Navy-Marine Corps Appellate Court Sets Aside Convictions on Search and Seizure Error

The Navy-Marine Corps Court of Criminal Appeals recently decided the case of United States v. Harborth. Chief Harborth and his wife were having an argument over her suspicion that he was having an affair. The Chief’s wife asked to see his cell phone and he began to delete pictures from the phone. The Chief’s stepdaughter grabbed the phone and gave it to her mother. In a deleted photos file, the Chief’s wife found a photo of her 15 year-old daughter changing in her bedroom along with photos of her daughter in a bikini at the beach. The photo of her daughter changing came from a security camera in her bedroom that the Chief had assured his wife and stepdaughter was not operational.

The Chief’s wife called the police and showed them the photos. The Chief was arrested and his cell phone seized. The Chief’s wife found several other electronic devices, including iPads, old cell phones, thumb drives, and SD cards and turned them over to the police as well. NCIS eventually took the case and took possession of these items. After more than a month of holding these items, an NCIS agent brought the Chief’s wife in to ask why each seized device might contain evidence of criminal activity. NCIS then obtained a search authorization from the Chief’s commander 94 days after the items were initially seized.

A forensic examination found additional photos of the Chief’s stepdaughter in various states of undress from the security camera in her bedroom on several of the electronic devices. NCIS additionally found a video of the Chief’s stepdaughter and her friend, also a minor, changing in her bedroom. At trial, his counsel challenged the search of the cell phone on which his wife originally saw the photos of her daughter. They also challenged both the seizure and search of his other electronic devices as lacking probable cause. The Military Judge denied these motions and the Chief was convicted of three specifications of indecent visual recording. Two of these related to the Chief’s stepdaughter over two separate time frames and one related to the recording of the stepdaughter’s friend. He was also convicted of producing child pornography for some of the recordings of his stepdaughter.

On appeal, the Chief again challenged the search and seizure of his electronic devices. The appellate court found that the search of his cell phone was done pursuant to probable cause and that the Chief had waived an objection to the initial seizure of the device by not raising it at trial. The appellate court did find that the seizure and search of the rest of his electronic devices were in error. The court held that law enforcement did not have probable cause to believe that evidence of criminal activity would be found on the other devices merely because photos were found on his cell phone. The court further found that the Chief’s wife did not have the authority to grant permission to search these devices. Finally, the court determined that the large delay in obtaining the authorization to search the items after they had been seized was also problematic.

As a result of this finding, the court held that the evidence from all of the electronic devices except for the cell phone should have been suppressed. The court found that even without the evidence that should have been suppressed, the Chief would have been found guilty of one of the specifications for indecent visual recording. The evidence for this offense came from the photos that the Chief’s wife found on his phone and showed to the police, as well as from the home security system itself. The court affirmed the guilty finding to this offense.

However, the court found that the evidence for the indecent visual recording offense related to the stepdaughter’s friend came entirely from the items that should have been suppressed. It set this offense aside and ordered it dismissed. The court could not determine whether the members would have found the Chief guilty of the third indecent visual recording offense or the child pornography offense without the erroneously admitted evidence. It set aside those two specifications and ordered the case to be sent back to the Convening Authority for a rehearing on those two offenses (without the suppressed materials) and a new sentencing.

Both sides have an opportunity to appeal this further to the Court of Appeals for the Armed Forces before it goes back for this ordered rehearing. The Court of Appeals for the Armed Forces could take the case now or wait to see the result of the rehearing and resentencing and second appeal to the Navy-Marine Corps appellate court before deciding whether to wade in.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

Leave a Comment