CAAF decided the certified Army case of United States v. Gurczynski, __ M.J. __, No. 17-0139/AR (CAAFlog case page) (link to slip op.) on Monday, July 24, 2017. Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior. CAAF affirms the military judge’s suppression ruling and the decision of the Army CCA.

Judge Ryan writes for a unanimous court.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim. But that discovery occurred five months after Gurczynski’s guilty pleas, and nine months after the warrant was issued.

The circumstances of the search (including that the searcher did not obtain a new warrant after suspecting the presence of child pornography) led to a motion to suppress that was granted by the military judge. The prosecution appealed but the Army court affirmed. The Judge Advocate General of the Army then certified a single, straightforward issue to CAAF:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

CAAF heard oral argument on March 15, 2017 (noted here). Then it specified a different issue and ordered additional briefs:

The Fourth Amendment prohibits unreasonable searches. Was the search of [Gurczynski’]s thumb drive unreasonable, despite being executed pursuant to a facially valid warrant, in light of the facts that: 1) [Gurczynski] was convicted of the offense for which the search warrant was issued five months prior to the search; and 2) over nine months had passed between the issuance of the search warrant and the digital examination of the seized devices?

Slip op. at 5. With today’s opinion the court finds that the search was not reasonable, and that the military judge did not err, for three reasons:

First, Appellee [Gurczynski] had already been convicted of the offenses for which the warrant was issued. Second, the warrant and supporting affidavits did not mention child pornography. Third, SA JT [the searcher] nonetheless directed the DFE [digital forensic examination] to search for child pornography.

Slip op. at 5.

The prosecution at trial, the Army Appellate Government Division on appeal, and the Navy-Marine Corps Appellate Government Division as amicus curiae, all asserted that the plain view exception to the warrant requirement applies. This exception “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.” Slip op. at 10. This assertion relied on the disputed fact that the searcher saw an actual image of child pornography (rather than merely a file name indicative of child pornography, as the military judge found). But CAAF rejects the exception outright because:

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. As noted, the officers in this case were not conducting a lawful search because the execution of the warrant was constitutionally unreasonable.

Slip op. at 10-11.

That unreasonableness, Judge Ryan explains, is based on the passage of time and intervening events that removed any legitimate Government interest for the underlying search:

[T]he extraordinary length of time between the issuance of the warrant and the digital examination of the thumb drive—over nine months—has some bearing on the question whether the search was constitutionally reasonable.

More important than the mere passage of time, however, is the fact that Appellee had already been convicted of the offenses specified in the warrant. Simply put, the Government had no legitimate interest here in uncovering evidence of the offenses covered by the warrant. Our holding today is narrow: the unique facts in this case compel us to conclude that the Government no longer had a legitimate governmental interest in searching for evidence of the offenses covered by the warrant following Appellee’s convictions, and so the search was constitutionally unreasonable.

Slip op. at 9. She adds that a contrary conclusion:

[W]ould effectively allow a digital forensic examination “for a period of unlimited duration and an examination of unlimited scope” based on a warrant issued at some time. Cf. United States v. Kim, 103 F. Supp. 3d 32, 59 (D.D.C. 2015). . . . We decline to grant the Government the unbridled discretion to conduct what is functionally a “general, exploratory rummaging in a person’s belongings,” Coolidge, 403 U.S. at 467, by relying on a warrant no longer justified by any legitimate government interest to assert that other evidence was in plain view.

Slip op. at 9.

The decision is firmly-grounded in the unique facts of this case, but it’s easy to imaging analogous circumstances after an accused makes a plea deal for some offenses in order to avoid the likely-inevitable discovery of other offenses. One might even imagine that is what happened in this case.

But the decision has echoes of United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page), in which a divided court found that evidence obtained after the expiration of a 90-day search warrant for electronic items should have been suppressed. There was no such time limit in the warrant in Gurczynski, and CAAF has never held that such a time limit is required, but its resolution of this case – including Judge Ryan’s description of the nine-month delay between issuance of the warrant and the search as an “extraordinary length of time,” slip op. at 9 – likely brings such a requirement closer to reality.

Case Links:
• ACCA opinion
• Appellant’s brief  (Army App. Gov’t Div.)
• Appellee’s brief
• Appellant’s (Army App. Gov’t Div.) reply brief
• Amicus brief: N.M. App. Gov’t Div.
• Blog post: Argument preview
• Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

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