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United States v. Seerden

United States Court of Appeals, Fourth Circuit

February 20, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GREGORY KYLE SEERDEN, Defendant-Appellant.

          Argued: December 11, 2018

          Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:17-cr-00067-RAJ-DEM-1)

         ARGUED:

          Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.

          Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

          G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, David A. Layne, Special Assistant United States Attorney, Elizabeth M. Yusi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

          Before WILKINSON, AGEE, and THACKER, Circuit Judges.

          THACKER, Circuit Judge

         In January 2017 investigators with the Naval Criminal Investigation Service ("NCIS") obtained a military warrant to search the cell phone of Gregory Kyle Seerden ("Appellant") for evidence of sexual assault. During the search of Appellant's phone, the investigators found child pornography. On that basis, the investigators then obtained a federal warrant to search Appellant's phone a second time and again found child pornography. Appellant moved to suppress the evidence, arguing that the first search was unlawful because it violated the Military Rules of Evidence and that evidence obtained during the second search was fruit of the poisonous tree.

         Although the district court agreed that evidence obtained during the military search was inadmissible because it violated the Military Rules of Evidence, it nonetheless found that the good faith exception allowed the government to admit evidence discovered via the second search.

         On September 20, 2017, Appellant entered a conditional guilty plea to production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e). He subsequently filed this appeal. As explained below, we affirm on different grounds.

         I.

         Appellant was a member of the United States Navy's Sea, Air, and Land Team. At all times relevant to this appeal, he was stationed in San Diego, California. But for one week in January 2017, Appellant attended a training at the Little Creek base in Virginia Beach, Virginia. During that week, Appellant was accused of sexual assault and suspected of possession of child pornography.

         On his next to last night of training in Virginia, Appellant met a woman. The woman recalled that, during her night out with Appellant, the pair went to a few bars and had more than a few drinks. The woman came in and out of consciousness throughout the night, but she remembered returning to Appellant's room in the Navy Gateway Inns and Suites at Little Creek. At around 4:00 a.m., the woman woke up lying naked next to Appellant. She learned from Appellant that, at some point during the night, they had sex. She then left. While she was waiting for a cab at the gate of the base, she began to cry. A service member on guard duty (a "sentry") approached her, and ...


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