U.S. v. Gurczynski, 76 M.J. 381

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; the ultimate touchstone of the Fourth Amendment is reasonableness
2. to assess whether a search is reasonable, courts must assess, on the one hand, the degree to which the search intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests
3. although neither the Fourth Amendment nor the Federal Rules of Criminal Procedure impose deadlines for the digital examination of seized devices, the constitutional principle of reasonableness necessarily bears some relation to the scope of the warrant, the execution of the search warrant, and the timing of the search; even in the absence of a time limit, the government nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration

Military Justice Personnel: Military Judge: Discretion

1. when an appeal presents a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. under the facts of this case, it was constitutionally unreasonable for the government to conduct a digital forensic search of a thumb drive for evidence of child pornography based on a warrant previously issued over nine months earlier for charges of the sexual abuse of a child, crimes for which the owner had already been convicted five months earlier; as such, the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant or supporting affidavits was outside the scope of the warrant and must be suppressed

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. to assess whether a search is reasonable, courts must assess, on the one hand, the degree to which the search intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests
2. although neither the Fourth Amendment nor the Federal Rules of Criminal Procedure impose deadlines for the digital examination of seized devices, the constitutional principle of reasonableness necessarily bears some relation to the scope of the warrant, the execution of the search warrant, and the timing of the search; even in the absence of a time limit, the government nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration

Core Criminal Law Subjects: Evidence: Search and Seizure › Plain view

1. one exception to the warrant requirement for items not otherwise subject to a lawful search is the plain view doctrine, a doctrine that allows law enforcement officials conducting a lawful search to seize items in plain view if they are acting within the scope of their authority and have probable cause to believe the item is contraband or evidence of a crime; this exception applies even if an officer is interested in an unauthorized item of evidence and fully expects to find it there
2. courts have struggled to apply the plain view doctrine to searches of digital devices, given the vast amount of information they are capable of storing and the difficulty inherent in tailoring searches of electronic data to discover evidence of particular criminal conduct; in light of these difficulties, the application of the plain view doctrine in a digital context poses a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant
3. a prerequisite for the application of the plain view doctrine is that the law enforcement officers must have been conducting a lawful search when they stumbled upon evidence in plain view; in this case, the officers were not conducting a lawful search because their execution of the warrant was constitutionally unreasonable

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. probable cause to search the accused’s devices for evidence of abusive sexual contact does not, without more, provide probable cause to search the devices for evidence of child pornography
2. searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. at the epicenter of the panoply of rules intended to effectuate protection against dragnet searches for evidence of any crime, are the requirements that a search warrant must: (1) be based on probable cause; (2) be supported by oath or affirmation; and (3) particularly describe the place to be searched, and the persons or things to be seized
2. searches conducted after obtaining a warrant or authorization based on probable cause are presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions
3. while a warrant makes a search presumptively reasonable, a warrant does not guarantee the constitutionality of a search or relieve the Government of the burden of establishing that the warrant did not authorize an unreasonable search
4. in the absence of some exception to the warrant requirement, to allow the seizure of objects not particularly described in the warrant would violate the familiar principle that no amount of probable cause can justify a warrantless search or seizure
5. searches conducted pursuant to a warrant are necessarily limited in scope, thus preventing a general rummaging about
6. under the facts of this case, it was constitutionally unreasonable for the government to conduct a digital forensic search of a thumb drive for evidence of child pornography based on a warrant previously issued over nine months earlier for charges of the sexual abuse of a child, crimes for which the owner had already been convicted five months earlier; as such, the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant or supporting affidavits was outside the scope of the warrant and must be suppressed

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard
2. when an appeal presents a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect