Argued: December 11, 2018
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)
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.
C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.
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.
WILKINSON, AGEE, and THACKER, Circuit Judges.
THACKER, Circuit Judge
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.
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.
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
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.
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 ...