United States v. Osorio

66 M.J. 632, 2008 CCA LEXIS 184, 2008 WL 2149372
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 9, 2008
DocketACM 36938
StatusPublished
Cited by12 cases

This text of 66 M.J. 632 (United States v. Osorio) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Osorio, 66 M.J. 632, 2008 CCA LEXIS 184, 2008 WL 2149372 (afcca 2008).

Opinion

OPINION OF THE COURT

HEIMANN, Judge:

The appellant was tried at Wright-Patterson Air Force Base, Ohio before a military judge sitting alone as a general court-martial. Contrary to his plea, the appellant was convicted of one charge and specification of wrongful possession of child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The adjudged and approved sentence consists of a bad-conduct discharge, confinement for 12 months, and reduction to E-l.

The appellant raises four issues on appeal: (1) whether the military judge erred in failing to suppress evidence of images found on the appellant’s laptop computer hard drive; (2) whether the military judge erred in failing to suppress the evidence of images found on the appellant’s external hard drive; (3) whether the military judge erred in failing to suppress the appellant’s oral and written confessions and the additional evidence obtained during a search of the appellant’s apartment as fruit of the poisonous tree; and (4) whether the military judge’s erroneous admission of hearsay substantially prejudiced the appellant’s right to confrontation under the Sixth Amendment.1 The Court heard oral argu[634]*634ment on the first two issues.2 We conclude that the motion to suppress the images found on the appellant’s laptop, external hard drive, and the appellant’s confession, along with additional evidence obtained during the search should have been granted and set aside the charge and its specification.

Background

Senior Airman Luis Osorio was a 22-year-old airman who had served approximately 4.5 years on active duty at the time of his court-martial. He was a workgroup manager for the security forces squadron. On 12 February 2005, he attended a party with other airmen, and a game of strip poker ensued. On 25 March 2005, Special Agent (SA) AW, Air Force Office of Special Investigations (hereinafter OSI) received information that an alleged sexual assault had taken place during the night of the 12 February 2005 party. The appellant was not the suspect of the alleged assault. However, during the course of the sexual assault investigation, OSI discovered that the appellant took pictures at the party, which included photographs of partially nude people who attended the party.

Interested in the pictures for their investigation, the OSI agents approached the appellant while he was in the dayroom of a base dormitory and spoke with him about the pictures. The appellant told the agents he had saved the party pictures on his laptop, and took the agents to his off-base apartment to show them the pictures. The appellant offered to give the agents copies of the images saved on his computer, but he would not consent to turning over his laptop. After reviewing the pictures provided, the OSI, convinced that the computer may contain more pictures than provided by the appellant, sought and received search authorization from the military magistrate for the appellant’s off-base quarters. Upon receiving search authorization, the agents went back to the appellant’s apartment and seized the laptop and a digital memory card. During the course of the seizure the agents reassured the appellant that he was not suspected of any offense but advised the appellant that he had no choice but to provide the computer and memory card because they contained possible evidence. The appellant asked if he could see the warrant and the agents explained they had oral authorization, and that they would provide him with written authorization later.

A couple hours after the seizure, the appellant went to the OSI office and gave SA AW a power cord for his laptop and an external hard drive, and explained that he used both items with his laptop. The OSI agents had the appellant sign a consent form for the external hard drive. The consent form indicated that he was not suspected of any offense and he was consenting to a search of his “Western Digital External Hard Drive 120 GH.”

The following Monday, OSI, realizing that they had executed an off-base search improperly3, contacted United States Magistrate Judge SO to obtain a valid search authorization. Judge SO asked if the items had been searched yet and SA AW informed the judge that the items were in a secure area and had not been searched. Judge SO issued the warrant. The search warrant authorized search and seizure for “one Toshiba laptop computer and one digital memory card used to record photographs taken on February 12, 2005.” Significantly, the new warrant made no mention of the external hard drive appellant provided to the OSI several days before the federal warrant was obtained.

On 26 April 2005, eleven days after the initial seizure, another OSI agent, SA JL, was asked to prepare a forensic mirror image of the appellant’s hard drive to be sent to the Defense Computer Forensic Laboratory (DCFL) for analysis. She was not a case agent assigned to the case and was unaware of the objectives and the scope of the search warrant at the time of her actions. She was simply a technical expert asked to prepare the hard drive for shipment. In order to [635]*635confirm she had a made a correct functioning mirror image of the hard drive necessary for DCFL, SA JL used forensic software to view all the photos on the computer at once as thumbnails. Once she confirmed the mirror image, she had done everything necessary to fulfill her technical task.

Despite having completed her task, SA JL began reviewing the thumbnails, and noticed several thumbnails of nude persons, and decided to open the thumbnails to make sure the pictures were not “contraband.” Without opening the thumbnails, it was impossible for her to determine the true contents of the picture. Therefore, she double-clicked on one thumbnail and saw what she believed to be the image of a nude minor. She continued to open thumbnails to see how many similar pictures were on the computer and noticed several more pictures of nude minors. She then searched to see if the pictures were saved to the computer or just stored in temporary internet files, the latter of which could show that the pictures existence on the hard drive may not have been intentional. She searched the computer for 20-30 minutes and then informed the OSI agents about the photos depicting nude minors.

The OSI agents immediately confronted the appellant about the pictures and he waived his Article 31, UCMJ, 10 U.S.C. § 831 rights and made an oral and sworn confession admitting that he downloaded and possessed child pornography. The appellant consented to a search of his apartment and during that search the agents seized several compact disks (CDs).

The mirror image of the appellant’s laptop, prepared by SA JL, was ultimately sent to DCFL with a request to investigate it for child pornography in addition to the party pictures. DCFL, recognizing that the same computer was being used for two different cases, contacted OSI and requested a separate search authorization to search the media for child pornography prior to their analysis of the laptop and memory card. At this point, on 10 May 2005, SA JH sought and received a second search authorization for the laptop and memory card from the military magistrate for the base. Relying on this final warrant, DCFL searched the laptop and memory card, along with the CDs, and the external hard drive for child pornography.

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Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 632, 2008 CCA LEXIS 184, 2008 WL 2149372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-osorio-afcca-2008.