CAAF decided the Air Force case of United States v. Wicks, No. 13-6004/AF, 73 M.J. 93 (CAAFlog case page) (link to slip op.), on February 20, 2014. The case is an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone. The search revealed evidence that Appellant engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed. But CAAF reverses the Air Force CCA and reinstates the military judge’s ruling suppressing the results of the search.

Chief Judge Baker writes for a near-unanimous court. Judge Stucky writes a very brief separate opinion that concurs in the vast majority of the Chief Judge’s opinion, but dissents on the exclusion of text messages from two specific identified trainees.

Appellant is a Technical Sergeant (E-6), and he was involved in a personal relationship with another Technical Sergeant (TSgt) named Ronda Roberts. Both were military training instructors. One day in November 2010, while Appellant was sleeping, TSgt Roberts accessed his mobile phone without his permission. She found “disturbing text messages.” Slip op. at 4. Soon after, the relationship between Appellant and TSgt Roberts ended. A few months later, in May 2011, TSgt Roberts stole Appellant’s mobile phone and conducted a number of searches, reading text messages and viewing pictures and videos. From these searches TSgt Roberts concluded that Appellant was communicating with trainees and confronted Appellant. “Appellant acknowledged sending text messages to recruits, but told her to “[g]et out of [his] face.'” Slip op. at 5.

In January 2012, a general inquiry into instructor misconduct resulted in an interview of TSgt Roberts by Detective Rico of the Air Force Security Forces Office of Investigations. Detective Rico didn’t suspect Appellant of any misconduct until TSgt Roberts told Detective Rico about Appellant’s mobile phone. Eventually TSgt Roberts gave Detective Rico a SIM card, and then she gave Detective Rico the phone that she stole from Appellant (while lying about its origin). Over the course of about a week, Detective Rico consulted with base legal three times about how to proceed, but never sought a search warrant or authorization. Detective Rico ultimately conducted three searches of Appellant’s phone: She generally scrolled through the contents and viewed text messages; she delivered the phone to the local county sheriff’s office for forensic extraction; and she sent the phone to private company for a detailed forensic analysis (conducted at the request of the trial counsel).

Appellant moved to suppress evidence obtained from his cell phone and all derivative evidence, and the military judge granted the motion. The judge ruled that “there were repeated violations of the accused’s rights in that he had a reasonable expectation of privacy in his phone which was stolen.” Slip op. at 2-3. This reasonable expectation of privacy is crucial to CAAF’s resolution of this case, and the court’s decision may have far broader implications.

For instance, last month the Supreme Court granted review in two cases that address privacy in the context of mobile telephones that were searched after their owners were arrested by police (as part of a “search incident to arrest”): Riley v. California and United States v. Wurie. The cases are discussed in this SCOTUSblog post that explains that, “Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest.” Chief Judge Baker’s opinion in Wicks reads like a preview of what the Supreme Court might say in Riley and Wurie. He begins his majority opinion by considering the Fourth Amendment interests at stake, and he makes a significant citation to the decision of the First Circuit in Wurie that is now before SCOTUS:

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). . . This conclusion is unremarkable.

Slip op. at 13 (other citations omitted). The Chief Judge cites Wurie repeatedly as he concludes that “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. Here no exception applied.” Slip op. at 14 (citations omitted).

Despite there being no exception to the warrant requirement, the Chief Judge considers the application of the “private search doctrine,” which recognizes that the Fourth Amendment does not apply to the conduct of a private party not acting as an agent of the Government. “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.” Slip op. at 15. But for this doctrine to apply, the Government may not participate in the private search nor may it exceed the scope of the private search. The CCA reversed the military judge by applying this doctrine using the analogy of a container. “Once [TSgt Roberts] breached the container by looking at the messages,” reasoned the CCA, “[Appellant’s] expectation of privacy with respect to all of the text messages (with the exception of the deleted texts) was frustrated.” United States v. Wicks, Misc. Dkt. No. 2013-08, slip op. at 7 (A.F.Ct.Crim.App.) (unpub. order) (available here). CAAF unanimously rejects this analogy (Judge Stucky concurs in this part) :

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. 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.

Slip op. at 17 (marks and citation omitted). See also slip op. at 20-24 (discussing and rejecting the container analogy). Chief Judge Baker then applies this analysis to the facts of this case in a way that beautifully highlights the fact that the Government bears the burden to prove the admissibility of evidence challenged as the product of an unlawful search or seizure. This burden required the Government to prove that the actual content viewed in the Detective’s searches did not exceed the actual content viewed by TSgt Roberts. But TSgt Roberts and Detective Rico didn’t exactly keep notes of what parts of the phone’s contents each of them viewed, and so Chief Judge Baker explains that “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.” Slip op. at 18. CAAF finds no error in this conclusion.

The final part of the majority opinion addresses inevitable discovery and the application of the exclusionary rule in this case. In my argument preview, I discussed the possibility that this case would reveal deep divides in CAAF’s treatment of the exclusionary rule, as dissenting opinions last term from Chief Judge Baker and Judge Erdmann in Cote and Irizarry would have declined to apply the exclusionary rule despite finding violations of those appellant’s rights. Chief Judge Baker does discuss the deterrent purpose of the exclusionary rule, noting that it “applies only where it result[s] in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs.” Slip op. at 29 (marks and citation omitted). But a footnote explains that in the context of suppression of the fruits of an unlawful seizure, “the Military Rules of Evidence proscribe that evidence obtained from the government’s unlawful search or seizure is inadmissible. . .” Slip op. at 30 N.4. So beyond the “judicially created remedy” of exclusion (slip op. at 25), there is also a presidentially-prescribed exclusionary rule built into the Rules of Evidence.

But the existence of the presidentially-prescribed rule doesn’t stop the majority from discussing the reasons why application of the judicially-created exclusionary rule is appropriate in this case. Put differently, CAAF goes out of its way to detail the Government’s misconduct in violating Appellant’s Fourth Amendment rights.

First, the Chief Judge analyzes why discovery of the contents of Appellant’s phone wouldn’t have been inevitable:

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 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. . . .

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.

Slip op. at 27-28. Except for the few exceptions that don’t apply to this case, “warrantless searches are presumptively unreasonable.” Slip op. at 12. So the Detective’s concession “that it was not her practice to obtain a search authorization,” is a good reason to put your head in your hands and weep a little. But not too much, because it gets worse.

After noting that the purpose of the rule is to deter Government misconduct, the Chief Judge lists three separate factors that favor exclusion in this case:

First, the Government’s search of Appellant’s cell phone exceeded TSgt Roberts’s private search. . . . Second, the Government conducted its searches in reliance upon legal advice. . . . 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.

Slip op. at 29-30 (emphasis in original). It’s not explicitly stated, but the court is pretty clearly angry about this last reason. The final search of Appellant’s phone – the forensic analysis by the private company – was conducted at the request of the trial counsel and after the Defense won the motion to suppress. The opinion twice explains that the trial counsel requested this search so that the results could be used to support the Government’s motion for reconsideration of the judge’s ruling. Slip op. at 9; slip op. at 10.

I don’t know what world the Air Force judge advocate community lives in such that a trial counsel thinks it’s a good idea to respond to a ruling finding a search to be unlawful by undertaking an even more rigorous unlawful search, but Chief Judge Baker highlights the judge’s unhappiness with this state of affairs:

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.

Slip op. at 19 (emphasis in original). And rightly so. But there’s something else remarkable about the court’s treatment of this final search. Other than providing a reason for judicial outrage (and more weeping with your head in your hands), it’s totally immaterial to the appeal.

Chief Judge Baker discusses the three searches conducted by the Government: The search by the detective, the extraction by the county, and the analysis by the private company. The appeal is about the military judge’s initial ruling suppressing the fruits of the first two searches (as the third had not yet occurred, and was derivative of the first two anyway). But CAAF’s analysis encompasses all three searches and Chief Judge Baker saves some of his hardest blows for the last search. Considering these circumstances, it’s possible that CAAF’s resolution of this case would have turned out differently had the trial counsel not responded to the judge’s ruling finding a constitutional violation by undertaking an even greater violation.

This subtext of prosecutorial misconduct makes it unlikely the Government will seek review by the Supreme Court, despite the fact that SCOTUS is interested in the Fourth Amendment’s application to searches of mobile telephones. In some ways that’s too bad, as this is an interesting fact pattern for a hot legal issue. But Appellant can’t declare victory just yet. He may well still face trial for whatever it is the Government thinks he did wrong.

As for what the Government did wrong… well, there are many who would abandon the exclusionary rule in favor some sort of disciplinary consequence for the violator. For instance, in the Spring 2012 edition of the Military Law Review there was an article by Eugene R. Milhizer (President, Dean, and Professor of Law, Ave Maria School of Law) calling for abandonment of the Fourth Amendment exclusionary rule: Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule, 211 Mil. L. Rev. 211 (2012) (link to article) (link to CAAFlog post discussing article). And the article was given as a speech at the 54th Judges Course at The Judge Advocate Generals School on May 5, 2011. If the judicially-created rule were abolished, the presidentially-prescribed rule would likely also disappear. That would leave only administrative or disciplinary action as a remedy for Government misconduct that violates an individual’s Fourth Amendment rights.

Perhaps the Government will take some action in this case to show that it can react to such violations without the exclusionary rule. Set the example, you might say.

I’m not holding my breath.

Case Links:
• AFCCA’s opinion
• Supplement to Petition for Review
• Government’s Answer to the Supplement
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

4 Responses to “Opinion Analysis: United States v. Wicks, No. 13-6004/AF”

  1. AF JAG says:

    Zach,
     
    Granting the government exceeded the scope of the private search, how can CAAF reach a ruling that supresses the fruits of a private actor search which Supreme Court and CAAF precedent holds is admissible?
    First, a court may only suppress evidence secured by searches beyond the scope of a thrid party search.  The proceeds of the thrid party search themselves remain admissible.  United States v. Jacobsen, 466 U.S. 109, 117 (1984) (“Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now non-private information”); United States v. Reister, 44 M.J. 409, 415-16 (C.A.A.F. 1996) (citing Jacobsen, 466 U.S. at 117); United States v. Port, 21 M.J. 333, 334 (C.M.A. 1986) (“Moreover, the inital private invation of ht elocker revealed that it was an apparently abandoned ‘junk locker’ with the only contents being a crushed soda inside a mitten and two scraps of paper.  The law enforcement officials were free to avail themselves of this information.  ‘Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now non-private information”).
     
    Second, CAAF’s conclusion that it must nonetheless supress the proceeds of the thrid party search because the record failed to establish that the government search(es) overlapped with the private search is CLEARLY ERRONEOUS.  Indeed, CAAF notes that the government forensic search of the phone (conducted by Bexar County) reviewed ALL of the text messages on the phone.  So obviously, to the extent that this forensic search EXCEEDED the private actor search, all materials found in EXCESS of the private actor search would be suppressed.  BUT, how can you suppress the actual proceeds of the private actor search?  YOU CAN’T.  The Supreme Court in Jacobsen, followed by CAAF in Reister and Portt tells us so.
     
    The only way you could concievable suppress the proceeds of the thrid party search (i.e. what TSgt Roberts actually saw) was if the record was UNCLEAR about what she actually saw . . . BUT IT WASN’T.  Judge Stukey makes this point in his brief Dissent/Concurrence, and it is correct.
     
    So why is this case different?  That’s easy–CAAF was angry that the government didn’t get a warrant.  But what CAAF failed to take proper account of was the fact that government was acting under the assumption that the phone it recieved was NOT the accused’s, but a thrid party voluntarily surrendering it for search.  That really does make a difference.  If someone makes a copy of incriminating communications and saves them on their personal phone and turns it over to the police, that is a third party search, which, no matter how unreasonable, is still admissible because it does not implicate the Fourth Amendment.
     
    Should the government have nonetheless obtained a warrant once they had the phone in hand, even where it was represented to be a third party’s phone?  ABSOLUTELY.  But, that doesn’t excuse CAAF’s reaching to suppress the proceeds of a third party search because of frustration with the government.

  2. Zachary D Spilman says:

    I think you make a great point AF JAG, though I suggest that the burden to prove which portions of the Government searches overlapped – and were therefore admissible – rested solely on the Government, and the trial counsel did a poor job of meeting this burden. Even Judge Stucky’s partial dissent notes that “the full extent of the private search is not clear…”

    Whether the Government gets a second chance at meeting this burden is, perhaps, an open question (see this post for discussion of a recent AFCCA opinion granting a Government appeal to give the Government another chance to meet its burden in the context of UCI). But I think fundamental fairness dictates that the Sovereign had its chance. 

    You also discuss “CAAF’s conclusion that it must nonetheless suppress the proceeds of the third party search…” Did CAAF actually do this? I think the ruling is limited to the three Government searches, particularly:

    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.

    Slip op. at 30 (emphasis added). TSgt Roberts’ searches still seem to be fair game, and I don’t see any reason why she can’t testify about what she saw on Appellant’s phone (and then get cross examined about her bias, prejudice, motive to fabricate, and grant of immunity). 

    As for the Government’s belief regarding what you describe as “the fact that government was acting under the assumption that the phone it received was NOT the accused’s, but a third party voluntarily surrendering it for search,” I’m not so convinced. 

    Chief Judge Baker’s opinion provide additional facts on this issue:

    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 — 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. 

    Slip op. at 7-8. While this reeks of bad faith on the part of Detective Rico, I think you’re making a “good faith” argument in Detective Rico’s reliance on TSgt Roberts’ claim that the phone was her own property. I’m not positive, but beyond the inevitability doctrine (specifically rejected by CAAF in this case), I don’t think there’s a good faith exception to the failure to get a warrant. Nor do I think there should be. Getting a warrant isn’t hard, and getting a military search authorization is even easier.

  3. Christian Deichert says:

    I just don’t understand the reluctance to get search authorizations or warrants in cases like this.  Hell, I tell my guys to get search authorizations for government computers, because I have about zero faith in that login window’s ability to hold up in court.

  4. Tami says:

    The Air Force will wait until the Marine Corps takes action against those who snooped through an MJ’s personnel file before it will take action against the TCs in this case.  The unwillingness to hold prosecutors accountable for enforcing the law is astounding and I’m glad CAAF took a strong position.