United States v. Wicks , 73 M.J. 93 ( 2014 )

UNITED STATES, Appellee
v.
Samuel A. WICKS, Technical Sergeant
U.S. Air Force, Appellant
No. 13-6004
Misc. App. No. 2013-08
United States Court of Appeals for the Armed Forces
Argued October 22, 2013
Decided February 20, 2014
BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a separate opinion concurring in part and dissenting in part.
Counsel
For Appellant: Captain Christopher D. James (argued); Major Ja
Rai A. Williams (on supplement).
For Appellee: Major Charles G. Warren (argued); Major Tyson D.
Kindness and Gerald R. Bruce, Esq. (on answer).
Amicus Curiae for Appellant: Anthony Pellegrini (law student)
(argued); D’lorah L. Hughes, Esq. (supervising attorney) (on
brief) – of the University of Arkansas School of Law.
Amicus Curiae for Appellee: Jonathan Brown (law student -
University of Arkansas School of Law) (argued); Duane A. Kees,
Esq. (supervising attorney) (on brief).
Military Judge: Donald R. Eller Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wicks, No. 13-6004/AF
Chief Judge BAKER delivered the opinion of the Court.
This case arises out of an interlocutory appeal under
Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §
862 (2012), in a pending court-martial. Appellant was charged
with four specifications of violating general regulations
pursuant to Article 92, UCMJ (one of which was later dismissed);
one specification of committing indecent conduct pursuant to
Article 120, UCMJ; and one specification of impeding an
investigation pursuant to Article 134, UCMJ.1 These
specifications were referred to trial by general court-martial.
Trial defense counsel subsequently filed a motion to suppress
evidence obtained from Appellant’s cell phone and related
derivative evidence. Upon conducting a preliminary hearing, the
military judge granted the defense motion and suppressed the
evidence. Trial counsel immediately requested reconsideration
of the ruling, which the military judge upheld while providing
findings on the record. Specifically, the military judge noted
in his findings that the Government “failed to satisfy its
burden as required under [Military Rule of Evidence (M.R.E.)]
311.” He continued that the “evidence that is the result of the
cell phone analysis and all derivative evidence is inadmissible
and suppressed as there were repeated violations of the
1
With the consent of both parties, oral argument was held at the
University of Arkansas School of Law in Fayetteville, Arkansas,
on October 22, 2013, as part of the Court’s Project Outreach.
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accused’s rights in that he had a reasonable expectation of
privacy in his phone which was stolen.” Upon the Government’s
Article 62, UCMJ, appeal, the United States Air Force Court of
Criminal Appeals (CCA) vacated the military judge’s decision.
Appellant then filed his timely appeal to this Court.2
This case presents a series of Fourth Amendment questions,
including some of first impression for this Court. The first
question is whether Appellant possessed a reasonable expectation
of privacy in his cell phone. The next question is whether
there was a Fourth Amendment search of Appellant’s cell phone
and, if so, whether the search was lawful. The third and final
inquiry is whether the exclusionary rule should apply to the
evidence.
Based on the analysis below, we hold that the military
judge did not err in concluding that the Government’s search of
Appellant’s cell phone violated Appellant’s reasonable
expectation of privacy, thus rendering the evidence obtained
from the cell phone inadmissible.
2
The petition for grant of review was granted on this issue:
Whether the Air Force Court of Criminal Appeals erred by
finding law enforcement’s repeated warrantless searches of
Appellant’s iPhone did not violate the Fourth Amendment.
United States v. Wicks, 72 M.J. 454 (C.A.A.F. 2013) (order
granting review).
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BACKGROUND
Appellant was a military training instructor (MTI) assigned
to Joint Base San Antonio-Lackland, Texas. His duties included
training new recruits. While at the base, Appellant was
involved in a personal relationship with Technical Sergeant
(TSgt) Ronda Roberts, also a MTI assigned to Lackland. In
November 2010, while Appellant was sleeping, TSgt Roberts viewed
text messages on his cell phone without his permission. She
testified that she saw “disturbing text messages,” but the
record did not elaborate much further. By December 2010, TSgt
Roberts and Appellant had ended their relationship.
Several months later, in May 2011, TSgt Roberts took
Appellant’s cell phone from the Charge of Quarters (CQ) area
without his permission while Appellant was on duty. She later
testified that she did this because she thought Appellant was
acting inappropriately and because she was angry with him.
Appellant noticed his cell phone was missing and tried to find
it. Both Appellant and TSgt Roberts’s supervisor asked TSgt
Roberts if she had seen the cell phone, but she lied and
answered in the negative. Appellant continued searching for his
cell phone and sent an e-mail to members of his squadron
alerting them to his missing cell phone. Later that day, in the
privacy of her home, TSgt Roberts read through various text
messages and noticed several communications between Appellant
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and women whom she believed were trainees based on their
initials and pictures. She testified that she believed they
were trainees based on their “faces look[ing] real familiar.”
TSgt Roberts also saw a sexually explicit video of a man
masturbating -- whom TSgt Roberts believed to be Appellant --
which was sent to a former trainee.
TSgt Roberts did not tell anyone that she had stolen
Appellant’s phone and went on leave shortly thereafter. Upon
returning from leave nearly three weeks later, TSgt Roberts
confronted Appellant with what she had seen on the cell phone
but without mentioning that she had stolen the cell phone from
him. According to the testimony of TSgt Roberts, she advised
Appellant that she thought his behavior was inappropriate. TSgt
Roberts stated that in response, Appellant acknowledged sending
text messages to recruits, but told her to “[g]et out of [his]
face.”
On January 10, 2012, nearly eight months after TSgt Roberts
took Appellant’s cell phone and in response to a general inquiry
from the command regarding whether anyone had information on MTI
misconduct, Detective Rico from the Security Forces Office of
Investigations (SFOI) interviewed TSgt Roberts. During this
interview, TSgt Roberts told Detective Rico she had evidence
that could prove Appellant had inappropriate relationships with
trainees. Prior to this interview, SFOI did not suspect
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Appellant of engaging in MTI misconduct. Although TSgt Roberts
did not supply the cell phone at that meeting, TSgt Roberts
provided verbal descriptions of the text messages she had seen.
For example, the military judge determined that TSgt Roberts
shared partial names of women -- Wade and Benoit -- with whom
she thought Appellant was having a relationship. After this
first interview -- but before receiving the cell phone --
Detective Rico consulted with the base legal office. She also
secured recruit flight rosters for the preceding five years to
search for potential trainees with the same last name or
initials as those mentioned by TSgt Roberts. This was the first
of three times that Detective Rico sought advice from the legal
office.
On January 11, 2012, TSgt Roberts provided a SIM card to
Detective Rico which Roberts represented to Detective Rico
contained information from Appellant’s phone that had been
downloaded from her iTunes account. Detective Rico consulted
the legal office for a second time and sent the SIM card to the
Bexar County Sheriff’s Office for analysis. However, the
analysis revealed that the SIM card did not contain any
information. Detective Rico informed TSgt Roberts about this
development. TSgt Roberts testified that Detective Rico then
urged TSgt Roberts to find the evidence and give it to her, and
that Detective Rico “put pressure on me to provide them
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evidence.” On January 17, 2012, TSgt Roberts returned to SFOI
and provided a phone to Detective Rico. According to Detective
Rico, TSgt Roberts represented that the phone belonged to an
unnamed airman but contained information downloaded from
Appellant’s cell phone via her iTunes account.
After TSgt Roberts gave Detective Rico the cell phone, Rico
did not ask Roberts to show her the text messages she had
previously seen. Instead, after receipt of the phone, Detective
Rico reviewed some text messages by scrolling through the cell
phone. TSgt Roberts was not present during this search.
Detective Rico then turned the cell phone over to the Bexar
County Sheriff’s Office for analysis on January 18, 2012. SFOI
verbally informed the Bexar County detective assigned to analyze
the cell phone that the search was a consent search. However,
Detective Rico did not ask TSgt Roberts to complete paperwork
related to consent for search, nor did she seek a search
authorization. At the request of SFOI, the Sheriff’s Office
“hit[] the entire phone,” extracting all the information and
copying it onto a disk.
The Bexar County analysis indicated that Appellant’s
information was the only data on the cell phone. At this point,
Detective Rico said she felt “uncomfortable” with the steps
taken and thought it “odd” that the phone only contained
Appellant’s data. Detective Rico –- for the third time --
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consulted the legal office and informed them about the amount of
information on the cell phone. According to Detective Rico,
there was still no discussion of a need for a search warrant.
Subsequently, SFOI sent Appellant’s cell phone to a third-party
vendor -- Global CompuSearch -- on March 28, 2012, for a more
comprehensive forensic analysis.
Detective Rico also interviewed former trainees whom she
suspected had personal relationships with Appellant, based on
her interview of TSgt Roberts, and data from Appellant’s cell
phone from Bexar County. Specifically, she interviewed Senior
Airman (SrA) Benoit. The interview was conducted with the
benefit of text messages exchanged between Appellant and SrA
Benoit extracted from Appellant’s cell phone. During the
interview, SrA Benoit confirmed what Detective Rico knew from
the text messages. But SrA Benoit also testified that she had
not planned on disclosing or discussing the details of her
relationship with Appellant prior to Detective Rico’s interview.
She also indicated that Appellant had called her nine months
prior to the interview (circa May/June 2011) to tell her that
someone took his cell phone and to encourage her to deny that
she had any contact with Appellant after graduation, even though
she had maintained contact with Appellant for about two months
after graduation.
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In November 2012, TSgt Roberts admitted that the cell phone
she provided to Detective Rico was actually Appellant’s cell
phone. In response, Detective Rico advised Roberts of her
rights with reference to the cell phone theft. Finally, in
February 2013, during the pendency of Appellant’s suppression
motion and at the request of trial counsel, Global CompuSearch
analyzed Appellant’s cell phone including searching over 45,000
text messages to extract the texts relevant to the
investigation. Trial counsel used the results of this
examination to argue the Government’s motion for reconsideration
of the military judge’s initial suppression ruling.
In summary and in accordance with the military judge’s
findings, there were three Government searches: the search by
Detective Rico, the search by Bexar County, and the search by
Global CompuSearch.3 The first Government search of the cell
3
In reviewing the record, we found a total of six searches of
Appellant’s cell phone data by various parties. The first
search occurred in November 2010 when TSgt Roberts examined
Appellant’s cell phone while he was sleeping and looked at the
contents of the cell phone. The military judge found that “TSgt
Roberts was acting in her private capacity at the time she
reviewed the phone.” Next, in May 2011, TSgt Roberts once again
searched Appellant’s cell phone after she stole it from him from
the CQ desk. Third, Bexar County searched Appellant’s SIM card
provided to them by Detective Rico on January 11, 2012. The
military judge concluded that Bexar County’s “analysis of the
SIM card revealed that no information was resident on the card.”
Fourth was Detective Rico’s search of Appellant’s cell phone
which she received from TSgt Roberts. The fifth search was on
January 18, 2012, when the Government sent the phone for
analysis by the Bexar County Sheriff’s Office. The sixth and
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phone occurred on January 17, 2012, when Detective Rico received
Appellant’s cell phone from TSgt Roberts. In his findings, the
military judge noted that after TSgt Roberts left, Detective
Rico “turned on the cell phone and reviewed [the] text
messages.” The military judge concluded that this review was
“not conducted while TSgt Roberts was present” nor did Detective
Rico “mirror the actions taken by TSgt Roberts.” Accordingly,
the military judge found that Detective Rico “engaged in a
general search of the cell phone.” The second Government search
was on January 18, 2012, when Bexar County conducted a
comprehensive analysis of the cell phone. The military judge
also determined that these “results were used as a basis for
further computer forensic examination by Global CompuSearch and
used by SFOI personnel in conducting further investigation into
the accused.” The third and final Government search was when
Global CompuSearch searched over 45,000 text messages in
February 2013 and provided this data -- at the behest of the
Government -- for use in its motion for reconsideration.
STANDARD OF REVIEW
In an Article 62, UCMJ, petition, this Court reviews the
military judge’s decision directly and reviews the evidence in
the light most favorable to the prevailing party at trial.
final search was when the Government sent the phone to Global
CompuSearch.
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United States v. Baker, 70 M.J. 283, 287–88 (C.A.A.F. 2011).
“‘In reviewing a military judge’s ruling on a motion to
suppress, we review factfinding under the clearly-erroneous
standard and conclusions of law under the de novo standard.’”
Id. at 287 (quoting United States v. Ayala, 43 M.J. 296, 298
(C.A.A.F. 1995)). We apply this standard when reviewing
evidentiary rulings under Article 62(b), UCMJ. Therefore, on
mixed questions 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.” Ayala, 43 M.J. at 298. The
abuse of discretion standard calls “‘for more than a mere
difference of opinion. The challenged action must be arbitrary
. . . , clearly unreasonable, or clearly erroneous.’” United
States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting
United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010))
(internal quotation marks omitted).
ANALYSIS
A. The Fourth Amendment and Core Principles
Our analysis starts with the text of the Fourth Amendment.
The Fourth Amendment of the U.S. Constitution protects “the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. Whether a search is
reasonable depends, in part, on whether the person who is
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subject to the search has a subjective expectation of privacy in
the object searched and that expectation is objectively
reasonable. Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring); see also United States v. Runyan, 275
F.3d 449, 457 n.9 (5th Cir. 2001). In Katz, for example, the
Supreme Court recognized that the Fourth Amendment protects
privacy interests outside the home and directly associated with
the person, in that case, a person taking bets in a public
telephone booth. Katz, 389 U.S. at 359.
The Fourth Amendment further 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.” U.S. Const.
amend. IV. A search that is conducted pursuant to a warrant is
presumptively reasonable whereas warrantless searches are
presumptively unreasonable unless they fall within “a few
specifically established and well-delineated exceptions.” Katz,
389 U.S. at 357. “Where the government obtains evidence in a
search conducted pursuant to one of these exceptions, it bears
the burden of establishing that the exception applies.” United
States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); see also
M.R.E. 311; Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)
(“[T]he burden is on those seeking the exemption to show the
need for it.”) (quotation marks and citations omitted). See
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generally 42 Geo. L.J. Ann. Rev. Crim. Proc. 46–47 & nn. 106-14
(2013) (surveying warrantless search and seizure cases in the
Supreme Court and federal courts of appeals); M.R.E. 314. In
this case, the Government proceeded without a warrant or search
authorization.
B. Cell Phones and Reasonable Expectations of Privacy
Applying these principles, we hold that the military judge
did not err as a matter of law in determining that Appellant had
a reasonable expectation of privacy in his cell phone and that
his expectation was objectively reasonable. To begin, every
federal court of appeals that has considered the question of
cell phone privacy has held there is nothing intrinsic about
cell phones that place them outside the scope of ordinary Fourth
Amendment analysis. See, e.g., United States v. Wurie, 728 F.3d
1, 8–9 (1st Cir. 2013), cert. granted, 82 U.S.L.W. 3424 (U.S.
Jan. 17, 2014) (No. 13-212); United States v. Flores–Lopez, 670
F.3d 803, 805-06 (7th Cir. 2012); United States v. Murphy, 552
F.3d 405, 411 (4th Cir. 2009); United States v. Zavala, 541 F.3d
562, 577 (5th Cir. 2008); see also United States v. Yockey, No.
CR09-4023-MBW, U.S. Dist. LEXIS 67259, at *7-*8, 2009 WL
2400973, at *3 (N.D. Iowa Aug. 3, 2009) (citing federal
appellate and district courts in stating that “[a] search
warrant is required to search the contents of a cell phone
unless an exception to the warrant requirement exists”).
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This conclusion is unremarkable. From the perspective of
Katz, a cell phone used as a communications device is like a
portable phone booth albeit with modern media capacity. Modern
cell phones can also serve as an electronic repository of a vast
amount of data akin to the sorts of personal “papers[] and
effects” the Fourth Amendment was and is intended to protect.
“The papers we create and maintain not only in physical but also
in digital form reflect our most private thoughts and
activities.” United States v. Cotterman, 709 F.3d 952, 957 (9th
Cir. 2013). Today, individuals “store much more personal
information on their cell phones than could ever fit in a
wallet, address book, briefcase, or any of the other traditional
containers.” Wurie, 728 F.3d at 9.
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.
See Wurie, 728 F.3d at 8-9; see also Flores-Lopez, 670 F.3d at805–06. Here no exception applied. Thus, the question becomes
did TSgt Roberts’s search of Appellant’s cell phone frustrate
Appellant’s Fourth Amendment right of privacy such that one or
more of the subsequent Government searches were lawful?
C. Private Search Doctrine and Its Limits
Before this Court, the Government argues that the military
judge erred in applying the private search doctrine to this
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case. The Government does not dispute that TSgt Roberts acted
in a private capacity when she searched Appellant’s phone.
However, it argues, as the CCA concluded, that subsequent
Governmental searches did not materially exceed the scope of the
original private search and that any remaining expectation of
Appellant’s privacy was not violated by the Government’s
subsequent search because TSgt Roberts’s private search had
already frustrated that expectation.
The private search doctrine is based on the well-
established principle that the Fourth Amendment and its
antecedent case law-derived search and seizure rules do not
apply to searches conducted by private parties. United States
v. Jacobsen, 466 U.S. 109, 113-14 (1984). As such, once a
private party has conducted a search, any objectively reasonable
expectation of privacy a person may have had in the material
searched is frustrated with respect to a subsequent government
search of the same material. See United States v. Reister, 44
M.J. 409, 415–16 (C.A.A.F. 1996) (concluding that government was
not restrained from using information obtained from a private
party’s search of the appellant’s logbook and notes because the
original expectation of privacy was frustrated); United States
v. Portt, 21 M.J. 333, 334 (C.M.A. 1986) (upholding government’s
warrantless search of an unlocked locker as valid where private
party had already searched contents).
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However, there are two essential limits to this doctrine.
First, the government cannot conduct or participate in the
predicate private search. Specifically, “[t]o implicate the
Fourth Amendment in this respect, there must be ‘clear indices
of the Government’s encouragement, endorsement, and
participation’ in the challenged search.” United States v.
Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004) (quoting Skinner, 489
U.S. at 615–16). There is no bright line test as to when the
government involvement goes too far, rather, courts have relied
on the particular facts of particular searches to make this
determination. See United States v. Steiger, 318 F.3d 1039,
1045 (11th Cir. 2003) (“A search by a private person does not
implicate the Fourth Amendment unless he acts as an instrument
or agent of the government.”); United States v. Jarrett, 338
F.3d 339, 344 (4th Cir. 2003); United States v. Hall, 142 F.3d
988, 993 (7th Cir. 1998).
The second limitation on the private search doctrine
pertains to the scope of any subsequent Government search. The
government may not exceed the scope of the search by the private
party, including expansion of the search into a general search.
Jacobsen, 466 U.S. at 115, 117-18. This rule is based on the
theory behind the private search doctrine. Once the
“frustration of the original expectation of privacy occurs, the
Fourth Amendment does not prohibit governmental use of the now-
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nonprivate information” unless the government uses information
for which the expectation of privacy has not already been
frustrated. Id. at 117. Thus, the “additional invasions of
respondents’ privacy by the government agent must be tested by
the degree to which they exceeded the scope of the private
search.” Id. at 115.
Applying this to modern computerized devices like cell
phones, the scope of the private search can be measured by what
the private actor actually viewed as opposed to what the private
actor had access to view. See generally Orin S. Kerr, Searches
and Seizures in a Digital World, 119 Harv. L. Rev. 531, 548,
556–57 (2005).
This in turn depends partly on how and, perhaps more
crucially, whether one analogizes a cell phone to a discrete
container. We discuss the container analogy in greater detail
in the following section because it formed the basis of the
CCA’s ruling. Nevertheless, it bears mentioning here as well
because the scope of a private party’s search can depend on how
one categorizes the item being searched. Put another way, if
one likens turning on a cell phone to opening a container, then
everything within the cell phone would lose its privacy
protections where the private party merely turned the phone on
before turning it over to the government. Accordingly, the
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scope would not be dependent on what was actually viewed but
rather what the private actor could have viewed.
In the present case, however, the military judge correctly
concluded that what was actually viewed by TSgt Roberts in her
search of Appellant’s cell phone mattered when determining the
scope of subsequent searches. And because the military judge
was unable to determine whether Detective Rico limited her
search of Appellant’s cell phone to the information that TSgt
Roberts had previously discovered during her private search, the
judge concluded that the Government failed to meet its burden,
thus excluding the evidence. Specifically, noting that
“Detective Rico was limited in being able to go only as far as
the private search of Tech Sergeant Roberts,” the military judge
concluded that there was “no evidence before this court as to
what Tech Sergeant Roberts actually saw.” Thus, in the absence
of such information, the military judge found that Detective
Rico engaged in a “general search at whatever looked
interesting” because in reviewing the texts, Detective Rico “did
not limit herself to what Tech Sergeant Roberts did,”
particularly as TSgt Roberts was not present during Detective
Rico’s search. The military judge further concluded that the
Government failed to indicate that they were “acting to respect
[Appellant’s] constitutional rights” and that this “disregard
occurred during the initial search of the SIM card . . . and
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again when the cell phone was examined by the Bexar County
Sheriff’s Office and later further examined by Global
Compusearch.” In fact, the military judge took particular
exception to the Government authorizing Global CompuSearch to
analyze and prepare the report on the contents of Appellant’s
cell phone after his initial ruling that the previous Government
searches of the cell phone were in violation of the Fourth
Amendment. This search covered over 45,000 texts which were
later collected, sorted, and prepared for presentation and
covered not only the text location on the cell phone but also
areas where the internal processing inadvertently stored
responsive information. Further, the information presented
included texts that would have been viewable by a person in cell
phone format as well as “deleted items which would not have been
viewable to the normal user.”
Thus, in both a material qualitative and quantitative
manner, the Government exceeded the scope of the initial private
search. Nor did the Government meet its burden to demonstrate
by a preponderance of the evidence that the search of the cell
phone was limited to the information provided to the agent by
the private person. “[T]he evidence is unclear as to the extent
that Det. Rico’s general search may have exceeded the private
search conducted by TSgt Roberts.” United States v. Wicks, slip
op. at 3 (A.F. Trial Judiciary Feb. 20, 2013) (finding Detective
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Rico “engaged in a general search”). And although Appellant’s
expectation of privacy had been frustrated by TSgt Roberts
viewing a few text messages and the accompanying video, it was
not eliminated altogether; that did not happen until the
Government sent the phone for forensic analysis by the Bexar
County Sheriff’s Office and then by Global CompuServe, thus
breaching the remaining portion of Appellant’s privacy that had
not been frustrated.
These findings support the military judge’s conclusion of
law that the Government failed to meet its burden that the
initial search mirrored TSgt Roberts’s private search. Further,
the Government’s subsequent searches not only exceeded the scope
but actually eliminated Appellant’s remaining expectation of
privacy entirely.
D. Assessing the Container Analysis
As referenced in the preceding section, because the CCA
overruled the military judge on the basis of the United States
Court of Appeals for the Fifth Circuit’s Runyan container
analysis, we address it here briefly. In Runyan, the Fifth
Circuit determined “that the police [did] not exceed the scope
of a prior private search when they examine[d] particular items
within a container that were not examined by the private
searchers.” Runyan, 275 F.3d at 465. There, the “containers”
referenced by the court were the disks the private party had
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searched and the particular “items” were files the private party
had not viewed on the disks. Id. Accordingly, the Fifth
Circuit analogized the previously viewed disks to containers
that had already been opened. Id. Similar “container” analysis
was applied in United States v. Simpson, where the United States
Court of Appeals for the Eleventh Circuit concluded the
government did not exceed the prior private search even though
the subsequent government search was a more thorough and time-
consuming search of a box containing pornographic videos and
magazines. United States v. Simpson, 904 F.2d 607, 610 (11th
Cir. 1990). This is because the “box’s contents had already
been examined, their illicit character had been determined, and
they were open for viewing” by the time government agents had
arrived at the scene. Id. And in Bowman, the United States
Court of Appeals for the Ninth Circuit held a government agent’s
search “permissible, and constitutional, to the extent that it
mimicked the private search” conducted by the manager of a
storage company. United States v. Bowman, 215 F.3d 951, 963
(9th Cir. 2000).
Here, the CCA found that the military judge “incorrectly
interpreted the law when he held that Detective [Rico’s] search
had to exactly mirror TSgt Roberts’s search in order to be
lawful.” United States v. Wicks, No. ACM 2013-08, 2013 CCA
LEXIS 621, at *15-*16, 2013 WL 3336737, at *5 (A.F. Ct. Crim.
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App. June 24, 2013) (unpublished). Instead, the CCA concluded
that Detective Rico’s viewing of the cell phone was “analogous
to examination of the computer disks in Runyan” where the cell
phone and its contents were “akin to a ‘closed container.’”
Wicks, 2013 CCA LEXIS 621, at *16, 2013 WL 3336737 at *5. In
its brief before this Court, the Government similarly analogizes
Appellant’s cell phone to a singular closed container, i.e., one
of the disks searched by the private parties in Runyan. In so
doing, it would treat all the data contained on Appellant’s cell
phone as derivative of the same container. Because TSgt Roberts
frustrated Appellant’s expectation of privacy by reading some
texts -- thereby opening the container -- the Government argues,
she frustrated the expectation of privacy in all the texts, and
by that measure any other cell phone content. Thus, the
Government contends the subsequent, more thorough analyses were
valid, as in Runyan.
Assuming without deciding that the Runyan court was correct
in determining that the “container” was the entire computer
disk, we nonetheless do not find the CCA’s reliance on the
Runyan analysis persuasive in light of the facts of this case
and this particular phone. The problem with applying
“container” metaphors is that modern computer technologies, such
as cell phones and laptops, present challenges well beyond
computer disks, storage lockers, and boxes. Because of the vast
22
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amount of data that can be stored and accessed, as well as the
myriad ways they can be sorted, filed, and protected, it is not
good enough to simply analogize a cell phone to a container.
Moreover, modern cell phones have the capability to be linked to
one’s bank account, personal calendar, e-mails, financial
portfolios, and home security systems. See Cotterman, 709 F.3d
at 956; Charles E. MacLean, But, Your Honor, a Cell Phone is Not
a Cigarette Pack: An Immodest Call for a Return to the Chimel
Justifications for Cell Phone Memory Searches Incident to Lawful
Arrest, 6 Fed. Cts. L. Rev. 37, 60 (2012). This is far more
expansive than mere CDs or cardboard boxes. In fact, “[t]he
potential invasion of privacy in a search of a cell phone is
greater than in a search of a ‘container’ in a conventional
sense” because a cell phone can provide access to a “vast body
of personal data.” Flores-Lopez, 670 F.3d at 805.
As such, the searches in the present case differ from the
searches in Runyan and Simpson. In both of those cases, the
items searched were static storage containers unlike a cell
phone that can be linked to a vast amount of personal data, some
readily accessible and some not. And unlike Jacobsen -- where
the contents of the container were easily exposed -- the record
reflects that the contents of Appellant’s cell phone were not
readily exposed or subject to examination. Instead, the
Government had to send the cell phone to two different forensic
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experts to extract and sort data and in doing so gathered a
universe of information, including contacts. Further, contrary
to Jacobsen, where the Supreme Court concluded there was no
“‘private’ fact” at risk of being revealed by a chemical test
that merely confirmed or negated the presence of one chemical
component, Jacobsen, 466 U.S. at 123, in the present case the
military judge found that the Government generally scrolled
through a number of private texts. Later, the Government
searched over 45,000 texts, including six deleted messages that
would not have been viewable by the private actor. Unlike
Jacobsen, many “private facts” of the Appellant were, in fact,
revealed.
Thus, on the basis of the record in this case and with
respect to this particular phone, we disagree with the CCA’s
application of the Runyan container analysis, noting that the
Government’s subsequent search of Appellant’s cell phone was
sufficiently distinct from the Runyan containers. In doing so,
we conclude that the military judge did not abuse his discretion
in finding that the Government failed to carry its burden that
their searches did not exceed the scope of TSgt Roberts’s
private search. As a final point, we now consider whether the
military judge erred in applying the exclusionary rule to this
case.
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United States v. Wicks, No. 13-6004/AF
E. Exclusionary Rule and the Inevitable Discovery Exception
Having determined that the military judge did not err in
finding the Government exceeded the scope of TSgt Roberts’s
private search in the conduct of its subsequent searches, we now
consider whether the military judge erred in applying the
exclusionary rule to this case.
The exclusionary rule is a judicially created remedy for
violations of the Fourth Amendment. Weeks v. United States, 232
U.S. 383 (1914), overruled on other grounds by Mapp v. Ohio, 367
U.S. 643 (1961). The rule applies to evidence directly obtained
through violation of the Fourth Amendment as well as evidence
that is the indirect product or “fruit” of unlawful police
activity. Wong Sun v. United States, 371 U.S. 471, 488 (1963).
“[S]uppression is not an automatic consequence of a Fourth
Amendment violation,” but turns on the applicability of specific
exceptions as well as the gravity of government overreach and
the deterrent effect of applying the rule. United States v.
Herring, 555 U.S. 135, 137 (2009). Evidence that would
otherwise be suppressed is admissible if it meets a limited
number of exceptions to the exclusionary rule, such as (1)
evidence can be derived from an independent source; (2) it has
an “attenuated link to the illegally secured evidence”; or (3)
it “inevitably would have been discovered during police
investigation without the aid of the illegally obtained
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United States v. Wicks, No. 13-6004/AF
evidence.” Runyan, 275 F.3d at 466 (quoting United States v.
Miller, 666 F.2d 991, 995 (5th Cir. 1982) (internal citations
and quotation marks omitted)). See also M.R.E. 311(b)(2).
We turn first to inevitable discovery. For this to apply
in this case, the Government had to demonstrate by a
preponderance of the evidence that “when the illegality
occurred, the government agents possessed, or were actively
pursuing, evidence or leads that would have inevitably led to
the discovery of the evidence” in a lawful manner. United
States v. Dease, 71 M.J. 116, 122 (C.A.A.F. 2012) (quoting
United States v. Kozak, 12 M.J. 389, 394 (C.M.A. 1982)).
“[M]ere speculation and conjecture” as to the inevitable
discovery of the evidence is not sufficient when applying this
exception. United States v. Maxwell, 45 M.J. 406, 422 (C.A.A.F.
1996). This exception is only applicable “[w]hen the routine
procedures of a law enforcement agency would inevitably find the
same evidence.” United States v. Owens, 51 M.J. 204, 204
(C.A.A.F. 1999). Moreover, the inevitable discovery doctrine
“‘cannot rescue evidence obtained via an unlawful search simply
because probable cause existed to obtain a warrant when the
government presents no evidence that the police would have
obtained a warrant.’” Wallace, 66 M.J. at 11 (Baker, J.,
concurring in the result) (quoting United States v. Allen, 159
F.3d 832, 842 (4th Cir. 1998)).
26
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In the present case, the Government argues that it would
have been able to determine the trainees with whom Appellant had
an inappropriate relationship by using the information provided
by TSgt Roberts during the first interview and that these names
alone would have inevitably led the Government to the text
messages subsequently found on Appellant’s cell phone. This may
be so. But the military judge found that the Government did not
meet its burden of showing such an inevitable discovery. The
military judge also concluded that he could not determine
whether the text messages seen by Detective Rico were the same
as those seen by TSgt Roberts. Nor did the military judge, in
his findings, indicate whether the number of messages seen by
Detective Rico between Appellant and Wade and Appellant and
Benoit paralleled those seen by TSgt Roberts or varied in a
legally significant manner.
In addition, the military judge concluded that “the
Government made no effort to secure a warrant or even explore
the possible ramifications of searching a phone which law
enforcement was clearly on notice contained personal information
of the accused and was unlawfully taken.” Although Detective
Rico dutifully consulted with the legal office, no efforts were
made to secure search authority even when Bexar County officials
inquired about the basis for conducting an extraction. The
military judge continued that “the Government has not met its
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United States v. Wicks, No. 13-6004/AF
burden of showing that the multiple, unlimited, general searches
and examinations of the cell phone would have been inevitably
discovered by lawful means.” Instead, the Government proceeded
in conducting multiple warrantless searches: first of the SIM
card, then of the cell phone by the Bexar County Sheriff’s
Office, and finally of the phone by Global CompuSearch.
The record, to the extent it is developed, supports these
conclusions. Because the record does not indicate what
Detective Rico reviewed and the extent to which it mimicked TSgt
Roberts’s own review, we cannot know the universe of what the
Government may have inevitably discovered in the course of
investigation absent the additional searches of Appellant’s cell
phone. Instead, the record reflects that the Government’s next
investigative step following Rico’s review of the phone was to
send the phone for additional search and analysis. Nor does the
Government present compelling evidence that they would have
sought a warrant; on the contrary, Detective Rico conceded that
it was not her practice to obtain a search authorization.
Further, on three separate occasions Detective Rico consulted
the legal office without subsequently seeking a search
authorization. Finally, there is no indication Detective Rico
was independently pursuing leads from her interview of TSgt
Roberts without relying on or benefiting from the cell phone
search. Detective Rico did gather prior recruit rosters, but
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United States v. Wicks, No. 13-6004/AF
she did not contact or interview prior recruits before first
gathering and reviewing the cell phone search data. On this
record, the Government has not shown that the military judge
erred in concluding that the Government did not meet its burden
of demonstrating that the routine procedures of the law
enforcement agency would inevitably find the same evidence.
In the absence of the inevitable discovery exception, we
turn to the military judge’s decision to apply the exclusionary
rule. The exclusionary rule “applies only where it ‘result[s]
in appreciable deterrence’” for future Fourth Amendment
violations and where the “benefits of deterrence must outweigh
the costs.” Herring, 555 U.S. at 141 (internal citations
omitted).
Here, three factors favor exclusion. First, the
Government’s search of Appellant’s cell phone exceeded TSgt
Roberts’s private search. Where the military judge found that
Roberts’s search was limited to a few texts, photographs, and
one video, the Government searches included tens of thousands of
text images, including some deleted texts that were not -- and
could not have been -- viewed by TSgt Roberts. Second, the
Government conducted its searches in reliance upon legal advice.
Three times Detective Rico consulted the relevant legal office
with probable cause in hand, and three times the Government
proceeded to search Appellant’s cell phone without benefit of a
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United States v. Wicks, No. 13-6004/AF
search authorization. Further, Detective Rico testified that it
was not her practice to seek search authorization in such
contexts. Finally, the Government ordered the most exhaustive
analysis of Appellant’s cell phone during trial while the issue
of Appellant’s Fourth Amendment rights was being litigated
before the military judge.4
As a result, we do not take issue with the military judge’s
decision to apply the exclusionary rule to the direct and
indirect evidence that he determined to be derived from the
Government’s unlawful searches of Appellant’s cell phone.
CONCLUSION
We conclude that the military judge did not abuse his
discretion in finding that the Government failed to carry its
burden to show that the Government searches did not exceed the
scope of the private search. As such, we hold that the military
judge did not err in excluding the evidence obtained from the
cell phone as a result of the Government’s searches.
4
As an additional matter, the Military Rules of Evidence
proscribe that evidence obtained from the government’s unlawful
search or seizure is inadmissible if two conditions are met:
(1) the accused makes a timely motion to suppress and (2) the
accused had a reasonable expectation of privacy, a legitimate
interest in the property seized, or other legal grounds to
object. M.R.E. 311(a)(1)-(2). Here, Appellant made a timely
motion, meeting the first condition. And Appellant had a
reasonable expectation of privacy as well as a legitimate
interest in his cell phone. On this interlocutory record, both
conditions are met and the evidence obtained from the
Government’s search is inadmissible.
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United States v. Wicks, No. 13-6004/AF
Accordingly, the decision of the United States Air Force Court
of Criminal Appeals is reversed and the record of trial is
returned to the Judge Advocate General of the Air Force for
further proceedings.
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STUCKY, Judge (concurring in part and dissenting in part):
I concur that the Government’s successive searches,
forensic and otherwise, of Appellant’s iPhone clearly exceeded
the scope of the original private search, and that the results
of those searches must be excluded from evidence. While the
full extent of the private search is not clear, the military
judge found that it revealed text messages from “D. Wade” and
“Benoit.” United States v. Wicks, __ M.J. __, __ (6) (C.A.A.F.
2014). I believe that the Government has carried its burden of
showing that these messages were within the scope of the initial
private search, and I would hold that they are therefore
admissible at trial.
In all other respects, I concur in the majority opinion.