United States v. Black ( 2022 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ethen D. BLACK, Private First Class
United States Army, Appellant
No. 22-0066
Crim. App. No. 20210310
Argued March 29, 2022—Decided August 25, 2022
Military Judge: Mark A. Bridges
For Appellant: Captain Joseph A. Seaton Jr. (argued); Colo-
nel Michael C. Friess, Major Joyce C. Liu, Captain Andrew
R. Britt, and Jonathan F. Potter, Esq.
For Appellee: Captain Karey B. Marren (argued); Colonel
Christopher B. Burgess, Lieutenant Colonel Craig J.
Schapira, and Captain Dustin L. Morgan.
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, and Senior
Judge STUCKY joined. Judge SPARKS filed a separate
dissenting opinion.
_______________
Judge HARDY delivered the opinion of the Court.
Appellant loaned his cell phone to another soldier, Private
First Class (PFC) Avery, so that he could make calls, send
texts, play games, and watch YouTube while he served
overnight guard duty. While using the phone, PFC Avery
accidentally discovered potentially inappropriate images of
fellow female soldiers. PFC Avery reported the images to the
acting first sergeant, who conducted a more in-depth search
of the phone and discovered child pornography. After an
investigation by the Criminal Investigation Division (CID),
the Government charged Appellant with possession of child
pornography.
Prior to his court-martial, Appellant moved to suppress
the evidence obtained from his cell phone, arguing that the
acting first sergeant’s actions were an unlawful government
search conducted without a warrant or Appellant’s consent.
United States v. Black, No. 22-0066/AR
Opinion of the Court
The military judge granted Appellant’s motion, and the Gov-
ernment filed an interlocutory appeal with the United States
Army Court of Criminal Appeals (ACCA) which reversed. Ap-
pellant appealed the ACCA’s decision to this Court, and we
reverse again. The military judge did not abuse his discretion
in holding: (1) PFC Avery lacked common authority to con-
sent to the search of Appellant’s phone; (2) the Government
failed to prove that the evidence was subject to the inevitable
discovery doctrine; and (3) Appellant’s later voluntary con-
sent to search the phone was not sufficiently attenuated from
the unlawful search to cure that error.
I. Background
At the time of his alleged offense, Appellant’s unit was
training at the Joint Readiness Training Center (JRTC) in
Fort Polk, Louisiana. As part of his duties while at the JRTC,
Appellant served a twelve-hour guard duty shift, after which
he was relieved by a group of soldiers including PFC Avery,
who were preparing to serve the twelve-hour overnight shift.
Because PFC Avery’s cell phone was broken, he asked to bor-
row Appellant’s cell phone for the duration of the night shift.
Appellant loaned PFC Avery his cell phone, telling PFC Avery
that he could use the phone to send text messages and make
phone calls, play games, and watch YouTube, but making no
other express statements about the scope of PFC Avery’s per-
mission to use the phone. Before leaving the phone in PFC
Avery’s possession, Appellant wrote down his phone’s
passcode on the table. The passcode was sufficient to unlock
the phone’s home screen and to access all features of the
phone relevant to this case.
Later during PFC Avery’s night shift, a photo gallery no-
tification appeared on the screen of Appellant’s phone. While
attempting to swipe the notification off the screen, PFC Avery
inadvertently opened the photo gallery revealing multiple pic-
tures of clothed female soldiers. The pictures appeared to PFC
Avery and the other soldiers on guard duty to be focused on
the women’s buttocks and to have been taken without the
women’s knowledge or consent.
After the discovery of the potentially inappropriate pho-
tos, one of the soldiers called the acting first sergeant, Ser-
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Opinion of the Court
geant First Class (SFC) Manglicmot, to report a possible sex-
ual harassment incident. SFC Manglicmot came to the guard
station to assess the situation and asked to look at Appellant’s
phone so that he could verify what the soldiers had reported.
PFC Avery unlocked the phone and handed it to
SFC Manglicmot with the photo gallery open revealing the
images of the clothed women. Suspecting that there might be
further incriminating images on the phone, SFC Manglicmot
exited the photo gallery and opened other photo galleries on
Appellant’s phone, eventually discovering child pornography.
At that point, SFC Manglicmot closed the phone, returned it
to PFC Avery, and instructed the soldiers to stop using it.
SFC Manglicmot attempted to report the child pornography
to his command but was unable to reach anyone until the next
morning.
After SFC Manglicmot spoke to his command, he and CID
agents detained Appellant, seized Appellant’s phone, and
transported Appellant to the CID office for questioning. Once
there, a CID agent informed Appellant of his rights and that
he was suspected of possessing, viewing, distributing, and
manufacturing child pornography. Appellant declined to
make a statement and invoked his right to an attorney, but
nonetheless provided written consent for CID to seize and
search his phone. After CID’s search of Appellant’s phone
(and later his laptop) revealed suspected child pornography,
the Government charged Appellant with one specification of
possession of child pornography in violation of Article 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934(2018).
Prior to his court-martial, Appellant moved to suppress all
evidence and derivative evidence obtained from the search of
his cell phone. The military judge granted the motion, con-
cluding that SFC Manglicmot conducted an unlawful search
of Appellant’s phone and that the evidence must be sup-
pressed. As most relevant here, the military judge based his
decision on three conclusions of law. First, that PFC Avery
did not have common authority over Appellant’s entire phone
because Appellant loaned PFC Avery his phone for a limited
period of time and for limited purposes. Second, that even if
PFC Avery had common authority over the phone, he only
provided limited consent for SFC Manglicmot to search the
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Opinion of the Court
one photo gallery PFC Avery had already seen and not to
search the entire phone. Thus, when SFC Manglicmot exited
that photo gallery and searched additional photo galleries, he
exceeded the scope of PFC Avery’s consent. And third, that
Appellant’s written consent to search the phone failed to cure
the taint of SFC Manglicmot’s initial, unlawful search.
After the Government moved for reconsideration based on
the doctrine of inevitable discovery, the military judge further
held that the Government failed to demonstrate the evidence
from the phone would have been inevitably discovered absent
SFC Manglicmot’s illegal search. The military judge declined
to vacate his order suppressing the evidence obtained from
Appellant’s cell phone, and the Government filed an interloc-
utory appeal pursuant to Article 62, UCMJ, 10 U.S.C. § 862.
On appeal, the ACCA reversed, concluding that the
military judge abused his discretion by suppressing evidence
obtained from Appellant’s cell phone. United States v. Black,
No. ARMY Misc. 20210310, 2021 CCA LEXIS 559, at *2, 2021
WL 4953849, at *1 (A. Ct. Crim. App. Oct. 22, 2021)
(unpublished). Because this Court reviews the military
judge’s ruling directly in Article 62, UCMJ, appeals, United
States v. Pugh, 77 M.J. 1, 3 (C.A.A.F. 2017), we need not
linger on the details of the ACCA’s reasoning. In short, the
ACCA held that PFC Avery had common authority over
Appellant’s cell phone—and Appellant therefore assumed the
risk that PFC Avery would allow the Government to search
it—because Appellant provided PFC Avery with access to the
phone without placing any express restrictions or limitations
on the phone’s use. Black, 2021 CCA LEXIS 559, at *1, 2021
WL 4953849, at *1.
This Court granted review to answer the following
question:
Whether the Army Court erred in its abuse of discre-
tion analysis by (1) creating a novel test for common
authority, (2) failing to give deference to the military
judge’s findings, (3) comparing a modern cell phone
to a traditional “container,” and (4) finding error
based on a difference of opinion.
United States v. Black, 82 M.J. 229 (C.A.A.F. 2022) (order
granting review).
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II. Standard of Review
Although the granted issue focuses on the ACCA’s analy-
sis, this Court directly reviews the military judge’s decision
when presented with an interlocutory appeal. Pugh, 77 M.J.
at 3. In such appeals, we review the evidence in the light most
favorable to the prevailing party and are bound by the mili-
tary judge’s factual determinations unless they are unsup-
ported by the record or clearly erroneous. Id.
This Court reviews a military judge’s decision to suppress
evidence for an abuse of discretion. United States v. Bowen,
76 M.J. 83, 87 (C.A.A.F. 2017). An abuse of discretion occurs
when the military judge either applied the law erroneously or
clearly erred in making findings of fact. United States v. Don-
aldson, 58 M.J. 477, 482 (C.A.A.F. 2003). An abuse of discre-
tion must be “ ‘more than a mere difference of opinion. The
challenged action must be arbitrary, fanciful, clearly unrea-
sonable, or clearly erroneous.’ ” United States v. Solomon, 72
M.J. 176, 179 (C.A.A.F. 2013) (quoting United States v. White,
69 M.J. 236, 239 (C.A.A.F. 2010)).
III. Discussion
Properly stated, the question before this Court is whether
the military judge abused his discretion when he granted Ap-
pellant’s motion to suppress the evidence obtained from the
search of Appellant’s cell phone. For the reasons explained
below, we hold that he did not.
A. Common Authority
The Fourth Amendment protects against unreasonable
searches and seizures such that ordinarily searches are pro-
hibited absent a search warrant except for a “ ‘few specifically
established and well-delineated exceptions.’ ” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United
States, 389 U.S. 347, 357 (1967)). One of those exceptions is
when the Government obtains voluntary consent, which can
be provided “either from the individual whose property is
searched, or from a third party who possesses common au-
thority” over that property. Illinois v. Rodriguez, 497 U.S.
177, 181 (1990) (citations omitted); United States v. Rader, 65
M.J. 30, 32 (C.A.A.F. 2007).
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“The validity of the third party consent does not hinge on
niceties of property law or on legal technicalities,” Rader, 65
M.J. at 32 (internal quotation marks omitted) (citation omit-
ted), but is instead determined by whether the third party has
joint access or control of the property for most purposes.1 Id.;
see also Military Rule of Evidence (M.R.E.) 314(e)(2) (“A per-
son may grant consent to search property when the person
exercises control over that property.”). The burden lies with
the Government to prove by clear and convincing evidence
that a third party has joint access and control to the degree
that such control confers a right to consent to search. M.R.E.
314(e)(5). The degree of control a third party possesses over
property is a question of fact. Rader, 65 M.J. at 33. Whether
that control is sufficient to establish common authority is a
question of law. Id.
The military judge concluded that the Government failed
to establish by clear and convincing evidence that PFC Avery
possessed common authority over Appellant’s entire phone,
such that he could consent to SFC Manglicmot’s search of the
additional photo galleries. He based this conclusion on his fac-
tual findings that Appellant only loaned his phone to
PFC Avery for one night; that Appellant told PFC Avery that
he could use the phone to send text messages and make phone
calls, play games, and watch YouTube and that Appellant had
no expectation that he would do anything else with the phone;
and that Appellant never gave PFC Avery permission to look
at his photographs.
The Government argues that the military judge abused
his discretion when he concluded that PFC Avery did not
have common authority over the entire phone based on the
existence of implied—rather than express or actual—
1 In Rodriguez, 497 U.S. at 187, the Supreme Court also held
that apparent common authority can establish the proper basis for
a consent search. A person has apparent common authority to con-
sent to a search if investigators reasonably believe that the person
has authority to consent to a search, even if the person does not
actually have such authority. Id. at 188–89. This doctrine does not
apply here because SFC Manglicmot knew before he accessed Ap-
pellant’s phone that it did not belong to PFC Avery and had no rea-
son to believe that PFC Avery had any relationship to the phone
other than his possession of it at the time.
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limitations on PFC Avery’s use of the phone. The Government
contends that that PFC Avery possessed common authority
over Appellant’s phone because “Appellant provided
unlimited physical access to it, and placed no restrictions—
verbal or electronic—over the folders inside.” Because we are
aware of no binding precedent that equates physical access
with common authority or that requires express or actual
restrictions on use, we disagree that the military judge
misapplied the law.
Neither the Supreme Court nor this Court has ever held
that the scope of a person’s common authority over property
is coextensive with that person’s access to the property. If that
were true, determining whether common authority existed
would be trivial. The only question would be whether the per-
son who consented to the search had access to the searched
property. Under the Government’s theory, a property owner
would “assume the risk” that another person might provide
consent to an unlimited search by law enforcement simply by
giving that person limited, temporary possession over their
property. Yet that is not how the analysis in common author-
ity cases proceeds.
In Rader, this Court expressly rejected the idea that the
owner of a computer that was also used by a third party could
not limit the scope of the third party’s access to certain appli-
cations or files. 65 M.J. at 34. And although the Court recog-
nized that one way of restricting access was through the use
of technological restraints such as passwords or encryption,
we also acknowledged that courts should consider “whether
the defendant otherwise manifested an intention to restrict
third-party access.” Id. (internal quotation marks omitted)
(citation omitted). Accordingly, even though Appellant had
not password protected or encrypted the photo galleries con-
taining the child pornography, that does not mean that Ap-
pellant could not have excluded those galleries from the scope
of PFC Avery’s common authority.
We also disagree with the Government that it was a mis-
application of the law for the military judge to conclude that
Appellant had restricted PFC Avery’s access to the phone
without Appellant expressly telling PFC Avery what he was
not allowed to do on the cell phone. In United States v. Reister,
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this Court faced a similar question in a case where the de-
fendant had invited a third party to stay in his apartment
while he was away. 44 M.J. 409, 411 (C.A.A.F. 1996). A criti-
cal issue in the case was whether the third party’s common
authority over the apartment extended to the contents of a
closed logbook that was located on a shelf in the apartment.
Id. at 414. The Court noted that the evidence showed that the
defendant placed “no express restrictions” on the third party’s
access to the apartment, yet—contrary to the Government’s
theory—that did not end the Court’s analysis. Id. Instead, the
Court observed that the “question remains . . . whether the
logbook was in a place that was impliedly off-limits to [the
third party].” Id. (emphasis added). If implied limitations
could not define the scope of a third party’s common author-
ity, that question—and the Court’s ensuing analysis—would
have been irrelevant.
It is true that this Court has never been presented with a
case where a military judge held that an implied restriction
was sufficient to cabin a third party’s authority over shared
property, but we reject the Government’s assertion that an
implied restriction could never do so as a matter of law. Our
common authority consent cases do not support such a con-
clusion, and that view would be inconsistent with the Su-
preme Court’s guidance that the key consideration in as-
sessing Fourth Amendment consent cases is reasonableness,
rather than technical property interests. Thus the appropri-
ate question is “what would the typical reasonable person
have understood by the exchange” between Appellant and
PFC Avery. Florida v. Jimeno, 500 U.S. 248, 251 (1991); Geor-
gia v. Randolph, 547 U.S. 103, 110 (2006) (citing Katz, 389
U.S. at 352–53).2
2 Although not a factor in this case, in Randolph, the Supreme
Court further noted that widely shared social expectations carry
“great significance” in determining reasonableness in Fourth
Amendment consent cases. 547 U.S. at 111. We expect that social
expectations with respect to cell phones may be an important and
evolving consideration in future consent cases, given the unique na-
ture of those devices. See Riley v. California, 573 U.S. 373, 393–95
(2014) (discussing the various privacy considerations associated
with cell phones).
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Here, the military judge weighed the sometimes conflict-
ing testimony of Appellant and PFC Avery and specifically
considered both what Appellant told PFC Avery and what he
did not tell him. The military judge found that Appellant had
manifested an intention to restrict PFC Avery’s use of his
phone for a limited time and for the limited purposes of mak-
ing phone calls, sending text messages, playing games, and
watching YouTube. Based on these factual findings, the mili-
tary judge held that Appellant’s manifested intention cabined
PFC Avery’s common authority over the phone. In reaching
this conclusion, the military judge correctly stated the Gov-
ernment’s burden of proof and the test for common authority.
This Court’s precedent has recognized the possibility that an
implied restriction may limit the scope of common authority,
and the military judge did not misapply or misunderstand the
law when he found that the facts in this case limited
PFC Avery’s control over Appellant’s phone such that it did
not rise to a level of joint access and control sufficient to pro-
vide PFC Avery authority to consent to a search of all the
phone’s photo galleries.
Although we might have reached a different conclusion
than the military judge in the first instance, we are mindful
that there must be more than a mere difference of opinion to
establish an abuse of discretion. The military judge’s decision
was not based on clearly erroneous facts, and it was not “ar-
bitrary, fanciful, clearly unreasonable, or clearly erroneous.”
Solomon, 72. M.J. at 179 (internal quotation marks omitted)
(citation omitted). The military judge did not exhibit an erro-
neous view of the law, and he did not abuse his discretion in
suppressing the evidence obtained from Appellant’s phone.
B. Inevitable Discovery
Because the military judge did not abuse his discretion in
holding that PFC Avery did not have common authority to
consent to the search, we must next consider whether the
Government would have inevitably discovered the evidence
obtained from Appellant’s cell phone absent the illegal search.
When the Government unlawfully obtains evidence, that evi-
dence may still be admissible if “the evidence would have been
obtained even if such unlawful search or seizure had not been
made.” M.R.E. 311(c)(2). To prevail under this doctrine, the
Government must prove by a preponderance of the evidence
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that at the time of the unlawful search, government agents
were already taking actions or pursuing leads such that their
simultaneous actions and investigations would have inevita-
bly led to the discovery of the evidence even absent the un-
lawful conduct. United States v. Dease, 71 M.J. 116, 122
(C.A.A.F. 2012). This Court reviews a military judge’s ruling
on the application of the doctrine of inevitable discovery for
an abuse of discretion. Id. at 121.
Here, the Government argues that the discovery of the
child pornography on Appellant’s phone was inevitable be-
cause—even without the unlawful search of Appellant’s
phone—the following events would have occurred: (1)
SFC Manglicmot or Appellant’s command would have re-
ported Appellant to CID based solely on the pictures of the
clothed women; (2) CID would have opened an investigation
into Appellant’s misconduct; and (3) that investigation would
have resulted in a lawful search authorization for Appellant’s
cell phone that would have revealed the child pornography.
This theory is not illogical, but the military judge concluded
there was not enough evidence in the record for the Govern-
ment to carry its burden.
Neither SFC Manglicmot nor Appellant’s company com-
mander testified that they would have reported the poten-
tially inappropriate pictures of clothed women to CID or
sought a search authorization for Appellant’s phone absent
the discovery of the child pornography. And later, when CID
investigated Appellant and the contents of his cell phone after
the unlawful search, CID made no effort to investigate the
potentially improper clothed pictures, but instead exclusively
focused on the child pornography. The Government offered no
evidence suggesting that it is routine practice for CID to re-
quest search authorizations when a suspect has taken pic-
tures of fully clothed women like those PFC Avery initially
found on Appellant’s phone. And although a CID agent testi-
fied that she would have investigated Appellant for possible
Article 117a, UCMJ, 10 U.S.C. § 917a, or Article 120c, UCMJ,
10 U.S.C. § 920c, violations and sought a search authorization
even without the discovery of the child pornography, the mil-
itary judge found that her testimony was not credible based
on her actual investigation and the fact that Appellant’s al-
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Opinion of the Court
leged misconduct with respect to the nonconsensual photo-
graphs of clothed women did not qualify as an offense under
either Article 117a, UCMJ, or under Article 120c, UCMJ.
Under these facts, the military judge did not abuse his dis-
cretion when he held the inevitable discovery doctrine did not
apply. The military judge reasonably concluded that the Gov-
ernment did not prove by a preponderance of the evidence: (1)
that the Government would have investigated Appellant
based solely on images of the clothed women; or (2) that such
an investigation would have resulted in a lawful search au-
thorization for Appellant’s phone.3
C. Attenuation
After completing his twelve-hour guard duty shift and
loaning PFC Avery his phone, Appellant returned to his tent
to sleep. The following morning, SFC Manglicmot retrieved
Appellant from his tent and escorted him to a waiting CID
officer. The CID officer handcuffed Appellant, seized his cell
phone, and transported Appellant to the CID office for ques-
tioning. After being informed of his rights, Appellant elected
to remain silent and requested a lawyer but gave CID his con-
sent to search his cell phone. All parties agree that Appel-
lant’s consent was voluntary.
Before the military judge, the Government argued that
even if SFC Manglicmot’s search of Appellant’s phone was un-
lawful, the voluntary consent that Appellant gave to CID to
search his phone the next day was sufficiently attenuated
from SFC Manglicmot’s illegal search that it cured the taint
3 After the military judge granted Appellant’s motion to sup-
press the evidence obtained from his cell phone, the Government
requested reconsideration due to the fact that—unbeknownst to the
Government trial counsel—Appellant faced Article 15, UCMJ, 10
U.S.C. § 815, nonjudicial punishment for violating Article 134,
UCMJ, based on the photos of clothed women discovered by
PFC Avery on Appellant’s cell phone. Although this fact might have
helped the Government establish that it was interested in investi-
gating more than just the child pornography on Appellant’s phone,
even with the evidence of the Article 15 proceeding, it was not an
abuse of discretion to conclude that the child pornography would
not have inevitably been discovered. The evidence in the record does
not clearly establish that the Government would have pursued non-
judicial punishment absent the child pornography investigation.
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of that search. The military judge disagreed, concluding that
all three factors from the test set forth in Brown v. Illinois,
422 U.S. 590 (1975), weighed in Appellant’s favor. Before this
Court, the Government now argues that the military judge
abused his discretion by misapplying at least two of the
Brown factors. Again, we disagree.
As correctly stated by the military judge, to determine
whether a defendant’s voluntary consent to a search is suffi-
ciently attenuated from an earlier unlawful search, this Court
assesses three factors: (1) the temporal proximity of the un-
lawful police activity and the subsequent consent; (2) the
presence of intervening circumstances; and (3) the purpose
and flagrancy of the official misconduct. United States v.
Conklin, 63 M.J. 333, 338–39 (C.A.A.F. 2006) (adopting the
three-factor test from Brown, 422 U.S. at 603–04). In applying
the third factor, this Court has held that the misconduct need
not be “outrageous” or demonstrate bad motive or intent by
the government official. United States v. Darnall, 76 M.J. 326,
331 (C.A.A.F. 2017). It is sufficient that the misconduct be
“unnecessary and unwise.” Conklin, 63 M.J. at 339.
In his ruling on attenuation, the military judge drew par-
allels between the facts in this case and to those in this
Court’s decision in Conklin, 63 M.J. 333. In Conklin, this
Court held that the accused’s consent to search his computer
was not sufficiently attenuated from an earlier unlawful
search of that computer to cure the error. Id. at 340. In that
case, the Court analyzed the three Brown factors as follows:
(1) less than three hours elapsed between the illegal search
and the consent; (2) there were no intervening circumstances
despite the involvement of new agents because absent the il-
legal search there would have been no interest in the accused;
and (3) although the government agents did not harbor bad
motives, the Court held the agents’ actions were “unnecessary
and unwise” as well as “avoidable . . . and unlawful.” Id. at
339. This Court concluded that each factor weighed in the ac-
cused’s favor, and ultimately held that the causal connection
between the illegal search and the accused’s consent had not
been broken. Id. at 340.
Given the similarities between the facts in this case and
those in Conklin, we find no support for the Government’s ar-
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Opinion of the Court
gument that the military judge abused his discretion by mis-
applying the Brown factors. First, with respect to the tem-
poral proximity of the illegal search and the consent, in this
case the delay was about twelve hours compared to less than
three hours in Conklin. But even that minor difference is de-
ceiving because SFC Manglicmot conducted the illegal search
during the night shift and Appellant was arrested the follow-
ing morning. Although more time passed between the illegal
search and Appellant’s consent in this case compared to
Conklin, the relevant parties were asleep for much of that
time.
Second, with respect to the presence of intervening cir-
cumstances, the Government admitted before the military
judge that there were none, see Government Response to De-
fense Motion to Suppress Evidence at 13, United States v.
Black, (U.S. Army Trial Judiciary, 4th Jud. Circ. Mar. 30,
2021) (“there were admittedly no intervening circum-
stances”), and the military judge agreed. Nevertheless, the
Government now argues that the military judge misapplied
the second Brown factor by applying the wrong legal stand-
ard. It would be passing strange for this Court to now hold
that the military judge abused his discretion by accepting the
Government’s concession on this point.
But even without the Government’s admission, we could
not fault the military judge for applying the same reasoning
that this Court applied in Conklin. In that case, this Court
found that the second factor weighed in favor of the accused
because the government agents “would not have been
interested in talking to [the accused] but for the information
relayed to them as a direct result of the unlawful search that
had just taken place.” Conklin, 63 M.J. at 339. Similarly, in
this case, the military judge noted, “[t]he CID agents relied
exclusively on the results of SFC Manglicmot’s unlawful
search and discovery of child pornography in conducting their
investigation and asking for the accused’s consent to search.”
Considering that this Court concluded that “[t]here were no
intervening events or circumstances that would sever the
causal connection” between the unlawful search and the
accused’s consent in Conklin, 63 M.J. at 339, the military
judge did not abuse his discretion by coming to the same
conclusion here.
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Finally, with respect to the purpose and flagrancy of the
official misconduct, the military judge’s reasoning again
tracked this Court’s decision in Conklin. In Conklin, this
Court noted that the illegal search of the accused’s computer
was the only factor that led directly to the government’s re-
quest for the accused’s consent and its subsequent search of
his computer. Id. at 340. The Court held that although the
unlawful search itself was not flagrant (even if it was avoida-
ble and unwise), the Government’s exploitation of the infor-
mation obtained through that search was. Id. Similarly, the
military judge in this case noted that SFC Manglicmot’s un-
lawful discovery of child pornography on Appellant’s phone
provided the only basis for CID’s investigation and its request
for consent to search Appellant’s phone. Although the mili-
tary judge stated that the Government’s actions were not ma-
licious, he did conclude that they were “unwise, avoidable,
and unlawful” like the Government’s actions in Conklin.
Reviewing the military judge’s analysis of the Brown fac-
tors, we cannot say that the military judge abused his discre-
tion. The military judge’s reasoning was not arbitrary, fanci-
ful, or unreasonable. To the contrary, the military judge cited
Conklin, 63 M.J. 333, our leading precedent with respect to
attenuation, and faithfully applied the guidance provided by
that case and other precedent. While we recognize that the
Government argues that the facts in Conklin can be distin-
guished and that the reasoning in Conklin should have led
the military judge to a different result, we view that as more
of a difference of opinion than an abuse of discretion.
IV. Conclusion
We hold that the military judge did not abuse his discre-
tion when he held: (1) that PFC Avery lacked common author-
ity to consent to a search of Appellant’s phone; or (2) that nei-
ther the inevitable discovery doctrine nor the doctrine of
attenuation could transform the contents of the unlawful
search into admissible evidence. The decision of the United
States Army Court of Criminal Appeals is reversed. The mil-
itary judge’s rulings with respect to Appellant’s motion to
suppress the evidence obtained from his cell phone (Appellate
Exhibit VIII) and to the Government’s motion for reconsider-
ation of that motion (Appellate Exhibit XII) are affirmed. The
record is returned to the Judge Advocate General of the Army
14
United States v. Black, No. 22-0066/AR
Opinion of the Court
for remand to the military judge for further proceedings con-
sistent with this opinion.
15
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting.
I disagree with the majority’s conclusions regarding both
common authority to search and the question of attenuation
and therefore dissent in their decision to uphold the military
judge’s ruling.
Common Authority to Search
Searches conducted without a warrant are presumptively
unreasonable unless they fall within “a few specifically estab-
lished and well-delineated exceptions.” United States v.
Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (internal quotation
marks omitted) (quoting Katz v. United States, 389 U.S. 347,
357 (1967)). Individuals have a reasonable expectation of pri-
vacy in the contents of their cell phones and therefore cell
phones may not be searched without probable cause and a
warrant unless the search falls within one of these exceptions.
Id. Voluntary consent from an individual possessing author-
ity is one such exception to the Fourth Amendment protec-
tions against warrantless search. United States v. Weston, 67
M.J. 390, 392 (C.A.A.F. 2009).
Military Rule of Evidence (M.R.E.) 314(e)(1), states that
“[e]vidence of a search conducted without probable cause is
admissible if conducted with lawful consent.” An individual
can grant consent to search when that person “exercises con-
trol over” the property in question. M.R.E. 314(e)(2). In other
words, consent to search can come from “a fellow occupant
who shares common authority over the property.” Weston, 67
M.J. at 392 (citing United States v. Matlock, 415 U.S. 164, 171
(1974); United States v. Gallagher, 66 M.J. 250, 253 (C.A.A.F.
2008)). The government only needs to show proof that “per-
mission to search was obtained from a third party who pos-
sessed common authority over or other sufficient relationship
to the premises or effects sought to be inspected.” Matlock,
415 U.S. at 171. Common authority consists of:
[M]utual use of the property by persons generally
having joint access or control for most purposes, so
that it is reasonable to recognize that any of the co-
inhabitants has the right to permit the inspection in
his own right and that the others have assumed the
risk that one of their number might permit the
search.
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
United States v. Rader, 65 M.J. 30, 33 (C.A.A.F. 2007) (inter-
nal quotation marks omitted) (quoting Matlock, 415 U.S. at171 n.7).
Whether a third party exercises control over a given prop-
erty is a question of fact. Id. The military judge’s findings of
fact are not disturbed unless they are clearly erroneous or un-
supported by the record. Id. (citing United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996)). “Whether these facts rise
to the level of joint access or control for most purposes is a
question of law.” Id. (internal quotation marks omitted) (cit-
ing Reister, 44 M.J. at 415).
In Rader, this Court determined that the appellant’s
roommate, who used the appellant’s computer to play com-
puter games and perform routine maintenance and whose
own computer was joined to the appellant’s by a local access
network, possessed sufficient access and control to consent to
a search of the computer. 65 M.J. at 31. Our evaluation in-
cluded recognizing that the appellant did not communicate
any restriction regarding access to his computer files to any
of his roommates, that any understanding regarding re-
stricted access to the appellant’s computer was tacit and un-
clear, and that neither the computer nor any of its files were
password protected. Id. at 34. We rejected the argument that
the roommate did not have control over or authority to con-
sent to a search of certain files within the computer simply
because he only had permission to use the computer for a cer-
tain purpose. Id.
In the current case, the military judge determined that
PFC (Private First Class) Avery did not possess common au-
thority because there was no expectation by Appellant that
PFC Avery would view anything other than the agreed upon
materials. Appellant loaned his cell phone for one night with
the understanding that PFC Avery would use the phone for
texting, calling, viewing YouTube, and playing games. The
military judge concluded that, under such circumstances, it
would be unreasonable to conclude that PFC Avery had un-
fettered authority to use the phone and that Appellant lend-
ing his phone for the duration of the guard shift was “not the
type of mutual use of property that establishes joint access or
control for most purposes.” At no point did the military judge
discuss the factors this Court considered in Rader.
2
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
The Government argues, in line with the lower court deci-
sion, that the military judge abused his discretion because the
facts supported the legal conclusion that PFC Avery did have
unfettered access to and control of Appellant’s phone. Appel-
lant allowed PFC Avery to use his cell phone without any ex-
press restrictions and gave him a passcode which allowed for
unlimited access to the contents. United States v. Black, No.
ARMY Misc. 20210310, 2021 CCA LEXIS 559, at *17–18,
2021 WL 4953849, at *5 (A. Ct. Crim. App. Oct. 22, 2021) (un-
published). The Government also adopts the lower court’s
conclusion that the military judge erred in his interpretation
of the law by focusing on the areas of the phone Appellant told
PFC Avery he could use rather than on the lack of express
restrictions on use. The lower court looked to Rader and its
assertion that “in the personal computer context, courts ex-
amine whether the relevant files were password-protected or
whether the defendant otherwise manifested an intention to
restrict third-party access.” 65 M.J. at 34 (quoting United
States v. Aaron, 33 F. App’x 180, 184 (6th Cir. 2002)).
Both the Government and the lower court echoed the
premise in Rader and Matlock that mutual use of property
carries with it the understanding that one has “assumed the
risk” that anyone with joint access might authorize a search.
Rader, 65 M.J at 33; Matlock 415 U.S. at 171 n.7; see also
United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000)
(stating that “where a defendant allows a third party to exer-
cise actual or apparent authority over the defendant’s prop-
erty, he is considered to have assumed the risk that the third
party might permit access to others, including government
agents”); United States v. Jackson, 598 F.3d 340, 347 (7th Cir.
2010) (stating that “the third-party consent exception to the
warrant requirement is premised on the assumption of risk
concept”). Appellant would therefore have assumed the risks
involved in lending out a cell phone on which he has stored
illegal pornographic images.
I agree with the Government that the military judge’s con-
clusion regarding common authority was an abuse of discre-
tion. He erred in failing to weigh the factors this Court ap-
plied in Rader and in relying solely upon what Appellant told
PFC Avery he could do with the phone. The military judge’s
3
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
conclusion that the non-password-protected folders on Appel-
lant’s phone were off-limits because Appellant did not expect
PFC Avery to use them hinges upon the argument we rejected
in Rader, which involved a personal computer and therefore
implicated similar extensive access to personal material. Ap-
pellant gave his cell phone to PFC Avery for a twelve-hour
period and did not communicate any express restrictions.
Given that, in their Article 39(a) Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 839(a) (2018), hearing testimony,
Appellant said that he thought that PFC Avery promised he
would only use the phone for the purposes discussed but PFC
Avery was under the impression that he had full access to the
phone, we can conclude that any understanding regarding re-
stricted access was tacit and unclear. And, to the extent any-
thing was password protected, Appellant provided PFC Avery
with the passcode by writing it down on the table. When those
Rader factors are incorporated into the analysis, I cannot help
but conclude that Appellant allowed PFC Avery joint access
and control and therefore assumed the risks involved with
lending his cell phone and its illegal contents.
I do recognize two factors, the informal relationship be-
tween Appellant and PFC Avery and the limited time period
during which PFC Avery shared use of the phone, which dis-
tinguish this case from the key cases establishing common
authority cited by both the military judge and the lower court.
Those cases involved a longer time period (three weeks of
house-sitting in Reister, 44 M.J. at 411); a more intimate re-
lationship between the players (such as mother and son in
Jackson, 598 F.3d at 342–43, or husband and wife in Weston,
67 M.J. at 391); or ongoing shared use (such as the roommates
in Rader, 65 M.J. at 31, and Matlock, 415 U.S. at 166). How-
ever, in United States v. Crain, the United States Court of
Appeals for the Fifth Circuit determined that a defendant had
authority to consent to the search of a car because he was a
co-occupant of the borrowed vehicle at the time and had per-
mission to drive it for a single night. 33 F.3d 480, 484 (5th
Cir. 1994). The military judge did not explore this line of rea-
soning beyond stating that it was “not the type of mutual use
property that establishes joint access or control for most pur-
poses.” I find nothing in our case law to indicate that handing
over property to another person, giving him “full access and
4
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
control,” and departing for a full twelve hours is not sufficient
to establish common authority and the accompanying as-
sumption of risk.
Scope of Consent
Though I am convinced that PFC Avery was able to con-
sent to a search of Appellant’s cell phone, I believe that the
search performed by Sergeant First Class (SFC) Manglicmot
was illegal because he exceeded the scope of PFC Avery’s con-
sent. “A consensual search is reasonable under the Fourth
Amendment so long as it remains within the scope of con-
sent.” Jackson, 598 F.3d at 348 (citing Michael C. v. Gresbach,
526 F.3d 1008, 1015 (7th Cir. 2008)). “The standard for meas-
uring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness—what would
the typical reasonable person have understood by the ex-
change between the officer and the suspect?” Florida v.
Jimeno, 500 U.S. 248, 251 (1991).
The military judge concluded that, when PFC Avery
handed over the phone with the photo gallery already opened
and explained that he had viewed those photos, he was grant-
ing consent to search only that portion of the phone. SFC
Manglicmot exceeded the scope of that consent when he chose
to back out of the photo gallery and search other sections of
the phone for child pornography due to his own suspicions of
what might be on the phone. The military judge viewed the
scope of consent as limited to viewing the photos of the female
soldiers in the open gallery.
The Government argues that PFC Avery placed no limita-
tions on his consent and therefore SFC Manglicmot was enti-
tled to search other folders in the phone. In essence, PFC
Avery gave him the phone to look at pictures and that made
all pictures fair game. The federal cases cited by the Govern-
ment in support of this argument involve physical closed con-
tainers, not electronic devices. For example, in Jimeno the
container searched was a brown paper bag on the floor of a
car. 500 U.S. at 250. In Jackson, the United States Court of
Appeals for the Seventh Circuit ruled that, given consent by
proper authority, “law enforcement may search anywhere
within the general area where the sought-after item could be
concealed.” 598 F.3d at 348–49. But the container in question
5
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
was the side pocket of a computer case in which the police
found a gun. Id. However, this Court has established that
“[b]ecause of the vast amount of data that can be stored and
accessed, as well as the myriad ways they can be sorted, filed,
and protected, it is not good enough to simply analogize a cell
phone to a container.” Wicks, 73 M.J. at 102. In Wicks, we de-
termined that the lower court erred in relying upon a con-
tainer analysis when assessing whether the government’s
search of the appellant’s cell phone exceeded a private search.
Id. at 103. We noted that a cell phone that “can be linked to a
vast amount of personal data, some readily accessible and
some not” does not function like a static storage container,
and that the contents of the appellant’s cell phone were not
readily exposed or subject to examination but required that
the government sort through private information during its
search.1 Id. at 102–03. Given Wicks, the question of whether
consent to search an open folder of a cell phone means consent
to search other folders on that phone cannot be resolved by
relying upon single closed container cases.
“The exclusionary rules for unlawful searches apply only
to searches made by someone acting in a governmental capac-
ity. Hence, the Fourth Amendment and the exclusionary rules
are not implicated by a private search.” Reister, 44 M.J. at 415(citation omitted) (internal quotation marks omitted). SFC
Manglicmot’s search was performed on behalf of the Govern-
ment. He was summoned by the soldiers because of his au-
thority over them and he was clear prior to the search that he
was concerned about a potential sexual harassment or Crim-
inal Investigation Division (CID) situation. However, PFC
Avery’s search was premised upon the accidental opening of
the photo gallery and his own personal curiosity. It was in no
way conducted on behalf of the Government. See Reister, 44
M.J. at 415. Once any original expectation of privacy was
overcome by PFC Avery’s private search, the Government
could use the now nonprivate information without violating
the Fourth Amendment. Id. at 416 (citing United States v. Ja-
cobsen, 466 U.S. 109, 117 (1984)). However, the Government
1 Wicks involved three increasingly broad government searches,
all of which this Court determined had exceeded their scope, culmi-
nating in the review of over 45,000 text messages. 73 M.J. at 101.
6
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
may not exceed the scope of the private search, including ex-
panding it into a general search. Wicks, 73 M.J. at 100 (citing
Jacobsen, 466 U.S. at 117–18). “Applying this to . . . cell
phones, the scope of the private search can be measured by
what the private actor actually viewed as opposed to what the
private actor had access to view.” Id.The Government must prove lawful consent to search by
clear and convincing evidence. M.R.E. 314(e)(5). Determining
the scope of a consent to search requires an evaluation of the
totality of the circumstances “including the interaction be-
tween the parties, the purpose of the search, and the circum-
stantial evidence surrounding the search.” United States v.
Beckmann, 786 F.3d 672, 679 (8th Cir. 2015).
Here, one of the soldiers with PFC Avery contacted SFC
Manglicmot about a possible incident implicating the Army’s
Sexual Harassment/Assault Response and Prevention
(SHARP) program and involving soldiers in their unit. Black,
2021 CCA LEXIS 559, at *3–4 2021 WL 4953849, at *1. SFC
Manglicmot was concerned that the photos might involve a
sexual harassment issue. When SFC Manglicmot arrived,
PFC Avery told him about the four photos of members of the
unit he had viewed. PFC Avery testified at the Article 39(a),
UCMJ, hearing that he gave SFC Manglicmot the cell phone
“to show him the pictures, so he would know [what] the whole
situation was, so he could possibly take action, like actions
that I couldn’t take myself.”
SFC Manglicmot looked at the photos and noted that they
could be deemed sexual in nature. He then backed out of the
open photo gallery containing the photos PFC Avery had
viewed and began scrolling through other images. Upon see-
ing the other photos, particularly one that “zoomed in” on the
buttocks of a child, SFC Manglicmot had an “inkling” that
“maybe there was something else that was deeper, that we
should know about” and “maybe there’s more things here.” So
he exited that photo gallery folder entirely, began scrolling
around, and noticed icons for other folders that seemed they
could contain sexually inappropriate materials. SFC Man-
glicmot then opened them and discovered what he thought
was child pornography. Only at that point did he give the
phone back to PFC Avery and tell the soldiers to leave the
phone there and not tell Appellant what they had seen.
7
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
The circumstances here indicate that PFC Avery never
asked, told, or encouraged SFC Manglicmot to search the
phone outside of the photo gallery containing the photos of the
clothed female soldiers. He never mentioned child pornogra-
phy or did anything to imply he thought Appellant might have
child pornography on his phone. His only concern was a pos-
sible SHARP incident involving soldiers in their unit. SFC
Manglicmot expanded the search to other folders because of
his own “inkling.” These facts do not establish by clear and
convincing evidence that a reasonable person would assume
PFC Avery consented to the expansive search performed by
SFC Manglicmot. In addition, we must reconcile the assertion
in Wicks that a government search cannot exceed what the
private actor actually viewed. Here, PFC Avery, during his
private search, actually viewed photos of clothed female sol-
diers. I therefore conclude that SFC Manglicmot exceeded the
scope of PFC Avery’s consent to search.
Attenuation and the Exclusionary Rule
“Evidence derivative of an unlawful search, seizure, or in-
terrogation is commonly referred to as ‘fruit of the poisonous
tree’ and is generally not admissible at trial.” United States v.
Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006) (quoting Nardone
v. United States, 308 U.S. 338, 341 (1939)). However, “[t]he
granting of consent to search may sufficiently attenuate the
taint of a prior violation.” Id. at 338. Sometimes the link be-
tween the illegal search and the discovery of the evidence is
“too attenuated to justify suppression.” Utah v. Strieff, 579
U.S. 232, 235 (2016). Under the attenuation doctrine, “evi-
dence is admissible when the connection between unconstitu-
tional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that the in-
terest protected by the constitutional guarantee that has been
violated would not be served by suppression of the evidence
obtained.” Id. at 238 (internal quotation marks omitted)
(quoting Hudson v. Michigan, 547 U.S. 586, 593 (2006)).
To evaluate whether consent to search is sufficiently at-
tenuated from a Fourth Amendment violation, this Court has
adopted the framework established by the Supreme Court in
Brown v. Illinois, 422 U.S. 590, 603–04 (1975). Conklin, 63
M.J. at 338.
8
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
To determine whether the defendant’s consent was an in-
dependent act of free will, breaking the causal chain between
the consent and the constitutional violation, we must consider
three factors: “(1) the temporal proximity of the illegal con-
duct and the consent; (2) the presence of intervening circum-
stances; and (3) the purpose and the flagrancy of the initial
misconduct.” Conklin, 63 M.J. at 338–39 (citing United States
v. Hernandez, 279 F.3d 302, 307 (2002)). “None of these three
factors is dispositive of attenuating the taint of the original
wrongdoing, but rather they are examined in aggregate to de-
termine the effect of an appellant’s consent.” United States v.
Dease, 71 M.J. 116, 122 (C.A.A.F. 2012) (citing Brown, 422
U.S. at 603–04).
I largely agree with the majority’s application of the first
two Brown factors and acknowledge that, arguably, they
slightly favor Appellant. However, in this case, I do not find
these first two factors to be determinative.
I part from the majority when it comes to the third Brown
factor, which examines the Government’s conduct. “The
Supreme Court has identified this third factor as particularly
important, presumably because it comes closest to satisfying
the deterrence rationale for applying the exclusionary rule.”
United States v. Khamsouk, 57 M.J. 282, 291 (C.A.A.F. 2002)
(internal quotation marks omitted) (citing New York v.
Harris, 495 U.S. 14, 23 (1990)). Our case law has fleshed out
our interpretation of “purpose and flagrancy.” In Conklin,
although we concluded that the government harbored no
questionable motive or intent and were hesitant to call their
actions flagrant, we decided that their “unwise, avoidable,
and unlawful” conduct satisfied the third Brown factor. 63
M.J. at 339. In United States v. Darnall, we determined that
it is not “necessary that the agent’s conduct be outrageous for
the third factor in Brown to apply” nor do we require evidence
of “bad motive or intent” on the investigator’s behalf. 76 M.J.
326, 331 (C.A.A.F. 2017).2 Meanwhile, in deciding Strieff, the
Supreme Court clarified that the third Brown factor was not
2 In Darnall, we determined that law enforcement’s overall in-
vestigation was hasty, flimsy, sloppy, and apathetic to such a de-
gree that it “infringed inexcusably upon Appellant’s Fourth Amend-
ment rights.” 76 M.J. at 332.
9
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
triggered by minor misconduct such as “an isolated instance
of negligence that occurred in connection with a bona fide
investigation” with no evidence of systemic or recurrent police
misconduct. 579 U.S. at 242.
The degree of law enforcement misconduct factors heavily
into any assessment of the application of the exclusionary
rule. The exclusionary rule operates as a “judicially created
remedy designed to safeguard Fourth Amendment rights gen-
erally through its deterrent effect, rather than a personal con-
stitutional right of the party aggrieved.” United States v.
Leon, 468 U.S. 897, 906 (1984) (internal quotation marks
omitted) (quoting United States v. Calandra, 414 U.S. 338,
348 (1974)).
[T]he dissipation of the taint concept that the Court
has applied in deciding whether exclusion is appro-
priate in a particular case attempts to mark the
point at which the detrimental consequences of ille-
gal police action become so attenuated that the de-
terrent effect of the exclusionary rule no longer jus-
tifies its cost.
Id. at 911 (internal quotation marks omitted) (quoting Brown,
422 U.S. at 609 (Powell, J., concurring in part)). In determin-
ing whether the exclusionary rule is warranted, a balance
must be struck between “the public interest in determination
of truth at trial and the incremental contribution that might
[be] made to the protection of Fourth Amendment values.”
Khamsouk, 57 M.J. at 292 (alteration in original) (internal
quotation marks omitted) (quoting Stone v. Powell, 428 U.S.
465, 488 (1976)). “[W]hen there is a Fourth Amendment vio-
lation, the exclusionary rule does not apply when the costs of
exclusion outweigh its deterrent benefits.” Strieff, 579 U.S. at
235. “The exclusionary rule applies only where it result[s] in
appreciable deterrence for future Fourth Amendment viola-
tions and where the benefits of deterrence must outweigh the
costs.” Wicks, 73 M.J. at 104 (alteration in original) (internal
quotation marks omitted) (quoting Herring v. United States,
555 U.S. 135, 141 (2009)).
The military judge determined that SFC Manglicmot’s un-
lawful search and CID’s failure to follow up on the circum-
stances of that initial search were “the type of law enforce-
ment and official conduct that the exclusionary rule was
10
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
designed to deter.” The Government, in contrast, argues that,
because SFC Manglicmot was not a law enforcement officer,
he understandably did not know his search of the phone
might be illegal. He had the well-intentioned goal of seeing
whether the photos might pose a problem suitable for CID in-
vestigation. The Government also emphasizes that the behav-
ior of the investigators was not questionable in any other way.
The military judge’s findings and conclusions regarding
attenuation focus primarily on SFC Manglicmot’s actions, in-
cluding a lengthy footnote describing what SFC Manglicmot
could have done instead of the search he did perform. How-
ever, I disagree that SFC Manglicmot’s search rose to the
level of purposeful or flagrant and believe the military judge
abused his discretion in reaching this conclusion. SFC Man-
glicmot quite simply lacked the law enforcement training to
understand the legal nuances of a permissible phone search.
It is unrealistic to expect every acting SFC to have this
knowledge. His actions appear to have been a good faith mis-
understanding of the confines of the Fourth Amendment.
Nor am I convinced that CID’s failure to inquire about the
lawfulness of SFC Manglicmot’s search was unwise, avoida-
ble, or unlawful to such a degree that it merits application of
the exclusionary rule. Even if the CID agents should have
suspected that SFC Manglicmot’s search might have been
problematic, they were at worst negligent in failing to follow
up on his mistake. The behavior of the investigators was not
questionable in any other way. Appellant was read his rights,
properly informed of the nature of the request for consent
(that he was suspected of possessing child pornography), and
properly informed that he was not required to give consent.
Because Appellant did not know about the initial phone
search, there is no concern that the CID agents tried to lever-
age that to obtain his consent. In addition, law enforcement
simultaneously approached a magistrate to obtain a search
authorization. See Wicks, 73 M.J. at 104 (considering both
lack of evidence that a search authorization was pursued and
the investigating officer’s testimony that it was not her inten-
tion or practice to seek search authorization under the cir-
cumstances in determining that the exclusionary rule should
apply). There is no indication of an attempt to intentionally
circumvent Appellant’s constitutional rights, nor do we have
11
United States v. Black, No. 22-0066/AR
Judge SPARKS, dissenting
the kind of sloppy and apathetic law enforcement process we
encountered in Darnall. As such, I cannot conclude that what
happened here was the “type of law enforcement activity we
would certainly hope to deter” or that we “might well be en-
couraging rather than deterring it” by allowing admission of
the evidence derived from this particular search. Darnall, 76
M.J. at 332 (citation omitted) (internal quotation marks omit-
ted). This Court’s duty to protect the Fourth Amendment val-
ues is not further served by application of the exclusionary
rule in a case like this.
I therefore respectfully dissent.
12