United States v. Gregory Seerden

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4124

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY KYLE SEERDEN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)

Argued: December 11, 2018 Decided: February 20, 2019 Amended: February 21, 2019

Before WILKINSON, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, David A. Layne, Special Assistant United States Attorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. THACKER, Circuit Judge:

In January 2017 investigators with the Naval Criminal Investigation Service

(“NCIS”) obtained a military warrant to search the cell phone of Gregory Kyle Seerden

(“Appellant”) for evidence of sexual assault. During the search of Appellant’s phone, the

investigators found child pornography. On that basis, the investigators then obtained a

federal warrant to search Appellant’s phone a second time and again found child

pornography. Appellant moved to suppress the evidence, arguing that the first search

was unlawful because it violated the Military Rules of Evidence and that evidence

obtained during the second search was fruit of the poisonous tree.

Although the district court agreed that evidence obtained during the military

search was inadmissible because it violated the Military Rules of Evidence, it nonetheless

found that the good faith exception allowed the government to admit evidence discovered

via the second search.

On September 20, 2017, Appellant entered a conditional guilty plea to production

of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed

this appeal. As explained below, we affirm on different grounds.

I.

Appellant was a member of the United States Navy’s Sea, Air, and Land Team.

At all times relevant to this appeal, he was stationed in San Diego, California. But for

one week in January 2017, Appellant attended a training at the Little Creek base in

Virginia Beach, Virginia. During that week, Appellant was accused of sexual assault and

suspected of possession of child pornography.

2 On his next to last night of training in Virginia, Appellant met a woman. The

woman recalled that, during her night out with Appellant, the pair went to a few bars and

had more than a few drinks. The woman came in and out of consciousness throughout

the night, but she remembered returning to Appellant’s room in the Navy Gateway Inns

and Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to

Appellant. She learned from Appellant that, at some point during the night, they had sex.

She then left. While she was waiting for a cab at the gate of the base, she began to cry.

A service member on guard duty (a “sentry”) approached her, and she told him that

Appellant sexually assaulted her. Appellant then attempted to call her. She didn’t

answer. Meanwhile, the sentry reported the allegations to NCIS.

Later that day, NCIS began investigating the allegations. In doing so, NCIS

orchestrated a “controlled text message conversation” between the woman and Appellant.

NCIS agents had the woman text Appellant and inquire about the night in question.

During that conversation, Appellant admitted that the pair had sex and that the woman

was not sober. With that, NCIS agents began coordinating with Appellant’s commanding

officer in San Diego as well as the commanding officer of the Little Creek base to obtain

authorizations to search Appellant’s cell phone and hotel room. NCIS also consulted the

Judge Advocate General’s (“JAG”) authorities at both bases. NCIS and JAG officers

decided that the Little Creek commanding officer should authorize the search of

Appellant’s hotel room while Appellant’s commanding officer in San Diego should

authorize the search of his phone. The officers reasoned that, while the Little Creek

commanding officer had control over the base, Appellant’s commanding officer in San

3 Diego had control over Appellant. In line with that plan, Appellant’s commanding

officer in San Diego signed a Command Authorization for Search and Seizure (“CASS”)

sanctioning the search of Appellant’s phone.

The CASS sought to collect messages, photographs, videos, and any other

information related to the investigation from Appellant’s phone. In its statement of

probable cause, the affidavit supporting the CASS connected Appellant’s phone to the

alleged criminal activity by noting that Appellant attempted to call his accuser after

dropping her off at the gate. It also noted that NCIS agents orchestrated a pretext

communication between Appellant and the woman accusing him of sexual assault.

A week later, a digital forensics examiner executed the search of Appellant’s

phone. In doing so, the forensics examiner viewed thumbnail-size icons of photographs

on Appellant’s phone. The examiner, who was trained in and had experience with child

exploitation investigations, believed some of those photographs were images of child

pornography.

Based on the evidence discovered during the military search of Appellant’s phone,

NCIS obtained a federal search warrant from the Eastern District of Virginia to search

Appellant’s phone for further evidence of child pornography. Under the authority of this

second warrant, the forensics examiner continued his analysis of Appellant’s cell phone

data. He found 78 images and four videos of child pornography. The images depicted

known victims of child sexual exploitation, while the videos depicted Appellant

performing a sexual act inches from the face of a sleeping child.

4 On March 31, 2017, the Government filed a criminal complaint charging

Appellant with possession and production of child pornography. And on April 20, 2017,

a grand jury indicted Appellant for possession, production, and transportation of child

pornography. On June 6, 2017, Appellant moved to suppress the evidence obtained from

the two searches of his phone. After holding a hearing on Appellant’s motion, the district

court denied it.

The district court first concluded that the evidence obtained during the first search

was inadmissible. Applying the Military Rules of Evidence in evaluating the lawfulness

of that search, the district court reasoned that the CASS obtained by NCIS did not satisfy

the “authorization” requirement of Military Rule of Evidence 315:

Pursuant to Military Rule of Evidence 315(d), a search is valid only if it is issued by an impartial individual. An impartial individual is a commander, military judge or magistrate. Mil. R. Evid. 315(d)(1) and (2). A military commander is defined as “a commander or other person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be search is situated or found, or if that place is not under military control, having control over persons subject to military law or the law of war.” Mil. R. Evid. 315(d)(1). A military judge or magistrate “is a person who is authorized under regulations prescribed by the Secretary of Defense or the Secretary concerned.” Mil. R. Evid. 315(d)(2).

Here, the person who authorized the CASS for the first search of [Appellant’s] telephone was [Appellant’s] unit commander in San Diego, CA. Pursuant to the definitions provided in Military Rules of Evidence 315(d)(1), [Appellant’s] unit commander did not have the authority to authorize any search [conducted] on [the Little Creek base] because [Appellant’s] unit commander did not have control

5 over the place where the property or person to be searched was situated.

J.A. 215. 1 The district court further reasoned that, because of the defect in the CASS

authorization, it could not apply the exclusionary rule’s good faith exception to the

evidence obtained as a result of the first search. Citing Military Rule of Evidence 311,

the district court noted, “Pursuant to military law, evidence obtained as the result of an

unlawful search may [only] be used if . . . ‘the search or seizure resulted from an

authorization . . . issued by an individual competent to issue the authorization under Mil.

R. Evid. 315(d).’” J.A. 217–18. Because the district court found that Appellant’s

commander in San Diego was not competent to authorize the CASS, the court concluded

that “the good faith exception does not cure the first search.” Id. at 218.

Despite finding that evidence obtained during the first search was inadmissible,

the district court concluded that evidence obtained during the second search was

admissible. In doing so, the district court acknowledged that “the second search relied

upon evidence found during the first search,” J.A. 218, that the probable cause supporting

the search warrant authorizing the second search was “obtained through unlawful

means,” id. at 220, and that “[a]s a result, the magistrate judge’s subsequent issuance of a

search warrant . . . was void ab initio.” Id. at 222. Nonetheless, the district court found

that the good faith exception to the exclusionary rule permitted the admission of the

evidence obtained during the second search and denied Appellant’s motion to suppress.

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

6 Thereafter, on September 27, 2017, Appellant plead guilty to production of child

pornography. He stipulated to a written statement of facts but reserved his right to appeal

the district court’s denial of his motion to suppress. On February 15, 2018, the district

court sentenced Appellant to 324 months of imprisonment to be followed by 25 years of

supervised release. This appeal followed.

II.

Analyzing a district court’s decision to deny a motion to suppress, we review legal

conclusions de novo and factual findings for clear error. See United States v. Kolsuz, 890

F.3d 133, 141–42 (4th Cir. 2018). In doing so, we consider the evidence in the light most

favorable to the Government. See id.

III.

Appellant contends that the Military Rules of Evidence apply here and require

suppression. We hold, however, that the Fourth Amendment governs whether evidence

is admissible in federal criminal proceedings. The Military Rules of Evidence cannot

usurp the Fourth Amendment. We further hold that, even assuming the initial warrant

violated the Fourth Amendment, the good faith exception to the exclusionary rule

precludes suppression of evidence obtained from the first search. And because the good

faith exception saves the evidence of the first search, it also saves the evidence obtained

from the second search.

7 A.

At the outset, we recognize that federal courts treat searches conducted within the

confines of the military differently. As this court observed in United States v. Rendon,

“[T]he Fourth Amendment protects members of the armed services from unreasonable

searches and seizures” with “different standards than those that apply in the civilian

context.” 607 F.3d 982, 990 (4th Cir. 2010).

That is not to say that military rules wholly displace the framework of the Fourth

Amendment. To the contrary, military rules and procedures affect whether a military

search satisfies the Fourth Amendment’s reasonableness requirement. To determine

whether a search is reasonable, the Fourth Amendment requires courts to balance the

degree to which a search “intrudes upon an individual’s privacy” against “the degree to

which it is needed for the promotion of legitimate governmental interests.” Samson v.

California, 547 U.S. 843, 848 (2006) (citations omitted). The privacy and governmental

interests implicated by military searches are different from those implicated by civilian

searches: In military settings, the government has a significant interest in maintaining

order and control over its service members. See Parker v. Levy, 417 U.S. 733, 744

(1974). Meanwhile, the rights of service members must bend to meet the demands of

discipline and duty. See Burns v. Wilson, 346 U.S. 137, 140 (1953). For that reason,

federal courts consider the Military Rules of Evidence, which outline the rules and

procedures that govern how military officers conduct military searches, in evaluating the

reasonableness of military searches. See, e.g., Rendon, 607 F.3d at 990–91. And when

such a search violates those rules in a way that impedes a service member’s specific

8 expectations of privacy, “a violation of the Fourth Amendment can result.” See id. at

991.

But it does not follow that the Military Rules of Evidence themselves tie the hands

of the federal courts. “Military law, like state law, is a jurisprudence which exists

separate and apart from the law which governs in our federal judicial establishment.”

Burns, 346 U.S. at 140. Just as states “lack the power to impose on federal courts

requirements stricter than those mandated by the federal Constitution,” United States v.

Clyburn, 24 F.3d 613, 616 (4th Cir. 1994), so too does the military. To hold otherwise

would “hamper the enforcement of valid federal laws by rendering relevant and reliable

evidence unavailable.” Id. (quoting United States v. Chavez-Vernaza, 844 F.2d 1368,

1374 (9th Cir. 1987) (alteration omitted)). For that reason, the Fourth Amendment

provides the proper standard for determining whether evidence seized pursuant to a non-

federal warrant is admissible in federal court. Id. at 616–17; see also United States v.

Van Metre, 150 F.3d 339, 346–47 (4th Cir. 1998) (“[T]he proper standard for evaluating

illegal seizure claims in federal courts has uniformly been whether the actions of the state

officials in securing the evidence violated the Fourth Amendment to the United States

Constitution.” (alteration and internal quotation marks omitted)).

B.

Even assuming there was a Fourth Amendment violation here, we hold that the

good faith exception to the exclusionary rule precludes suppression.

Suppression is not itself a right explicitly bestowed by the Fourth Amendment.

Rather, suppression of evidence obtained through a search that violates the Fourth

9 Amendment is a judicially created prescription for such a violation. See United States v.

Leon, 486 U.S. 897, 909 (1984). Indeed, the exclusionary rule is primarily proscriptive:

it is designed to safeguard Fourth Amendment rights through its deterrent effect. Id. For

that reason, “evidence should be suppressed only if it can be said that the law

enforcement officer had knowledge, or may properly be charged with knowledge, that the

search was unconstitutional under the Fourth Amendment.” Illinois v. Krull, 480 U.S.

340, 348–49 (1987) (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (internal

quotation marks omitted)).

In line with that principle, the good faith exception to the exclusionary rule allows

courts to introduce evidence obtained in violation of the Constitution but in reasonable

reliance on a defective warrant. See Leon, 468 U.S. at 905. The Supreme Court has

identified only five limitations to the application of the good faith exception: (1) where a

magistrate issues a warrant based on a deliberately or recklessly false affidavit, see

Franks v. Delaware, 438 U.S. 154, 155–56 (1978); (2) where a magistrate lacks

neutrality and detachment, see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–28

(1979); (3) where a warrant is based on an affidavit “so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at

923 (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975) (Powell, J., concurring in

part)); (4) where a warrant is so facially deficient that a reasonable officer could not

believe it was valid, see id. at 923; and (5) where police recklessly maintain or knowingly

enter false information into a warrant database to enable a future arrest, Herring v. United

10 States, 555 U.S. 135, 145 (2009). Appellant argues that the CASS at issue here triggers

two of those limitations. 2

1.

Appellant argues that, because the CASS was not authorized by the commanding

officer with “control over the place where the property or person to be searched [was]

situated,” it was facially deficient to the point where “no reasonable person could have

concluded that this officer possessed authority to issue the CASS.” Appellant’s Br. 18.

That argument lacks both legal and logical support.

First, we have applied the good faith exception to warrants authorized by

magistrate judges lacking jurisdiction. See, e.g., United States v. McLamb, 880 F.3d 685,

691 (4th Cir. 2018). We have done so because “the exclusionary rule is designed to deter

police misconduct rather than to punish the errors of judges and magistrates.” Id.

(quoting Leon, 468 U.S. at 916). And suppressing evidence obtained pursuant to a

warrant issued by the wrong magistrate judge would not appreciably deter police

misconduct. Id. There is no reason to conclude that a case of the wrong commanding

officer should be treated any differently.

2 Appellant presents no independent basis for suppressing the evidence that officers obtained when they executed the federal warrant. Instead, Appellant argues that evidence obtained through the federal warrant must be suppressed because the CASS was illegal and the federal warrant was supported solely by evidence obtained through the CASS. Accordingly, the question before us is whether evidence obtained through the CASS is admissible. We need not scrutinize the federal warrant.

11 Second, we cannot say that no reasonable officer could review a CASS authorized

by the subject of the search’s commanding officer -- as opposed to the commanding

officer of the subject’s current location -- and believe it to be valid. Military Rule of

Evidence 315(d) is no bastion of clarity: it places the power to authorize searches on the

officer “who has control over the place where the property or person to be searched is

situated.” One could reasonably conclude that a military service member’s commanding

officer is the officer who has control over the place where he or she “is situated.” Indeed,

in this case, several officers reached that conclusion. NCIS consulted Appellant’s

commanding officer in San Diego and the commanding officer of the Little Creek base.

NCIS also consulted JAG attorneys at both bases. Only after taking these measures did

NCIS reach the technically incorrect conclusion that Appellant’s commander in San

Diego should authorize the search of Appellant’s phone, while the Little Creek

commanding officer should authorize the search of his hotel room. This court is not

prepared to call that conclusion, and each of those officers, unreasonable.

2.

Appellant also argues that the good faith exception cannot apply to the CASS

because it was so lacking in indicia of probable cause. But “the threshold for establishing

this exception is a high one.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).

Officers executing warrants are not often expected to question the conclusions of an

issuing authority. Id. (citing Leon, 468 U.S. at 921). For that reason, to preclude

application of the good faith exception, an officer’s reliance on an issuing authority’s

probable cause determination must have been “entirely unreasonable.” Id. at 549. That

12 was not the case here. The affidavit supporting the CASS detailed the allegations of

Appellant’s accuser. It also noted that NCIS agents orchestrated a controlled text

message conversation between Appellant and his accuser and described the admissions

that Appellant made during that conversation. Those admissions were consistent with the

allegations of Appellant’s accuser. Presented with such information, it would not be

entirely unreasonable for an officer to believe that the CASS was supported by probable

cause.

Accordingly, we hold that the good faith exception to the exclusionary rule applies

to the evidence obtained through the CASS. Evidence subsequently obtained through the

federal warrant, which was supported by the CASS evidence, is likewise admissible.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.