Next week, on Tuesday, November 27, 2012, at 9:00am, CAAF will hear oral argument in United States v. Cote, No. 12-0522/AF, which presents the following issue:
Whether evidence found on Appellant’s computer should be suppressed because it was found pursuant to a search that violated the terms of the warrant.
It’s generally regarded as true that once government agents have your stuff, they can search it for evidence of a crime. However, there’s a growing body of law addressing the restrictions that a number of federal magistrate judges have imposed on what government agents can do with digital data after it is seized (Professor Orin Kerr has been following these developments over at the Volokh Conspiracy). These restrictions collided with the UCMJ in 2008, when a federal magistrate judge in North Dakota issued a search warrant authorizing the seizure of items that might contain child pornography from the on-base residence of Airman First Class Cote, the Appellant. The warrant included the following restriction:
the agents had to seize any property within 10 days and that any search regarding electronic devices, storage media, and electronic data “shall be completed within 90 days of the warrant.” The warrant did provide for an exception to this ninety day requirement if good cause could be shown to extend this time period [but the exception was not invoked]. The warrant also stated “[s]hould the government not locate in an Electronic Device or Storage Media any of the items specified in the warrant, the government shall promptly return the Electronic Device or Storage Media not containing such items to the owner.”
Appellant’s Br. at 6. The warrant was executed on July 2, 2008, and multiple items including a hard drive were seized. But the drive didn’t function properly, and over a year passed before it was submitted to the Defense Computer Forensics Laboratory for repair, and 21 videos believed to contain child pornography were discovered. The Appellant was soon after charged with multiple violations of Article 134, UCMJ, and brought to trial by a general court-martial. However, the military judge granted a motion to suppress all evidence obtained from searches that occurred after the 90-day deadline. The Government appealed, and the AFCCA reversed the trial judge, finding that (1) the 90-day time limit in the warrant only applies to devices and media, not data; and (2) no reasonable expectation of privacy exists in government copies of lawfully seized data.
CAAF denied a motion for an emergency stay (69 M.J. 178 (June 3, 2010)), and the trial resumed on June 11, 2010, when the Appellant was convicted, contrary to his pleas, by members with enlisted representation, of one specification of violation of Article 134 for wrongful possession of visual depictions of minors engaging in sexually explicit conduct. He was sentenced to a bad-conduct discharge, confinement for twelve months, forfeiture of all pay and allowances, and reduction to Airman Basic. Post-trial, CAAF denied the Appellant’s petition for review of the AFCCA’s decision. 69 M.J. 210 (July 30, 2010).
The AFCCA reviewed the conviction in the ordinary course, and issued an unpublished opinion on March 28, 2012 (almost two years post-trial; see here and here and here for discussions of delays in the AFCCA’s docket). In that opinion, the CCA revisited the suppression issue, and applied the three-part test established in United States v. Syphers, 426 F.3d 461 (1st Cir. 2005), cert. denied, 547 U.S. 1158 (2006):
First, as already discussed, probable cause did not lapse as a result of the delay since the data on the WD drive remained as it was on the date it was seized. Second, for reasons similar to those supporting continued probable cause, the evidence shows no prejudice to the appellant in the sense that either (1) evidence was discovered after the delay that would not have been discovered had the search taken place before the delay or (2) the appellant‟s property rights were adversely affected. As with the continuing probable cause, the data remained unchanged and the appellant’s property interest did not change from when the item was first seized. Third, the record shows no evidence of bad faith. The military judge‟s summary finding of ‘good cause’ to get an extension not only recognizes the continued existence of probable cause but also implicitly finds no prejudice or bad faith. Evidence obtained from the WD drive was properly admitted against the appellant.
United States v. Cote, No. 37725, slip op. at 4-5 (A.F.Ct.Crim.App. March 28, 2012). A footnote went even further:
Assuming arguendo that the delayed search of the WD drive rose to the level of a constitutional violation, we find that the evidence would have been inevitably discovered in the normal course of processing seized evidence. Mil. R. Evid. 311(b)(2). As discussed above, the warrant directed the return of only those devices and media that did not contain contraband. Although agents could not access the inoperable WD drive, probable cause to believe that child pornography would be found on it continued to exist. Therefore, the drive could not be returned to the owner without analyzing it for contraband. To ultimately dispose of the property as directed by the warrant, agents would have had to either repair it and analyze it for contraband or destroy it.
Id., slip op. at 5, N.3. Soon thereafter, CAAF granted review of the suppression issue. 71 M.J. 371 (July 12, 2012).
The Appellant’s brief argues that because the search of the Appellant’s hard drive leading to the discovery of the videos was conducted outside the 90-day deadline, the search was unlawful and the evidence discovered inadmissible. This argument is based on the Appellant’s expectation of privacy in the contents of the hard drive. But the Appellant’s brief also cites a pair of federal criminal cases that address time limits on warrants: United States v. Brunette, 76 F.Supp. 2d 30 (D. Me. 1999), aff’d, 256 F. 3d 14 (1st Cir. 2001), and United States v. Sims, 428 F.3d 945, 955 (10th Cir. 2005). The brief arrives at the conclusions that:
The Air Force Court did not recognize that a valid Fourth Amendment policy exists in setting a reasonable time limit for law enforcement agents to conduct a forensic analysis of computers. In this case, the federal magistrate sought to balance the privacy interest of a citizen against the lawful intrusions of government, by setting a time limit and by permitting the government to request additional time with appropriate justification. Where the government can so easily and intentionally flout the orders of a federal magistrate after such a long period of time, then there is little to stop law enforcement agents in the future from disregarding judicial orders in other searches or from otherwise complying with the demands of the Fourth Amendment.
Appellant’s Br. at 12-13 (emphasis added). The Government’s response also cites a number of federal cases, particularly United States v. Syphers, 426 F.3d 461 (1st Cir. 2005), which was employed by the CCA. The three-factor test from Syphers is (1) whether probable cause lapsed, (2) whether the delay prejudiced the defendant, and (3) whether the law enforcement officers acted in bad faith. The Government’s brief emphasizes that “the pivotal inquiry in adjudicating timeliness issues is whether probable cause has ‘dissipated’ as a result of the delay.” Gov’t Br. at 10. But it also discusses the third part: “The ‘bad faith’ prong of the Syphers factors. . .” Gov’t Br. at 11. This discussion is worth attention:
The bad faith prong of the Syphers factors appears to deal with intentional and calculated delays by law enforcement for the purpose of delay. However, this type of gamesmanship is largely inapplicable to the computer forensic search arena for two reasons. First, no tactical advantage is gained by delay for delay’s sake because the status of the evidence is static and unchanging. Secondly, at the same time, courts have recognized that the demands of computer forensic searches are considerably greater than other areas of evidence, calling for a more flexible approach to accommodate proper analysis: it is no easy task to search a well-laden hard drive by going through all of the information it contains, let alone search through it and the disks for information that may have been deleted. .
Gov’t Br. at 11-12 (citation and marks omitted). The analysis continues:
Finally, the delay involved in completing the forensic analysis of the devices was a function not of bad faith, but well-intentioned initial government ignorance over the possibility of employing scarce government resources to repair the damaged WD external hard drive. . . . Bad faith will not be presumed merely by virtue of the relative absence of constant government diligence in propelling the investigation.
SA Harstad expended all reasonable efforts within his professional proficiency in attempting to facilitate timely forensic analysis by “imaging” the Sony, HP, and WD. To adduce “bad faith” because a determined trial counsel later dared to challenge the status quo and sought a way to repair and analyze the WD that had gone undisturbed in an evidence locker (while there was still probable cause to believe child pornography was on it) is not evidence of bad faith. Rather, it is evidence of due diligence to make sure the job is done right. Accordingly, both the military judge‟s and AFCCA’s finding that the government exhibited no bad faith in the execution of this warrant must be sustained.
Gov’t Br. at 13-15 (citations and marks omitted). However, this doesn’t address the “bad faith” inherent in government investigators deliberately conducting a search outside parameters set by a federal judge. There’s not a lot of ways for an investigator to tell a federal judge to “go screw,” but deliberately violating the terms of a warrant is one. Considering that the exclusionary rule was developed as a tool to combat police misconduct, it seems like an easy fit in this case and I’m a little bit surprised by the CCA’s decisions.
This case has the potential for wide application, particularly if more persons with the power to authorize searches under Military Rule of Evidence 315 employed similar limitations. This case isn’t necessarily about whether such limitations would be enforceable by an Accused, but it could be.