United States v. Shields ( 2023 )

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ethan R. SHIELDS, Staff Sergeant
United States Marine Corps, Appellant
No. 22-0279
Crim. App. No. 202100061
Argued February 21, 2023—Decided April 28, 2023
Military Judges: Derek D. Butler (arraignment) and
Eric A. Catto (motions and trial)
For Appellant: Lieutenant Aiden J. Stark, JAGC,
USN (argued).
For Appellee: Captain Tyler W. Blair, USMC (ar-
gued); Colonel Joseph M. Jennings, USMC, Lieuten-
ant Gregory A. Rustico, JAGC, USN, and Brian K.
Keller, Esq. (on brief); Lieutenant James P. Wu Zhu,
JAGC, USN.
Chief Judge OHLSON delivered the opinion of the
Court, in which Judge SPARKS, Judge MAGGS,
Judge HARDY, and Judge JOHNSON joined.
_______________
United States v. Shields, No. 22-0279/MC
Opinion of the Court
Chief Judge OHLSON delivered the opinion of the
Court.
This Court again confronts the issue of what constitutes
a reasonable search of a servicemember’s phone. And as al-
ways, the resolution of this issue depends on the specific
facts of the case.
In the instant case, Appellant’s phone was lawfully
seized to search for location data generated on a specified
date. After a digital forensic examiner extracted images
from Appellant’s phone, he sorted them by file size rather
than first filtering them by the date specified in the search
authorization. Upon doing so, the forensic examiner saw a
thumbnail image of what he suspected was child pornogra-
phy. After obtaining an expanded search authorization, the
examiner indeed found evidence of child pornography, as
well as indecent recordings, and Appellant was eventually
charged and convicted of offenses related to those images.
At trial, Appellant filed a motion to suppress this evi-
dence obtained from his phone on the grounds that the
search violated his Fourth Amendment rights. The mili-
tary judge denied the motion. We granted review of the fol-
lowing issue:
Where the search authorization only sought ma-
terials from one date, but the government looked
at images irrespective of that date, did the mili-
tary judge abuse his discretion by finding the
search did not violate the Fourth Amendment?
United States v. Shields, 83 M.J. 95 (C.A.A.F. 2022) (order
granting review).
For the reasons set forth below, we hold that the search
did not infringe upon Appellant’s constitutional rights. Ac-
cordingly, we hold that the military judge did not abuse his
discretion in denying the defense motion to suppress. We
therefore affirm the judgment of the United States Navy-
Marine Corps Court of Criminal Appeals (NMCCA).
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Opinion of the Court
I. Background
On December 23, 2018, nine Marine recruits reported
to their chain of command that the driver of a car exposed
his genitals to them while they were walking on base at the
Marine Corps Recruit Depot, Parris Island. A preliminary
investigation pointed to Appellant as the culprit. To con-
firm Appellant’s whereabouts on December 23, law enforce-
ment obtained a search authorization that permitted them
to search for “all location data stored on [Appellant’s]
phone or within any application within the phone for 23
Dec [20]18.” By searching Appellant’s phone for location
data, law enforcement hoped to pinpoint Appellant at the
scene of the exposure. For reasons unclear in the record,
this search authorization was not issued until May 2, 2019.
Appellant surrendered his iPhone to military law en-
forcement that same day. It was then sent to the Defense
Cyber Crime Center (DC3) which extracted all data from
the iPhone for digital forensic analysis. The designated fo-
rensic examiner was provided with a copy of the search au-
thorization which he read before beginning his search. He
then used software known as Cellebrite Physical Analyzer
(Cellebrite) to organize the extracted data into a readable
format so he could begin his search. He initially searched
through the “parsed data,” which is sorted into categories,
such as “device locations,” “internet history,” “texts,” and
“images.” The examiner next searched within the “device
locations” category but was unable to find any relevant lo-
cation data from December 23, 2018. Since the most obvi-
ous place to search was unfruitful, the examiner deter-
mined he needed to broaden his search.
Based on his training and experience, the examiner
knew that image files often contain embedded unparsed
Global Positioning System (GPS) location information.
With this in mind, he proceeded to open the “images” cate-
gory. This placed the over 200,000 images extracted from
Appellant’s phone into “row after row after row of little
thumbnail views” of individual pictures. With a single click
of his computer mouse, the examiner reorganized these
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United States v. Shields, No. 22-0279/MC
Opinion of the Court
images into a “table view.” This table view arranged each
thumbnail image in its own row with corresponding col-
umns which contained pertinent data such as filename, file
size, and date the file was created. Once in table view, the
examiner was able to further sort and filter these images.
The examiner then sorted the images by file size in de-
scending order. This step bumped previously unseen im-
ages to within his view. In other words, the images taking
up the most digital storage percolated to the top of the ex-
aminer’s screen. The examiner testified that his intent af-
ter sorting the images from largest to smallest was to begin
filtering by date. However, before he could apply a date fil-
ter to isolate images from December 23, he immediately no-
ticed a thumbnail image of what he believed to be a depic-
tion of child pornography. The examiner testified that this
image was visible within his screen without scrolling. The
examiner did not click on, open, or manipulate the sus-
pected contraband image. Instead, he stopped his search
and consulted with his supervisor. Together, they deter-
mined not to continue with the search until after obtaining
a new search authorization. The examiner resumed his
search once he received an additional search authorization
allowing him to search for suspected child pornography.
This broadened search uncovered evidence of additional
misconduct, including child pornography and indecent re-
cordings, for which Appellant was eventually charged.
Before trial, Appellant moved to suppress evidence ob-
tained from the expanded search. Appellant claimed the
original search violated his Fourth Amendment rights be-
cause the examiner sorted by file size before filtering by
date. Essentially, Appellant argued the examiner exceeded
the scope of the search authorization. To support this
claim, the defense hired a digital forensic expert. An Article
39(a), Uniform Code of Military Justice (UCMJ), 1 session
was held where the parties presented additional evidence
and offered oral argument. The defense expert testified
that the examiner should not have initiated his search by
1 10 U.S.C. § 839(a) (2018).
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Opinion of the Court
sorting by file size, and that if he had not done so the con-
traband image would not have come into the examiner’s
view. Fundamentally, Appellant argued that there was no
proper reason for the examiner to first sort by file size and
by doing so, the examiner violated Appellant’s Fourth
Amendment rights.
After considering the defense motion, the Government’s
response, and the evidence and arguments presented by
counsel, the military judge denied the motion to suppress.
The military judge found that the search of the content of
Appellant’s iPhone “was conducted lawfully, since it was
conducted in a reasonable manner and did not exceed the
scope” of the search authorization. The military judge ex-
plained that the examiner saw the suspected image of child
pornography during the “process of trying to sort the im-
ages by size and date.” He noted that the suspect image
was the tenth image from the top of the screen, “not some-
thing like the 300th image out of 220,141, which suggests
that this contraband image was in plain view.”
After the military judge’s denial of the motion to sup-
press, Appellant entered into a plea agreement with a mix
of conditional and unconditional pleas. The conditional
guilty pleas allowed Appellant the right to appeal the mil-
itary judge’s suppression rulings, including his motion re-
garding the phone search. Pursuant to Appellant’s uncon-
ditional pleas, a military judge, sitting alone as a general
court-martial, found Appellant guilty of one specification of
indecent exposure, in violation of Article 120c, UCMJ, 10
U.S.C. § 920c (2018). Pursuant to Appellant’s conditional
pleas, the military judge convicted Appellant of one speci-
fication of attempted indecent visual recording, one speci-
fication of wrongful use of a controlled substance, one spec-
ification of indecent visual recording, and one specification
of viewing child pornography, in violation of Articles 80 and
120c, UCMJ, 10 U.S.C. §§ 880, 920c (2012), and Articles
112a and 134, UCMJ, 10 U.S.C. §§ 912a, 934 (2018). The
military judge then sentenced Appellant to a dishonorable
discharge, confinement for fifty-two months, reduction to
the grade of E-1, and forfeiture of all pay and allowances
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United States v. Shields, No. 22-0279/MC
Opinion of the Court
for fifty-two months. The convening authority approved the
sentence as adjudged.
On appeal to the NMCCA, Appellant asserted two as-
signments of error, including whether “the forensic search
of Appellant’s cellphone constituted an unlawful general
search in violation of the Fourth Amendment.” United
States v. Shields, No. NMCCA 202100061, 2022 CCA
LEXIS 448, at *1, 2022 WL 2966378, at *1 (N-M. Ct. Crim.
App. July 27, 2022) (per curiam) (unpublished). In render-
ing its opinion, the NMCCA determined:
While we find the DC3 examiner’s search
methodology concerning, we find no abuse of dis-
cretion in the military judge’s ruling. . . .
....
. . . [W]e do not find that the military judge clearly
erred when he found “no evidence to suggest that
[the examiner] was rummaging through areas of
[Appellant’s phone] where the [search authoriza-
tion] did not allow him to look.” Although the ex-
aminer’s search methodology was less than ideal,
it was directed toward finding location data for 23
December 2018, in compliance with the search au-
thorization. There is nothing in the record that in-
dicates he was deliberately searching for child
pornography, and once he saw the image at issue
he immediately halted the search without further
manipulating it and sought a new authorization.
Id. at *12-16, 2022 WL 2966378, at *5-6 (second, third, and
fourth alterations in original) (footnotes omitted).
After considering Appellant’s other assignment of error,
the lower court affirmed the findings and sentence. We
granted review to determine whether the military judge
abused his discretion by not suppressing the evidence from
the forensic examiner’s search.
For the reasons articulated below, we hold that the
military judge did not abuse his discretion when he
concluded that the forensic examiner’s search was
conducted lawfully.
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United States v. Shields, No. 22-0279/MC
Opinion of the Court
II. Standard of Review
“This Court reviews a military judge’s ruling on a mo-
tion to suppress evidence for an abuse of discretion.”
United States v. White, 80 M.J. 322, 327 (C.A.A.F. 2020).
An abuse of discretion occurs when a military judge’s “find-
ings of fact are clearly erroneous, the court’s decision is in-
fluenced by an erroneous view of the law, or the military
judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and
the law.” United States v. Finch, 79 M.J. 389, 394 (C.A.A.F.
2020) (citation omitted) (internal quotation marks omit-
ted). “An abuse of discretion must be more than a mere dif-
ference of opinion. The challenged action must be arbi-
trary, fanciful, clearly unreasonable, or clearly erroneous.”
United States v. Black, 82 M.J. 447, 451 (C.A.A.F. 2022)
(citation omitted) (internal quotation marks omitted). “A
finding of fact is clearly erroneous when there is no evi-
dence to support the finding, or when, although there is ev-
idence to support it, the reviewing court on the entire evi-
dence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Criswell, 78
M.J. 136, 141 (C.A.A.F. 2018) (citations omitted) (internal
quotation marks omitted). “When reviewing a lower court’s
decision on a military judge’s ruling, we ‘typically have
pierced through that intermediate level and examined the
military judge’s ruling, then decided whether the Court of
Criminal Appeals was right or wrong in its examination of
the military judge’s ruling.’ ” United States v. Blackburn,
80 M.J. 205, 211 (C.A.A.F. 2020) (quoting United States v.
Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006)).
“In reviewing a ruling on a motion to suppress, the evi-
dence is considered in the light most favorable to the party
that prevailed on the motion,” which in this case is the Gov-
ernment. Id.III. Applicable Law
The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. These
constitutional protections fully apply to cell phone
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United States v. Shields, No. 22-0279/MC
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searches. Riley v. California, 573 U.S. 373, 386 (2014). A
search conducted pursuant to a search authorization is
presumptively reasonable. United States v. Wicks, 73 M.J.
93, 99 (C.A.A.F. 2014).
Appellant does not contend that the search authoriza-
tion was facially invalid or that it failed the particularity
requirement. Rather, the crux of the dispute before us is
whether the search methodology employed by the examiner
was unreasonable and, therefore, unconstitutional. As we
have previously advised, it “is folly for a search warrant to
attempt to structure the mechanics of the search and a
warrant imposing such limits would unduly restrict legiti-
mate search objectives.” United States v. Richards, 76 M.J.
365, 369 (C.A.A.F. 2017) (internal quotation marks omit-
ted) (quoting United States v. Burgess, 576 F.3d 1078,
1094–95 (10th Cir. 2009)). And as emphasized by the Su-
preme Court, “the manner in which a warrant is executed
is subject to later judicial review as to its reasonableness.”
Dalia v. United States, 441 U.S. 238, 258 (1979). “Instead
of attempting to set out bright line rules for limiting
searches of electronic devices, the courts have looked to
what is reasonable under the circumstances.” Richards, 76
M.J. at 369.
[O]ne exception to the warrant requirement for
items not otherwise subject to a lawful search is
the plain view doctrine, which allows law
enforcement officials conducting a lawful search
to seize items in plain view if they are acting
within the scope of their authority and have
probable cause to believe the item is contraband
or evidence of a crime.
United States v. Gurczynski, 76 M.J. 381, 387 (C.A.A.F.
2017). “A prerequisite for the application of the plain view
doctrine is that the law enforcement officers must have
been conducting a lawful search when they stumbled upon
evidence in plain view.” Id. at 388; see also Military Rule of
Evidence (M.R.E.) 316(c)(5)(C) (The plain view doctrine
permits an investigator to seize evidence, without a search
authorization, if that “person while in the course of other-
wise lawful activity observes in a reasonable fashion . . .
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Opinion of the Court
evidence that the person has probable cause to seize.”). In
other words, for the plain view exception to apply here:
(1) the examiner must not have violated the Fourth
Amendment in arriving at the spot from which he plainly
viewed the suspected incriminating image; (2) the incrimi-
nating character of the image must have been immediately
apparent to the examiner; and (3) the examiner must have
had lawful access to Appellant’s iPhone. See Richards, 76
M.J. at 371.
In Arizona v. Hicks, 480 U.S. 321 (1987), the Supreme
Court identified two principles closely related to the plain
view doctrine. One is that “[m]erely inspecting” items that
come into view while conducting a lawful search for other
items produces “no additional invasion” of an individual’s
privacy interests. Id. at 325. But on the other hand, “taking
action, unrelated to the objectives of the authorized intru-
sion, which expose[] to view concealed [items]” invades pri-
vacy protected by the Fourth Amendment. Id.IV. Discussion
Appellant asserts that two acts by the examiner consti-
tuted a Fourth Amendment violation. First, the examiner
initially sorted the extracted image files by size. Appellant
maintains that sorting by size first, rather than filtering by
date, was “unexplainable and patently unreasonable.”
Brief for Appellant at 25, United States v. Shields, No. 22-
0279 (C.A.A.F. Dec. 21, 2022). Second, Appellant alleges
that after sorting by size, the examiner could not have seen
the suspected child pornography photograph without
scrolling. According to Appellant, Cellebrite’s table view
function only displayed eight images at one time. Because
the suspected contraband was purportedly the tenth im-
age, the examiner necessarily scrolled through the list, and
this scrolling meant that the image was not initially in
plain view. We address each of Appellant’s claims in turn.
A. The initial sorting
Appellant claims that the military judge’s decision to
deny the suppression motion was predicated on three
clearly erroneous findings of fact. First, the military judge
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Opinion of the Court
erroneously determined there was no evidence to suggest
that the examiner was searching unauthorized areas of Ap-
pellant’s phone. Second, the military judge erroneously de-
termined the examiner saw the suspected contraband im-
age during the process of trying to sort the images by size
and date. Finally, the military judge erred in finding the
examiner attempted to stay within the scope of the search
authorization. We are not persuaded in regard to any of
these points raised by Appellant.
When the Fourth Amendment and technology inter-
sect—as is the case here—military judges may need to hear
from, and rely on, expert witnesses. And here, the military
judge properly heard from two experts with conflicting
views on best practices when using the Cellebrite software.
Given the evidence in the record before us and recognizing
that the military judge was entitled to credit one expert
over another, we do not find that any of these findings by
the military judge were clearly erroneous, especially when
the evidence is viewed in a light most favorable to the Gov-
ernment. (We caution, however, that a different military
judge could have properly credited the defense expert’s tes-
timony and then concluded that the forensic examiner’s
search methods were improper and constituted a violation
of the Fourth Amendment.)
We reiterate that as “ ‘always under the Fourth Amend-
ment, the standard is reasonableness.’ ” Richards, 76 M.J.
at 369 (quoting United States v. Hill, 459 F.3d 966, 974 (9th
Cir. 2006)). And when it comes to cell phones and comput-
ers, although one search method may be objectively “bet-
ter” than another, a search method is not unreasonable
simply because it is not optimal. Here, the examiner was
not rummaging through Appellant’s phone, even though
the defense expert pointed to a different—and perhaps
even better—way to conduct the search.
After the examiner unsuccessfully searched the iPh-
one’s location data, he appropriately determined he needed
to broaden his search. See, e.g., United States v. Loera, 923
F.3d 907, 920 (10th Cir. 2019) (“The reasonableness of a
search evolves as the search progresses and as the
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United States v. Shields, No. 22-0279/MC
Opinion of the Court
searching officer learns more about the files on the device
that he or she is searching.”).
The examiner articulated his reason for then looking in
other areas of the cell phone that might contain location
information. He testified that based on his training and
personal experience, Cellebrite’s sorting function often
misses data. The examiner expressed his belief that had he
relied solely on this sorting software, he would have missed
potentially relevant data. He testified that he then decided
to search for GPS data within user-generated photographs
because those files often contain location data. He stated
that larger image files are more likely to be user-generated
photographs. The examiner reasoned that sorting by size
first would bring user-generated images to the top of his
screen, and therefore he would see an array of files that
were more likely to contain location data. He further de-
scribed his thought process that, by taking this approach,
he would not have to re-sort every time he applied a new
filter. He confirmed that after sorting by file size, his next
step was going to be filtering for the date indicated in the
authorization. Accordingly, the examiner was in the pro-
cess of sorting the images by date when he came across the
suspected image of child pornography.
In an exhibit filed with the defense motion to suppress,
the examiner elaborated in an email on why he did not first
apply a date filter when searching Appellant’s phone:
I had a conversation with one of our top exam-
iners, he is very much in agreement that my
thought process was reasonable as it is well
known that photos are often embedded with GPS
data, and my job is to analyze ALL DATA on the
device, and not just throw the extraction into a
tool and start filtering for dates that may or may
not include all data.
Appellant latches onto this “ALL DATA” language as a
clear articulation of the examiner’s supposed disregard of
the parameters of the search authorization. But the record
indicates that Appellant misapprehends the meaning of
the examiner’s statement. The search authorization was
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Opinion of the Court
for “all location data stored on the phone or within any ap-
plication within the phone” for December 23, 2018. Thus,
the examiner was authorized to search “all data” on the de-
vice for files containing location information corresponding
to a specific date. The examiner’s “ALL DATA” comment,
taken in context with the rest of his statement, indicates
that by using this term he was solely referring to the fact
that he was not restricted to certain types of data, (e.g., im-
ages, texts, internet browsing history), when searching Ap-
pellant’s phone for location information from December 23,
2018. Therefore, the examiner was not searching “unau-
thorized areas” of the cell phone, and his email is not evi-
dence of “intentional disregard” of the limitations of the
search authorization.
This brings us to what may appear to be the circuitous
nature of the examiner’s search. If the examiner knew the
specific date to search—December 23, 2018—then why
didn’t he first filter by date and then sort by size? Indeed,
it was feasible for him to do so. But again, based on that
fact alone we cannot conclude that the examiner’s actions
here amounted to the “general exploratory rummaging”
that the Fourth Amendment is designed to prevent. Rich-
ards, 76 M.J. at 369 (internal quotation marks omitted)
(quoting United States v. Carey, 172 F.3d 1268, 1272 (10th
Cir. 1999)).
It may be difficult for an individual lacking firsthand
experience with Cellebrite or other digital forensic software
(such as a military judge, perhaps) to have an informed
opinion on the reasonableness of an examiner’s methodol-
ogy. Thus, it was permissible for the military judge in this
case to rely on expert testimony to assist him in assessing
this important issue. See M.R.E. 702(a) (providing that an
expert witness may provide testimony if it “will help the
trier of fact to understand the evidence or to determine a
fact in issue”). Here, the military judge recognized the fo-
rensic examiner as an expert in digital forensic examina-
tions, and Appellant does not challenge that finding on
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Opinion of the Court
appeal. 2 Nonetheless, we acknowledge that the defense ex-
pert concluded that the forensic examiner “employed poor
forensic search techniques” and that the search should
have been conducted according to the procedures outlined
in the defense expert’s report. But at bottom, the examiner
and the defense expert simply disagreed on the best meth-
odology for searching Appellant’s phone.
Appellant claims the military judge “wholly disregarded
the directly contradicting testimony” from the defense ex-
pert. Brief for Appellant at 32, United States v. Shields, No.
22-0279. But the military judge, as the trier of fact, had the
discretion—indeed, responsibility—to credit one expert
over another. See United States v. Sanchez, 65 M.J. 145,
153 (C.A.A.F. 2007) (noting that the trier of fact “ ‘must de-
cide among the conflicting views of different experts’ ”
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153
(1999))); Wipf v. Kowalski, 519 F.3d 380, 385 (7th Cir. 2008)
(“[I]n a case of dueling experts . . . it is left to the trier of
fact, not the reviewing court, to decide how to weigh the
competing expert testimony.”); United States v. Pervis, 937
F.3d 546, 554 (5th Cir. 2019) (“Though we are to take a
hard look at the record, it is not our task, as an appellate
court, to relitigate the battle of the experts.” (alteration in
original removed) (citation omitted) (internal quotation
marks omitted)). Because the military judge was entitled
to credit the forensic examiner over the defense expert,
there is sufficient evidence in the record to support the mil-
itary judge’s findings in this case. And upon reviewing the
2 Appellant does, however, argue the examiner’s Cellebrite
certification had expired, and therefore the examiner was less
credible than the defense expert, who had three active certifica-
tions related to Cellebrite. But the status of certifications is not
dispositive of such an issue, and the military judge still had the
authority to recognize the examiner as an expert. See M.R.E. 702
(permitting an expert to be qualified by reason of knowledge,
skill, or experience rather than education); United States v.
Flesher, 73 M.J. 303, 316 (C.A.A.F. 2014) (noting “ ‘experience in
a field may offer another path to expert status’ ” (internal quo-
tation marks omitted) (quoting United States v. Frazier, 387
F.3d 1244, 1260-61 (11th Cir. 2004))).
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Opinion of the Court
entire record before us, we are not “left with the definite
and firm conviction that a mistake has been committed.”
Criswell, 78 M.J. at 141 (citation omitted) (internal quota-
tion marks omitted).
In light of the evidence before us, we conclude the mili-
tary judge reasonably found that the forensic examiner dis-
covered the suspected contraband while trying to sort the
images by size and date, and that the examiner attempted
to stay within the scope of the authorization. We do not
deny that the defense expert might have conducted a nar-
rower search. But given the examiner’s explanation of why
he sorted by file size first, and the competing expert testi-
mony, we cannot conclude that his methodology was unrea-
sonable. See Dalia, 441 U.S. at 257 (“[I]t is generally left to
the discretion of the executing officers to determine the de-
tails of how best to proceed with the performance of a
search authorized by warrant . . . .”).
B. The alleged scrolling
Appellant next argues that the military judge abused
his discretion by failing to find that the forensic examiner
needed to scroll through the images in order to find the sus-
pected child pornography, an act which may have negated
the applicability of the plain view doctrine to this case. Ap-
pellant seeks to support his contention by pointing to the
fact that at the Article 39(a) session, the examiner testified
to his recollection that out of over 200,000 images listed in
table view after sorting by file size, the suspected contra-
band image was the tenth picture from the top of his
screen. (Consistent with this testimony, the military judge
found that “[t]his image was the tenth image from the top”
of the examiner’s screen.) Appellant maintains, however,
that the defense expert’s declaration and corresponding
testimony establish that Cellebrite’s table view function
displays only eight lines at one time, and because the im-
age at issue was on the tenth line, the examiner necessarily
must have scrolled down in order to view the incriminating
image. According to Appellant, “scrolling through two im-
ages (the two images beyond the eight initially displayed
on [the examiner’s] monitor after he sorted them by size)
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Opinion of the Court
must have” meant that the offending image was initially
out of plain view. Brief for Appellant at 33, United States
v. Shields, No. 22-0279. But as shown below, the evidence
is not as clear-cut as the defense apparently believes.
Here, the examiner—who was recognized as an expert
in digital forensics—testified that the contraband image
“was visible within [his] screen without even scrolling.” In
addition, the defense expert’s testimony did not establish
that table view only displays eight lines; he merely stated
that “the default is eight lines.” (Emphasis added.) Indeed,
the examiner testified that the number of lines visible in
table view “depends on things like screen resolution, how
big your monitor is, [and] how you have the tool adjusted.”
Thus, it was permissible for the military judge to conclude
that the forensic examiner had a larger monitor or had
changed the software’s settings allowing him to immedi-
ately see this tenth image.
It is true the military judge did not explicitly state that
the examiner did not scroll, but it is reasonably implied in
his findings. The military judge found that before the ex-
aminer could filter by date, he “saw that one of the first ten
images, out of over 200,000 images, appeared to be an im-
age containing child pornography.” Furthermore, the mili-
tary judge found that the examiner “did not open or further
manipulate the suspect image file.” Finally, the military
judge cited approvingly the examiner’s testimony that the
suspect image “was visible within his screen without even
scrolling.” Therefore, the record adequately supports the
military judge’s finding that the examiner did not need to
scroll through the images to see the suspected child por-
nography and we are in no position to second guess that
finding. 3 And because the military judge found that the ex-
aminer did not need to scroll through the images to see the
suspected child pornography, the examiner did not take
“action, unrelated to the objectives of the authorized
3 Even if less than full deference were to apply to the military
judge’s findings, as urged by Appellant, it is entirely unclear why
this Court should then fully credit Appellant’s version of events.
15
United States v. Shields, No. 22-0279/MC
Opinion of the Court
intrusion, which exposed to view concealed [items]” in vio-
lation of the principles of Hicks, 480 U.S. at 325.
C. Conclusion
The record before us does not establish that this search
was one of the “wide-ranging exploratory searches the
Framers intended to prohibit.” Maryland v. Garrison, 480
U.S. 79, 84 (1987). Indeed, in light of our discussion above,
we conclude the military judge did not abuse his discretion
in finding that the search did not violate the Fourth
Amendment. Consequently, because the contraband was
discovered in plain view during a lawful search, the exclu-
sionary rule is not implicated. See Horton v. California, 496
U.S. 128, 141 (1990) (noting that “an object in plain view
does not involve an intrusion on privacy”).
V. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed. 4
4 It is noted that the decision of the United States Navy-Ma-
rine Corps Court of Criminal Appeals incorrectly summarized
the findings. As mentioned, Appellant was convicted of at-
tempted indecent visual recording, wrongful use of a controlled
substance, indecent exposure, indecent visual recording, and
viewing child pornography, in violation of Articles 80, 112a,
120c, and 134, UCMJ. The lower court mistakenly stated that
he also was convicted of wrongful possession of a controlled sub-
stance and possession and production of child pornography, in
violation of Articles 112a and 134, UCMJ.
16