Kruse is the Court’s first construction of Article 24a, UCMJ, 10 U.S.C. § 824a. The holding fits in one sentence: when the Office of Special Trial Counsel (OSTC) takes jurisdiction over a covered offense but then defers disposition, a convening authority may refer charges based on the same conduct so long as the charges allege non-covered offenses. Judge Johnson wrote for a unanimous Court. Slip op. at 7-10. After Kruse, an OSTC decision not to prosecute a covered offense ends the covered charge, not necessarily the case arising from the same conduct. The command can still charge a non-covered Article.

The facts.

In September 2024, police responded to a domestic disturbance at Cpl Kruse’s home. His wife reported that, while drunk, he had strangled her several times and pushed her down the stairs; neighbors heard yelling and her cries for help. The next day, the OSTC asserted authority over the reported domestic violence under Article 128b, UCMJ, 10 U.S.C. § 928b, as well as lesser-included and related offenses. On February 20, 2025, the OSTC sent the commanding officer a notice of initial disposition finding probable cause but concluding that the admissible evidence did not satisfy its standard for obtaining and sustaining a conviction. The OSTC did not simply decline to charge. It deferred all allegations of covered offenses and all other known or related offenses to the commanding officer for resolution. Slip op. at 4; United States v. Kruse, 86 M.J. 556, 557 (N-M. Ct. Crim. App. 2026).

The GCMCA charged the assaults on April 22, 2025, with an additional drunk-driving charge on June 11. Answer at 2; Supp. to Pet. at 5 n.16 (citations are to the Government’s Answer and the Supplement to the Petition filed at CAAF). The convening authority first referred aggravated assault, assault consummated by a battery, drunken operation of a vehicle, drunk and disorderly conduct, and violation of a military protective order to a general court-martial. Before arraignment, the parties entered a plea agreement. Kruse agreed to plead guilty to the three minor offenses at a special court-martial, with concurrent confinement terms of thirty to sixty days. The convening authority agreed to withdraw and dismiss the Article 128 charge and specifications without prejudice, with the dismissal to ripen into prejudice upon completion of appellate review. Slip op. at 4-5; 86 M.J. at 557.

Also before arraignment, the military judge (MJ) sua sponte asked the Government: whether R.K. was Kruse’s spouse at the time of the charged offenses, whether the OSTC had found a covered offense, whether it had exercised authority over any charged offense as a known or related offense, and whether it had deferred. The Government answered yes to all four. 86 M.J. at 557. The defense then moved to dismiss the Article 128 charge and specifications and the MPO charge. On August 20, 2025, the MJ granted the motion as to the assaults and denied it as to the MPO charge, which the OSTC had never taken. Answer at 1, 3-4; Supp. to Pet. at 3. He reasoned that the reported conduct “remains a covered offense even after deferral by the OSTC” and that no rule or statute lets a separate organization “sidestep the statutory and rules construct through clever charging decisions.” Slip op. at 5; 86 M.J. at 558. The Government noticed its Article 62 appeal three days later. Answer at 1; Supp. to Pet. at 4. The Navy-Marine Corps Court of Criminal Appeals (NMCCA) heard argument on December 18, 2025, and reversed on January 21, 2026, based on the statute’s plain text, returning the case for further proceedings. 86 M.J. at 559-60. At NMCCA argument, neither side claimed the statute was ambiguous. 86 M.J. at 559 n.25; Answer at 26. CAAF granted review on April 20, 2026, and affirmed. Article 1(17), UCMJ, 10 U.S.C. § 801(17), contains a closed list of covered offenses. Article 128 does not appear on that list, and the negative-implication canon resolves the question. Slip op. at 8. The relevant distinction is not whether the factual episode is the same, because the alleged strangulation is, but whether the charge command selected falls outside the Article 1(17) list. Kruse argued that this reading would let a commander evade the OSTC’s authority by relabeling a declined rape as a battery. Citing Taylor and McPherson, CAAF answered that the absurdity doctrine applies only when a result is “so gross as to shock the general moral or common sense.” Congress had to draw the line somewhere; the line it drew does not meet that demanding standard. Slip op. at 9-10. Congress remains free to draw a different one.

Question one: if the OSTC thought it could not win, why can the convening authority try?

Different questions, different answers. The OSTC asked itself whether the admissible evidence would get a conviction on the covered offense and keep it on appeal. A convening authority never has to ask that. Rule 601(d)(1) asks only whether there is probable cause, R.C.M. 601(d)(1)(A), and then sends the commander to the disposition factors in R.C.M. 601(d)(1)(B)(2) and Appendix 2.1: the victim’s views, the seriousness of the offense, and the rest. A commander who works through that list can land on referral for the very charges the OSTC handed back, and nothing in the rules stops the commander.

That gets the commander only partway. Article 128b reaches a violent offense against a spouse, intimate partner, or immediate family member. Strangulation constitutes aggravated assault under Article 128(b)(2). Thus, Article 128b adds a relationship element to Article 128, and the OSTC’s initial notification asserted authority over “[a]ll covered offenses and lesser included offenses.” 86 M.J. at 557. Under R.C.M. 306A(a), once the OSTC exercises authority over an offense, only the OSTC may dispose of it unless the OSTC defers. Hence, the Article 128 offenses were themselves offenses the OSTC took and then handed back. 86 M.J. at 559. Nobody disputed the marriage. 86 M.J. at 557. So if the relationship element was safe, the reader is left to guess that the OSTC’s worry was the assault itself, the same conduct the commander then charged under Article 128. The opinion never says what the evidentiary problem was. Maybe it was something peculiar to the covered-offense theory. Maybe an admissibility problem. Maybe the wife would not testify. We do not know, and neither does CAAF on this record.

The statute allows it, and CAAF has now said as much. What Kruse comes down to in practice is this: a deferral ends the OSTC’s pursuit of the covered offense, and that is all it ends. The command may still charge a non-covered offense arising from the same conduct, much as a civilian prosecutor can drop the greater offense and leave the lesser one on the table. Both briefs accept that much. Kruse cited Blockberger and Teters for the proposition that a lesser included offense is the same offense as the greater; the Government argued United States v. Henderson, 59 M.J. 350 (C.A.A.F. 2004), where referral of a jurisdictionally barred greater offense did not carry the lesser with it. Supp. to Pet. at 24; Answer at 22 n.6. CAAF did not engage with either line.

But the reform promised to remove covered-offense charging decisions from the chain of command. Did Congress intend to preserve that much command authority? The legislative history in the briefs, which CAAF did not reach, cuts both ways. Kruse quoted Senator Reed on the Senate floor: no commander could overrule the binding decision of a special trial counsel to prosecute or not prosecute a case. Supp. to Pet. at 11. The Government countered with the drafting history of Article 1(17). The Independent Review Commission proposed three categories of special victim crimes: a list of specified offenses, a “trait of victim” category keyed to the victim’s age, disability, or relationship to the offender, and an “intent of offender” category. The Department told Congress it would accept only the first. Answer at 23-24.

A Senate amendment, S. Amdt. 4892, would have brought certain Article 128 violations into the covered list; Congress did not adopt it. Answer at 24. The Commission itself said a commander’s post-deferral authority should reach only crimes “completely unrelated” to the special victim crimes in the case, language Congress did not write into the statute. Supp. to Pet. at 9; Answer at 25. The Government’s point was simple: Congress had a relationship-based definition on the table, one that would have swept in this case, and chose to define covered offenses by Article number instead.

​Question two: Was there a case in controversy supporting the Article 62 appeal?

The plea agreement required the convening authority to withdraw and dismiss the Article 128 charge and specifications without prejudice, with the dismissal to ripen into prejudice after appellate review. So the better question is not whether CAAF issued an advisory opinion, but what continuing controversy supported the Government’s Article 62 appeal after the parties agreed to dismiss the assault specifications.

A likely answer is timing and leverage, inferred from the agreement’s terms. The agreement made dismissal part of the Government’s promised performance; the MJ’s ruling supplied that benefit independently of the agreement. Kruse could withdraw from the plea agreement before the MJ accepted it. He might have abandoned the bargain and contested the three minor charges without facing the assault charges. A second difference is harder. Under the agreement, the dismissal was without prejudice and would not ripen into prejudice until appellate review ended. The MJ’s dismissal rested on something else entirely: a holding that the convening authority had no power to refer the charges in the first place. If the deal collapsed, that holding would have blocked any re-referral. 86 M.J. at 557-58. So the Government had something to protect. It did not want Kruse pocketing the dismissal before he performed his side of the bargain, and it did not want a ruling from the bench turning a without-prejudice dismissal into a permanent one. That is a live interest, not a request for an advisory opinion, and Article 62(a)(1)(A) exists so the Government can get a dismissal corrected before jeopardy attaches and review becomes impossible. The posture is still odd.

Should a TC or DC at trial (including their supervisors) automatically recuse themselves when they move over to become the SJA responsible for post-trial actions? Why can't that be an automatic move? But if recusal does not happen, should it matter?

In deciding Flores, CAAF decided a question that the Supreme Court left open: does the dual sovereignty doctrine carry over from double jeopardy to the Sixth Amendment right to counsel? The Court says yes and adds a second, independent ground that may matter more over time. United States v. Flores, No. 26-0005, 2026 CAAF LEXIS 719 (C.A.A.F. Aug. 27, 2026).

First the facts.

MT1 Flores’s wife found him naked in bed with their nine-year-old daughter. Local police in St. Mary’s, Georgia, interviewed him with an NCIS agent present. He invoked silence; the officer kept going, and he then invoked counsel. NCIS gave Article 31(b) warnings; he invoked again. Georgia arrested him on state felonies, and he retained civilian counsel, who filed for a preliminary hearing and bail. Before that hearing, Georgia released him to the Navy. On the drive to base, an NCIS agent texted trial counsel that Flores “won’t stop talking to us” and asked about a third interview. Flores later swore that the agents questioned him in the car and that he started nothing. Trial counsel replied: no issues, get a written or recorded waiver, and “be mindful” that he has an attorney. Back at the office, after about twenty minutes of small talk, Flores asked, “So what’s next?” The agent later invited him to tell his side. Flores signed an Article 31(b) waiver with a cleansing warning and gave an hour-long statement corroborating his wife’s and daughter’s accounts.

Now to trial and NMCCA.

The military judge (MJ) suppressed the Georgia interview because the officer failed to honor the invocation of silence, but she admitted the NCIS interview. She credited the agent’s testimony over Flores’s affidavit, found reinitiation under Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), and Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), found a valid waiver, and, in the alternative, held that dual sovereignty applied because the Sixth Amendment right is offense-specific under Texas v. Cobb, 532 U.S. 162, 167 (2001). NMCCA affirmed on both rationales in a published opinion, reasoning that the right is offense-specific, not investigation-specific, and adding that the text messages corroborated the agent’s account.

Major Victoria J. Bell, USA, Feature: Mental Competence and Responsibility in Courts-Martial. Army Lawyer, 2026(2).

Major Alexandria J. Altimas and Major Allyson J. Montgomery, Practice Notes: From Soldier to "Condemned Prisoner: A Review of Modern Military Death Sentence Procedure. Army Lawyer 2026(1). Depending on how the habeas proceeds under 28 U.S.C. 2241, it may be some time before Hasan proceeds to the execution stage--perhaps past January 2028. He's at the USDB, which puts him in the Dist. Ct. for Kansas and the Tenth. They set the law (across the circuits) and the tone for military habeas petitions—it's not good for a petitioner. See also, Dwight H. Sullivan, Lore of the Corps, The Man Behind the SCOTUS Military Justice Case Names: Warden J. Parker. Army Lawyer, 2026(1).

In United States v. Armour, No. 26-0116/AF (C.A.A.F. Aug. 24, 2026), it is Judge Johnson who again writes for a unanimous court, and again the Government prevailed. Readers who take Ixcolgonzalez together will notice a difference in kind. Ixcolgonzalez decided the merits of the search and sent the case back with nothing left on the suppression question but a scope footnote. Armour corrected one legal error in a military judge's (MJ) reasoning and sent the case back with almost everything else still open.

The posture is a little unusual. The MJ granted a second suppression motion; the Government appealed under UCMJ art. 62, 10 U.S.C. § 862; AFCCA vacated the suppression ruling in a published opinion, United States v. Armour, 86 M.J. 515 (A.F. Ct. Crim. App. 2025); and the accused petitioned CAAF. Thus, the airman is the appellant, and the Government is the appellee, in a case the Government started. Slip op. at 2 n.1. The issue presented asked whether CAAF should affirm the MJ's suppression ruling "because information gained from multiple unlawful searches affected law enforcement agents' decision to seek a search authorization and the search authority's decision to grant it." Slip op. at 2. CAAF answered no and affirmed AFCCA. Slip op. at 14.

Three searches and one bad sentence

The investigation began with a National Center for Missing and Exploited Children (NCMEC) report in August 2021 that a Kik account, "aftermatter," had uploaded and shared CSAM. The account had been accessed from seven IP addresses. Of those, four were logins, three were uploads, and the physical locations of the upload addresses were masked by VPNs. One login address, and only a login address, traced to a Spectrum internet connection at a house in Dalzell, South Carolina. Slip op. at 3 & n.2. That distinction between a login and an upload is the whole case.

A Sumter County sheriff's investigator obtained subscriber information, learned that the account holder, BB, was in the Air Force, and notified the Air Force Office of Special Investigations (OSI). In January 2022, the investigator obtained a state warrant for the Dalzell house based on an affidavit stating that she had viewed media "from" the Spectrum IP address and that it was CSAM. The affidavit did not mention the other six IP addresses. Slip op. at 3-4. While executing that warrant, she found mail addressed to the accused at the house, and a DMV check confirmed that both the accused and BB lived there. Slip op. at 4.

The accused was deployed. In February 2022, OSI obtained authorization to search him and his deployed quarters, based on affidavits stating that the Spectrum address had been used to upload CSAM. OSI seized an iPhone, an iPad, two laptops, and an SD card, and turned them over to the sheriff's office. A state magistrate refused to issue a warrant to search the devices. The sheriff's office dropped out, and the devices returned to OSI, which took over the case in July 2023. The Department of Defense Cyber Crime Center (DC3) then found evidence of possession, viewing, receipt, and distribution on the iPhone and iPad. Slip op. at 4.

The first suppression motion succeeded. The MJ found that the February affidavits contained a false statement and were written with reckless disregard for the truth; "even a cursory review of the NCMEC report makes quite apparent" that the Spectrum address was never tied to an upload. The MJ found the state investigator reckless, found OSI reckless for repeating her assertion while the lead agent had the NCMEC report in hand, found the remaining statements insufficient to establish probable cause, and declined to apply inevitable discovery or good faith. Slip op. at 5. The Government did not appeal. It asked for reconsideration, lost, and asked for a continuance to try again. Slip op. at 5. Hold that choice for the practice notes.

In March 2025, OSI submitted a new affidavit regarding the devices it had held since February 2022. It told the story accurately: the subscriber warrant and return, the packages found at the Dalzell house in January 2022, the DMV check, and the fact that the accused lived at the house during the reported activity and deployed in October 2021, three months after the last reported upload. It explained the inference plainly: the accused shared BB's house and internet connection when "aftermatter" logged in from that connection, so there was reason to believe his devices would contain CSAM. Slip op. at 5-6. Trial counsel and the affiant took it to Colonel MT, the operations group commander. Col MT asked why three years had passed since the seizure and was told there had been a problem with the first authorization's use of the words "upload" and "login." Col MT signed. DC3 found the same evidence on the same two devices. Slip op. at 6.

The second ruling: both Murray prongs satisfied, then a freezer

The defense moved to suppress the fruits of the January 2022 and March 2025 searches, arguing that the January affidavit contained the same reckless falsehood and that the March affidavit was based on January's fruits, the packages at the Dalzell house. Slip op. at 6-7. The Government responded that the accused lacked standing to challenge a search of a house where he no longer lived and that the independent source doctrine saved the March search in any event. Slip op. at 7.

The MJ applied Murray v. United States, 487 U.S. 533, 542 (1988), and found both prongs met. The decision to seek the March authorization was prompted by information known before the February search, and nothing learned in the February search reached Col MT. Slip op. at 7-8. The MJ then kept going. The March search, he held, was not genuinely independent because the Government had held the devices continuously since the unlawful February seizure, preserving them in the same condition for three years. But for that seizure, probable cause to believe CSAM sat on the devices would have gone stale. The February ruling was law of the case. The Government could therefore show an independent source for the information supporting probable cause, but not for the evidence, the iPhone and iPad themselves. Slip op. at 8. On reconsideration the MJ added a second ground: even if the independent source analysis was "inapt," seven separate false statements made with reckless disregard for the truth warranted exclusion. Slip op. at 8 n.5.

What CAAF held

CAAF reviewed the MJ's ruling for abuse of discretion, taking the evidence in the light most favorable to the accused, the prevailing party below. Slip op. at 8-9 (citing United States v. Hurtado, 86 M.J. 431, 434 (C.A.A.F. 2026), and United States v. Shields, 83 M.J. 226, 230 (C.A.A.F. 2023)). The MJ's findings on the two Murray prongs were not clearly erroneous. Slip op. at 10. CAAF said that should have been the end of the analysis. Agreeing with AFCCA, CAAF held that once the MJ found that neither the decision to seek authorization nor the decision to grant it was affected by the unlawful search, the MJ abused his discretion by failing to conclude that the March search was genuinely independent. Slip op. at 10-11 (quoting Armour, 86 M.J. at 525).

The staleness rationale failed on two levels. As a matter of law, CAAF found no authority for a theory that "would prevent the Government from rectifying a defective warrant when evidence originally seized remains in the Government's possession." Slip op. at 11 (quoting Armour, 86 M.J. at 525). Murray itself rejected the idea that objects once seized cannot be reseized without first being returned to private hands, and saw no reason the independent source doctrine should not apply to a reseizure of tangible evidence, so long as the later seizure is genuinely independent. Slip op. at 11 (quoting Murray, 487 U.S. at 541-42). As a matter of fact, CAAF found no record basis for the conclusion that probable cause would have gone stale. Timeliness informs probable cause, United States v. Macomber, 67 M.J. 214, 220 (C.A.A.F. 2009), and if the devices had gone back to the accused for three years, evidence of his 2021 use might well have disappeared. But the devices were frozen in February 2022, so probable cause as to their contents at that moment did not decay. Slip op. at 11-12. Nor could the Government be faulted for the freeze. Once agents knew the devices held CSAM, returning them would itself have been unlawful. Slip op. at 12 (quoting Armour, 86 M.J. at 526).

The defense position, fairly stated

The MJ's theory was not conjured from nothing. In the same passage CAAF quotes, Murray says that genuine independence "may well be difficult to establish where the seized goods are kept in the police's possession." 487 U.S. at 542. The MJ read that as an invitation to look beyond the two prongs to the unlawful seizure's causal role. The devices existed as objects of a 2025 search only because OSI took them in 2022 based on an affidavit the MJ deemed reckless, and the state magistrate had already refused to let anyone look inside them. On that reading, the "same, not worse, position" rationale in Murray cuts the other way: absent the unlawful seizure, the Government in 2025 would have had a four-year-old tip and no devices.
CAAF's answer, and it is a sound one on the text of Murray, is that the parenthetical describes a proof problem under the two prongs, not a third prong. The difficulty Murray anticipates is showing that the decision to seek the second warrant was not driven by what the first seizure revealed. Where the MJ found as fact that it was not, the difficulty is resolved. The freezer preserved probable cause; it did not supply it. The Government will add that the accused's reading would turn the independent source doctrine into a dead letter in every digital device case, since contraband devices are never returned, and that Murray was written to prevent exactly that outcome.

What the opinion does not squarely address is the MJ's reconsideration ground, the seven reckless statements. Slip op. at 8 n.5. If the independent source doctrine applies, the March evidence was not "obtained as a result of" the February search, and the Government will argue that Mil. R. Evid. 311(a) is never triggered. The defense will argue that deterrence is the whole point of the exclusionary rule, that the MJ found reckless disregard by two agencies across seven affidavits, and that a rule under which a reckless affidavit costs the Government nothing but a continuance deters nothing. CAAF left that argument where it found it, with a general statement that it expresses no opinion on whether any other exception to the exclusionary rule saves any of the searches. Slip op. at 13.

The tipsy coachman stays in the stable

The accused's main appellate argument was the affirm-on-other-grounds move: the January search was tainted by the same recklessly false statement, and the March affidavit relied on January's fruits (the packages), so the March search fails both Murray prongs as to January, even if it passes them as to February. Slip op. at 13. CAAF would not go there. Neither the MJ nor AFCCA ruled on whether the January search was unlawful, whether it tainted the March search, or whether any exception applied, and CAAF declined to decide any of it in the first instance. Slip op. at 7 n.4, 13. The MJ found that Col MT had a substantial basis for probable cause without reaching the January arguments, and that finding is where the record stops. Slip op. at 7 n.4.

This is the part of the opinion that matters on remand, because the list of undecided questions is long. Whether the accused has standing to challenge the January search of a house he shared with BB until his October 2021 deployment. Whether the January affidavit's "from" or "via" language, which the MJ already found reckless, invalidates that search. Whether the March affidavit's reliance on the January packages and on the DMV check those packages prompted means the decision to seek the March authorization was affected by the January search under Murray's first prong. Whether the DMV record, a public database, provides an independent path to the residence link. And whether good faith or inevitable discovery rescues anything. None of those has a ruling. Each is now a trial-level motion.

Footnote 6 adds one more. CAAF acknowledged that a delay in executing a search can render an initially lawful seizure unreasonable by its length, citing United States v. Harborth, 85 M.J. 469, 479 (C.A.A.F. 2025), and United States v. Cote, 72 M.J. 41, 46 (C.A.A.F. 2013), in which an MJ properly suppressed a hard drive searched more than a year after the authorization's time limit expired. But the accused "has not challenged the duration of the seizure of his devices," so CAAF did not address it. Slip op. at 12 n.6. Three years passed between the February 2022 seizure and the March 2025 authorization, with a state magistrate's refusal and a change of agencies in the middle. A durational challenge under Harborth is sitting unfiled.

Like Ixcolgonzalez, there is an extended passage of time since the 2021 tip and going back to trial. Can we expect a further delays?

CAAF hands the Government a clean win in United States v. Ixcolgonzalez, No. 25-0243/MC (C.A.A.F. Aug. 24, 2026), an interlocutory appeal under UCMJ art. 62, 10 U.S.C. § 862, that reached the court on four certified issues. Judge Johnson writes for a unanimous court. CAAF that sets aside NMCCA's decision.

Two holdings do the work. First, a command authorization for search and seizure (CASS) that confines the search to a named Marine's digital devices, on his person or in his barracks room, for evidence of CSAM under Article 134 is sufficiently particular under the Fourth Amendment. Slip op. at 11, 13. Second, even if it were not, the CASS incorporated the eleven-page affidavit that accompanied it, and the affidavit supplied whatever particularity the CASS lacked. Slip op. at 13-15. Having answered the first and third certified issues that way, CAAF left the second (good faith) and fourth (deterrence) issues on the shelf. Slip op. at 3. Those two issues, along with a footnote about sixty-three Telegram messages, are why suppression litigation in this case may not be over.

The paperwork

The investigation began as usual. In January 2022, Snap, Inc. sent a cyber tip to the National Center for Missing and Exploited Children about a user who had uploaded suspected CSAM. The tip was forwarded to the North Carolina State Bureau of Investigation, then to the Naval Criminal Investigative Service (NCIS). A warrant returned four videos from Snap. Slip op. at 3. An NCIS special agent then sought the accused's commanding officer's approval for a CASS covering the barracks room and the accused's digital devices.

The request form contained the line that gives this case its texture. When the form asked for the facts establishing grounds to search, the agent wrote: "See Attachment A." Slip op. at 4. Attachment A ran eleven pages. It set out the cyber tip and the Snap warrant, explained why the agent expected to find CSAM on the accused's mobile devices, and listed six categories of items sought: any and all digital storage devices in the room and on the accused's person pertaining to the Article 134 offenses; the Snapchat application; a named Gmail address; child pornography images and videos; proof of ownership of the devices; and "[a]ny and all applications in which videos and photographs are stored or records thereof." Slip op. at 4-5.
The CASS itself said less. It recited that an affidavit had been made before the commander; identified the premises as the accused's digital devices and his barracks room; described the property sought as evidence of possession, receipt, viewing, and distribution of child pornography under Article 134; and stated that grounds for the search existed "as stated in the supporting affidavit(s)." Slip op. at 5. The agent briefed the commander orally, handed over both documents, and swore to probable cause. The commander signed the CASS and the first and last pages of the affidavit. Slip op. at 5. The search followed in August 2022. The Department of Defense Cyber Crime Center found 254 videos and 272 images of suspected CSAM on the iPhone, plus sixty-three Telegram messages in which the accused requested, sent, or received such material. Slip op. at 5-6. Snapchat is in the affidavit. Telegram is not. Hold that thought.

What the military judge did with it

The MJ agreed with the Government on the devices. The CASS "marginally satisfies" particularity as to the things to be seized, and it would have been unreasonable to demand more when the Government did not know what devices the accused owned. Slip op. at 11-12. The trouble, in the MJ's view, lay inside the devices. The CASS said nothing about which data, data sets, or applications agents could search, and nothing about whether they were after pictures, videos, communications, or all three. Slip op. at 6-7. Relying on United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005), the MJ held that a digital search authorization must use "as much specificity as the government's knowledge and circumstances allow," and that this one fell "well-short." Slip op. at 7, 12.

The MJ then found what became the Government's best fact on appeal. The affidavit, the MJ found, "unambiguously provided a particularized list" of the places within the devices to be searched and the things to be seized, and the forensic examiner worked from a request nearly identical to it. Slip op. at 7. Having found that, the MJ held the affidavit did not count, because the CASS's reference to it was "boilerplate language" about probable cause that "did nothing to actually incorporate the specificity within the supporting affidavit." Slip op. at 7. The MJ also found, by a preponderance, that the affidavit did not accompany the CASS when it was served on the accused. Slip op. at 7 n.5. NMCCA affirmed on particularity and incorporation, though it rejected any suggestion that service on the accused matters, quoting United States v. Grubbs, 547 U.S. 90, 98-99 (2006), for the point that the Constitution does not require the warrant to be shown to anyone during the search. Slip op. at 8 n.5.

Particularity: Richards governs, and Riccardi does not add to it

CAAF reviewed for abuse of discretion, with overbreadth reviewed de novo, and, as it customarily does on interlocutory review, pierced NMCCA’s decision. Slip op. at 9-10. The anchor is United States v. Richards, 76 M.J. 365 (C.A.A.F. 2017). There, an AFOSI authorization reached "all electronic media" without a date range, even though agents knew the relevant communications fell within a seventeen-month window. CAAF held that a temporal limit is "one possible method" of tailoring but "by no means a requirement," because the authorization did not give "carte blanche to search in areas clearly outside the scope of the crime being investigated." Slip op. at 12-13 (quoting Richards, 76 M.J. at 370). The same logic disposes of this case. The CASS confined agents to the accused's devices, on his person or in his room, for evidence of identified child pornography offenses. That is not Groh v. Ramirez, 540 U.S. 551, 558 (2004), where the warrant described the items to be seized "at all." Slip op. at 13.

CAAF then said something about the MJ's method that trial judges will want to note. Reliance on Riccardi to require as much specificity as the Government could have provided is "inconsistent with this Court's precedent," and although the MJ said he did not "discount" Richards, his reliance on Riccardi "suggests otherwise." Slip op. at 12-13. A ruling built on that view of the law is an abuse of discretion. Slip op. at 13.

The defense side deserves a fair hearing here, because the MJ did not invent his standard. Richards itself quoted Riccardi for the rule that computer warrants "must affirmatively limit the search to evidence of specific federal crimes or specific types of material," and Richards also adopted the Sixth Circuit's line that "[t]he proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation." Richards, 76 M.J. at 369-70 (quoting United States v. Richards, 659 F.3d 527, 541 (6th Cir. 2011)). The MJ took that metric at face value, asked whether NCIS could reasonably have said more about what it wanted inside the phone, and answered yes, since the agent's own affidavit said more. What Ixcolgonzalez tells us is that the "proper metric" sentence is not the test. The operative question is the carte blanche one: does the authorization confine agents to evidence of identified offenses? If it does, it survives even when a sharper version sat on the agent's desk. Defense counsel who have been citing Richards for the "reasonable to be more specific" line should expect the Government to answer with pages 12 and 13 of this opinion.

The Government's better argument, which the opinion carries forward from Richards, is that digital evidence hides. File names lie, dates lie, and an examiner may have to open a great many files to find the ones that matter. Richards, 76 M.J. at 370. (Or they might be smart enough to put all the CSAM in the Windows Thumbnail folder that is hidden from a user.) A rule that requires the CASS to name the applications and file types in advance lets the target pick the hiding place. On that view, the fight over what an examiner may open belongs at the execution stage, where scope and plain view are litigated on an actual record, and not on the face of the authorization. That is a coherent position, and it is now the law of the military courts on facial challenges.

Incorporation: "See Attachment A" is enough

The alternative holding matters more for drafting. Groh says the Fourth Amendment requires particularity "in the warrant, not in the supporting documents," but Groh also acknowledged that most circuits will read the two together "if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant." 540 U.S. at 557-58. CAAF picked Baranski v. Fifteen Unknown Agents, 452 F.3d 433 (6th Cir. 2006), as its model. In Baranski, the warrant said "See Attached Affidavit," the magistrate signed both documents, and the affidavit described the guns to be seized; the Sixth Circuit held that was incorporation and that the warrant described the items when the magistrate issued it. Slip op. at 14 (citing Baranski, 452 F.3d at 436, 439-40).

The parallel here was close. The CASS referred to the affidavit twice, the affidavit announced that it was made "in support of a request for a Command Authorization for Search and Seizure," the agent briefed the commander and handed over both documents, and the commander signed both. Slip op. at 14-15. The accused argued that the CASS mentioned the affidavit only in the probable cause sentence and not in the "places to be searched" block where particularity lives. CAAF was not persuaded: the reference was not limited by its terms, so it incorporated the entire affidavit, and a second reference in another block was unnecessary. Slip op. at 15 n.7. Then CAAF took the MJ's own finding that the affidavit "unambiguously" particularized the places and things within the devices and used it to finish the job. Slip op. at 15.

Two observations from the other side of the aisle. First, Groh's formula has two prongs, words of incorporation and accompaniment, and CAAF decided only the first. The MJ found the affidavit was not with the CASS when the search was served; NMCCA said that does not matter under Grubbs; and the accused did not challenge that ruling at CAAF, so CAAF declined to reach it. Slip op. at 8 n.5. Some federal courts read "accompanies" to require that the affidavit be physically present at the search, not just at issuance. United States v. McGrew, 122 F.3d 847, 849-50 (9th Cir. 1997); United States v. SDI Future Health, Inc., 568 F.3d 684, 699 (9th Cir. 2009). Whether military law follows that reading remains open, and the next accused should preserve it. Second, footnote 2 reminds readers that a commander stands in for a magistrate. Slip op. at 3 n.2 (citing Rule 315(d)(1), Military Rules of Evidence (Mil. R. Evid.), Manual for Courts-Martial, United States (2019 ed.)). After Ixcolgonzalez, the agent's own description of what the agent wants becomes the constitutional boundary of the search, on the strength of a cross-reference and a signature on the first and last pages of an eleven-page attachment. The Government will fairly answer that this is how every federal warrant works: agents draft, magistrates sign. The defense will fairly answer that the CASS form gave the commander a place to describe the property sought and the commander used it to describe an offense.

What is left when the case goes back

The interesting part of the opinion is what CAAF declined to decide. Footnote 6 preserves the MJ's observation that, even with the affidavit incorporated, the forensic examiner "may have exceeded the scope" of the authorization by seizing Telegram messages, where the affidavit named Snapchat and photos and videos. Slip op. at 8 n.6. The MJ could not resolve that because the examiner did not testify, so the MJ could not assess the search sequence or whether the messages came into plain view. CAAF construed the MJ's comments as something short of conclusions of law and expressed no opinion on the question. Slip op. at 8-9 n.6.

This does not seem to be small leftover. The charge sheet carries one possession specification, seven distribution specifications, one receipt specification, and a solicitation specification under UCMJ art. 82, 10 U.S.C. § 882. Slip op. at 6. The images and videos support possession. The distribution, receipt, and solicitation counts look like they ride on the sixty-three Telegram messages. So the scope motion on remand is aimed at most of the case.

Both sides have material. The affidavit's sixth category asked for "[a]ny and all applications in which videos and photographs are stored," and CAAF's own footnote 4 quotes the DC3 report describing Telegram as an application that saves exchanged pictures and videos to the user's cloud account. Slip op. at 6 n.4. The Government will say Telegram is exactly what category six describes. The defense will say the agent knew how to name a messaging application, named Snapchat, and did not name Telegram; that category six reads as a gallery-and-storage clause, not a communications clause; and that a communications seizure needs its own authorization. Plain view is the Government's fallback, and it requires the examiner on the stand. Who must put the examiner there is worth a paragraph in the motion: once the defense moves to suppress, Mil. R. Evid. 311(d)(5)(A) puts the burden on the prosecution to show by a preponderance that the evidence was not obtained by an unlawful search. [Lexis check the subparagraph and the 2019 versus 2024 edition.] The examiner's absence hurt the defense at the first hearing because the MJ could not find a scope violation on the record before him. On the second try, the absence may cut the other way.

If the MJ finds a scope violation, the two certified issues CAAF did not reach come back to life at the trial level: whether the exclusionary rule's deterrent value outweighs its costs under Mil. R. Evid. 311(a)(3), and whether good faith applies under Mil. R. Evid. 311(c)(3). Those questions look different when the claimed error belongs to an examiner exceeding a valid authorization rather than a commander signing a deficient one.

One last note on the calendar. The cyber tip arrived in January 2022. The search followed in August 2022. NMCCA ruled in April 2025. CAAF ruled in August 2026, and the case now returns to the Judge Advocate General of the Navy for further proceedings. Slip op. at 16. Four and a half years after the tip, no one has been tried, and the next stop is likely another suppression hearing. Presumably Appellant has been on active receiving pay during this time? If trial proceeds, does he get his original defense counsel back? See, e.g., United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2010); United States v. Hohman, 70 M.J. 98 (C.A.A.F. 2011).

United States v. Armour and United States v. Ixcolgonzalez, both involving the MJ's suppression of evidence, were answered in favor of the Government.

Interestingly in Armour, it appears the Government victory may not be complete, because CAAF effectively says the MJ suppressed for the wrong reason, but is now free to review suppression of other reasons raised by Appellant.