United States v. Crocker ( 2020 )


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  • This opinion is subject to administrative correction before final disposition.
    Before
    CRISFIELD, HITESMAN, and GASTON
    Appellate Military Judges
    _________________________
    UNITED STATES
    Appellant
    v.
    Samuel W. CROCKER
    Lance Corporal (E-3), U.S. Marine Corps
    Appellee
    No. 201900226
    Decided: 16 March 2020
    Appeal by the United States pursuant to Article 62, UCMJ
    Military Judge:
    Keaton H. Harrell
    Arraignment: 8 April 2019 before a general court-martial convened at
    Marine Corps Base Camp Lejeune, North Carolina.
    For Appellant:
    Major Kerry E. Friedewald, USMC;
    Captain Brian L. Farrell, USMC;
    Lieutenant Timothy C. Ceder, JAGC, USN.
    For Appellee:
    Lieutenant Commander Christopher Riedel, JAGC, USN.
    Senior Judge HITESMAN delivered the opinion of the Court, in which
    Chief Judge CRISFIELD and Judge GASTON joined.
    _________________________
    United States v. Crocker, NMCCA No. 201900226
    PUBLISHED OPINION OF THE COURT
    _________________________
    HITESMAN, Senior Judge:
    This case is before us as an interlocutory appeal taken by the Govern-
    ment. Appellee is charged with one specification of sexual abuse of a child
    and one specification of viewing child pornography in violation of Articles
    120b and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920b,
    934 (2012). At a pretrial hearing, the military judge granted, in part, a De-
    fense motion to suppress evidence resulting from a search of Appellee’s cell
    phone. The Government appeals the military judge’s ruling “which excludes
    evidence that is substantial proof of a fact material in the proceeding.” Article
    62(a)(1)(B), UCMJ. The Government contends the military judge abused his
    discretion by suppressing both evidence from the search and Appellee’s sub-
    sequent confession. We conclude the military judge did not abuse his discre-
    tion and deny the Government’s appeal.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    A. Factual Background
    On 3 December 2018, Appellee reported to the Criminal Investigation Di-
    vision [CID], Camp Lejeune, North Carolina, as a victim of a larceny. He had
    proof that Lance Corporal [LCpl] DW had obtained access to his bank account
    and had stolen money from him. CID Agent MS interviewed Appellee who
    explained that LCpl DW owed Appellee money and had asked for the Appel-
    lee’s bank account information so that LCpl DW’s father could transfer mon-
    ey directly to Appellee’s account. Appellee said he and LCpl DW only used the
    Facebook Messenger application to exchange messages. 1 Appellee said LCpl
    DW then used the information provided by Appellee to steal money from his
    bank account. Appellee showed Agent MS the Facebook Messenger exchanges
    with embedded screenshots, between Appellee and LCpl DW. LCpl DW sent
    the screenshots to Appellee depicting brief text exchanges between LCpl DW
    and his father supporting the need to obtain Appellee’s bank account infor-
    mation. Agent MS knew the messages he was shown were contained within
    the Facebook Messenger application.
    1 Throughout the record of trial, the terms “texts,” “text messages,” “messages,”
    “Facebook messages,” and “Facebook Messenger messages” are used interchangeably.
    2
    United States v. Crocker, NMCCA No. 201900226
    Agent MS did not suspect Appellee of any offense at the time of the initial
    interview. Agent MS asked Appellee for the messages he was shown. Specifi-
    cally, he asked, “I’d like to get those texts from him because that shows that
    he like asked for the security questions and stuff. Are you OK with me like
    getting that information from you?” 2 Appellee responded, “I don’t care.” 3
    Agent MS explained, “OK. Alright, the way we do it, we have a form right
    here. I just need some initials from you.” 4 Agent MS then went through the
    Permissive Authorization for Search and Seizure [PASS] form 5 with Appellee.
    The PASS clearly indicates that Appellee permitted “CID, law enforcement”
    to search his “android ZTE Axon 7 mini” for evidence relating to “fraud [and]
    larceny.” 6 Agent MS used a Universal Forensic Extraction Device [UFED] to
    extract and copy all of the data from Appellee’s phone before he returned it to
    Appellee. Later, Agent MS used additional software to sort and view the data
    extracted from Appellee’s phone.
    Agent MS did not attempt to limit his search to folders specifically related
    to the Facebook Messenger application. Instead, he first looked for “commu-
    nications between [Appellee] and [LCpl DW] as well as any evidence of the
    fraud and larceny” by searching the short message service [SMS] folder of the
    extraction 7 where he expected to find only text messages. Agent MS did not
    find the Facebook messages in the SMS folder, so he next searched the mul-
    timedia messaging service [MMS] folder, believing it might contain the mes-
    sages and screenshots. Agent MS did not find the conversations he was
    shown between Appellee and LCpl DW in either of these folders, so he then
    decided to search the images folder. Agent MS did not attempt to use any fil-
    ters, but rather he decided to manually scroll through and look at more than
    43,000 thumbnail images. While scrolling through the images looking for text
    messages and screenshots of text messages, Agent MS observed two thumb-
    nail images that he suspected were child pornography depicting “full frontal
    nudity of what appeared to be seven or eight-year-old girls.” 8 Without open-
    ing or enlarging the thumbnail images, Agent MS stopped his search and no-
    2   App. Ex. VIII at 3.
    3   
    Id. 4 Id.
       5   
    Id. 6 App.
    Ex. III at 18.
    7   Record at 35-36.
    8   
    Id. at 43-44.
    3
    United States v. Crocker, NMCCA No. 201900226
    tified the Naval Criminal Investigative Service [NCIS] because child pornog-
    raphy falls within their investigative purview.
    The following day, Agent MS brought the UFED extraction report of Ap-
    pellee’s phone data to NCIS Special Agent SI and told her that while looking
    through a file on a phone in a separate case involving fraud, he discovered
    some images that appeared to be child pornography. Agent MS informed Spe-
    cial Agent SI that he had obtained a PASS for the phone but he did not pro-
    vide any details regarding the scope of Appellee’s consent. Special Agent SI
    looked in the images folder of the UFED report and found several images of
    suspected child pornography. Special Agent SI opened and enlarged several
    thumbnail images to reveal full sized images to confirm her suspicions that
    the images could be child pornography. Later that day, Special Agent SI in-
    terviewed Appellee. She advised him of his Article 31(b), UCMJ, rights and
    told him that he was suspected of possessing child pornography. Appellee
    waived his rights and admitted to viewing and possessing child pornography
    as well as sexually abusing his four-year-old nephew. Appellee provided a
    sworn statement of his admissions and granted NCIS agents a PASS to
    search his laptop and barracks room.
    On 7 December 2018, several days after obtaining Appellee’s confession
    and additional PASS authorizations, Special Agent SI obtained a Command
    Authorization for Search and Seizure [CASS] from Appellee’s commanding
    officer. Special Agent SI requested authorization to seize Appellee’s phone
    and search it for child pornography, citing “four” images in detail that she
    observed when NCIS agents reviewed the UFED extraction report of Appel-
    lee’s phone data with Agent MS. Special Agent SI did not tell Appellee’s
    commanding officer that she had already interrogated Appellee and obtained
    a confession. The CASS-authorized search revealed an additional 268 images
    of suspected child pornography, four of which were eventually identified as
    known child victims.
    None of the Facebook messages nor any of the embedded screenshots per-
    tinent to Appellee’s larceny claim were ever found anywhere on Appellee’s
    phone.
    B. Motion to Suppress Evidence
    At an Article 39(a), UCMJ, hearing, the Defense moved to suppress the
    evidence found on Appellee’s phone as well as his confessions. Agent MS and
    Special Agent SI both testified and the Defense and Government submitted
    several pieces of evidence to include CID and NCIS interim reports, video re-
    cordings of Appellee’s interviews with Agent MS and Special Agent SI, and
    the PASS and CASS for Appellee’s cell phone.
    4
    United States v. Crocker, NMCCA No. 201900226
    The military judge issued a 36-page written ruling containing ten and a
    half pages of detailed findings of fact. The most significant findings relate to
    the conversation and understanding of both Appellee and Agent MS as to
    what evidence Agent MS wanted and where on Appellee’s phone that infor-
    mation was located. These key findings of fact are:
    The accused explained that LCpl [DW] made multiple fraudu-
    lent transactions after asking the accused for and receiving the
    answers to the security questions for the accused’s bank ac-
    count.
    . . . [T]he accused said in response to a question by Agent
    [MS], “I’m going to show you a text message . . . Yeah, right
    here,” and he placed his phone in front of Agent [MS]. The ac-
    cused showed Agent [MS] messages between the accused and
    LCpl [DW] on the Facebook Messenger application. Agent [MS]
    picked up the accused’s phone and read the messages. Within
    the messages in the Facebook Messenger application were
    screenshots that LCpl [DW] sent to the accused.
    The accused did not show Agent [MS] anything from the
    images or photographs folder on his cell phone.
    At various moments . . . the accused read aloud from and
    referenced messages from the Facebook Messenger application
    on his cell phone . . . .
    ....
    Agent [MS] [said] “Alright so what I’d like to do, if it’s OK
    with you, I’d like to get those texts from him because that
    shows that he like asked for the security questions and stuff.
    Are you OK with me like getting that information from you?”
    Accused [replied,] “I don’t care.”
    Agent [MS] [then said,] “OK. Alright, the way we do it, we
    have a form right here. I just need some initials from you.”
    Agent [MS] placed in front of the accused a document titled,
    “Permissive Authorization for Search and Seizure” (PASS). . . .
    After initialing a few places . . . the accused stated, “The on-
    ly way I f[***]in used [to] like communicate with [LCpl DW]
    was through Facebook because like there’s no service over in
    Romania.”
    Although this was the first explicit reference to Facebook
    during the interview, Agent [MS] knew that the messages de-
    5
    United States v. Crocker, NMCCA No. 201900226
    scribed and showed to him by the accused were from the Face-
    book Messenger application.
    Agent [MS] did not respond in any way to the accused’s
    statement about only communicating with LCpl [DW] via Fa-
    cebook. Instead, Agent [MS] immediately continued with the
    PASS, stating, “OK, so, I need your initials before the F in
    ‘fraud’ and after the Y in ‘larceny.’ That’s obviously what we’re
    investigating here.”
    ....
    . . . Agent [MS] [later] asked the accused, “Why did you give
    your security question answers to LCpl [DW]?” The accused
    answered, “Because according to the Facebook messages, his
    father needed access like [to] my bank account . . . . So he could
    reimburse me for the money I gave to [LCpl DW].” 9
    Agent MS could only vaguely describe the two images he initially ob-
    served. “He described the images as depicting full frontal nudity of two girls
    of an estimated age of seven to eight years, with no breat development or pu-
    bic hair.” 10 Special Agent SI erroneously testified that after she confirmed
    that “several” of the images that Agent MS showed her were in fact child
    pornography, she obtained a CASS from Appellee’s commanding officer before
    she interviewed Appellee. 11 In fact, Special Agent SI interviewed Appellee on
    4 December 2018, obtained a confession for possessing child pornography and
    sexually abusing his four-year-old nephew, and obtained a PASS to search
    Appellee’s barracks room and seize and search his laptop three days before
    asking Appellee’s commanding officer for a CASS on 7 December 2018. 12 Ad-
    ditionally, in her affidavit in support of her request for a CASS, she generally
    relied upon the images discovered by Agent MS but described in detail four
    images. 13
    The military judge suppressed Appellee’s admissions and all evidence ob-
    tained from Appellee’s cell phone beyond the two images initially observed by
    9   App. Ex. VIII at 2-3, 7 (paragraph numbers omitted) (final ellipsis in original).
    10   
    Id. at 8.
       11   
    Id. at 11;
    Record at 79-80
    12App.     Ex. VIII at 11.
    13   
    Id. 6 United
    States v. Crocker, NMCCA No. 201900226
    Agent MS. 14 He determined that a reasonable observer would have under-
    stood the scope of Appellee’s consent to search to extend only to the messages
    between Appellee and LCpl DW from the Facebook Messenger application.
    The military judge ruled that Agent MS exceeded the scope of consent when
    he searched the images folder of the UFED report. Therefore, that search was
    unlawful and the suspected images of child pornography he discovered in the
    images folder were not in plain view. The military judge ruled that NCIS con-
    tinued the illegal search and that even if Agent MS found the initial images
    in plain view, the follow-on actions of NCIS were not done to merely confirm
    the nature of the images but to expand the scope of the search by identifying
    several additional suspect images. Immediately after NCIS discovered addi-
    tional images of suspected child pornography, Appellee was brought in for
    questioning and admitted to possessing child pornography and to sexually
    abusing his nephew. However, the military judge ruled that Appellee would
    not have made these confessions if he had not been confronted with the ille-
    gally obtained evidence. The military judge, sua sponte, determined that the
    evidence of suspected child pornography found on Appellee’s phone would not
    have been inevitably discovered because at the time of the unlawful searches,
    law enforcement was not pursuing any leads or evidence that would have in-
    evitably led to the discovery of the images in a lawful manner. Finally, after
    balancing the deterrence of future unlawful searches or seizures against the
    costs to the military justice system of excluding the evidence, the military
    judge found that exclusion of the two images unlawfully discovered by Agent
    MS would not appreciably deter future unlawful searches. 15 However, with
    respect to the additional evidence discovered by Special Agent SI, the mili-
    tary judge found that Special Agent SI compounded Agent MS’s unlawful
    conduct and that resulted in recurring negligence, at best, that must be de-
    terred even at high cost to the justice system. Upon balancing, he found that
    the appreciable deterrence of further unlawful searches or seizures and the
    benefits of such deterrence outweigh the costs to the justice system.
    14   
    Id. 15 This
    aspect of the military judge’s ruling does not exclude evidence that is sub-
    stantial proof of a fact material in the proceeding. Accordingly, we view this part of
    the military judge’s ruling as not subject to the Government’s appeal under Article
    62(a)(1)(B), UCMJ, and therefore not an issue before this Court.
    7
    United States v. Crocker, NMCCA No. 201900226
    II. DISCUSSION
    A. Standard of Review
    In this appeal, we may act only with respect to matters of law. Article
    62(b), UCMJ; Rule for Courts-Martial 908(c)(2). We review a military judge’s
    ruling on a motion to suppress evidence for an abuse of discretion. United
    States v. Keefauver, 
    74 M.J. 230
    , 233 (C.A.A.F. 2015). We are bound by the
    military judge’s factual determinations unless they are clearly erroneous, but
    we conduct a de novo review of conclusions of law. 
    Id. “[W]e consider
    the evi-
    dence in the light most favorable to the prevailing party.” 
    Id. (alteration in
    original) (quoting United States v. Reister, 
    44 M.J. 409
    , 413 (C.A.A.F. 1996)).
    The military judge’s findings of fact are well supported by the record. Nei-
    ther the Government, nor the Defense contend otherwise, and we use those
    findings for purposes of our analysis. We do not add findings of fact or substi-
    tute our own interpretation of what happened—we merely apply the appro-
    priate legal tests to the facts established by the military judge.
    “The abuse of discretion standard is a strict one, calling for more than a
    mere difference of opinion. The challenged action must be arbitrary, fanciful,
    clearly unreasonable, or clearly erroneous.” United States v. McElhaney, 
    54 M.J. 120
    , 130 (C.A.A.F. 2000) (citation and internal quotation marks omit-
    ted). Applying this standard of review, we affirm the military judge’s ruling
    for the reasons explained below.
    B. Applicable Law of Search and Seizure
    The Fourth Amendment guarantees “[t]he right of the people to be secure
    in their persons, houses, papers, and effects, against unreasonable searches
    and seizures . . . .” U.S. CONST. amend IV. A warrantless search is “per se
    unreasonable under the Fourth Amendment—subject only to a few specifical-
    ly established and well-delineated exceptions.” Katz v. United States, 
    389 U.S. 347
    , 357 (1967). Data stored within a cell phone falls within the Fourth
    Amendment’s protection. United States v. Wicks, 
    73 M.J. 93
    , 99 (C.A.A.F.
    2014). Evidence obtained from a government search of cell phone data gener-
    ally will be inadmissible unless the search was conducted pursuant to a
    search authorization or a recognized exception to that requirement. 
    Id. Vol- untary
    consent to search is one recognized exception to the warrant require-
    ment. Schneckloth v. Bustamonte, 
    412 U.S. 218
    (1973).
    1. Scope of search
    The Government contends that Appellee gave consent to an expansive,
    general search of his entire phone. Appellee, on the other hand, contends that
    8
    United States v. Crocker, NMCCA No. 201900226
    he limited the scope of his consent to only the Facebook messages between
    LCpl DW and himself.
    While “[t]he scope of a search is generally defined by its expressed object,”
    it cannot exceed the scope of the actual consent given. Florida v. Jimeno, 
    500 U.S. 248
    , 251 (1991) (citing United States v. Ross, 
    456 U.S. 798
    , (1982)). “The
    standard for measuring the scope of a suspect’s consent . . . is that of ‘objec-
    tive’ reasonableness—what would the typical reasonable person have under-
    stood by the exchange between the officer and the suspect?” 
    Id. A person
    giv-
    ing consent to search may limit his consent by placing limitations on “time,
    place, or property.” Mil. R. Evid. 314(e)(3). While a person’s subjective intent
    to limit the scope does not control alone, “investigators [must] account for any
    express or implied limitations on a consent to search.” United States v. Wal-
    lace, 
    66 M.J. 5
    , 8 (C.A.A.F. 2008). The Government must prove consent by
    clear and convincing evidence. Mil. R. Evid. 314(e)(5).
    The scope of consent given by Appellee is determined by “objective rea-
    sonableness”—what “the typical reasonable person” would have understood
    by the entire dialogue and interaction between Agent MS and Appellee.
    
    Jimeno, 500 U.S. at 251
    .
    The Government relies on United States v. Wallace, 
    66 M.J. 5
    (C.A.A.F.
    2008), and United States v. Spinoza, No. 201700236, 2019 CCA LEXIS 40
    (N-M. Ct. Crim. App. 4 Feb 2019) (unpub. op.), review denied, 
    79 M.J. 137
    (C.A.A.F. 2019), to argue that because Appellee signed the PASS, he consent-
    ed to a broad general search of his cell phone data. In Wallace, the accused
    signed a PASS that allowed agents to search and seize his computer. The ac-
    cused argued that he gave his consent while he was under the impression
    that agents would only take copies of certain emails between himself and the
    child victim. The agents informed Staff Sergeant Wallace that they intended
    to search his computer for evidence. There is no mention of any contempora-
    neous statements by the accused and the Court of Appeals for the Armed
    Forces [CAAF] in Wallace notes that the accused’s “supposed impression”
    does not control the objective reasonableness of his consent. The CAAF relied
    on the express language of the PASS to find that the accused had in fact con-
    sented to a broad search and that a reasonable person could conclude that the
    accused consented to search and seizure, to include removal of the accused’s
    computer. Moreover, Wallace did not hinge on the scope of consent issue. Ra-
    ther, the case was decided on the inevitable discovery doctrine. The CAAF
    found that the evidence in question would have been inevitably discovered
    even after the accused withdrew his consent because government agents had
    probable cause, prior to the accused’s consent, to obtain command authoriza-
    tion to conduct a broad, general search of the computer. 
    Wallace, 66 M.J. at 15-16
    .
    9
    United States v. Crocker, NMCCA No. 201900226
    In an unpublished opinion, Spinoza, this Court found that the search of
    Lieutenant [LT] Spinoza’s cell phone was reasonable pursuant to a PASS and
    in light of the contemporaneous discussion between the accused and an NCIS
    special agent. The NCIS special agent explained that he intended to look for
    digital evidence of the relationship between LT Spinoza and his accuser, in-
    cluding information contained in applications on his phone and anything that
    pertained to the investigation. Although no evidence was discovered pertain-
    ing to the initial accuser, evidence of misconduct was discovered in texts with
    another person. We found that it was reasonable for the special agent to
    search for witnesses through text conversations that occurred during the spe-
    cific period alleged by LT Spinoza’s accuser. We rejected LT Spinoza’s subjec-
    tive belief that he limited the scope of his consent to only his communications
    with his accuser. Considering the PASS in light of the entire discussion be-
    tween LT Spinoza and the special agent, we concluded that the search oc-
    curred within the scope of the consent granted by LT Spinoza. Spinoza, 2019
    CCA LEXIS 40 at *18-19.
    In another unpublished opinion of this Court, United States v. Gitto, No.
    201800164, 2019 CCA LEXIS 6 (N-M. Ct. Crim. App. 8 Jan 2019) (unpub.
    op.), we also found that the accused consented to a broad search because of
    the dialogue between LCpl Gitto and NCIS special agents while discussing
    the PASS to search his cell phone. LCpl Gitto approached NCIS as a victim of
    extortion by a former sexual partner. He consented to an NCIS search of his
    cell phone that revealed evidence of LCpl Gitto’s sexual relationship with a
    minor. During discussions prior to signing the PASS, two NCIS special
    agents briefly explained the “breadth of the search” they expected to conduct,
    to include “dump[ing] everything on the phone” and taking all the data, text
    messages, photographs, and videos. 
    Id. at 22-24.
    The NCIS special agents al-
    so explained that if they encountered any sexually explicit photos, they would
    report that to LCpl Gitto’s chain of command. 
    Id. at 23.
    Finally, the special
    agents explained, “they would have to investigate further if they found any
    evidence of child pornography or murder.” 
    Id. at 23.
    Based on the PASS and
    the entire exchange between LCpl Gitto and the agents, this Court found that
    a reasonable observer would expect the agent to perform a thorough search of
    all of the cell phone data and “investigate any new-discovered illegality—
    especially child sex offenses—as he warned he would do.” 
    Id. at 24.
        The Air Force Court of Criminal Appeals [AFCCA] considered similar cir-
    cumstances in United States v. Osorio, 
    66 M.J. 632
    (A.F. Ct. Crim. App.
    2008). Air Force Office of Special Investigations (OSI) agents were investigat-
    ing a sexual assault that occurred at a party that Senior Airman [SrA] Osorio
    attended. SrA Osorio was not a suspect, but he had taken photos at the party
    and OSI agents wanted to get that evidence from his laptop. SrA Osorio vol-
    untarily brought his external hard drive to OSI and signed a PASS. The
    10
    United States v. Crocker, NMCCA No. 201900226
    AFCCA found that the PASS was broad and expansive, but the entire inter-
    action between SrA Osorio and the agents showed that consent was limited to
    the party photos taken on the day of the party.
    The Government argues that similar to Wallace, the PASS was clear and
    expansive and that we should find that Appellee, like Staff Sergeant Wallace,
    consented to a broad, general search of all of his cell phone data. We disagree.
    Because there was no additional dialogue between the agents and Staff Ser-
    geant Wallace to better inform the scope of consent, the PASS in that case
    was the only evidence regarding the scope of consent. The CAAF noted noth-
    ing contradictory to the standard boilerplate language of the PASS other
    than Staff Sergeant Wallace’s mistaken impression of what the agents in-
    tended to do. 
    Wallace, 66 M.J. at 7-8
    . In this case, there is much more than
    the mere subjective impression of Appellee. There was a running dialogue in
    which Appellee said, “I’m going to show you a text message”; Agent MS asked
    Appellee for “those texts” and “that information” that he had been shown;
    Appellee responded that he did not care; and then during their review of the
    PASS, Appellee explicitly stated that he only used Facebook Messenger to
    communicate with LCpl DW. Finally, when asked why he gave LCpl DW his
    security information, Appellee reiterated, “[A]ccording to the Facebook mes-
    sages, his father needed access like to my bank account . . . . [s]o he could re-
    imburse me for the money.” Agent MS only asked for “those texts” and “that
    information” that Appellee had shown him, he did not account for this “ex-
    press or implied limitation” on Appellee’s consent, and as he testified, he al-
    ready knew the only evidence he was looking for came from the Facebook
    Messenger application.
    The Government also asserts that Spinoza should lead us to find Appellee
    consented to a general search of his phone because we rejected LT Spinoza’s
    subjective belief that he was limiting the scope of his consent to only his texts
    with his accuser. We disagree. LT Spinoza asked the NCIS special agent if he
    was just going to look at the text messages between LT Spinoza and his ac-
    cuser, and the special agent informed LT Spinoza of the wide breadth of the
    search he intended to conduct, to include searching the applications and texts
    on his phone for “any evidence.” Spinoza, 2019 CCA LEXIS 40, at *16-17.
    Even though the agent was only able to search the text message exchanges
    manually, he specifically limited his search to the period alleged by LT Spi-
    noza’s accuser when he found incriminating evidence regarding a second al-
    leged victim. Here, while Agent MS did not tell Appellee how or where he
    would be searching, he said he only wanted to get “those texts” and “that in-
    formation,” meaning the messages he was shown by Appellee. Agent MS
    knew the text message exchange he wanted occurred in the Facebook Mes-
    senger application even before Appellee specifically told him so. Also, in Spi-
    noza, the agent had to scroll through the text messages on the actual phone
    11
    United States v. Crocker, NMCCA No. 201900226
    because the UFED software did not produce usable information. Whereas the
    agent in Spinoza lawfully found incriminating text messages on LT Spinoza’s
    phone in the text message application where he was most likely to find text
    messages, Agent MS did not find the evidence he was looking for while
    searching for the messages in the SMS and MMS folders. He only found the
    suspect images while searching in a place where the messages and their em-
    bedded screenshots would not reasonably be found: the images folder. When
    Agent MS was not able to find the Facebook message exchange that he had
    been shown, rather than stop and ask Appellee for his phone so he could con-
    duct a manual search of the Facebook Messenger application or find some
    other reasonable way to limit his search to what Appellee had consented to,
    Agent MS decided to rummage through more than 43,000 images.
    Unlike the agents in Spinoza and Gitto, Agent MS did not explain or in-
    form Appellee that he intended to conduct a thorough search for digital evi-
    dence of “anything that pertains to the investigation,” not just Facebook mes-
    sages between LCpl DW and Appellee. When Appellee reiterated that he
    communicated with LCpl DW only using Facebook while in Romania, Agent
    MS did not disavow that he would only be looking at “those texts” and “that
    information.” Instead, Agent MS simply did not respond and proceeded to in-
    struct Appellee where to initial the PASS.
    Like Wallace, Spinoza, Gitto, and Osorio, the PASS was broad and expan-
    sive and authorized the search of Appellee’s “Android ZTE Axon 7 mini.”
    However, as explained in those opinions, the PASS must be considered in
    light of the entire conversation between Appellee and Agent MS. Neither the
    subjective intentions of Appellee nor the boilerplate language of the PASS
    solely control the scope of consent. Rather, it is the objective reasonableness
    determined by “what would the typical reasonable person have understood by
    the exchange between” Agent MS and Appellee. 
    Wallace, 66 M.J. at 8
    .
    Although law enforcement agents are not required to explain the tech-
    nical details of how a cell phone search will be conducted, the explanation, or
    the lack of one, is considered in determining what a reasonable person would
    conclude about the scope of consent. In this case, Agent MS did not indicate
    that he would be looking through all of the data on Appellee’s phone. To the
    contrary, the only evidence of Agent MS’s intent was that he requested to get
    “those texts” and “that information” regarding the Facebook message ex-
    changes that Appellee had shown him. The entire conversation between
    Agent MS and Appellee before and during review of the PASS would lead a
    reasonable person to think that Appellee consented to searching his phone for
    the Facebook messages that he showed Agent MS. It did not authorize a
    broad general search of his entire phone data, and the Government did not
    prove otherwise by clear and convincing evidence.
    12
    United States v. Crocker, NMCCA No. 201900226
    2. Unlawful search
    Whereas the Government concedes the search conducted by Special Agent
    SI was unlawful, they argue it was reasonable for Agent MS to look in the
    images folder because Appellee showed him Facebook messages that con-
    tained screenshots and screenshots might be found in the images folder. See
    United States v. Richards, 
    76 M.J. 365
    , 379 (C.A.A.F. 2017) (“[T]here may be
    no practical substitute for actually looking in many (perhaps all) folders and
    sometimes at the documents contained within those folders, and that is true
    whether the search is of a computer file or physical files. It is particularly
    true with image files.”). We disagree for multiple reasons.
    Agent MS did not look in any folder named “facebook” or even attempt to
    filter the data with the term “facebook.” However, we find that his initial in-
    vestigative path was reasonable because he first looked in the SMS folder
    which contained text only files and would potentially contain any text mes-
    sages between Appellee and LCpl DW even though it would not contain any
    screenshots. In fact, Agent MS found some recent text messages between the
    two Marines but they were not the Facebook messages he was looking for.
    Rather, they were basic telephone number based text messages. Because the
    UFED report does not separate messages by their source application, it was
    somewhat reasonable, at this point, for Agent MS to look in the SMS folder
    for the messages between Appellee and LCpl DW. Not finding the messages
    he was looking for in the SMS folder, Agent MS next looked in the MMS fold-
    er where mixed text and media files are located. Even though he did not find
    any messages between Appellee and LCpl DW in the MMS folder, it was logi-
    cally reasonable to look in that folder because the specific messages he was
    looking for contained both text and media (screenshots).
    Agent MS’s investigative action became unreasonable when he decided to
    look through over 43,000 thumbnail images in hopes of finding just the
    screenshots that Appellee had shown him in the Facebook Messenger appli-
    cation on his phone. Rummaging through the images folder would be reason-
    able only if Appellee had taken the screenshots of his own screen or if he had
    manually saved the individual screenshots as images. However, Agent MS
    knew that Appellee received, not sent, the screenshots images. Even if there
    was some illogical way that the screenshots ended up in the images folder,
    there was no reason for Agent MS to believe screenshots embedded in text
    messages would appear in the images folder. Agent MS testified that Appel-
    lee did not open the photos folder on his phone and show him anything. He
    knew the messages he saw were from the Facebook Messenger application
    and not Appellee’s photos or images folder. Moreover, Agent MS was not look-
    ing for just the screenshots alone. He wanted the messages with their em-
    bedded screenshots because they showed the complete picture of how LCpl
    DW was able to get Appellee’s financial information. Since he already was
    13
    United States v. Crocker, NMCCA No. 201900226
    unable to find just the text only parts of the messages he wanted, the screen-
    shots alone would not be sufficient evidence and searching for just the
    screenshots was unreasonable given the scope of consent. Further, Agent MS
    had other “practical substitutes” available in lieu of conducting the sort of
    “free-for-all general search[ ] the Fourth amendment was designed to pre-
    vent.” 
    Id. He could
    have asked Appellee for his phone so that, as the agent
    did in Spinoza, he could manually search for the Facebook Messages he was
    seeking. He also could have just asked Appellee for additional authorization
    to look in the images folder of the UFED report. Instead, he decided to pains-
    takingly scroll through 43,000 images hoping to find Facebook messages and
    embedded screenshots that would not logically be found in the images folder
    of the UFED report. We find this free-for-all general search to be unreasona-
    ble given the circumstances. Agent MS exceeded the scope of Appellee’s con-
    sent, and to the extent the search went beyond that consent, it was unlawful.
    3. Plain view
    “Law enforcement officials conducting a lawful search may seize items in
    plain view if [the officials] are acting within the scope of their authority, and
    . . . they have probable cause to believe the item is contraband or evidence of
    a crime.” United States v. McMahon, 
    58 M.J. 362
    , 367 (C.A.A.F. 2003) (altera-
    tions in original) (citation and internal quotation marks omitted). Evidence
    may be seized when “[t]he person while in the course of otherwise lawful ac-
    tivity observes in a reasonable fashion property or evidence that the person
    has probable cause to seize.” Mil. R. Evid. 316(c)(5)(C). “[I]n order for the
    plain view exception to apply: (1) the officer must not violate the Fourth
    Amendment in arriving at the spot from which the incriminating materials
    can be plainly viewed: (2) the incriminating character of the materials must
    be immediately apparent; and (3) the officer must have lawful access to the
    object itself.” 
    Richards, 76 M.J. at 371
    (citing Horton v. California, 
    496 U.S. 128
    , 136-37 (1990)).
    The Government argues that the images of suspected child pornography
    were in plain view because they were present in a folder reasonably contain-
    ing screenshots. As we determined above, Agent MS exceeded the scope of
    Appellee’s consent when he bypassed other practical and lawful alternatives
    and elected to search through over 43,000 thumbnail images for messages
    with embedded screenshots that Appellee had already shown him were easily
    accessible on the phone itself. When Agent MS began looking for Facebook
    messages in the images folder, he exceeded Appellee’s scope of consent and
    “violate[d] the Fourth Amendment in arriving at the spot from which the in-
    criminating materials [could] be plainly viewed.” 
    Id. Thus, Agent
    MS was not
    acting “in the course of . . . lawful activity” when he discovered the two imag-
    es of suspected child pornography. Since the plain view doctrine requires that
    14
    United States v. Crocker, NMCCA No. 201900226
    law-enforcement agents be acting within the scope of the authorization at the
    time of discovery, the doctrine is inapplicable under the facts of this case.
    4. Exclusionary rule
    “Evidence obtained as a result of an unlawful search or seizure made by a
    person acting in a governmental capacity is inadmissible” if there is a timely
    motion to suppress, the accused had a reasonable expectation of privacy in
    the property searched, and “exclusion of the evidence results in appreciable
    deterrence of future unlawful searches or seizures and the benefits of such
    deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a).
    As discussed above, the images of suspected child pornography observed
    by Agent MS and Special Agent SI were obtained as a result of an unlawful
    search by persons acting in a governmental capacity. Appellee had a reason-
    able expectation of privacy in the contents of his cell phone, and he made a
    timely motion to suppress.
    The issue here is whether exclusion will result in deterrence of future un-
    lawful searches and whether the benefits of such deterrence outweigh the
    cost to the military justice system. The cost to the military justice system is
    that the guilty may go free. See Herring v. United States, 
    555 U.S. 135
    , 141
    (2009). The military judge balanced these competing interests and found that
    excluding the two images discovered by Agent MS would not deter future un-
    lawful searches because Agent MS’s conduct amounted to simple negligence,
    and exclusion in the face of marginal deterrent effect would not outweigh the
    cost to the justice system. 16 However, the military judge concluded the same
    was not true for the continued search of Appellee’s cell phone data by Special
    Agent SI. Special Agent SI compounded the already unlawful search by spe-
    cifically searching for child pornography and then exploiting the unlawfully
    obtained evidence to obtain admissions from the accused. Whereas Agent MS
    initially strayed into areas where he was not authorized to search, Special
    Agent SI, an experienced and educated NCIS special agent, should have
    known or ascertained the original object of the search to avoid such scope of
    consent issues, and yet she chose to expand an already precarious search. She
    then exploited the fruits of her recurring, unlawful, and at least negligent
    search to obtain confessions from Appellee and a command authorization
    from Appellee’s commanding officer. We find that when a victim of a crime
    16 As stated above, because this aspect of the military judge’s ruling does not ex-
    clude evidence that is substantial proof of a fact material in the proceeding, we view
    this part of the military judge’s ruling as not subject to the Government’s appeal un-
    der Article 62(a)(1)(B), UCMJ, and therefore not an issue before this Court.
    15
    United States v. Crocker, NMCCA No. 201900226
    approaches law enforcement with specific evidence to support their allega-
    tions and law enforcement then unnecessarily and illegally obtains other evi-
    dence and exploits that evidence against the victim, strong deterrence is war-
    ranted to prevent the chilling effect on victims and their willingness to report
    crime and cooperate with law enforcement. We affirm the military judge’s de-
    cision to apply the exclusionary rule and suppress all images beyond the two
    images negligently discovered by Agent MS. The military judge applied the
    correct test and determined that based on this recurring negligent police con-
    duct the appreciable deterrence of future unlawful searches outweighs the
    cost to the military justice system. We agree and find that the military
    judge’s ruling was reasonable and not an abuse of discretion.
    5. Inevitable discovery doctrine
    The Government now contends that the military judge erred by not apply-
    ing the inevitable discovery exception to the exclusionary rule under Military
    Rule of Evidence 311. 17 “To take advantage of [the inevitable discovery] doc-
    trine, the prosecution must establish, by a preponderance of the evidence,
    ‘that when the illegality occurred, the government agents possessed, or were
    actively pursuing, evidence or leads that would have inevitably led to the dis-
    covery of the evidence and that the evidence would inevitably have been dis-
    covered in a lawful manner had not the illegality occurred.” United States v.
    Hoffmann, 
    75 M.J. 120
    , 124-25 (C.A.A.F. 2016) (emphasis in original) (quot-
    ing United States v. Dease, 
    71 M.J. 116
    , 122 (C.A.A.F. 2012)).
    Agent MS did not suspect Appellee of any crime or see any contraband
    while operating within the scope of the consent to search granted by Appel-
    lee. Agent MS found suspicious images only after unlawfully exceeding the
    scope of consent. At the last point where Agent MS was operating within the
    scope of consent granted by Appellee, there was no probable cause to justify a
    command authorization to search and seize evidence of a crime from Appel-
    lee’s cell phone. Therefore, there was no real possibility that law enforcement
    agents would have otherwise discovered the images of suspected child por-
    nography on Appellee’s phone. This applies to the evidence found first by
    Agent MS and to the follow-on evidence found by Special Agent SI. There is
    no evidence in the record that “the government agents possessed, or were ac-
    17  The Defense briefed the issue in their Motion to Suppress, App. Ex. III, and ar-
    gued the issue before the military judge. The Government, on the other hand, did not
    address the issue in their response, App. Ex. IV, nor argue the issue before the mili-
    tary judge.
    16
    United States v. Crocker, NMCCA No. 201900226
    tively pursuing, evidence or leads that would have inevitably led to the” law-
    ful discovery of that evidence. 
    Id. The Government
    argues that Agent MS discovered the two initial images
    of suspected child pornography in plain view; thus, the exclusionary rule
    should not apply in this case because the evidence found by Special Agent SI
    would have been inevitably discovered. We disagree. As discussed above,
    when Agent MS began looking for Facebook messages in the images folder,
    he exceeded Appellee’s scope of consent and was therefore not acting “in the
    course of . . . lawful activity” when he discovered the images at issue, the doc-
    trine of plain view is inapplicable under the facts of this case. Even if we were
    to sanction Agent MS’s discovery of the two images as occurring in plain
    view, the ensuing handoff to NCIS was so abysmally handled that we would
    still find the follow-on search to be illegal, as the Government concedes, and
    apply the exclusionary rule to the evidence.
    When Agent MS discovered what he thought might be child pornography,
    he stopped his search and contacted NCIS because child pornography is in
    their investigative purview. That was the right decision. Ideally, Agent MS
    should have frozen the scene, documented the computer screen with pictures
    or photo names and numbers, called NCIS to come and verify what he just
    viewed, and then NCIS should have taken the lead and contacted the Staff
    Judge Advocate to coordinate obtaining an immediate CASS. Instead, Agent
    MS called NCIS, set up a meeting for the next day, brought over the UFED
    report on an external disk and looked through the data with Special Agent
    SI.
    As the Government concedes, this search was illegal, and the Government
    produced no evidence at all that they possessed “or were actively pursuing,
    evidence or leads that would have inevitably led to the discovery of the evi-
    dence . . . in a lawful manner.” 
    Hoffmann, 75 M.J. at 124-125
    (citation and
    internal quotation marks omitted). NCIS obtained a CASS three days later,
    but it was based on the illegally obtained evidence from Special Agent SI’s
    exploitation of the illegal search. What NCIS would have done based only on
    the two images reported by Agent MS is speculative at best, especially since
    we know what NCIS actually did after Agent MS correctly stopped his inves-
    tigation and turned it over to Special Agent SI, the head Agent of the NCIS
    unit tasked with investigating child pornography cases. Rather than merely
    confirm that the two images identified by Agent MS were possibly child por-
    nography, Special Agent SI conducted her own more expansive search review-
    ing additional images and eventually listing the details of four images in her
    affidavit in support of the CASS. The Government produced no other evi-
    dence to meet their burden on this issue. For these reasons, even if we found
    that Agent MS discovered the images in plain view, the inevitable discovery
    doctrine does not apply to the evidence suppressed by the military judge.
    17
    United States v. Crocker, NMCCA No. 201900226
    6. Fruit of the poisonous tree derivative evidence
    “Evidence derivative of an unlawful search, seizure, or interrogation is
    commonly referred to as the ‘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). While not all derivative evidence is necessarily inadmissible, that
    which “come[s] by exploitation of the [law enforcement] illegality” and not “by
    means sufficiently distinguishable to be purged of the primary taint” is in-
    admissible. Wong Sun v. United States, 
    371 U.S. 471
    , 487-88 (1963). Here,
    the Government concedes that Special Agent SI’s search was unlawful. She
    then used her knowledge of what she saw on Appellee’s phone to obtain his
    confession to viewing and possessing child pornography. She then used the
    connection between child pornography and an inferred sexual interest in
    children to obtain an admission from Appellee that he recently touched the
    penis of his four-year-old nephew. Although Appellee made the admission, his
    phone contained no data regarding the molestation of any child and he would
    not have even been pressed about his sexual interest in children if it were not
    for Special Agent SI’s exploitation of the images found during her unlawful
    search of the phone data.
    In Brown v. Illinois, 
    422 U.S. 590
    (1975), the Supreme Court used three
    factors to determine if Miranda warnings were sufficient to remove the taint
    of an illegal search on a confession. The CAAF has used the framework to
    consider whether consent to search was obtained by exploitation of an unlaw-
    ful search. United States v. Khamsouk, 
    57 M.J. 282
    , 290 (C.A.A.F. 2002).
    “[T]he question of whether such a confession is a an act of free will must be
    answered on the facts of each case looking at the temporal proximity of the
    unlawful police activity and the subsequent confession, the presence of inter-
    vening circumstances, and the purpose and flagrancy of the official miscon-
    duct.” 
    Conklin, 63 M.J. at 338
    (citing 
    Brown, 422 U.S. at 603-04
    ).
    Applying the Brown three-prong test to the facts of this case, we deter-
    mine that all three prongs favor Appellee. First, the illegal search of the cell
    phone data was close in time to the NCIS actions that led to Appellee’s ad-
    missions. Appellee was interrogated, made admissions, and consented to fur-
    ther searches within hours of Special Agent SI’s unlawful search while re-
    viewing the UFED report with Agent MS. Second, there were no intervening
    circumstances sufficient to remove the taint from the initial illegal search.
    Special Agent SI “would not have been interested in talking to [Appellee] but
    for the information” obtained as a result of the unlawful search that had just
    taken place. See 
    id. at 339.
    “There were no intervening events or circum-
    stances that would sever the causal connection between the” illegal search
    and Appellee’s admissions. 
    Id. The third
    factor requires examination of the
    Government’s conduct. Agent MS’s actions were improper because he knew
    exactly what messages he wanted and yet chose to explore areas of the UFED
    18
    United States v. Crocker, NMCCA No. 201900226
    report well beyond where the Facebook messages and their embedded screen-
    shots would reasonably be found when he had other lawful options. Special
    Agent SI continued the unlawful search and further exceeded the scope of
    consent by searching for possible child pornography and expanding additional
    thumbnails in addition to those reported by Agent MS. Special Agent SI did
    not merely confirm that what Agent MS discovered was likely child pornog-
    raphy; she engaged in her own search of the data to discover several images
    that she suspected were child pornography and she expanded those images to
    confirm her own suspicions. Special Agent SI also had other options to in-
    clude stopping the search after becoming aware of the suspicious images and
    seeking broader search authorization from either Appellee or from a com-
    mand search authority.
    Applying the Brown framework to the facts of this case, we conclude that
    Appellee’s confession and additional consent to search were not sufficiently
    attenuated from the taint of the illegal search of Appellee’s cell phone data
    first by Agent MS and then by Special Agent SI. But for Special Agent SI’s
    exploitation of the illegally obtained evidence, Appellee would not have ad-
    mitted to the misconduct. Therefore, Appellee’s admissions and consent to
    other searches while under interrogation by Special Agent SI are derivative
    of the unlawful search of his phone data.
    Finally, we conclude the results of the subsequent command-authorized
    search of Appellee’s phone are also fruit of the same poisonous tree and must
    be suppressed. Special Agent SI sought and received the CASS for this search
    based on the images she had already unlawfully obtained from Appellee’s
    phone. This derivative evidence was obtained by exploitation of the earlier
    illegality and not “by means sufficiently distinguishable to be purged of the
    primary taint.” Wong 
    Sun, 371 U.S. at 487-88
    . It is therefore inadmissible.
    C. The Military Judge Did Not Abuse His Discretion
    The military judge issued written findings of fact supported by the record,
    not clearly erroneous, and uncontroverted by either party. The military judge
    applied the correct legal principles to the facts before him and issued a de-
    tailed written ruling. “The abuse of discretion standard is a strict one, calling
    for more than a mere difference of opinion. The challenged action must be ar-
    bitrary, fanciful, clearly unreasonable, or clearly erroneous.” 
    McElhaney, 54 M.J. at 130
    (citation and internal quotation marks omitted). We do not ask
    whether we “might disagree with the trial court’s findings, but whether those
    findings are ‘fairly supported by the record.’” United States v. Burris, 
    21 M.J. 140
    , 144 (C.M.A. 1985) (quoting Marshall v. Lonberger, 
    459 U.S. 422
    , 432,
    (1983)). Applying this standard of review, we find that the military judge did
    not abuse his discretion and we uphold his ruling.
    19
    United States v. Crocker, NMCCA No. 201900226
    III. CONCLUSION
    After carefully considering the military judge’s findings of fact, principles
    of law, and conclusions of law, the appeal of the United States is hereby
    DENIED. The military judge’s ruling is affirmed and the record of trial is
    returned to the Judge Advocate General for remand to the convening authori-
    ty and delivery to the military judge for further proceedings.
    Chief Judge CRISFIELD and Judge GASTON concur.
    FOR THE COURT:
    RODGER A. DREW, JR.
    Clerk of Court
    20