UNITED STATES, Appellee 

v. 

Adam G. COTE, Airman First Class 

U.S. Air Force, Appellant 

No. 12-0522 

Crim. App. No. 37745 

United States Court of Appeals for the Armed Forces 

Argued November 27, 2012 

Decided March 8, 2013 

ERDMANN, J., delivered the opinion of the court, in which 

STUCKY, J., and Cox, S.J., joined. BAKER, C.J., filed a 

separate opinion concurring in part and dissenting in part. 

RYAN, J., filed a separate dissenting opinion. 

Counsel 

For Appellant: Frank J. Spinner, Esq. (argued); Captain Travis 

K. Ausland (on brief). 

For Appellee: Captain Tyson D. Kindness (argued); Lieutenant 

Colonel C. Taylor Smith, Captain Brian C. Mason, and Gerald R. 

Bruce, Esq. (on brief); Major Charles G. Warren. 

Military Judges: Don M. Christensen, Paula B. McCarron, Nancy 

J. Paul, and Michael J. O’Sullivan 

This opinion is subject to revision before final publication. 
United States v. Cote, No. 12-0522/AF 

2

Judge ERDMANN delivered the opinion of the court. 

 Contrary to his pleas, Airman Adam Cote was convicted by a 

general court-martial with members of one specification of 

possessing child pornography, in violation of Article 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). 

He was sentenced to a bad-conduct discharge, confinement for 

twelve months, forfeiture of all pay and allowances, and 

reduction to E-1. The convening authority approved the adjudged 

sentence except for the forfeitures. The United States Air 

Force Court of Criminal Appeals (CCA) affirmed the findings and 

the sentence. United States v. Cote, No. ACM 37745, 2012 CCA 

LEXIS 106, at *17, 2012 WL 1058985, at *6. (A.F. Ct. Crim. App. 

Mar. 28, 2012). 

 While “technical” or “de minimis” violations of a search 

warrant’s terms do not warrant suppression of evidence, United 

States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005), generally 

“the search and seizure conducted under a warrant must conform 

to the warrant or some well—recognized exception.” United 

States v. Upham, 168 F.3d 532, 536 (1st Cir. 1999) (citing 

Marron v. United States, 275 U.S. 192, 196-97 (1927)). We 

granted review to determine whether a search conducted in 

violation of a search warrant’s post-seizure time limitation 

renders the search unreasonable.1

 We conclude that under the 

 

1

 Specifically we granted review on the following issue: 
United States v. Cote, No. 12-0522/AF 

3

circumstances of this case, the Government’s violation of the 

warrant’s time limits for conducting an off-site search of the 

seized electronic device constituted more than a “de minimis” 

violation of the warrant and resulted in an unreasonable search. 

We therefore reverse the decision of the CCA. 

Background

On May 30, 2008, Special Agent (SA) Steven Harstad of the 

North Dakota Bureau of Criminal Investigation (NDBCI), commenced 

an online child pornography investigation. He connected to a 

peer-to-peer network and discovered one user in the state of 

North Dakota sharing child pornography. He contacted Brian 

Novesky, a United States Immigration and Customs Enforcement 

Special Agent and requested assistance in identifying the 

individual associated with the IP address he had found. SA 

Novesky determined that the IP address was registered to Cote. 

On July 1, 2008, Novesky applied for and received a search 

warrant from a federal magistrate judge in North Dakota for 

Cote’s dorm room at Minot Air Force Base. 

The warrant authorized the search and seizure of 

“[c]omputers,” “[c]omputer input and output devices” and 

 

 

Whether evidence found on Appellant’s computer should be 

suppressed because it was found pursuant to a search that 

violated the terms of the warrant. 

United States v. Cote, 71 M.J. 361 (C.A.A.F. July 12, 2012) 

(order granting review). 
United States v. Cote, No. 12-0522/AF 

4

“[c]omputer storage media and digital content” for “[i]mages or 

visual depictions of the sexual exploitation of children.” The 

warrant allowed the Government ten days from issuance to conduct 

the search. It also provided that any electronic devices or 

storage media seized under the warrant must be searched within 

ninety days of issuance, unless “for good cause demonstrated, 

such date is extended by an order of the Court.”2 The special 

agents who executed the warrant had dealt with this limitation 

before and had, in prior investigations, requested extensions of 

time. 

The special agents searched Cote’s dorm room on July 2, 

2008, and seized a Sony laptop computer, an HP laptop computer, 

a digital camera and a WD external hard drive. Although 

evidence of child pornography was eventually discovered on both 

of the two laptop computers, SA Harstad was unable to access the 

WD external hard drive because it was broken. His final 

examination of the WD hard drive occurred on August 18, 2008, 

when he was again unsuccessful in reading the drive. Although 

 

2

 The warrant contained an “ADDENDUM TO SEARCH WARRANT RE[:] 

ELECTRONIC DEVICES, STORAGE MEDIA, AND ELECTRONIC DATA” which 

provided, in pertinent part: 

1. The search of any Electronic Device or Storage Media 

authorized by this warrant shall be completed within 90

days from the date of the warrant unless, for good 

cause demonstrated, such date is extended by an order 

of the Court. 

 

The term of ninety days was handwritten into the warrant. 
United States v. Cote, No. 12-0522/AF 

5

the record does not identify the date, at some point after 

August 18, 2008, the case was transferred to the Air Force. 

Ninety days after the issuance of the warrant, on September 

28, 2008, the WD external drive had not been searched nor had 

the agents or the Air Force Office of Special Investigations 

(AFOSI) requested an extension of time in which to search the 

device. On September 8, 2009, well over a year after the 

warrant was issued, AFOSI at Minot AFB submitted a request to 

the Defense Computer Forensics Laboratory (DCFL) to see if they 

could repair the WD external drive. The laboratory was able to 

repair the drive and created a digital copy which was eventually 

returned to SA Harstad. SA Harstad subsequently analyzed the 

digital copy and discovered evidence of child pornography. As a 

result of this evidence, the Government referred a Second 

Additional Charge against Cote alleging, under Article 134, 

UCMJ, possession of “visual depictions of minors engaging in 

sexually explicit conduct, such conduct being of a nature to 

bring discredit upon the armed forces.”3

At trial, Cote filed a motion to suppress all evidence 

obtained from the searches of the laptops and the WD external 

drive that occurred after the ninety-day period specified in the 

 

3

 In total, Cote was charged with three specifications of 

“knowingly [possessing] visual depictions of minors engaging in 

sexually explicit conduct” and one specification of “knowingly 

[distributing] visual depictions of minors engaging in sexually 

explicit conduct,” all in violation of clause 2 of Article 134, 

UCMJ, 10 U.S.C. § 934 (2006). 
United States v. Cote, No. 12-0522/AF 

6

warrant. Following argument by the parties, the military judge 

granted the motion to suppress because the computers and the WD 

external drive were searched outside of the ninety-day limit 

contained in the warrant and the searches were therefore 

“unlawful.” 

The Government filed for review of the military judge’s 

ruling under Article 62, UCMJ, 10 U.S.C. § 862 (2006). The CCA 

held that the military judge erred in excluding evidence from 

the two laptops as SA Harstad had searched the laptops within 

the ninety days specified in the warrant and had copied and 

stored the electronic data which he obtained from those 

searches. United States v. Cote, Misc. Dkt. No. 2009-15, 2010 

CCA LEXIS 186, at *6-*9 (A.F. Ct. Crim. App. Apr. 6, 2010). As 

to the WD external drive, the CCA agreed with the military judge 

that the DCFL search of the device violated the ninety-day time 

limit in the warrant for searching electronic devices and 

storage media, but went on to find that the military judge erred 

in concluding that the violation required suppression of the 

evidence. Id. at *9-*18. Cote subsequently appealed the CCA 

decision to this court but we declined to review the case at 

that time. United States v. Cote, 69 M.J. 210 (C.A.A.F. 2010). 

The case was remanded and the trial proceeded with all of 

the images admitted into evidence. Cote was acquitted of all 

charges except the Second Additional Charge of possession of 
United States v. Cote, No. 12-0522/AF 

7

sexually explicit visual depictions of minors, which was based 

solely on the evidence found on the WD external drive. The CCA 

affirmed the conviction on direct appeal and, as to the 

suppression issue, affirmed on the same grounds which it relied 

on in the earlier Article 62, UCMJ, ruling. Cote, 2012 CCA 

LEXIS 106 at *2-*10, 2012 WL 1058985, at *1-*4. Cote appeals to 

this court challenging the CCA’s determination that, while the 

DCFL search of the WD external drive violated the ninety-day 

time limit in the warrant, the evidence was nonetheless 

admissible. 

Discussion

Under the circumstances presented in this case, we are 

reviewing the military judge’s initial ruling that suppressed 

the evidence obtained from the WD external drive.4

 We review a 

military judge’s ruling on a motion to suppress for abuse of 

discretion. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 

2000). We review findings of fact under the clearly erroneous 

standard and conclusions of law de novo. United States v. 

Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). 

 

4

 On direct review of an issue which was previously the subject 

of an Article 62, UCMJ, interlocutory appeal, we review whether 

the military judge’s initial decision was an abuse of 

discretion. See United States v. Mosley, 42 M.J. 300, 302-04 

(C.A.A.F. 1995) (reviewing the initial decision under an abuse 

of discretion standard even though it was reversed on an Article 

62, UCMJ, interlocutory appeal). 
United States v. Cote, No. 12-0522/AF 

8

Prior to 2009, Fed. R. Crim. P. 41(e)(2)(A) (Searches and 

Seizures) required that a warrant to search or seize property be 

executed within ten days. In 2009, however, the rule was 

amended, adding section 41(e)(2)(B) which provided, in part, as 

follows: 

(B) Warrant Seeking Electronically Stored Information. 

A warrant under Rule 41(e)(2)(A) may authorize the 

seizure of electronic storage media or the seizure or 

copying of electronically stored information. Unless 

otherwise specified, the warrant authorizes a later 

review of the media or information consistent with the 

warrant. The time for executing the warrant in Rule 

41(e)(2)(A) and (f)(1)(A) refers to the seizure or onsite copying of the media or information, and not to 

any later off-site copying or review.5

This rule reflects a principle also recognized by the judiciary 

-– that courts “[cannot] expect the government to make onsite 

determinations of whether a file or document contained on a hard 

drive or in an email account falls within the scope of the 

warrant.” United States v. Metter, 860 F. Supp. 2d 205, 214 

(E.D.N.Y. 2012). For this reason courts have considered seizure 

of electronic materials and later off-site analysis and review 

of them to be a constitutionally reasonable “necessity of the 

digital era.” Id. (citing United States v. Burns, 2008 U.S. 

Dist. LEXIS 35312, 2008 WL 4542990 (N.D. Ill. Apr. 29, 2008)). 

 

5

 The 2009 amendment also changed the execution requirement to 

fourteen days, rather than ten, due to an unrelated change in 

Fed. R. Crim. P. 45(a) to the method for counting days. Fed. R. 

Crim. P. 41 advisory committee’s note. 
United States v. Cote, No. 12-0522/AF 

9

While many circuits have recognized that “[t]he Fourth 

Amendment does not specify that search warrants [must] contain 

expiration dates . . . [or] requirements about when the search 

or seizure is to occur or the duration,” United States v. 

Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993), in this case we 

are dealing with a search warrant in which the judge established 

just such a requirement.6 

Cote simply argues that since the search of the WD external 

drive violated the terms of the warrant, the evidence should 

have been suppressed. Rather than addressing the specific terms 

of the warrant, the Government argues that any delay in 

executing the warrant was reasonable. Noting that this court 

 

6

 Even if there were no time limitation contained in the warrant 

for conducting the off-site search, we think that the Government 

nevertheless remains bound by the Fourth Amendment to the extent 

that all seizures must be reasonable in duration. Metter, 860 

F. Supp. 2d at 212 (“[T]he manner in which the government 

executes the warrant must comport with the Fourth Amendment’s 

reasonableness standard”); United States v. Mutschelknaus, 564 

F. Supp. 2d 1072, 1076 (D.N.D. 2008) (“The Fourth Amendment only 

requires that the subsequent search of the computer be made 

within a reasonable time.”); United States v. Grimmett, 2004 

U.S. Dist. LEXIS 26988, at *14, 2004 WL 3171788, at *5 (D. Kan. 

Aug. 10, 2004), aff’d, 439 F.3d 1263 (10th Cir. 2006). In 

addition, the committee notes to Fed. R. Crim. P. 41(e)(2)(B), 

which addresses off-site copying and review state that: 

While consideration was given to a presumptive national or 

uniform time period [for] off-site copying or review . . . 

there is no basis for a “one size fits all” presumptive 

period . . . [but] [i]t [is] not the intent of the 

amendment to leave the property owner without an 

expectation of the timing for return of the property . . . 

. 

Fed. R. Crim. P. 41 advisory committee’s note. 
United States v. Cote, No. 12-0522/AF 

10

has not had the opportunity to examine a case with similar 

facts, the Government urges us to adopt the three-factor test 

for delay set out in United States v. Syphers, 426 F.3d 461, 469 

(1st Cir. 2005).7

 Syphers, however, does not involve a violation of an 

explicit term in a warrant and we do not believe it is on point.8

In fact, the district court in Syphers explicitly noted that 

“the court [was] not presented with a situation in which the 

search failed to conform to the requirements of the warrant.” 

United States v. Syphers, 296 F. Supp. 2d 50, 56 (D.N.H. 2003). 

In addition, Syphers focused primarily on the effect of delay in 

executing the search, and concomitantly, probable cause. 

Syphers, 426 F. 3d at 469. We believe, instead, that the Fourth 

Amendment harm being protected against by the ninety-day 

provision in this case is from a seizure of unreasonable 

duration and the resulting interference with Cote’s possessory 

 

7

 The Syphers factors are (1) whether the delay caused a lapse in 

probable cause, (2) whether the delay created prejudice to the 

defendant or (3) whether federal or state officers acted in bad 

faith to circumvent federal requirements. 426 F.3d at 469. 

8

 Syphers is similar to this case in that on the same day the 

state judge there issued the warrant, he also granted a motion 

giving the government twelve months in which to complete the 

search of the seized computer. 426 F.3d at 463-64. Unlike this 

case, however, the government in Syphers completed its search of 

the computer well within the allotted time period and there was 

no violation of the terms of the warrant or other court order. 

Id. The specific question in Syphers is not one we face 

today -- how the fourteen-day limitation (ten days under the 

rule at that time) in Fed. R. Crim. P. 41(e)(2)(A) applied to 

state search warrants which were used in federal prosecutions. 
United States v. Cote, No. 12-0522/AF 

11

interest in noncriminal materials. See, e.g., Metter, 860 F. 

Supp. 2d at 215 (“[t]he government’s retention of all imaged 

electronic documents, including personal emails, without any

review whatsoever to determine not only their relevance to this 

case, but also to determine whether any recognized legal 

privileges attached to them, is unreasonable and disturbing”); 

see also United States v. Brunette, 76 F. Supp. 2d 30, 42 

(D.M.E. 1999) (evidence suppressed where search occurred after 

the permissible duration of seizure under warrant had expired). 

We are mindful that the ultimate touchstone of any Fourth 

Amendment inquiry is always reasonableness, Florida v. Jimeno, 

500 U.S. 248, 250 (1991), and that, as noted previously, mere 

“technical,” or “de minimis” violations of a warrant’s terms are 

not unreasonable, and do not warrant suppression. See Sims, 428 

F.3d at 955; Gerber, 994 F.2d at 1560-61; United States v. 

Twenty-Two Thousand, Two Hundred Eighty Seven Dollars, 709 F.2d 

442, 449 (6th Cir. 1983). At the same time, it is equally clear 

“that the search and seizure conducted under a warrant must 

conform to the warrant, or some well-recognized exception.” 

Upham, 168 F.3d at 536 (citing Marron, 275 U.S. at 196–97). 

The Government has not contested the findings of the 

military judge and the CCA that the ninety-day limitation was 

violated. We believe that the limitation reflects a judicial 

determination that under the circumstances of this case, ninety 
United States v. Cote, No. 12-0522/AF 

12

days was a reasonable period of time in which to conduct the 

off-site search. This is particularly true since the term of 

“90” days was handwritten into the warrant, indicating that the 

duration of the limitation was tailored to the facts of this 

case, rather than simply being boilerplate language of the 

warrant. In addition, the judge established a procedure to 

extend the off-site search period if the Government found they 

were unable to meet the ninety-day limitation. 

While we do not believe that a violation of the ninety-day 

period mandates per se exclusion of the evidence, we do believe 

that the violation imposes an additional burden on the 

Government to show that the violation was either de minimis or 

otherwise reasonable under the circumstances. Cf. United States 

v. Clark, 638 F.3d 89, 100 (2d Cir. 2011) (“‘The burden is on 

the government to demonstrate the objective reasonableness of 

the officers’ good faith reliance’ on an invalidated warrant.” 

(quoting United States v. George, 975 F.2d 72, 77 (2d Cir. 

1992))); United States v. Atchley, 474 F.3d 840, 851 (6th Cir. 

2007) (“It is the government’s burden to prove the existence of 

exigency.” (citing United States v. Chambers, 395 F.3d 563, 566 

(6th Cir. 2005))); Wilson v. Health & Hosp. Corp. of Marion 

County, 620 F.2d 1201, 1208 (7th Cir. 1980) (“It is normally the 

Government’s burden, therefore, to show a warrantless search is 
United States v. Cote, No. 12-0522/AF 

13

otherwise ‘reasonable’ within the Fourth Amendment.” (citing 

United States v. Jeffers, 342 U.S. 48, 51 (1951))).9 

At trial, the Government did not show any fact which would 

support the argument that its violation of the warrant’s terms 

was reasonable under the circumstances.10 Further, performing a 

search over a year after the expiration of the search period, 

without following already established procedures for requesting 

a new warrant or an extension of the existing warrant, is not a 

de minimis violation. As a result, we cannot conclude that the 

Government has met its burden at trial to show that the search 

comported with constitutional requirements.11 The military judge 

 

9

 The dissent argues that “the only fact [we] cite[] in support 

of the electronic search being unreasonable is that the search 

was conducted after the expiration to the warrant’s time 

requirement.” United States v. Cote, __ M.J. __, __(3) n.2 

(C.A.A.F. 2013) (Ryan, J., dissenting). Of course, the burden 

is not on the defendant, or on this court, to show facts 

supporting the unreasonableness of the search, but rather on the 

government to show facts before the military judge at trial that 

the search was reasonable. 

10 At the Government’s request, the military judge placed her 

ruling on the Government’s argument that the evidence should be 

admitted under the good faith exception in Military Rule of 

Evidence (M.R.E.) 311 on the record. In rejecting that 

argument, the military judge found, in part: 

The warrant in this case was correct. There was nothing 

wrong with the warrant; but the government agents 

disregarded, and the government trial counsel disregarded 

the plain language of the warrant and conducted or 

requested additional and unlawful searches after the time 

period had expired which was directed by the judge in the 

warrant. 

11 We believe the concurrence’s reliance on United States v. 

Herring, 555 U.S. 135 (2009), is misplaced. Herring
United States v. Cote, No. 12-0522/AF 

14

did not abuse her discretion in suppressing the evidence found 

on the WD external drive.12 

Conclusion

The decision of the United States Air Force Court of 

Criminal Appeals is reversed. The finding of guilty to the 

Second Additional Charge and the sentence are set aside. The 

Second Additional Charge is dismissed. 

 

specifically dealt with attenuated police negligence, not 

negligence on the part of the officer actually performing the 

search. Id. at 144. In that case, an officer reasonably relied 

on a neighboring county’s arrest warrant to perform an arrest 

and search of Herring. Id. at 137. Shortly thereafter, it was 

discovered that the warrant had been recalled and that the 

neighboring county had negligently failed to purge the warrant 

from its records. Id. at 137-38. The court held that the 

arresting officer had acted in reasonable reliance on the 

neighboring county, and that exclusion was not warranted. Id.

at 147. We do not think that those facts control the outcome of 

this case. That is especially true where the agent who 

performed the search (SA Harstad) had seen the warrant, was 

aware of the ninety-day requirement, had previously worked on 

cases where it applied, and knew that the repaired hard drive 

image he was searching was created after the deadline had 

passed, but performed the search anyway. Even if we were to 

conclude that Herring also protected direct police negligence, 

the conduct of the agent in this case rises to the standard of 

“deliberate [and] reckless” conduct set by Herring. Id. at 144. 

12 Nor do the provisions of M.R.E. 315(h)(4) change our analysis. 

That rule provides that “[t]he execution of a search warrant 

affects admissibility only insofar as exclusion of evidence is 

required by the Constitution of the United States or an 

applicable Act of Congress.” Because we have concluded that the 

Government has not met its burden to show that the search was 

reasonable under the circumstances, we have also necessarily 

concluded that exclusion of evidence is required by the Fourth 

Amendment. 
United States v. Cote, No. 12-0522/AF 

BAKER, Chief Judge (concurring in part and dissenting in 

part): 

I agree with the majority’s conclusion that the search in 

this case was unreasonable under the Fourth Amendment;1 however, 

because I would not apply the exclusionary rule, I respectfully 

dissent. 

In my view, the Government’s prolonged retention of 

Appellant’s hard drive without a warrant extension rendered the 

Government action an unreasonable, and therefore, an unlawful, 

seizure under the Fourth Amendment. The taint of the hard 

drive’s unlawful seizure renders the subsequent forensic search 

of the hard drive unreasonable under the Fourth Amendment, when 

conducted absent the warrant extension or a military search 

authorization. 

The Fourth Amendment provides: 

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches 

and seizures, shall not be violated, and no Warrants shall 

issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized. 

Absent an exception to the warrant requirement, including those 

contained and recognized in the Military Rules of Evidence 

(M.R.E.), the constitutional process for determining probable 

cause is the issuance of a warrant by a judge, a civilian or 

                                                           

1

 U.S. Const. amend. IV. 
United States v. Cote, No. 12-0522/AF 

2

military magistrate, or a neutral and detached military 

authority. Thus, while the Fourth Amendment does not 

substantively specify temporal limitations on a search or 

seizure, as it does the place, person, or thing to be searched, 

it does expressly provide a process for constitutional oversight 

of the Fourth Amendment. As a result, warrantless searches and 

seizures are presumptively unreasonable. See, e.g., Dow 

Chemical Co. v. United States, 476 U.S. 227, 234-35, 239 (1986) 

(warrantless searches presumptively unreasonable); United States 

v. Daniels, 60 M.J. 69, 71-72 (C.A.A.F. 2004) (citing Camara v. 

Municipal Court of San Francisco, 387 U.S. 523 (1967)). 

Likewise, searches or seizures conducted in contravention of a 

warrant are also presumptively unreasonable where the provision 

violated is material to the determination that a search or 

seizure is reasonable under the Fourth Amendment. 

Probable cause is the most important determinant as to 

whether a search is authorized and thus reasonable under the 

Fourth Amendment. Here, the forensic search following the 

prolonged retention of the hard drive did not lack probable 

cause. 

But the Fourth Amendment also protects possessory 

interests. United States v. Jacobsen, 466 U.S. 109, 113 (1984). 

The nature of the possessory interest is important when making a 

determination as to the reasonableness or unreasonableness of a 
United States v. Cote, No. 12-0522/AF 

3

seizure of an individual’s property. The less interest a person 

has in possessing or repossessing property, the more reasonable 

the government’s actions may be in holding the item beyond a 

warrant’s time limit. Likewise, a request for return may weigh 

in the analysis as to whether the government has acted in a 

reasonable or unreasonable manner by retaining an item. Here, 

the device in question was damaged and not functioning, and 

Appellant did not request its return. 

The timing of a search may also be relevant to whether an 

unlawful search or seizure has occurred. A failure to strictly 

observe a time limit imposed on a warrant does not, in and of 

itself, render a search or seizure conducted pursuant to that 

warrant unreasonable for Fourth Amendment purposes. Whether or 

not a search conducted after the lapse of a warrant’s time limit 

violates the Fourth Amendment turns on whether this failure to 

comply with the warrant’s terms frustrates the warrant’s ability 

to protect Fourth Amendment interests, namely the preservation 

of probable cause and the protection of possessory interests in 

property. 

Among other things, violating a warrant’s time limit may 

cause probable cause to become stale. For example, tips 

provided by informants may have a limited shelf life. If they 

are not acted on within a short time, they may lead law 
United States v. Cote, No. 12-0522/AF 

4

enforcement to search an area they no longer have probable cause 

to search. 

In contrast, probable cause in cases involving the forensic 

analysis of a computer is unlikely to become stale during the 

period between the initial seizure of a computer from a 

suspect’s home and the later search of the computer by forensic 

analysis. The evidence on the computer, once the initial 

seizure is made, is unlikely to change. Time limits are often 

imposed on the forensic analysis of computers instead to prevent 

the government from retaining a suspect’s property for an 

excessive period of time. Time limits, in this context, serve 

to protect an individual from a seizure that would unreasonably 

deprive him of his possessory interests protected by the Fourth 

Amendment. 

The government’s authority to seize, but not search, papers 

or things, is not perpetual even if it is founded upon probable 

cause. The government cannot simply seize property, like a 

personal computer, ignore the provisions of a warrant, and hold 

it indefinitely to search at its convenience, or not at all. 

While a violation of a time limit may be de minimis or rulebased alone, in my view, the Government’s retention of 

Appellant’s hard drive for over three hundred days past the time 

limit is excessive in this case in the absence of the warrant 

extension, rendering it an unreasonable seizure under the Fourth 
United States v. Cote, No. 12-0522/AF 

5

Amendment. Consequently, the subsequent search of the hard 

drive stemming from the Government’s unreasonable retention of 

the hard drive is also unreasonable. 

In this context, as the majority notes, the federal 

magistrate judge placed a temporal restriction of ninety days 

upon the Government’s authority to search anything seized at 

Appellant’s address. The magistrate judge also provided a 

mechanism to extend this timeline if needed, and had regularly 

done so in other cases. Part of the problem in this case arose 

from the later transfer of law enforcement jurisdiction over 

Appellant’s investigation from civilian to military authorities. 

It was not until 464 days after the hard drive was seized, or 

376 days after the warrant’s time limit lapsed, that it was 

searched. While understandable given the change in law 

enforcement jurisdictions, the military judge found that the 

Government knew or should have known of the temporal restriction 

on searching the device in question as well as the mechanism 

available to extend that authority. This is not a case where an 

alternative and appropriate mechanism for authorizing a search 

was engaged, such as seeking independent search authority from a 

military magistrate pursuant to M.R.E. 315 after military law 

enforcement received the hard drive, or seeking a warrant 

extension from the same authority that issued the warrant as in 

United States v. Syphers, 426 F.3d 461, 463 (1st Cir. 2005). 
United States v. Cote, No. 12-0522/AF 

6

The Government acted in contravention of the warrant without 

resort to available processes for extension or approval. That 

is unreasonable. And, given the length of the delay involved, 

it was constitutionally unreasonable. 

However, I would not apply the exclusionary rule in this 

case and therefore ultimately and respectfully dissent from the 

result reached by the majority. While early Supreme Court 

precedent viewed Fourth Amendment violations as “‘synonymous 

with application of the exclusionary rule . . . . [s]ubsequent 

case law has rejected this reflexive application.’” Hudson v. 

Michigan, 547 U.S. 586, 591 (2006) (quoting Arizona v. Evans, 

514 U.S. 1, 13 (1995)). Today, “[w]hether the exclusionary 

sanction is appropriately imposed in a particular case . . . is 

‘an issue separate from the question whether the Fourth 

Amendment rights of the party seeking to invoke the rule were 

violated by police conduct.’” United States v. Leon, 468 U.S. 

897, 906 (1984) (citation omitted). Given the societal 

interests and costs involved in invoking the exclusionary rule, 

suppression is a remedy of “last resort,” rather than a rule of 

automatic application. Hudson, 547 U.S. at 591. In my view, 

current precedent indicates a more contextual approach to the 

application of the rule.2 Such an approach looks beyond the good 

                                                           

2 See Herring v. United States, 555 U.S. 135, 141 (2009); Hudson, 

547 U.S. at 592; Pennsylvania Bd. of Probation and Parole v. 
United States v. Cote, No. 12-0522/AF 

7

faith of the police officers in question -- although that is a 

central factor -- and also takes into account the deterrent 

effect of applying the rule, the nature of the delict, and the 

societal costs of application. It follows that with such 

factors, rather than a per se approach to the exclusionary rule, 

                                                                                                                                                                                               

Scott, 524 U.S. 357, 363–65, 357 (1998) (The Supreme Court 

“[has] repeatedly emphasized that the rule’s ‘costly toll’ upon 

truth-seeking and law enforcement objectives presents a high 

obstacle for those urging [its] application” and the 

exclusionary rule should applied only “where its deterrence 

benefits outweigh its ‘substantial social costs.’”); Evans, 514 

U.S. at 11; Colorado v. Connelly, 479 U.S. 157, 166, (1986); 

Leon, 468 U.S. at 908 (rejecting “[i]ndiscriminate application 

of the exclusionary rule”). These cases make clear that there 

must be substantial deterrent benefits achieved as a result of 

applying the exclusionary rule. Absent a realistic possibility 

of deterring undesirable conduct, societal interests in 

punishing crime prevail. For a range of views considering the 

significance of Herring, see Tom Goldstein, The Surpassing 

Significance of Herring, SCOTUSblog (Jan. 14, 2009, 11:32 AM), 

http://www.scotusblog.com/2009/01/the-surpassing-significanceof-herring (“[W]e will at some point soon regard today’s Herring 

decision as one of the most important rulings in [the criminal 

procedure] field in the last quarter century,” and concluding 

that Herring sets the bar to applying the exclusionary rule even 

higher than before); Richard McAdams, Herring and the 

Exclusionary Rule, University of Chicago Law School Faculty Blog

(Jan. 17, 2009, 12:06 AM), 

http://uchicagolaw.typepad.com/faculty/2009/01/herring-and-theexclusionary-rule.html (“Herring will transform the exclusionary 

rule from the standard remedy to the exceptional remedy.”). But 

see Orin Kerr, Responding to Tom Goldstein on Herring, The 

Volokh Conspiracy (Jan. 14, 2009, 2:38 PM), 

http://www.volokh.com/posts/1231961926.shtml (disagreeing with 

Tom Goldstein’s reading of Herring, stating that Herring is “a 

narrow and interstitial decision, not one that is rocking the 

boat”). 
United States v. Cote, No. 12-0522/AF 

8

reasonable persons (including judges) might reach differing 

conclusions on its application. That is the case here. 

In this case, I do not believe suppression would serve the 

purpose of the exclusionary rule. The Supreme Court stated in 

Herring that deciding whether to apply the exclusionary rule 

“turns on the culpability of the police and the potential of 

exclusion to deter wrongful police conduct.” 555 U.S. at 137. 

The Court went on to hold that the exclusionary rule is 

triggered when police conduct is “sufficiently deliberate that 

exclusion can meaningfully deter it, and sufficiently culpable 

that such deterrence is worth the price paid by the justice 

system.” Id. at 144. This includes “deliberate, reckless, or 

grossly negligent conduct, or in some circumstances recurring or 

systemic negligence.” Id. Where a Fourth Amendment violation 

is a product of isolated police negligence rather than 

overreaching, there is no wrongful police conduct, nor pattern 

of repeated negligence, to deter. 

Here, there is no evidence in the record that the delayed 

search of the hard drive resulted from law enforcement’s bad 

faith or intentional disregard of the terms of the warrant. 

Indeed, Appellant, the moving party, had the opportunity to 

question SA Harstad on his actions and motives and did not 

unearth facts indicating bad faith or intentional misconduct. 

As a result, the facts suggest isolated negligence, as was the 
United States v. Cote, No. 12-0522/AF 

9

case in Herring. This investigation originated as a state or 

federal civilian investigation before being handed over to the 

military justice system, where different rules, namely, the lack 

of time limits on searches, usually govern. The record suggests 

that failing to adhere to the ninety-day time limit was a 

mistake -- not a deliberate act borne of an intentional, willful 

disregard of the warrant’s terms or the result of gross 

negligence or recurring or systemic negligence. In addition, 

when law enforcement came into possession of Appellant’s hard 

drive, the hard drive was defunct. Its internal components were 

damaged, rendering it inoperable. Moreover, Appellant never 

requested the hard drive’s return.3

 From this, it is difficult 

to infer that law enforcement’s retention of the property -- 

during which it sought the hard drive’s repair -- was intended 

to deprive Appellant of the use and enjoyment of his hard drive. 

Nor, is this a case where law enforcement should have known that 

it was depriving Appellant of the use and enjoyment of his 

                                                           

3

 A request for the return of property is relevant to a 

determination of whether there has been police misconduct 

because a request gives police notice that the continued 

retention of the property is harming the owner. In some cases, 

repeated requests for the return of property combined with an 

excessive delay in returning it could lead to an inference that 

the government was intentionally retaining property to interfere 

with an individual’s possessory interests. On the other hand, 

the absence of a request, as in this case, suggests that the 

police were not on notice that the owner was harmed, or 

potentially would be harmed, by the prolonged retention of the 

property. Therefore, there is no misconduct to be deterred. 
United States v. Cote, No. 12-0522/AF 

10

property. Hence, because there is no wrongful police conduct to 

deter, nor a pattern of negligent conduct to punish, I would not 

exclude the evidence obtained from Appellant’s hard drive.
United States v. Cote, No. 12-0522/AF 

RYAN, Judge (dissenting): 

A military judge’s ruling on a motion to suppress is 

reviewed for an abuse of discretion. United States v. 

Cowgill, 68 M.J. 388, 390 (C.A.A.F. 2010). “‘An abuse of 

discretion occurs if the military judge’s findings of fact 

are clearly erroneous or if the decision is influenced by 

an erroneous view of the law.’” Id. (quoting United States 

v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006)). Here, the 

military judge excluded the evidence seized during the 

search of Appellant’s hard drive solely because the search 

was “executed well outside the time period” set forth in 

the warrant without undertaking the appropriate factintensive inquiry into whether the delayed search was 

“unreasonable” under the Fourth Amendment.1

 Id. This per

se exclusion reflected an erroneous view of the law, one 

further supported by the majority in this case, and I 

respectfully dissent. 

 

1

 The military judge supported her conclusion that the 

searches of Appellant’s hard drive and laptop were 

“unlawful” and that, “therefore, any evidence seized during 

those searches is hereby inadmissible” with three findings 

of fact: (1) “that the warrant issued in this case 

specifically stated that the search of any electronic 

device or storage media seized from the accused was to be 

searched within 90 days; unless the judge extended that 

date with good cause shown;” (2) that “the government [did 

not] request an extension of that time period;” and (3) 

that “after [the ninety-day] time period had elapsed, the 

government conducted additional analys[es]” of the laptop 

and hard drive. 
United States v. Cote, No. 12-0522/AF 

2

The Fourth Amendment protects, in relevant part, 

“against unreasonable searches and seizures.” U.S. Const. 

amend. IV. Searches and seizures conducted in the absence 

of a warrant are presumptively unreasonable, in the 

constitutional sense. See, e.g., United States v. Daniels, 

60 M.J. 69, 71-72 (C.A.A.F. 2004) (citing Camara v. 

Municipal Court of San Francisco, 387 U.S. 523 (1967)). 

The Fourth Amendment requires that warrants permitting a 

search and seizure: (1) be based on probable cause; (2) be 

supported “by Oath or affirmation”; and (3) “particularly 

describ[e] the place to be searched, and the persons or 

things to be seized.” U.S. Const. amend. IV. 

In this case, no one disagrees that (1) there was a 

warrant, (2) there was probable cause supported by sworn 

testimony, and (3) the warrant described with particularity 

the place to be searched and the things to be seized. 

Nevertheless, the majority concludes that the search 

violated the Fourth Amendment without explaining how, if at 

all, the “search” of the hard drive was constitutionally

unreasonable. Rather, it relies on the same fact fixed 

upon by the military judge -- that a time limit set forth 

in the warrant was violated.2

 

2

 The majority purports to recognize that an electronic 

search conducted after the expiration of a warrant’s time 
United States v. Cote, No. 12-0522/AF 

3

“The Fourth Amendment does not specify that search 

warrants contain expiration dates . . . [and it] contains 

no requirements about when the search or seizure is to 

occur or the duration.” United States v. Gerber, 994 F.2d 

1556, 1559-60 (11th Cir. 1993); see also United States v. 

Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (quoting same); 

United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) 

(“The fourth amendment’s rules for warrants do not include 

time limits.”). Rather, “[t]he general touchstone of 

reasonableness which governs Fourth Amendment 

analysis . . . governs the method of execution of the 

warrant.” United States v. Ramirez, 523 U.S. 65, 71 

(1998); see also Dalia v. United States, 441 U.S. 238, 258 

(1979). Given that the Fourth Amendment makes no reference 

to time limitations, the fact that a magistrate judge 

chooses to place one in a warrant does not elevate that 

time limit to a constitutional requirement. Rather, the 

touchstone is whether the failure to search the hard drive 

within the time limit was constitutionally “unreasonable.” 

 

requirement does not constitute a per se violation of the 

Fourth Amendment, United States v. Cote, __ M.J. __ (12) 

(C.A.A.F. 2013), and should be analyzed under “the ultimate 

touchstone of any Fourth Amendment inquiry . . . 

reasonableness,” id. at __ (11) (citing Florida v. Jimeno, 

500 U.S. 248, 250 (1991)), yet the only fact it cites in 

support of the electronic search being unreasonable is that 

the search was conducted after the expiration of the 

warrant’s time requirement. 
United States v. Cote, No. 12-0522/AF 

4

Neither this Court nor the Supreme Court have 

specifically addressed the question whether an electronic 

search conducted after the expiration of a warrant’s time 

requirement is unreasonable under the Fourth Amendment. 

However, when analyzing the more general issue of whether 

delayed electronic searches are unreasonable, a number of 

federal jurisdictions apply some variation of the Syphers

test, which asks whether (1) the delay resulted in a lapse 

of probable cause, (2) the defendant was prejudiced, or (3) 

the police acted in bad faith to circumvent federal 

requirements. 426 F.3d at 469; see also United States v. 

Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (“[O]ur 

analysis . . . considers only whether the delay rendered 

the warrants stale.”); United States v. Burgess, 576 F.3d 

1078, 1097 (10th Cir. 2009) (asking whether “there was 

prejudice in the sense that the search might not have 

occurred” and finding that probable cause was unaffected by 

the delay); United States v. Hodges, NO. 1:09-CR-562-CAPLTW, 2010 U.S. Dist. LEXIS 118437, at *11-*12, 2010 WL 

4639238, at *4 (N.D. Ga. 2010) (Walker, Mag. J.), adopted 

by United States v. Hodges, NO. 1:09-CR-562-CAP, 2010 U.S. 

Dist. LEXIS 118444, 2010 WL 4638872 (N.D. Ga. 2010) 

(denying motion to suppress because probable cause 

continued to exist, the government did not act in bad 
United States v. Cote, No. 12-0522/AF 

5

faith, and there was no prejudice to the defendant); United 

States v. Burns, NO. 07 CR 556, 2008 U.S. Dist. LEXIS 35312, 

at *27-*28, 2008 WL 4542990, at *9 (N.D. Ill. 2008) 

(denying motion to suppress when defendant did not assert 

that delay affected probable cause or police acted in bad 

faith). 

The majority declines to apply the Syphers test 

because (1) here, unlike in Syphers, the search violated 

the warrant’s explicit terms, and (2) “Syphers focused 

primarily on the effect of delay in executing the search, 

and concomitantly, probable cause,” whereas in this case, 

the time limitation serves to protect Appellant’s 

“possessory interest in noncriminal materials.” Cote, __ 

M.J. at __ (10-11). First, there is no authority for the 

proposition that every and any explicit term in a warrant 

bears constitutional weight simply because a magistrate 

chose to place it there. Rather, the focus of the cases 

where failure to comply with explicit terms of a warrant 

were found to have constitutional consequences were where 

the explicit terms violated were required by the Fourth 

Amendment -- the place to be searched, and the persons or 

things to be seized. See, e.g., Ybarra v. Illinois, 444 

U.S. 85, 91-92 (1979) (“Although the search warrant, issued 

upon probable cause, gave the officers authority to search 
United States v. Cote, No. 12-0522/AF 

6

the premises and to search [the bartender,] it gave them no 

authority whatever to invade the constitutional protections 

possessed individually by the tavern’s customers.”); 

Bowling v. Rector, 584 F.3d 956, 971 (10th Cir. 2009) 

(“Where, as here, a warrant clearly and precisely specifies 

items to be seized, and the officers executing the warrant 

seize additional items, those officers act unreasonably for 

Fourth Amendment purposes unless their conduct may be 

justified under an exception to the warrant requirement.”); 

United States v. King, 227 F.3d 732, 750-52 (6th Cir. 2000) 

(concluding that a search was unreasonable where law 

enforcement exceeded the scope of a warrant that authorized 

the search of a duplex’s first-floor unit by searching the 

basement). 

Moreover, the majority, in determining that the 

Government unreasonably interfered with Appellant’s 

“possessory interest in noncriminal materials,” Cote, __ 

M.J. at __ (10-11), substantially relies on the fact that 

the warrant’s time limitation was violated and fails to 

balance this interest against the Government’s 

countervailing interest in extracting evidence from the 

damaged hard drive where there was strong probable cause to 

believe that the hard drive contained child pornography, 
United States v. Cote, No. 12-0522/AF 

7

and that probable cause continued to exist throughout the 

duration of the seizure.3

The majority further ignores the fact that other 

federal jurisdictions have applied some variation of the 

Syphers test to instances where law enforcement violated a 

warrant’s time requirement. In Burgess, the 10th Circuit 

applied a variation of the Syphers test to hold that the 

violation of a warrant’s time requirement was not 

constitutionally unreasonable. Burgess, 576 F.3d at 1097 

(“The same analysis applies whether it is a violation of 

the warrant itself, or a violation of Rule 41 per se.” 

(quotation marks and citation omitted)). Likewise, the 

Northern District of Georgia in Hodges concluded that the 

examination of the defendant’s hard drives after the 

expiration of the warrant was not “an unreasonable search 

amounting to a constitutional violation requiring 

suppression.” 2010 U.S. Dist. LEXIS 118437, at *8, 2010 WL 

4639238, at *3; see also United States v. Hernandez, 183 F. 

Supp. 2d 468, 480-81 (D.P.R. 2002) (holding that the 

 

3

 I further note that (1) Appellant made no claim that this 

seizure unreasonably interfered with his possessory 

interest before either this Court or the United States Air 

Force Court of Criminal Appeals, and (2) there is no 

evidence in the record that Appellant, at any time, 

requested the return of his property. 
United States v. Cote, No. 12-0522/AF 

8

examination of computer discs conducted after the warrant’s 

deadline was reasonable). 

The military judge erred in shortcutting the requisite 

fact-intensive inquiry to determine whether the 

Government’s conduct was reasonable under the Fourth 

Amendment.4

 Here, the record shows that efforts to search 

the damaged hard drive ground to a halt because the 

investigating agent from the North Dakota Bureau of 

Criminal Investigation (NDBCI), Special Agent (SA) Harstad, 

had neither the expertise nor the resources to access its 

contents.5 After SA Harstad exhausted his attempts to 

search the hard drive on August 18, 2008, the inoperable 

hard drive was transferred to the Air Force Office of 

Special Investigations (AFOSI) at Minot Air Force Base, 

where it was stored in an evidence locker. The record is 

unclear as to who maintained primary control of the 

investigation at that time. 

 

4

 An appropriate framework for assessing reasonableness in 

the context of an electronic search is the test set forth 

in Syphers, which asks whether (1) the delay resulted in a 

lapse of probable cause, (2) the defendant was prejudiced, 

or (3) the police acted in bad faith to circumvent federal 

requirements. 426 F.3d at 469. 

5

 In setting the ninety-day time limitation, the magistrate 

judge could not have known that the hard drive was damaged 

because the drive was only discovered after the search of 

Appellant’s room, which occurred after the magistrate judge 

issued the warrant. 
United States v. Cote, No. 12-0522/AF 

9

Eleven months later, on July 17, 2009, the Government 

informed SA Harstad that it did not have enough evidence 

tying Appellant to the child pornography. In early 

September, 2009, AFOSI sent the hard drive to the Defense 

Computer Forensic Laboratory (DCFL) for repair. The 

DCFL -- the only laboratory within the Department of 

Defense (DOD) capable of such work -- employs only three 

technicians trained in hard drive repair. SA Harstad, who 

had originally taken part in the search of Appellant’s 

room, received the hard drive and a forensic image of its 

contents from the DCFL on October 6, 2009, and conducted a 

search of the forensic image that revealed child 

pornography files. 

In assessing whether the search was constitutionally 

unreasonable, the military judge should have considered 

that the hard drive sat in an AFOSI evidence locker for 

over a year and the warrant expressly allowed for the time 

limitation to be extended for good cause. The military 

judge should have also recognized that in the context of 

electronic searches, courts “have permitted some delay in 

the execution of search warrants involving computers 

because of the complexity of the search.” Syphers, 426 

F.3d at 469; see also United States v. Ivers, 430 F. App’x 

573, 575 (9th Cir. 2011) (“Electronic data searches may 
United States v. Cote, No. 12-0522/AF 

10

take longer than traditional searches . . . .” (quotations 

and citation omitted)); United States v. Triumph Capital 

Group, 211 F.R.D. 31, 51 (D. Conn. 2002) (“[C]omputer 

searches . . . cannot be subject to any rigid time limit 

because they involve . . . more preparation and a greater 

degree of care in their execution.”). 

Another factor to consider is that probable cause to 

believe Appellant’s external hard drive contained child 

pornography continued to exist at the time of the search. 

In fact, the earlier discovery of child pornography on one 

of Appellant’s computers during the initial search of 

Appellant’s room bolstered the magistrate judge’s probable 

cause determination as to the existence of child 

pornography on the external hard drive. Furthermore, there 

was little risk that this probable cause determination 

would lapse because the damaged hard drive remained 

unchanged in the continuous custody of law enforcement. 

The military judge should have also considered whether 

Appellant was prejudiced from the delay and whether law 

enforcement acted in bad faith to circumvent the Fourth 

Amendment’s requirements. With regard to whether Appellant 

was prejudiced, the record shows (1) the hard drive was 

seized within the time limitation set by the warrant, (2) 

there is no showing that Appellant could have avoided the 
United States v. Cote, No. 12-0522/AF 

11

search at a later time because of a lack of probable cause, 

and (3) there is no showing or allegation that the belated 

search affected his ability to defend himself. 

Finally, to determine whether law enforcement 

exhibited bad faith in delaying the search, the military 

judge should have considered that (1) the search of this 

particular hard drive could only be facilitated by a small 

group of technicians at a single facility within the DOD; 

(2) the original agency investigating Appellant, the NDBCI, 

did not have the resources to repair the broken hard drive; 

and (3) the record is less than clear on when the case was 

turned over to the Air Force for prosecution or whether the 

Air Force was informed about the time limitations placed on 

the warrant by the civilian magistrate judge. 

An appropriate reasonableness inquiry under the Fourth 

Amendment would have considered all of these factors. The 

military judge considered none of them. In concluding that 

the Government’s failure to comply with the warrant’s time 

limitation -- a term neither mentioned in nor required by 

the Fourth Amendment -- necessitated exclusion of the 

evidence seized during the search without conducting an 

appropriate reasonableness analysis, the military judge 

abused her discretion by excluding the evidence in this 

case.