Another guest blog – by Dew_Process. In some prior posts we had great input from Chris Kennebeck regarding the JSC, which I had forgotten.
[“Jr.Editor” note — first some background. Dew_Process posted with me recently at my invitation so it wasn’t really a true guest post. The other day he and I came across the same case. I invited him to submit a post. Which he has done. He said I could edit it – I haven’t (except to put in the links). The invitation went out before my invitation to AFJAG to write on Witt or Chron for us.]
This court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of a cell phone that is currently in the custody of the Drug Enforcement Agency (DEA). Based on this courts previous rulings and other case law this request has been denied. [ emphasis added]
So begins the opinion in the case of In re Nextel Cellular Telephone, 2014 WL2898262 (D.Kan. 2014). Regular readers of CAAFlog will note that the subject of cell phone searches is something that has generated frequent interest here. Thus, the Nextel decision coming on the heels of Riley v. California, 2014 WL 2864483 (2014), should be of interest to all military justice practitioners, regardless of which side of the aisle one is on. And for those readers who handle post-conviction relief issues, Nextel is important because it relies heavily on Tenth Circuit caselaw – decisions that apply to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.
Why the court denied the search warrant in this case is instructive. A confidential source had given the DEA information that a particular vehicle was carrying roughly 15 pounds of methamphetamine. According to the DEA agent’s application, during a “consent” search of the vehicle, they: “seized as evidence from [redacted] his NEXTEL cellular telephone which was identified as a black and orange NEXTEL smartphone. . . .” Thereafter, the DEA agent submitted an application for a search warrant to the federal magistrate judge.
The application stated in pertinent part:
13. I hereby request the Court’s permission to conduct a full and complete forensic telephone examination of the NEXTEL cellular telephone described above. This exam includes a search of contact lists, calendars, stored image and video files, internet history, SMS and MMS text messaging, and other data related to drug sales, cultivation, and distribution.
* * * * *
SEARCH METHODOLOGY TO BE EMPLOYED
The search procedure of electronic data contained in cellular telephone, computer software, and/or memory storage devices may include the following techniques (the following is a non-exclusive list, as other search procedures may be used):
a. examination of all of the data contained in such cellular telephone hardware, computer software, and/or memory storage devices to view the data and determine whether that data falls within the items to be seized as set forth herein;
b. searching for and attempting to recover any deleted, hidden, or encrypted data to determine whether that data falls within the list of items to be seized as set forth herein (any data that is encrypted and unreadable will not be returned unless law enforcement personnel have determined that the data is not (1) an instrumentality of the offenses, (2) a fruit of the criminal activity, (3) contraband, (4) otherwise unlawfully possessed, or (5) evidence of the offenses specified above);
c. surveying various file directories and the individual files they contain;
d. opening files in order to determine their contents;
e. scanning storage areas;
f. performing keyword searches through all electronic storage areas to determine whether occurrences of language contained in such storage areas exist that are likely to appear in the evidence described in Attachment A; and/or
g. performing any other data analysis technique that may be necessary to locate and retrieve the evidence described in this affidavit.
That prompted the Court to state:
This Court reiterates its concern that the government’s search warrants runs afoul of the probable cause and particularity requirements of the Fourth Amendment.
Relying on Riley, which held that the Fourth Amendment applies to cell phones, the Magistrate Judge began his analysis by addressing the “particularity” requirement of the Amendment, i.e., just what is being sought in the context of what is to be searched. Here the Magistrate Judge quoted Tenth Circuit precedent:
The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the particularity requirement that much more important. Because of this, our case law requires that “warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.”
Nextel at *5, quoting United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009) (quoting United States v. Riccardi, 405 F.3d 852, 862 (10th Cir.2005). In other words, there must be a bona fide search “protocol” consistent with Fourth Amendment requirements, e.g., what procedures are in place to avoid observing data that is beyond the scope of the warrant?
Furthermore, the Nextel court was concerned that as most digital searches are done by making a mirror image of the device’s hard-drive and keeping it, what was going to be done with digital data / files that are not covered by the search warrant? Simply, as the Magistrate Judge ruled, “[t]he government is not permitted to keep data outside the scope of the warrant.” Nextel at * 8 [emphasis added]. Put another way, the issue is what methodology is in place to limit the scope of the search for data within the scope of the warrant?
As such, the Magistrate Judge concluded two things. First:
The Court finds that the present search warrant application violates the Fourth Amendment’s probable cause and particularity requirements.
Nextel at * 9. That Court went on to conclude that the proposed “methodology” was defective:
This Methodology suffers from two systemic, fatal issues. First, the Methodology, as written, will result in the overseizure of data and indefinite storage of data that it lacks probable cause to seize. Second, the Methodology is so broad that it appears to be nothing more than a “general, exploratory rummaging in a person’s belongings.” Thus, the application fails to satisfy the particularity requirement of the Fourth Amendment.
Nextel at * 10 [internal footnotes omitted].
The problem as the Court notes, stems from the fact that “the Methodology does not provide the Court with any guidance on how the government intends to determine what data has a nexus to the suspected crime and what data does not.” Id. In my personal experience, such a flaw is common- place within military search authorization applications. Additionally, the Court held that:
. . . these procedures include no limitation language. This is an important omission because, as written, the government is requesting it be allowed to search everywhere and seize anything regardless of whether or not the data contained therein falls under the scope of its warrant.
Nextel at * 13. The Court got more specific:
Essentially, the present Methodology does not provide this Court with any meaningful description of the scope of the search it is requesting be authorized. For example, there is no explanation as to whether officers (or law enforcement forensic technicians) are searching areas of the phone that may be wholly off-limits to search. . . . Thus, an acceptable search protocol educates (1) the Court as to what the government is doing when it searches a cell phone, and (2) the executing officer as to what places and things may or may not be searched and/or seized.
Id. [emphasis added].
The Nextel Court concluded:
If the Court were to authorize this warrant, it would be contradicting the manifest purpose of the Fourth Amendment particularity requirement, which is to prevent general searches.
Nextel at * 14 [citing Maryland v. Garrison, 480 U.S. 79, 84 (1987)].
Consider CAAF’s decision earlier this year in United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) – they correctly predicted the outcome in Riley. Wicks stated that he “had a reasonable expectation of privacy in his cell phone and that his expectation was objectively reasonable.” Id. at 99. Thus, the Fourth Amendment applied.
Riley and Wicks set the constitutional stage so to speak. The “script” for what plays out is provided by Nextel. This is going to have a significant impact on military “search and seizure” practice – both for cases arising in the future as well as cases in the current trial and appellate “pipelines.” We can only wait and see how AF OSI, NCIS and CID adapt to this and any resulting litigation.
Break, break. So AFJAG, how goes? All the best blogs have guest posts on occasion. Zach can rebut with comments for pro con perhaps?