UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

KENNETH A. COLE

CAPTAIN (O-6), MEDICAL SERVICE CORPS, U.S. NAVY

NMCCA 201300165

GENERAL COURT-MARTIAL

Sentence Adjudged: 11 December 2012.

Military Judge: CAPT Eric C. Price, JAGC, USN.

Convening Authority: Commandant, Naval District Washington,

Washington, DC.

Staff Judge Advocate's Recommendation: LCDR J.D. Pilling, 

JAGC, USN.

For Appellant: J. Dennis Murphy, Jr., Esq.; Capt David 

Peters, USMC.

For Appellee: Maj David Roberts, USMC; LT Ann Dingle, JAGC, 

USN.

29 May 2014

---------------------------------------------------

OPINION OF THE COURT 

---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

A military judge sitting as a general court-martial 

convicted the appellant, pursuant to his pleas, of possession of 

child pornography, in violation of Article 134, Uniform Code of 

Military Justice, 10 U.S.C. § 934. The military judge sentenced 

the appellant to confinement for 11 months and a dismissal. The 
2

convening authority approved the dismissal and in accordance 

with a pretrial agreement, disapproved the confinement.

The appellant’s guilty plea was conditional, expressly 

reserving his right to appeal an adverse pretrial ruling on a 

motion to suppress. He now raises three assignments of error: 

(1) that the military judge abused his discretion by failing to 

grant the motion to suppress; (2) that the appellant’s rights 

under the Fourth Amendment were violated when federal agents 

participated in the execution of a search warrant issued by a 

county judge to local law enforcement; and (3) that a dismissal 

is an inappropriately severe sentence.

After careful consideration of the record of trial, the 

appellant's assignments of error, the pleadings of the parties, 

and oral argument of the parties, we conclude that the findings 

and the sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant was committed. Arts. 59(a) and 66(c), UCMJ.

Background

An adult family member of the appellant’s, M, called a 

child-protection hotline, reporting that he discovered child 

pornography on the appellant’s computer. The Naval Criminal 

Investigative Service (NCIS) began to investigate the 

allegation. 

After interviewing M, the NCIS case agent applied to a 

federal magistrate for a warrant to search the appellant’s home 

in Maryland. The NCIS agent’s supporting affidavit said M had 

certain mental disorders, was taking psychiatric medications, 

and had previously suffered a mental breakdown. The affidavit 

also said M reported being so upset by the child pornography on 

the appellant’s computer that he banged his head against a wall 

to get the images out of his head. The federal magistrate 

denied the warrant.

The NCIS agent then contacted a detective from the Anne 

Arundel County Police Department (AAPD) to suggest a joint 

investigation. The AAPD detective agreed and arranged to 

conduct her own interview of M. During that interview, M 

disclosed that he had certain mental disorders, was taking 

psychiatric medications, and previously suffered a mental 

breakdown. M did not mention during this interview that he had 

banged his head against a wall.
3

The AAPD detective then applied to a county judge for a 

search warrant. She disclosed that M had certain mental 

disorders, was taking psychiatric medications, and had 

previously suffered a mental breakdown. The AAPD detective also 

disclosed that NCIS was involved in the case and that a federal 

magistrate had previously declined to issue a warrant. She did 

not mention that M had supposedly banged his head against a wall 

at some point.

The county judge issued the warrant. Representatives from 

NCIS and AAPD then went to the appellant’s home to execute the 

warrant. NCIS seized several computers and other digital media. 

A forensic examination of the seized media revealed child 

pornography.

Issuance of the Warrant

In Franks v. Delaware, the Supreme Court held that 

suppression of evidence is an appropriate remedy if police 

obtain a warrant by deliberate falsehood or reckless disregard 

for the truth. 438 U.S. 154, 155-56 (1978). Though Franks 

involved an affirmative misstatement of fact, improper omission 

of a material fact in a warrant application can also lead to 

suppression. “‘Franks protects against omissions that are 

designed to mislead, or that are made in reckless disregard of 

whether they would mislead, the magistrate.’” United States v. 

Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (quoting United States 

v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990).

It is a question of fact whether an omission in a warrant 

application was designed to mislead or was made in reckless 

disregard of whether it would mislead. Id. The defense has the 

burden to make a “substantial preliminary showing” of such an

allegation, and then to prove the allegation by a preponderance 

of the evidence. MILITARY RULE OF EVIDENCE 311(g)(2), MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2012 ed.).

In the trial court, the appellant argued that the AAPD 

detective’s failure to tell the county judge that M had banged 

his head against a wall was an intentional omission that 

justified suppression. The military judge denied the motion. 

We review a military judge’s denial of a motion to suppress 

for abuse of discretion. United States v. Leedy, 65 M.J. 208, 

212 (C.A.A.F. 2007). Accordingly, we will not overturn a

military judge’s findings of fact unless they are clearly 

erroneous or unsupported by the record. Id. at 213.
4

In his ruling on the motion to suppress, the military judge 

made a finding of fact that the AAPD detective omitted reference 

to M banging his head against the wall for three reasons: (1) 

she believed that her reference to M’s mental breakdown was more 

significant, (2) she believed that M banging his head against a 

wall was neither relevant nor helpful to a probable cause 

determination, and (3) she had heard about M banging his head 

against a wall only from the NCIS agent, not from M himself. 

(Appellate Exhibit LXXXVIII, at 8-9).1

 This finding of fact is

not clearly erroneous. To the contrary, it is well-supported by 

the AAPD detective’s testimony at the suppression hearing. The 

first and third points are essentially quotes from that 

testimony. As to the second point, when asked by the 

appellant’s civilian defense counsel whether M “banging his head 

against the wall is actually unhelpful to a determination of 

probable cause” Detective Brown said “[t]hat didn’t lend 

probable cause. So I didn’t include it.” Record at 1919. 

While one can reasonably argue that the term ‘lending’ is 

ambiguous, such argument is not a sufficient basis for this 

court to rule that the military judge’s factual determination is 

clearly erroneous. Accordingly, the military judge did not 

abuse his discretion by denying the motion to suppress.

Execution of the Warrant

The appellant argues that it was constitutional error for 

NCIS agents to participate in the search of his home. We 

disagree. 

Maryland law says a search warrant may be issued only to 

certain state and local officers. Md. Code Ann., Crim. Proc. § 

1-203 (LexisNexis 2014). Here, the county judge complied with

this requirement by addressing the warrant to, “Any duly 

constituted police officer of the Anne Arundel County Police 

Department.” AE VII, Attachment 3. The warrant went on to say, 

“You are therefore commanded, with the necessary and proper 

assistants, to search forthwith the premises, persons, or things 

described herein . . . .” Id. This begs the question whether

the NCIS agents who participated in the search were “necessary 

and proper assistants” of the AAPD.

Although the AAPD detective testified at the suppression 

hearing that her department was capable of searching the 

 

1 Though this finding is styled as a “Conclusion of Law” in the military 

judge’s written ruling, this finding involves a pure credibility 

determination rather than the application of a legal principle. As such, it 

is a finding of fact.
5

appellant’s home without any assistance from federal agents, we 

do not see that testimony as necessarily establishing that their 

participation violated the terms of the warrant. Rather, we 

find merit in the military judge’s belief that “the necessary 

and proper assistance” language was incorporated in response to 

the request that the warrant be issued to AAPD and “federal law 

enforcement agencies . . . .” Record at 910. This logic seems

especially compelling in light of the fact that the issuing 

judge knew that this was a joint investigation. Accordingly, we 

find that NCIS’s involvement was contemplated by the judge 

issuing the warrant and that their participation did not violate 

its terms. 

However, assuming arguendo that the necessary and proper 

language was not broad enough to allow assistance from NCIS, it 

does not automatically follow that their participation in the 

search gave rise to a constitutional violation that would 

justify applying the exclusionary rule. The crux of a Fourth 

Amendment analysis is whether law enforcement’s conduct was 

reasonable under the circumstances. Consequently, “mere 

‘technical’ or ‘de minimis’ violations of a warrant’s terms are 

not unreasonable, and do not warrant suppression.” United 

States v. Cote, 72 M.J. 41, 45 (C.A.A.F. 2013) (citations 

omitted). 

In determining whether the conduct of law enforcement was 

reasonable under the circumstances, we consider whether a 

limitation of the warrant’s scope was “directly tied to the 

protection of individual rights.” United States v. Guzman, 52 

M.J. 318, 321 (C.A.A.F. 2000); see also United States v. Allen, 

53 M.J. 402, 406 (C.A.A.F. 2000). It is clear that limitations 

on “the place to be searched” or “things to be seized” are 

directly tied to the protection of individual rights. U.S. CONST. 

amend. IV. It is not so clear that a limitation on who may 

assist with a search is directly tied to the protection of an 

individual right.

For example, in Hill v. Maryland, the University of 

Maryland Police were investigating a student suspected of 

committing a crime on campus. 134 Md. App. 327 (Md. Ct. Spec. 

App. 2000). The campus police obtained and executed a search

warrant for the student’s private, off-campus home in Prince 

George’s County. The trial court denied a defense motion to 

suppress, and the appellate court affirmed, writing:

To be sure, appellant’s home in Riverdale was outside 

the concurrent jurisdiction of the University of 
6

Maryland Police. Yet, two Prince George’s County 

police detectives accompanied them to appellant's 

residence. Appellant is correct that the University 

of Maryland Police conducted the search, spoke with 

his mother, and seized the items from appellant’s 

room. That does not mean that the evidence seized was 

required to be suppressed. The Prince George’s County 

detectives may have played a limited role in executing 

the warrant, but the University of Maryland Police 

nevertheless were acting under color of authority of 

the Prince George's County Police Department. 

Id. at 344. Since Maryland courts have declined to place 

strict limits on who may execute a Maryland search warrant, 

we will not adopt a different approach. 

Accordingly, we conclude that the “necessary and 

proper” language in the search warrant was not directly 

tied to the protection of an individual right. Thus, any 

violation of that limitation would not rise to the level of 

a constitutional error that warrants suppression of the 

evidence.

Appropriateness of the Sentence

This court reviews the appropriateness of a sentence de 

novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).

Sentence appropriateness involves the judicial function of 

assuring that justice is done and that the accused gets the 

punishment he deserves. United States v. Healy, 26 M.J. 394, 

395 (C.M.A. 1988). We engage in a review that gives

“‘individualized consideration’ of the particular accused ‘on 

the basis of the nature and seriousness of the offense and the 

character of the offender.’” United States v. Snelling, 14 M.J. 

267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27 

C.M.R. 176, 180-81 (C.M.A. 1959)).

Although the appellant had a long and distinguished naval 

career, and presented a compelling case in extenuation and 

mitigation, he was convicted of a very serious crime. Balancing 

these factors, we conclude that the approved sentence of a 

dismissal is not inappropriately severe.
7

Conclusion

The findings and sentence as approved by the convening 

authority are affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court