular piece of evi-
dence … but rather upon the overall effect or weight of all
factors,” which is “dependent upon the specific circumstanc-
es presented as well as on the evidence itself.” Id.
    In addition to incompletely presenting the law of proba-
ble cause, the majority also misapplies the standard of re-
view that we utilize with regard to these issues. When a mil-
itary judge’s denial of a motion to suppress comes before us,
“[w]e review the legal question of sufficiency for finding
probable cause de novo using a totality of the circumstances
test.” Leedy, 65 M.J. at 212. In conducting this review, we
apply the standard that the military judge would use in re-
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

viewing the magistrate’s probable cause determination. That
is, we “start by examining whether the magistrate had a
‘substantial basis’ for determining that probable cause exist-
ed,” id. (quoting Gates, 462 U.S. at 238), because “[i]t follows
that where a magistrate had a substantial basis to find
probable cause,” a military judge would be correct in deny-
ing a motion to suppress evidence reaped from any resulting
search or seizure. Id. The Supreme Court has held that
“[t]he duty of a reviewing court is simply to ensure that the
magistrate had a ‘substantial basis for … conclud[ing]’ that
probable cause existed.” Gates, 462 U.S. at 238–39 (altera-
tion in original) (quoting Jones v. United States, 362 U.S.
257, 271 (1960)). Moreover, it has found that “[r]easonable
minds frequently may differ on the question [of] whether a
particular affidavit establishes probable cause, and we have
thus concluded that the preference for warrants is most ap-
propriately effectuated by according great deference to a
magistrate’s determination.” United States v. Leon, 468 U.S.
897, 914 (1984) (internal quotation marks omitted) (citations
omitted); see also Gates, 462 U.S. at 236 (“A magistrate’s ‘de-
termination of probable cause should be paid great deference
by reviewing courts.’” (quoting Spinelli v. United States,
393 U.S. 410, 419 (1969))). Consistent with this precedent,
we have held that “determinations of probable cause made
by a neutral and detached magistrate are entitled to sub-
stantial deference.” United States v. Clayton, 68 M.J. 419,
423 (C.A.A.F. 2010); accord United States v. Hoffmann,
75 M.J. 120, 123 (C.A.A.F. 2016) (“Searches conducted after
obtaining a warrant or authorization based on probable
cause are presumptively reasonable.”).
    Before the military magistrate who granted the initial
search authorization were the following: a sworn statement
from a soldier (CPL RAO) attesting to Appellant’s actions
and those of others; an affidavit from SA Sandefur in sup-
port of a search and seizure authorization; and information
orally provided to the magistrate by SA Sandefur during an
in-person meeting. The first and third sources of information
are given short shrift in the majority opinion, and therefore
require further elaboration.
   The sworn statement from CPL RAO attested to an inci-
dent during which, while using the latrine, he looked up and




                               2
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

“noticed a cellular phone screen being pulled from [his] stall
to the stall to [his] left.” Upon returning to his tent, CPL
RAO stated that he confided in his colleague (SPC S) what
had happened, and that, in turn, SPC S “confided in [CPL
RAO] that the same situation had happened to him a week
prior.” SPC S then went to the latrine in an attempt to catch
the subject in the act, and returned approximately thirty
minutes later, telling CPL RAO that “the cellular phone ap-
peared over his stall as well.” CPL RAO then recounted re-
turning to the latrine with SPC S and sitting “in the stall to
see if [he] could catch the subject [him]self.” After waiting
five minutes without glimpsing the cellular phone, CPL
RAO exited the latrine stall and sought out superiors.
Meanwhile, SPC S waited at the latrine to see who came out
of the stall from which the cellular phone had been out-
stretched. CPL RAO informed four superiors of the situation
and returned to the latrine with three of them. When they
arrived, Appellant was standing outside of the latrine with
two superiors and SPC S. The two superiors already there
were looking through Appellant’s cellular phone for inap-
propriate recordings, of which they found none. The group-
ing then dispersed to discuss the situation and inform others
of what had transpired.
    In turn, during his in-person conversation with the mili-
tary magistrate, SA Sandefur informed her not just that sol-
diers tend to back up media files recorded using their cellu-
lar phones by uploading them to their laptops, as the
majority accepts, but that they do this specifically with re-
cordings made “on missions or on the [forward operating
base],” such as that where Appellant was stationed. This in-
sight came from a special agent with fifteen years of experi-
ence, over the course of which he was deployed multiple
times. It is clear from the search authorization, and SA
Sandefur’s testimony, that law enforcement knew the specif-
ic type of cellular phone that Appellant possessed—a “White
Samsung Galaxy cellular Telephone,”—and informed the
military magistrate of this. These two sources, similarly
make it apparent that law enforcement knew that Appellant
possessed a laptop computer, the likely location of both the
computer and cellular phone—Appellant’s “Bunk,” “tent
224,”—and so informed the military magistrate. The majori-




                               3
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

ty attempts to cast information on the laptop’s location as
“suspect” by criticizing its attribution to “an unknown
source.” United States v. Nieto, __ M.J. __ (10) (C.A.A.F.
2017). But an unnamed individual seeing the computer on
Appellant’s bunk next to his phone in the cramped living
conditions of a forward operating base (FOB), and SA
Sandefur being unable to recall exactly from whom his fel-
low agents had procured this information when questioned
months after he worked on the case, do little to undermine
the fact that law enforcement had a clear idea of where Ap-
pellant’s laptop was and passed this insight on to the mili-
tary magistrate. Finally, the majority’s statement that SA
Sandefur “did not know whether the files on the cell phone
were transferable to the laptop” is misleading. Id. at __ (3).
Based on a sworn statement attesting to Appellant’s repeat-
ed suspicious conduct, he was suspected of making inappro-
priate recordings with his cellular phone. And SA Sandefur
clearly stated that authorities suspected that there “would
have been at least photographs on [Appellant’s] phone … in
a file format.” It is widely understood that such files are
transferable between devices, and between cellular phones
and laptop computers in particular.
    Applying the proper probable cause analysis to the full
facts presented to the military magistrate shows that she
had a substantial basis for her positive finding, notwith-
standing the substantial deference she is to be accorded—
deference that the majority notes must be given but fails to
confer. SA Sandefur communicated to the military magis-
trate the specific type of cellular phone owned by Appellant
and the likely location where it and Appellant’s laptop would
be found. He also relayed that, based on his substantial pro-
fessional experience, soldiers stationed at FOBs tend to up-
load media files taken with their cellular phones to other
devices with greater storage capacity. While the experienced
counsel of law enforcement professionals is of great value to
magistrates in probable cause determinations, Leedy, 65
M.J. at 215–16; accord United States v. Gallo, 55 M.J. 418,
422 (C.A.A.F. 2001) (“The courts have allowed a gap in the
nexus to be filled in based on the affiant’s experience.”), the
majority is correct in noting that this “‘alone without specific
nexus to the person concerned’” is not enough to form a sub-




                               4
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

stantial basis. Nieto, __ M.J. at __ (8) (quoting United States
v. Macomber, 67 M.J. 214, 220 (C.A.A.F. 2009)). But it is in-
correct in solely analyzing this source of information in as-
sessing the magistrate’s decision.
    For his part, CPL RAO swore to a first-person account of
actions taken by Appellant indicating that he was making
inappropriate recordings with his cellular phone, others ob-
serving these actions as well, and the fact that Appellant
consistently engaged in such practices over a period of time.
Moreover, it was recounted that superiors conducted an im-
promptu search of Appellant’s cellular phone for offensive
material and found none, bolstering the suspicion that, giv-
en his consistent conduct, Appellant was transferring his
media files to another device.
    All told, the magistrate had before her a sworn state-
ment as to Appellant’s consistent suspicious behavior and an
affidavit from a very experienced law enforcement officer
informing her of the common practices of individuals who fit
Appellant’s profile. A nexus between Appellant, the crime he
was suspected of, and his laptop computer is quite apparent.
   But even if the nexus was not so readily discernible, mili-
tary magistrates have the authority “to draw such reasona-
ble inferences as [they] will from the material supplied to
[them] by applicants for a warrant.” Gates, 462 U.S. at 240;
accord Clayton, 68 M.J. at 424 (holding that military magis-
trates have the authority to make “normal inferences as to
where a criminal would likely hide the property”). “Thus,
while the law requires [magistrates] to be neutral, the law
does not require [them] to pretend they are babes in the
woods. In evaluating search warrant applications, [magis-
trates] may consider what ‘is or should be common
knowledge.’” United States v. Reichling, 781 F.3d 883, 887
(7th Cir. 2015) (quoting United States v. Seiver, 692 F.3d
774, 778 (7th Cir. 2012)). Indeed, judicial reliance on com-
mon knowledge is a timeworn legal precept. E.g., Alberty v.
United States, 162 U.S. 499, 511 (1896) (“[I]t is a matter of
common knowledge that men who are entirely innocent do
sometimes fly from the scene of a crime through fear of be-
ing apprehended as the guilty parties, or from an unwilling-
ness to appear as witnesses.”) (emphasis added).




                               5
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

    It is common knowledge that, despite continuing advanc-
es, cellular phones generally have less digital storage capaci-
ty than computer hard drives; that photo and video record-
ings are some of the most digital storage intensive items
regularly created by and saved on cellular phones; that, in
order to preserve storage space on cellular phones, these re-
cordings are routinely transferred to higher capacity storage
options, whether they be cloud storage services or personal
hard drives, the latter including those both separate from
and internal to computers; and that such transfers, whether
conducted wirelessly or through a physical connection, are
quite easy given modern technology. See Reichling, 781 F.3d
at 887 (finding that it is “common knowledge to judges (like
other members of the public) that images sent via cell
phones or Facebook accounts may be readily transferred to
other storage devices”); Clayton, 68 M.J. at 424 (recognizing
“the ease with which computer media may be replicated on
portable devices”); Riley v. California, 134 S. Ct. 2473, 2491
(2014) (noting that, “with increasing frequency,” cellular
phones are used to access data located elsewhere “at the tap
of a screen”); Mark Wilson, Castle in the Cloud: Modernizing
Constitutional Protections for Cloud-Stored Data on Mobile
Devices, 43 Golden Gate U. L. Rev. 261, 268 (2013) (“Mobile
devices, and even smaller laptop computers, have limited
storage capacity due to their small size and their necessarily
small internal disks.”); Walter S. Mossberg, Learning About
Everything Under the ‘Cloud,’ Wall. St. J. (May 6, 2010)
(“Your smartphone can’t run all the sophisticated programs,
or store all the files, that your PC can.”), available
at http://www.wsj.com/articles/SB1000142405274870396110
4575226194192477512 (last visited Feb. 15, 2017). Given the
commonality of these aspects of modern cellular phones,
courts are increasingly confronting the specific scenario of
the transfer of elicit digital material—e.g., inappropriate
images and videos—from cellular phones to computers. See,
e.g., United States v. Napier, 787 F.3d 333, 338 (6th Cir.
2015); United States v. Grzybowicz, 747 F.3d 1296, 1310-11
(11th Cir. 2014); United States v. Norton, 557 F. App’x 615,
616 (8th Cir. 2014); see also United States v. Wilson, Magis-
trate No. 16-730 (DAR), 2016 U.S. Dist. LEXIS 157085, at
*13, 2016 WL 6683268, at *4 (D. D.C. 2016) (“Defendant




                               6
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

stated that she accessed [a cloud storage service] on her cel-
lular phone to collect, store, and share her child pornogra-
phy.”). The application of this common knowledge further
bolsters the military magistrate’s substantial basis for her
finding of probable cause to search and seize Appellant’s lap-
top computer.
    The majority, however, misinterprets precedent and em-
ploys dubious logic in an attempt to avoid the commonsense
conclusions noted above. First, it cites Riley, 134 S. Ct. at
2489, for the proposition that modern cellular phones have
“‘immense storage capacity’” that can hold “‘thousands of
pictures,’” and that this lessens the necessity of transferring
data from cellular phones to other digital storage mediums.
Nieto, __ M.J. at __ (9). But these quotations are taken out of
context. The Supreme Court’s statement that modern cellu-
lar phones have “immense storage capacity” was made com-
paring them to what individuals could previously physically
carry on their person and older phone models. It in no way
contradicts the common knowledge that computers generally
have much larger digital storage capacities than cellular
phones. In addition, the Supreme Court’s comment regard-
ing “thousands of pictures” is made in reference to a distinct
storage capacity: “16 gigabytes.” Riley, 134 S. Ct. at 2489.
This storage volume could certainly hold thousands of pho-
tograph files if solely devoted to that function, but the hard
drive of a cellular phone is responsible for facilitating the
functioning of the entire device, not just storing photos. As
such, “16 gigabytes” is generally consumed by many other
files and functions besides simply photo storage, and so the
storage of “thousands of pictures” is generally not practica-
ble.
    Second, the majority’s argument in favor of treating
modern cellular phones as digital islands contradicts itself.
It notes the modern “age of ‘smart phones’” as a reason why
SA Sandefur’s assertion that soldiers at FOBs usually trans-
fer recording files from their phones to computers is “outdat-
ed and … of little value.” Nieto, __ M.J. at __ (9). But this
contention serves the opposite purpose. “Smart phones” are
actually means of connection that dramatically enhance the
ability and opportunities to collect data and disseminate it
across devices. Accordingly, “[t]oday’s cell phones, with their




                               7
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

capacity to reach the Internet, the cloud, and to store mil-
lions of documents and photographs [thereby], can no longer
analogize to a run-of-the-mill wardrobe. Instead, they are
also a portal.” United States v. Mayo, No. 2:13-CR-48, 2013
U.S. Dist. LEXIS 158866, at *29, 2013 WL 5945802, at *8
(D. Vt. 2013); see also United States v. Cotterman, 709 F.3d
952, 965 (9th Cir. 2013) (“[A] digital device is a conduit to
retrieving information from the cloud.”). In fact, modern cel-
lular phones have such “immense storage capacity” because
of their easy connection to other storage mediums, such as
cloud storage services and traditional computers. See, e.g.,
Riley, 134 S. Ct. at 2491; United States v. Saboonchi, 990 F.
Supp. 2d 536, 563 (D. Md. 2014); In re Cellular Telephones,
No. 14-MJ-8017-DJW, 2014 U.S. Dist. LEXIS 182165, at
*14–18, 2014 WL 7793690, at *5 (D. Kan. 2014); Mayo, 2013
U.S. Dist. LEXIS 158866, at *29, 2013 WL 5945802, at *8;
see also Wilson, 2016 U.S. Dist. LEXIS 157085, at *13, 2016
WL 6683268, at *4. Rather than illuminating any lack of
technological understanding on the part of SA Sandefur, a
law enforcement officer with a great deal of experience in
this area, the majority reveals its own deficient grasp of the
contemporary consumer electronics environment and its
networked nature.
    Given the state of the law of probable cause, the evidence
presented to the military magistrate, and the current state
of common knowledge regarding modern cellular phones, the
magistrate certainly had a substantial basis for her positive
finding. The majority, however, avoids reaching this conclu-
sion by applying a heightened requirement for probable
cause than what precedent requires:
      In order to identify a substantial basis for conclud-
      ing that probable cause existed to believe that Ap-
      pellant’s laptop was linked to the crime, we con-
      clude that—at a minimum—there needed to be
      some additional showing, such as the fact that Ap-
      pellant actually downloaded images (illicit or oth-
      erwise) from his cell phone to his laptop, stored im-
      ages on his laptop, or transmitted images from his
      laptop.
Nieto, __ M.J. at __ (9–10). This appears to require direct ev-
idence of particular conduct, and therefore a likelihood that




                               8
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

incriminating material will be found on the laptop, or that a
preponderance of the evidence supports this supposition. But
such a requirement does not comport with Supreme Court
precedent requiring only a “fair probability” that incriminat-
ing material will be found, Gates, 462 U.S. at 238, or our
own precedent stating that “the evidence presented … need
not be sufficient to support a conviction, nor even to demon-
strate that an investigator’s belief is more likely true than
false.” Leedy, 65 M.J. at 213 (citations omitted); see also
Gates 462 U.S. at 235 (“Finely tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evi-
dence … have no place in the [probable cause] decision.”).
Courts have consistently
      upheld searches although the nexus between the
      items to be seized and the place to be searched
      rested not on direct observation, … but on the type
      of crime, the nature of the … items, the extent of
      the suspect’s opportunity for concealment, and
      normal inferences as to where a criminal would be
      likely to his [incriminating material].
United States v. Lucarz, 430 F.2d 1051, 1054 (9th Cir. 1970)
(citations omitted); accord United States v. Anton, 546 F.3d
1355, 1358 (11th Cir. 2008); United States v. Martin,
426 F.3d 68, 74-77 (2d Cir. 2005). More specifically, they
have upheld positive probable cause findings pertaining to
digital devices in an accused’s possession other than those
used to commit the alleged offense when that offense in-
volved inappropriate digital recordings. See United States v.
Kapordelis, 569 F.3d 1291, 1310-12 (11th Cir. 2009); see also
United States v. Mann, 592 F.3d 779, 786 n.2 (7th Cir. 2010).
    Since the first military magistrate had a substantial ba-
sis for authorizing the search and seizure of Appellant’s lap-
top computer, it necessarily follows that the second magis-
trate did as well. This is because, in addition to all of the
information that was presented to the first magistrate, the
second was also informed that Appellant confessed to mak-
ing numerous photographic and video recordings of fellow
sevicemembers in compromising positions for his own sexual
gratification. Thus, the military judge’s denial of the motion
to suppress evidence gleaned from the searches and seizures
in question should be affirmed.




                               9
             United States v. Nieto, No. 16-0301/AR
                  Judge STUCKY, dissenting

    Overall, a constellation of shortcomings with regard to
the law of probable cause, the facts of this case, and the ap-
plication of law to fact envelops the majority opinion. I
therefore reiterate my respectful dissent.




                              10
