When a federal judge issues a search warrant with an express limitation, and the Government violates that limitation, and a military judge suppresses the results of the search, how long does it take for CAAF to issue an opinion finding that the military judge’s suppression was correct?
Three and a quarter years.
That’s how long it took for a divided CAAF to find that: “The military judge did not abuse her discretion in suppressing the evidence found on the WD external drive.” United States v. Cote, No. 12-0522/AF, 72 M.J. 41, slip op. at 13-14 (C.A.A.F. 2012). But the story of how Judge Erdmann came to review the ruling suppressing the evidence, when the Appellant was convicted after the evidence was not suppressed, is as interesting as why he wrote what he did.
When a federal magistrate judge in North Dakota issued a search warrant in 2008 that authorized the seizure of items suspected to contain child pornography from the on-base residence of the Appellant, the magistrate included a limitation that any search of electronic items must be completed withing 90 days of the warrant. This is not an unusual term these days (among federal magistrates), as computer forensics are “essentially a computer strip search.” United States v. Cotterman, 09-10139, 2013 WL 856292 (9th Cir. Mar. 8, 2013). The warrant was executed in July 2008, but over a year passed before 21 videos believed to contain child pornography were discovered. The Appellant was charged, but a military judge granted a motion to suppress all evidence obtained from searches that occurred after the 90-day deadline.
The Government appealed, the AFCCA reversed, and CAAF declined to consider the case. Trial resumed, the Appellant was acquitted, by a general court-martial composed of members, of all charges except a charge of possession of sexually explicit visual depictions of minors that was based solely on the evidence found on the WD external drive. He was sentenced to confinement for twelve months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed (almost two years post trial). CAAF then granted review to determine:
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.
Early in his majority opinion, Judge Erdmann notes that “On direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, we review whether the military judge’s initial decision was an abuse of discretion.” Slip op. at 7 N.4. This is an interesting twist in the case, as CAAF is reviewing the action that ultimately didn’t happen, and providing the military judge with a very late reason to say “I told you so” to the CCA.
But the balance of Judge Erdmann’s analysis is “mindful that the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness, and that, as noted previously, mere ‘technical,’ or ‘de minimis’ violations of a warrant’s terms are not unreasonable, and do not warrant suppression.” Slip op. at 11 (internal citation omitted). He sees a range before the court in this case of first impression, with the Appellant at one end arguing a bright-line test for suppression based on the violation of the term of the warrant, and the Government at the other end arguing that any delay was reasonable regardless of the terms of the warrant. Then he rejects the bright-line, and disagrees with the Government’s conclusion.
The majority “believe[s], instead, that the Fourth Amendment harm being protected against by the ninety-day provision in this case is from a seizure of unreasonable duration and the resulting interference with Cote’s possessory interest in noncriminal materials.” Slip op. at 10-11. The 90-day limitation in the warrant – handwritten on the face of the document – “reflects a judicial determination that under the circumstances of this case, ninety days was a reasonable period of time in which to conduct the off-site search.” Id. at 11-12. It “was tailored to the facts of this case.” Id. at 12. And while the majority rejects per se exclusion due to violation of the term, “[they] do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances.” Id.
Weighing that burden, the majority finds that the violation was not de minimis, occurring “over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant.” Slip op. at 13. Nor did the Government, at trial, “show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances.” Id. And so the military judge did not abuse her discretion in suppressing the evidence, the finding of guilty is set aside, and the charge is dismissed (unsaid is the restoration to the Appellant of all rights, privileges, and property deprived as a result of the execution of the sentence, pursuant to Article 75).
But Chief Judge Baker and Judge Ryan disagree, with the Chief Judge agreeing that the search was unreasonable but opposing the use of the exclusionary rule, and Judge Ryan seeking a more fact-intensive inquiry into reasonableness by the military judge.
The Chief Judge finds that “the Government’s prolonged retention of Appellant’s hard drive without a warrant extension rendered the Government action an unreasonable, and therefore, an unlawful, seizure under the Fourth Amendment.” Baker, C.J. op. at 1. He discusses a number of relevant considerations, such as probable cause (not lacking in this case), the owner’s possessory interests (the device in this case was damaged and the Appellant did not request its return), and timing (relevant to considerations of both probable cause and possessory interests). It’s the timing that is the critical question in this case, and the Chief Judge finds:
The government’s authority to seize, but not search, papers or things, is not perpetual even if it is founded upon probable cause. The government cannot simply seize property, like a personal computer, ignore the provisions of a warrant, and hold it indefinitely to search at its convenience, or not at all.
Baker, C.J. op at 4-5. Finding the retention of the hard drive unreasonable, the Chief Judge also finds the search unreasonable. This portion of the Chief Judge’s opinion is concurring, and it speaks more broadly and with fewer citations to supporting authority than Judge Erdmann’s similar discussion adopted by the majority. But things change when the Chief Judge explains that “[he] would not apply the exclusionary rule in this case.” Id. at 6. He notes that while early Supreme Court precedent called for automatic application of the exclusionary rule, “current precedent indicates a more contextual approach.” Id. He writes:
In this case, I do not believe suppression would serve the purpose of the exclusionary rule. The Supreme Court stated in Herring that deciding whether to apply the exclusionary rule “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” 555 U.S. at 137. The Court went on to hold that the exclusionary rule is triggered when police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. This includes “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Id. Where a Fourth Amendment violation is a product of isolated police negligence rather than overreaching, there is no wrongful police conduct, nor pattern of repeated negligence, to deter.
Baker, C.J. op. at 8. He finds that there is “no evidence in the record” that the delay was the result of bad faith or intentional disregard of the terms of the warrant by law enforcement. Id. But he also notes, in a curiously-worded passage, that “Appellant, the moving party, had the opportunity to question SA Harstad on his actions and motives and did not unearth facts indicating bad faith or intentional misconduct.” Id. (emphasis added). Certainly the Appellant had the opportunity to question the Government’s witness, but why does it matter that the Appellant moved for suppression when the Government had the “burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure. . .” M.R.E. 311(e)(1)? Moreover, while the Chief Judge agrees with Judge Erdmann that the Government failed to prove reasonableness in the search, he appears ready to shift the burden away from the Government when it comes to the question of remedy.
The Chief Judge concludes that “because there is no wrongful police conduct to deter, nor a pattern of negligent conduct to punish, I would not exclude the evidence obtained from Appellant’s hard drive.” Baker, C.J. op. at 10. Unfortunately, it’s not clear when (or if) the Chief Judge believes police unreasonableness becomes police wrongfulness, as “[t]he government cannot simply seize property, like a personal computer, ignore the provisions of a warrant, and hold it indefinitely to search at its convenience. . .,” because that’s unreasonable (Baker, C.J. op at 4-5), but when the Government actually does those things, “there is no wrongful police conduct to deter” (Baker, C.J. op at 10 (emphasis added)). Yet as I wrote in my argument preview:
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.
Finally, Judge Ryan’s dissent focuses largely on the question of time, noting that “[g]iven that the Fourth Amendment makes no reference to time limitations, the fact that a magistrate judge chooses to place one in a warrant does not elevate that time limit to a constitutional requirement.” Ryan, J. op. at 3. She would adopt a variant of the three-part test from United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (whether (1) the delay resulted in a lapse of probable cause, (2) the defendant was prejudiced, or (3) the police acted in bad faith to circumvent federal requirements.). The CCA used the Syphers test in its most-recent decision (affirming the conviction), and the Government gave it significant consideration in its brief to CAAF.
But Judge Erdmann and the majority rejected Syphers as not on point, and the Chief Judge only mentioned it in passing. And while Judge Ryan’s dissent is focused largely on the military judge’s “shortcutting [of] the requisite fact-intensive inquiry to determine whether the Government’s conduct was reasonable,” she sees Syphers as providing a framework for that inquiry. Ryan, J. op. at 8. She is, however, alone in that opinion. For now, at least.
Ultimately, the three opinions in Cote are full of significant analysis and quotable material. Moreover, with the incredible proliferation of digital devices (and their searches; including searches incident to arrest), there are likely to be more cases involving analysis of old digital data. I anticipate that CAAF will have the opportunity to revisit the discussions in this case, but next time without the unique fact of the magistrate’s time limitation in the warrant.
Perhaps it’s too much to hope that the time limitation will instead be in a Commander’s search authorization. . .
• AFCCA Article 62 (interlocutory) opinion
• AFCCA Article 66 (merits) opinion
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis