CAAF will hear oral argument in United States v. Wicks, No. 13-6004/AF (CAAFlog case page), on Tuesday, October 22, 2013. The argument will take place at the University of Arkansas School of Law, 1045 W. Maple Street, Fayetteville, Arkansas, as part of Project Outreach.
Appellant Wicks is accused of violating a lawful general regulation by wrongfully attempting to develop and conduct personal and/or sexual relationships with three female airmen while they were trainees and he was a military training instructor (MTI) at Lackland Air Force Base between 2010 and 2011, engaging in indecent conduct with one of those trainees by sending her a sexually explicit video-recording, and obstructing justice by telling one of the trainees to lie to investigators about her personal contact with him.
Yes, “is accused of.” That’s not a typo, because CAAF will review a decision of the Air Force CCA that granted a Government appeal and reversed the trial judge’s ruling suppressing evidence seized from Appellant’s cell phone; a phone that was stolen by one of his co-workers and delivered to a security forces detective who first conducted her own search of the phone and then sent the phone for a comprehensive forensic examination, all without obtaining a search authorization from Appellant’s commander or a search warrant from local authorities. These searches yielded damaging evidence (primarily text messages), but the evidence was suppressed after the judge determined that the detective’s searches violated Appellant’s Fourth Amendment rights.
In particular, the judge applied United States v. Jacobsen, 466 U.S. 109 (1984), and Walter v. United States, 447 U.S. 649 (1980), to conclude that the co-worker’s search was a private search that doesn’t raise Fourth Amendment concerns, but that the detective’s searches were not private and violated the Fourth Amendment where they exceeded the private search conducted by the co-worker. The judge then concluded that the detective’s searches exceeded the private searches where they involved viewing digital contents (such as text messages) that had not been viewed by the co-worker.
But the Government may appeal “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Art. 62(a)(1)(B). The Government did just that, and the AFCCA reversed the trial judge’s ruling, finding that:
the military judge incorrectly interpreted the law when he held that [the detective's] search had to exactly mirror [the co-worker's] search in order to be lawful. We read the Supreme Court precedent to be more concerned with the scope of the private party’s search and the corresponding frustration of [Appellant's] right to privacy rather than creating an uncompromising rule based only on examining the Government’s success in precisely replicating the physical intrusion already perpetrated by the private party.
[The detective's] viewing of [Appellant's] phone is analogous to examination of the computer disks in [United States v. Runyan, 275 F.3d 449 (5th Cir. 2001)]. Before [the co-worker] took the phone, the phone and its contents were akin to a “closed container” in which [Appellant's] maintained a privacy interest. However, once [the co-worker] breached the container by looking at the messages, [Appellant's] expectation of privacy with respect to all of the text messages (with the exception of the deleted texts) was frustrated. . . .
Given that, [the detective] did not violate the Fourth Amendment when she viewed different text messages located on the phone. [The detective's] search was no different in character than the one conducted by [the co-worker], even though the individual text messages that were opened by the former may have been different.
United States v. Wicks, Misc. Dkt. No. 2013-08, slip op. at 7 (A.F.Ct.Crim.App.) (unpub. order) (available here). A footnote appears to limit this holding to only the things that did not require “additional software to examine,” Id. at 7 N.7, but the CCA concluded that everything viewable by the co-worker (i.e., “each non-deleted text”) was within the scope of the co-worker’s search and that the forensic extraction of these otherwise-viewable contents did not violate the Fourth Amendment.
Appellant then petitioned CAAF for review of the AFCCA’s decision, and CAAF granted review of one 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.
Appellant’s supplement to his petition for review (CAAF did not order separate briefs beyond the brief that accompanied the petition and the Government’s response) makes three arguments: First, Appellant argues that the detective exceeded the scope of the co-worker’s search by manually viewing digital contents that the co-worker had not viewed. Second, he argues that the forensic extraction of the complete contents of the phone violated Appellant’s Fourth Amendment rigts. And third, he asserts that the excluded evidence would not have been inevitably discovered.
Key to Appellant’s arguments is this distinction:
In Runyan, the Fifth Circuit compared the floppy discs containing images of child pornography to that of a closed container used to conceal its contents from plain view. Runyan, F.3d at 458. The discs at issue in Runyan were closed containers; Appellant’s iPhone is a computer.
Supp. to Pet. for Rev. at 17 (emphasis added). But more significant is the lack of consensus in the federal circuits, which Appellant emphasizes in the final sentences of the supplement to his petition. Id. at 20-21.
The Government’s answer avoids the issue of a circuit split by contending that “this case can be decided in favor of the government by solely applying [the Supreme Court's decisions in] Jacobsen and Walter.” Gov’t Ans. at 12. The Government asserts that:
The government’s additional searches of Appellant’s cell phone after [the co-worker] had already frustrated his expectation of privacy did not result in a “significant expansion” of the private actor’s search. AFCCA relied on Runyan and Simpson to demonstrate this exact point. Even if law enforcement agents exceeded the scope of [the co-worker's] initial private search of the text messages to some degree, the additional searches resulted in a de minimus infringement upon Appellant’s Fourth Amendment rights because law enforcement agents did not acquire any additional knowledge that they did not already obtain from the underlying private search and frustrated no expectation of privacy that had not already been frustrated by [the co-worker].
Gov’t Ans. at 12-13. The Government also asserts that the evidence inevitably would have been discovered, and that the trial judge erroneously found the inevitable discovery rule inapplicable to this case:
The military judge erred by placing too much emphasis on the fact that the government “made no effort to secure a warrant” when deciding that the inevitable discovery exception did not apply.
Gov’t Ans. at 20. Finally, the Government argues that the exclusionary rule shouldn’t be applied in this case. In a citation-dense paragraph the Government explains:
“[T]he exclusionary rule is not an individual right and applies only where it ‘results in appreciable deterrence.’” Herring, 555 U.S. at 141 (citation omitted). The benchmark for assessing the propriety of exclusion is whether the benefits of deterrence outweigh the costs. Leon, 468 U.S. at 910. Even a marginal deterrent effect does not require the application of the exclusionary rule. Herring, 555 U.S. at 141. “‘To the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial costs.’” Id. (citation omitted). The principal cost of applying the rule is letting guilty and possibly dangerous defendants go free–a notion that “offends basic concepts of the criminal justice system.” Id. citing Leon, 468 U.S. at 908. “‘The rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.’” Id. (citation omitted).
Gov’t Ans. at 23-24.
The Government may be thinking about two opinions from last term: Chief Judge Baker’s dissenting opinion in United States v. Cote (CAAFlog case page), and Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry (CAAFlog case page). Both opinions declined to apply the exclusionary rule despite finding violations of the appellants’ rights (“I do not believe suppression would serve the purpose of the exclusionary rule.” Cote, 72 at 49 (Baker, C.J. dissenting)) (“In this case I see no deterrent benefit resulting from the imposition of the exclusionary rule, and I would therefore decline to apply it.” Irizarry, 72 M.J. at 113 (Erdmann, J. dissenting in part)). So with two votes possibly guaranteed (particularly if the Government does a good job with the facts during oral argument), the Government’s got a strong counter to the deference afforded a trial judge’s ruling admitting or excluding evidence.
Speaking of two votes, it only takes two votes to grant a petition for review at CAAF. See Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 45-46 (2010). And CAAF continues as a four-judge court this term after the expiration of Judge Effron’s 15-year term in 2011 (and the President’s so-far unsuccessful efforts to nominate Kevin Ohlson to fill the vacancy: the nomination was first discussed here and here; the rocky confirmation hearing (where Operation Fast and Furious was a significant topic) was discussed here and here; and the re-nomination at the beginning of the 113th Congress was discussed here).
So while creating the potential for CAAF to make some law, and potentially revealing a deep divide in the judges’ feelings about the exclusionary rule, this case may also provide a glimpse into the political dynamic of the court.