                         UNITED STATES, Appellee

                                         v.

                  Robert C. HUNTZINGER, Specialist
                    United States Army, Appellant

                                  No. 09-0589
                         Crim. App. No. 20060976

       United States Court of Appeals for the Armed Forces

                         Argued January 26, 2010

                          Decided April 30, 2010

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.

                                     Counsel

For Appellant: Lieutenant Colonel Matthew M. Miller (argued);
Colonel Mark Tellitocci and Lieutenant Colonel Jonathan F.
Potter (on brief); Major Grace M. Gallagher and Captain Candace
White Halverson.

For Appellee: Captain Stephanie R. Cooper (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, Major
Sara M. Root, and Captain James M. Hudson (on brief).


Military Judge:    Reynold P. Masterton



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Huntzinger, No. 09-0589/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of a military judge sitting

alone, convicted Appellant, contrary to his pleas, of two

specifications of violating a lawful general order and one

specification of possession of child pornography, in violation

of Articles 92 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 892, 934 (2000).   The sentence adjudged by the

court-martial and approved by the convening authority included a

bad-conduct discharge, confinement for ten months, forfeiture of

all pay and allowances, and reduction to the grade of E-1.     The

United States Army Court of Criminal Appeals affirmed the

findings and approved sentence.   United States v. Huntzinger,

No. ARMY 20060976, 2009 CCA LEXIS 209, at *7 (A. Ct. Crim. App.

Mar. 18, 2009) (unpublished).

     On Appellant’s petition, we granted review of the following

issues related to the evidence of child pornography obtained

from the search of Appellant’s laptop computer and external hard

drive:

     I.    WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING
           THAT NO SOLDIER AT FORWARD OPERATING BASE (FOB)
           LOYALTY HAD A REASONABLE EXPECTATION OF PRIVACY
           IN ANY REGARD.

     II.   WHETHER THE MILITARY JUDGE ERRED IN DENYING A
           MOTION TO SUPPRESS APPELLANT’S EXTERNAL HARD
           DRIVE AND PASSWORD PROTECTED LAPTOP WHEN THE
           COMMANDER WHO ORDERED THE SEIZURE OF THE
           EQUIPMENT IMMEDIATELY SEARCHED THE EQUIPMENT UPON
           SEIZURE, DEMONSTRATING THAT HE WAS PERFORMING LAW


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United States v. Huntzinger, No. 09-0589/AR


           ENFORCEMENT FUNCTIONS AND WAS NOT NEUTRAL AND
           DETACHED WHEN SEIZING THE ITEMS.

     III. WHETHER THE DOCTRINE OF INEVITABLE DISCOVERY IS
          APPLICABLE WHEN THERE ARE NO INDEPENDENT POLICE
          ACTIVITIES, OR TESTIMONY OR EVIDENCE OF ROUTINE
          POLICE PRACTICES, THAT WOULD HAVE INEVITABLY
          RESULTED IN DISCOVERY, AND NO OTHER EXCEPTION TO
          THE FOURTH AMENDMENT APPLIES.

     IV.   WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
           IN CONCLUDING THAT PROBABLE CAUSE EXISTED TO
           SUPPORT THE SEARCH AUTHORIZATION OF APPELLANT’S
           LAPTOP COMPUTER AND DETACHABLE HARD DRIVE.

     For the reasons set forth below, we conclude that the

evidence was obtained from an authorized search, and we affirm.



                            I.   BACKGROUND

     The present appeal concerns an investigation initiated by

the commanding officer of Appellant’s unit, Captain (CPT) Aaron

J. Miller, during a deployment to Forward Operating Base (FOB)

Loyalty, Baghdad, Iraq.   CPT Miller ordered the investigation

after obtaining information indicating the circulation of child

pornography within his command.     The ensuing investigation led

to the discovery of hundreds of sexually explicit digital photos

and video clips on Appellant’s computer and external hard drive,

including child pornography.

     At the outset of the trial, Appellant moved to suppress the

evidence from the search.    The following summarizes the evidence

presented at the hearing, as well as the findings of fact and



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United States v. Huntzinger, No. 09-0589/AR


conclusions of law entered by the military judge in denying the

motion to suppress.

     The commanding officer, CPT Miller, testified that he first

learned of the child pornography issue as he was leaving the FOB

on a mission.    The unit’s information officer, Sergeant First

Class (SFC) Richard A. Powell, told CPT Miller that he had

exchanged music files with Private First Class (PFC) Dennis Parr

earlier in the day, and later discovered that one of the files

contained a video clip depicting what he suspected was child

pornography.    CPT Miller testified that SFC Powell appeared to

be “shaken up” when he disclosed this information.

     Based on this conversation, CPT Miller ordered the unit’s

first sergeant, Sergeant (1SG) Joseph Goodwater, to look into

the situation.   He instructed 1SG Goodwater to “make sure you

get a statement from PFC Parr, make sure you get a statement

from Powell and have those ready for me . . . should we return

to FOB Loyalty that evening.”   CPT Miller told 1SG Goodwater

that they would “figure out what [they] need[ed] to do next” at

that time.

     1SG Goodwater testified that he first obtained a statement

from PFC Parr.   PFC Parr said that he had previously shared

music files with three other soldiers, in addition to Appellant.

According to PFC Parr, the video clip unexpectedly popped up on

his computer earlier in the day.       He immediately deleted the


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United States v. Huntzinger, No. 09-0589/AR


file, but did not report the incident to anyone.    PFC Parr told

1SG Goodwater that he had shared files with SFC Powell and three

other individuals, including Appellant.   In response to the

question as to who might have “downloaded pornography to your

computer or hard drive,” PFC Parr responded:   “Maybe

Huntzinger.”   PFC Parr also provided his computer to 1SG

Goodwater.

     CPT Miller testified he returned to FOB Loyalty in the

evening, and 1SG Goodwater briefed him on the status of the

investigation, including the information obtained from PFC Parr.

CPT Miller reviewed PFC Parr’s written statement.   He also

viewed two videos discovered on PFC Parr’s computer.    CPT Miller

testified that one of the videos was the same as the video

viewed by SFC Powell, and he described the second, entitled “13-

year-old Russian girl,” as “pornography.”   He noted that PFC

Parr had “specifically named Huntzinger as someone he could have

received pornography from.”   He also testified that “at this

point it appeared that I had a contraband issue in the battery

and that these other three individuals may have the same

material on their computers and external memory devices.”     CPT

Miller directed 1SG Goodwater to search the barracks rooms of

the three soldiers and to seize their laptop computers and

external memory devices.




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United States v. Huntzinger, No. 09-0589/AR


     1SG Goodwater testified that Appellant’s room was located

in a brick building on FOB Loyalty, which he shared with two

other soldiers.   He added that the barracks rooms were subject

to regular inspections and that items permitted on the FOB were

highly regulated.   When he went to Appellant’s room, the door

was open.   He entered the room and seized Appellant’s laptop

computer and external hard drive.

     CPT Miller viewed files on Appellant’s external hard drive,

including one entitled “nasty” and a large number of files

depicting what he considered to be child pornography.   At that

time, he could not view files on Appellant’s laptop computer

because it was password protected.

     Later that evening, CPT Miller advised Appellant of his

self-incrimination rights under Article 31, UCMJ, 10 U.S.C. §

831 (2000).   Appellant said that he wanted to speak to an

attorney.   CPT Miller asked Appellant for the password to his

computer, which he provided.   CPT Miller used the password to

search the files on Appellant’s laptop computer, leading to the

discovery of additional pornographic material.1



1
  In the present appeal, Appellant focuses on CPT Miller’s
request for his password as a factor bearing on CPT Miller’s
impartiality in the context of a search authorization under the
Fourth Amendment and Military Rule of Evidence (M.R.E.) 315.
Appellant does not contend that CPT Miller’s request for his
password violated either his privilege against self-
incrimination or his right to counsel.

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United States v. Huntzinger, No. 09-0589/AR


     The following day, two agents of the United States Army

Criminal Investigation Command (CID) conducted an investigation

into the incident.   Appellant signed a consent form, agreeing

to the search of his laptop computer, external hard drive, and

an SD memory card.   Later analysis of these sources identified

evidence admitted against Appellant at trial.

     The military judge denied the motion to suppress, ruling

that CPT Miller had probable cause to search and seize

Appellant’s computer and hard drive under M.R.E. 315 and the

Fourth Amendment.    He found that CPT Miller based his decision

on reliable information regarding the discovery of child

pornography on PFC Parr’s computer, as well as information

indicating that the pornography had been provided to PFC Parr by

one of three identified soldiers, including Appellant.    The

military judge also cited four additional grounds for denying

the motion even if CPT Miller did not have probable cause to

order the search:    (1) the evidence was admissible under the

good faith exception set forth under M.R.E. 311(b)(3) because

CPT Miller had a substantial basis for determining probable

cause, and officials executing the search and seizure acted

reasonably and in good faith; (2) the evidence was admissible

pursuant to the inevitable discovery exception under M.R.E.

311(b)(2); (3) Appellant had no reasonable expectation of

privacy in combat zone living quarters that were highly


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United States v. Huntzinger, No. 09-0589/AR


regulated and subject to regular inspections; and (4) Appellant

voluntarily consented to the CID search of his computer.        The

Court of Criminal Appeals affirmed the military judge’s ruling,

but expressly declined to reach the consent issue.



                            II.    DISCUSSION

      We review a military judge’s denial of a motion to suppress

for an abuse of discretion.    United States v. Leedy, 65 M.J.

208, 212 (C.A.A.F. 2007).   An abuse of discretion occurs when

the military judge’s findings of fact are clearly erroneous or

based upon a misapprehension of the law.        Id. at 213.   In the

present case, we consider whether the military judge abused his

discretion when he ruled as a matter of law that there was a

substantial basis for finding probable cause existed under

M.R.E. 315(f)(2).   See id. at 212 (citing United States v.

Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).     We review the legal

question of sufficiency for finding probable cause de novo,

using a totality of the circumstances test.       Id.



 A.   EXPECTATION OF PRIVACY IN APPELLANT’S QUARTERS (ISSUE I)

      At the outset, we note that the granted issues concern the

unique powers of search and seizure granted to military

commanders under the application of the Fourth Amendment to

members of the armed forces.      See, e.g., M.R.E. 311-317.    These


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United States v. Huntzinger, No. 09-0589/AR


rules apply in domestic and deployed locations.    Although the

application of the rules and the exceptions therein depend upon

the context, there is no general exception for locations or

living quarters in a combat zone.     See United States v.

Poundstone, 22 C.M.A. 277, 279, 46 C.M.R. 277, 279 (1973).

       In the present case, Appellant lived in a room that could

be locked to prevent entry.   The Government did not demonstrate

at trial or on appeal that the case involved special

circumstances in which Appellant would have no expectation of

privacy in such a room, nor did the Government rely at trial or

on appeal on a commander’s powers of inspection under M.R.E.

313.   Under these circumstances, we consider the present case in

light of the military judge’s primary ruling regarding probable

cause and we do not rely on the alternate ruling, raised in

Issue I, in which the military judge held that Appellant had no

reasonable expectation of privacy in his living quarters.


  B.   DISQUALIFICATION OF THE COMMANDER UNDER M.R.E. 315 (ISSUE
II)

       A military commander may authorize a search based upon

probable cause with respect to persons or property under the

control of the commander in accordance with M.R.E. 315(d)(1).2

Appellant contends that the commander was disqualified from

2
 The constitutionality of M.R.E. 315(d)(1) (describing the
search authorization powers of military commanders) is not at
issue in the present appeal.

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United States v. Huntzinger, No. 09-0589/AR

granting the search authorization in the present case based upon

his involvement in the investigation.

     M.R.E. 315(d) provides that a person authorizing a search

under the rule must be “an impartial individual.”   The

evaluation of impartiality includes consideration of whether a

commander’s actions call into question the commander’s ability

to review impartially the facts and circumstances of the case.

See United States v. Freeman, 42 M.J. 239, 243 (C.A.A.F. 1995);

Unites States v. Middleton, 10 M.J. 123, 129 (C.M.A. 1981);

United States v. Powell, 8 M.J. 260, 261 (C.M.A. 1980); United

States v. Sam, 22 C.M.A. 124, 127, 46 C.M.R. 124, 127 (1973);

United States v. Drew, 15 C.M.A. 449, 453, 35 C.M.R. 421, 425

(1965).   To the extent that our case law has indicated that a

commander acting as a “law enforcement official” with a “police

attitude” may be disqualified from authorizing a search, see,

e.g., Freeman, 42 M.J. at 243, the disqualification applies when

the evidence demonstrates that the commander exhibited bias or

appeared to be predisposed to one outcome or another.     The

participation of a commander in investigative activities in

furtherance of command responsibilities, without more, does not

require a per se disqualification of a commander from

authorizing a search under M.R.E. 315.   See, e.g., id.    In that

regard, a commander’s direction to take reasonable investigative

steps to ascertain the facts prior to making an impartial


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United States v. Huntzinger, No. 09-0589/AR

probable cause decision does not disqualify the commander from

issuing a search authorization under M.R.E. 315.    Compare United

States v. Ezell, 6 M.J. 307, 320-22 (C.M.A. 1979) (commander

disqualified because of bias related to prior disciplinary

issues involving accused), with United States v. Hall, 50 M.J.

247, 251 (C.A.A.F. 1999) (commander not disqualified because he

showed no “foul motivation” or “vindictiveness”).

     Appellant asserts that CPT Miller’s actions demonstrate

that he was performing law enforcement functions and did not

possess a neutral and detached demeanor.     Appellant claims that

CPT Miller’s testimony during the motion hearing before the

military judge suggested that he never intended to authorize a

search under M.R.E. 315, and that he did not understand the

legal requirements of such a search.   “[T]here is no

constitutional requirement that the person [issuing the search

authorization] have some minimal legal or educational

qualifications.”   United States v. Lopez, 35 M.J. 35, 40 (C.M.A.

1992) (citing Shadwick v. City of Tampa, 407 U.S. 345 (1972)).

As we stated in Lopez, the requirement for impartiality serves

to establish “an orderly process and prevent the magistrate from

representing a law enforcement interest while at the same time

authorizing searches and seizures.”    Id.

     The record does not demonstrate that CPT Miller was biased

or participated in the investigation to such an extent, or in


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United States v. Huntzinger, No. 09-0589/AR

such a manner, that he compromised his ability to act

impartially.   The critical inquiry involves whether the

commander conducted an independent assessment of the facts

before issuing search authority and remained impartial

throughout the investigation process.   See Lopez, 35 M.J. at 41.

(noting that a commander will be disqualified if the

authorization to search is motivated by revenge).

     CPT Miller did not predetermine any issues or the outcome

of the probable cause decision prior to hearing and viewing the

evidence.   When he learned that child pornography was

potentially circulating among members of his unit after being

approached by SFC Powell, CPT Miller took appropriate follow-up

action by ordering 1SG Goodwater to investigate and report back

to him.   In doing so, CPT Miller acted impartially in

authorizing the search, reflecting a desire to establish facts

before ordering the seizure of Appellant’s computer equipment.

Significantly, CPT Miller did not authorize the search until

after 1SG Goodwater had narrowed the potential suspects to three

soldiers, including Appellant.

     CPT Miller maintained a degree of “control” over the

investigation by directing 1SG Goodwater to speak to SFC Powell

and to PFC Parr, but such actions do not suggest bias or

predisposition.   CPT Miller’s actions were consistent with his

responsibility as a commander to obtain the facts necessary to


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United States v. Huntzinger, No. 09-0589/AR

determine whether a search authorization should be issued.

After the facts were developed, CPT Miller determined that he

had probable cause to authorize the search and seizure of the

computer.   His subsequent actions, such as requesting the

computer password from Appellant, reviewing the files on the

computer, and evaluating the evidence, reflect the reasonable

actions of a commander charged with maintaining good order and

discipline within his unit.   These actions do not demonstrate

that his prior actions, in the course of considering whether to

authorize the search, were undertaken on the basis of bias or

predisposition.   In that context, we do not treat his decision

to review the evidence following the search and seizure as

retroactively invalidating his prior actions.    There was nothing

so unusual about CPT Miller’s evaluation of the evidence that

warrants a conclusion that he approached his duties under M.R.E.

315 with an impermissible bias.    Having made a decision to

authorize the search, he was not disqualified from viewing the

fruits of the search for the purposes of exercising his

responsibilities over the unit as a commander.

 C.   PROBABLE CAUSE (ISSUE IV)

      M.R.E. 315(f)(2) defines probable cause as “a reasonable

belief that the person, property, or evidence sought is located

in the place or on the person to be searched.”   Within these

parameters, “the duty of a reviewing court is simply to ensure


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United States v. Huntzinger, No. 09-0589/AR

that the magistrate had a ‘substantial basis for . . .

[concluding]’ that probable cause existed.”   Illinois v. Gates,

462 U.S. 213, 238-39 (1983) (alterations in original) (quoting

Jones v. United States, 362 U.S. 257, 271 (1960)).    We apply

four key principles in reviewing probable cause determinations

under M.R.E. 315:    (1) we view the facts in the light most

favorable to the prevailing party; (2) we give substantial

deference to the probable cause determination made by a neutral

and detached magistrate; (3) we resolve close cases in favor of

the magistrate’s decision; and (4) we view the facts in a

commonsense manner.    See United States v. Macomber, 67 M.J. 214,

218 (C.A.A.F. 2009).

     Probable cause to search in this case was based on

information provided to CPT Miller by SFC Powell and PFC Parr.

Each independently viewed a computer file seemingly portraying

child pornography.    The information identified a small number of

specific individuals involved in the file sharing, including

Appellant.   CPT Miller chose not to rely on this information

alone, and he personally viewed the videos described by SFC

Powell and PFC Parr.   In describing his decision to authorize a

search, CPT Miller testified:

     Sergeant Powell shared files with Parr. They both had
     the same clip on both computers. Parr then name[d]
     three other individuals who he shared files with. So,
     it seemed logical to me that somewhere there might be
     more additional videos depicting, you know,


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United States v. Huntzinger, No. 09-0589/AR

     pornographic acts because the guy had shared with Parr
     and they both had the same clip on their computers and
     Parr stated he shared files with three other
     individuals. So, I felt relatively confident that
     what I was looking for -- the contraband items were
     probably on those three laptops . . . as well.

     Based upon these facts, the military judge appropriately

concluded that CPT Miller had a substantial basis for making a

probable cause determination to authorize the search.   In view

of our conclusion in this regard, it is not necessary to address

the military judge’s alternate rulings that relied on the

doctrines of good faith or inevitable discovery (Issue III).



                        III.   CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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