UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, R.Q. WARD, J.A. FISCHER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

NICHOLAS TIENTER

LANCE CORPORAL (E-3), U.S. MARINE CORPS

NMCCA 201400205

Review Pursuant to Article 62(b), Uniform Code of Military Justice,

10 U.S.C. § 862(b)

Military Judge: LtCol L.J. Francis, USMC.

Convening Authority: Commanding General, 3d Marine Aircraft 

Wing, MCAS Miramar, San Diego, CA.

For Appellant: Capt Cory A. Carver, USMC.

For Appellee: Maj John J. Stephens, USMC; Capt Michael B. 

Magee, USMC.

23 September 2014

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OPINION OF THE COURT 

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

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

WARD, Senior Judge:

This case is before us on a Government interlocutory appeal 

pursuant to Article 62, Uniform Code of Military Justice.1 The 

appellee, Lance Corporal Nicholas W. Tienter, U.S. Marine Corps, 

is currently charged with two specifications of violating 

 

1 10 U.S.C. § 862 (2012).
2

Article 120, UCMJ.2 The Government appeals the military judge’s 

ruling suppressing text messages that law-enforcement agents 

seized during a search of the appellee’s cell phone.3 Following 

the military judge’s written ruling, trial counsel filed a 

timely notice of appeal.4

 

After carefully considering the record of the motion 

hearing, the military judge’s ruling, and the submissions of the 

parties, we find that the military judge did not abuse his 

discretion by granting the defense motion to suppress. 

Accordingly, we deny the Government’s appeal and remand this 

case. 

Background

This case arises from an allegation that the appellee 

engaged in a sexual act with someone who was substantially 

incapacitated due to alcohol intoxication. The alleged incident 

occurred in November 2011. The case was referred for trial by

general court-martial in September 2013.

In October 2013, the appellee underwent surgery while 

pending trial. Soon after his surgery, the appellee reported to 

his command that Corporal (Cpl) S, a fellow Marine in his 

squadron, had asked him for several of the Percocet pills 

prescribed to him following surgery. These solicitations came 

in the form of text messages. In late November 2013, the 

appellee provided a transcript of some of these text messages to 

members of his command, who in turn referred the matter to law 

enforcement.5

Based on the appellee’s tip, Special Agent (SA) Isaac Perez 

of the Criminal Investigation Division (CID) sought 

authorization from the Commanding Officer, MCAS Miramar, to 

search the appellee’s cell phone and seize electronic messages 

pertaining to the use and/or possession of prescription 

medication. In his supporting affidavit, SA Perez stated that 

after seizing the data from the appellee’s cell phone, CID 

agents would search the data using “search protocols directed 

exclusively to the identification and extraction of data within 

 

2 10 U.S.C. § 920 (Supp. 2008).

3 Appellate Exhibit XIX.

4 AE XXI.

5 The texts provided by the appellee did not indicate any dates. 
3

the scope of this warrant.”6 SA Perez further stated that this 

analysis would be completed within 90 days.7 

On 20 November 2013, the Commanding Officer, MCAS Miramar,

authorized SA Perez to search the appellee and seize his cell 

phone.8 The military judge found that the scope of the 

authorized search was limited to “evidence relating to the 

wrongful use and possession of controlled substances as related 

to communications between the accused and Cpl [S]” as well as 

“any electronic mails sent or received in temporal proximity to 

the incriminating electronic mails that provide context to the 

incriminating mails.”9

After seizing the appellee’s cell phone, SA Perez attached 

it to a Cellebrite Universal Forensic Extraction Device (UFED), 

which in turn made a complete digital copy of all data in the 

cell phone. By selecting various software tools associated with 

the program, he created a single Portable Document Format (PDF)

file containing all text messages retrievable on the cell 

phone.10 By using keywords and phrases associated with 

prescription medication, he located several text messages 

pertaining to illegal drug use. In addition to these texts, SA 

Perez also discovered one text wherein the appellee admitted to 

adultery. SA Perez then drafted an investigative report 

documenting his search and the aforementioned text messages.11

Several months later, the senior trial counsel at MCAS 

Miramar notified SA Perez that she had located a text message in 

the extraction file pertaining to the sexual assault offenses 

then pending trial. She asked SA Perez to go back and search 

 

6 AE IX, Appendix A at 6.

7 Id.

8 Id. at 1. Although SA Perez’s affidavit references searching the appellee’s 

cell phone for “[c]ommunication between [the appellee] and Cpl [S], wherein 

Cpl [S] solicits [the appellee] for prescription medication”, the command 

authorization provides no explicit authorization to search the contents of 

the cell phone. Rather, it merely authorizes the search of the appellee’s 

person and seizure of his cell phone. The apparent variance between the 

affidavit and the authorization does not change the outcome of this case. 

9 AE XIX at 4-5 (internal quotation marks and parentheses omitted) (quoting AE 

IX, Appendix A, at 13). 

10 Record at 33-34.

11 Id. at 34-35.
4

the same extraction file for any additional text messages that 

may relate to the appellee’s pending sexual assault charges.12 

SA Perez, with the assistance of SA Stemen of the Naval 

Criminal Investigative Service (NCIS) and using search terms 

specific to the sexual assault allegations, discovered several 

additional text messages which formed the basis of the defense 

motion to suppress.13 Even though more than 90 days elapsed 

since the search authorization had been granted, SA Perez did 

not seek an additional search authorization.

Standard of Review

We review a military judge’s ruling on a motion to suppress 

for abuse of discretion.14 We review the military judge’s 

findings of fact under a clearly-erroneous standard but we 

review his conclusions of law de novo.15 “Thus, on 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.”16 

When reviewing matters under Article 62, UCMJ, we act only 

with respect to matters of law and we review the military 

judge’s ruling on a motion to suppress in a light most favorable 

to the prevailing party, here the appellee.17 

Applicable Law

Protecting against unreasonable searches and seizures, the 

Fourth Amendment provides that “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.”18

 

12 Id. at 36. 

13 SA Perez and SA Stemen searched the extraction file first using the names 

of the appellee, witnesses and the alleged victim before using keywords and 

searches such as “[o]n top, oral sex [and] blow job”. Id. at 52-53. 

14 United States v. Baker, 70 M.J. 283, 287 (C.A.A.F. 2011).

15 Id. (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). 

16 Ayala, 43 M.J. at 298. 

17 Id. at 288 (citations omitted).

18 U.S. CONST. amend. IV. 
5

Even when made pursuant to a warrant, a search must conform 

to the scope authorized, as an authorization to search does not 

give rise to an open-ended license to rummage for anything of 

evidentiary value. Granting such general power would violate 

the Fourth Amendment’s requirement that warrants describe with 

particularity those areas to be searched and items seized.19 

Data stored within a cell phone fall within the Fourth 

Amendment’s protections.20 As such, evidence obtained from a 

Government search of cell phone data generally will be 

inadmissible unless (1) the search was conducted pursuant to a 

search authorization or warrant, or (2) a recognized exception 

applies. 

Discussion

Following the motion hearing, the military judge issued a 

written ruling wherein he made numerous findings of fact. For 

the most part, the parties agree with his findings. The 

Government alleges, and the defense concedes, that the military 

judge made at least one finding of fact that was clearly 

erroneous.21 We find the remaining findings fairly supported by 

 

19 See Marron v. United States, 275 U.S. 192, 196 (1927) (holding that 

particularity requirement of Fourth Amendment prevent general searches and 

“prevents seizure of one thing under a warrant describing another.”); see

also Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (finding that one of 

the constitutional protections afforded by the Fourth Amendment is a 

prohibition against “a general, exploratory rummaging in a person’s 

belongings.” (Citations omitted)).

20 Riley v. California, 134 S. Ct. 2473, 2494-95 (2014). See also United 

States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (“Therefore, cell phones may 

not be searched without probable cause and a warrant unless the search and 

seizure falls within one of the recognized exceptions to the warrant 

requirement.” (Citations omitted)).

21 The military judge found that law-enforcement agents used the Cellebrite 

machine three times when in fact SA Perez only use the Cellebrite machine to 

extract data from the appellee’s cell phone once on 21 November 21. AE XIX 

at 5, 7; Record at 32-33. We find this error immaterial as the military 

judge’s ruling was predicated on the scope of the searches occurring after

the cell phone data were seized. His findings on that matter are 

comprehensive and well-supported by the record. The Government also takes 

issue with the absence of findings regarding the senior trial counsel’s role 

in searching the .pdf file and discovering one of the text messages at issue. 

The record could support a finding that it was the senior trial counsel who 

prompted law-enforcement agents to search the data for evidence of sexual 

assault as part of a “separate investigation” from the drug case. Record at 

36. But the military judge omitted any such finding and we are not permitted 

to supplement his ruling with our own findings in reviewing a Government 

appeal. We are not convinced that his omission was clearly erroneous. Nor 
6

the record and utilize them for purposes of our analysis. We do 

not add findings of fact or substitute our own interpretation of 

what happened – we merely strike the erroneous finding and apply 

the appropriate legal tests to the remaining facts.22

 

We conclude, as did the military judge, that the agents 

involved exceeded the scope of the authorized search at the time 

of the discovery of the additional texts and therefore the plain 

view exception does not apply. 

1. Lawful Scope of the Search

A warrant or search authorization must describe “with 

particularity” the place to be searched and the items to be 

seized. This protects a person from the unreasonable “rummaging 

through one’s personal belongings” prohibited under the Fourth 

Amendment.23 Thus, when a magistrate limits the scope of a 

search to evidence of a particular crime, a search for evidence 

pertaining to an unrelated crime is beyond the scope of the 

warrant.24 Whether police or Government agents are acting within 

the scope of the warrant depends in large part on the 

reasonableness of their actions.25 

The search authorization issued in November 2013 allowed SA 

Perez to search the appellee’s cell phone data for any 

electronic communications between the appellee and Cpl [S] 

relating to use and possession of a controlled substance.26 No 

mention of any other crime is made. 

During SA Perez’s original search of the cell phone data, 

he only discovered one text message unrelated to illegal drug 

use, and that message related to adultery. At the motions 

hearing, he admitted that had he come across the additional 

 

would further fact-finding on the senior trial counsel’s involvement affect 

the outcome in this case.

22 United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).

23 Coolidge, 403 U.S. at 467.

24 Marron, 275 U.S. at 196; see also United States v. Decker, 956 F.2d 773, 

778 (8th Cir. 1992) (holding that warrant authorizing seizure of UPS package 

suspected to contain drugs did not authorize seizure of drugs and drug 

paraphernalia from the premises).

 

25 United States v. Michael, 66 M.J. 78, 80 (C.A.A.F. 2008).

26 AE XIX at 4-5.
7

texts during his original search, he would not have interpreted 

them as evidence of a sexual assault.27 Only months later did SA 

Perez re-examine the extraction file with the aid of SA Stemen 

for any additional evidence of sexual assault. Last, and 

perhaps most significant, is that nowhere did the search 

authorization specify searching for evidence of sexual assault.

 

Under these circumstances, we agree with the military judge 

that the agents exceeded the scope of the search and accordingly 

lacked probable cause to seize these additional text messages. 

Even if, as the Government contends, the search authorization 

might reasonably have permitted SA Perez to “review[] all of the 

texts messages by reading every page of the PDF,” in his search 

for drug evidence,28 the authorization did not permit a search 

for evidence pertaining to sexual assault. Therefore, the 

agents could lawfully seize the additional text messages only if 

they were in plain view. 

2. Plain View Exception

We conclude that the military judge did not err by ruling 

that the plain view exception did not apply. The Government 

argues that these additional text messages were in plain view 

because they were contained in the same raw data file as the 

text messages related to prescription medication. But SA Perez 

did not discover these text messages during his original search 

for drug-related communications, despite finding one unrelated 

message concerning adultery. It does not follow that one piece 

of data is in plain view simply because it is co-located with 

another piece of data somewhere within 2,117 pages of material.29 

To the contrary, the record indicates that law-enforcement 

agents only located these text messages by using search terms 

specifically aimed at finding evidence of sexual assault. 

Under these facts, we agree with the military judge that 

agents exceeded the scope of the search authorization in 

searching the extraction report for evidence of sexual assault. 

Since the plain view doctrine requires that law-enforcement 

agents act within the scope of the authorization at the time of 

 

27 Record at 50.

28 Appellant’s Brief of 27 Jun 2014 at 13.

29 The military judge found that “[t]he extraction report consists of 2117 

pages of material collected from the [appellee’s] cellular phone to include 

numerous texts messages most [of] which are unrelated to the [appellee’s] 

conversations with Cpl [S].” AE XIX at 6.
8

discovery, the doctrine is inapplicable under the facts of this 

case.30 

Conclusion

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 authority and delivery to the military judge for 

further proceedings. 

Chief Judge MITCHELL and Judge FISCHER concur.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

30 See Horton v. California, 496 U.S. 128, 140 (1990) (“If the scope of the 

search exceeds that permitted by the terms of a validly issued warrant . . . 

the subsequent seizure is unconstitutional without more.”); United States v. 

Fogg, 52 M.J. 144, 149 (C.A.A.F. 1999). We also note that the second 

requirement of the plain view doctrine, i.e. that the evidence’s 

“incriminating nature must also be immediately apparent” also appears unmet 

in light of SA Perez’s initial inability to find these additional texts and 

his testimony that he would not have readily recognized these texts as 

evidence of sexual assault had he found them during his initial search. Id.

at 136-37 (internal quotation marks and citations omitted).