On Tuesday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Tienter, No. 201400205 (N-M. Ct. Crim. App. Sep. 23, 2014) (link to unpub. op.), rejecting a Government interlocutory appeal of a military judge’s ruling that suppressed text messages discovered on Appellee’s mobile phone. Senior Judge Ward wrote for the panel.

Appellee is a junior enlisted Marine charged with violations of Article 120 for an alleged sexual encounter in 2011 with someone who was substantially incapacitated due to alcohol intoxication. The charges were referred to trial by general court-martial in September 2013. The next month, Appellee underwent surgery and was prescribed painkillers. A fellow Marine sent Appellee text messages asking if Appellee would share those painkillers, and Appellee reported this request to his superiors. Appellee also provided “a transcript of some of these text messages to members of his command, who in turn referred the matter to law enforcement.” Slip op. at 2.

Law enforcement sought and obtained a search authorization for Appellee’s mobile phone. Specifically,

Special Agent (SA) Isaac Perez of the Criminal Investigation Division (CID) sought authorization from the Commanding Officer, MCAS Miramar, to search the appellee’s cell phone and seize electronic messages pertaining to the use and/or possession of prescription medication. In his supporting affidavit, SA Perez stated that after seizing the data from the appellee’s cell phone, CID agents would search the data using “search protocols directed exclusively to the identification and extraction of data within the scope of this warrant.” SA Perez further stated that this analysis would be completed within 90 days.

Slip op. at 2-3. Its unclear what “search protocols” means, but “after seizing the appellee’s cell phone, SA Perez attached it to a Cellebrite Universal Forensic Extraction Device (UFED), which in turn made a complete digital copy of all data in the cell phone.” Slip op. at 3. SA Perez then “created a single Portable Document Format (PDF) file containing all text messages retrievable on the cell phone.” Id. (the extraction report is 2,117 pages of material from the phone. Slip op. at 7 n.29.). SA Perez conducted a keyword search and identified text messages related to the prescription drug issue. He also observed “one text wherein the appellee admitted to adultery.” Slip op. at 7. He then drafted an investigative report documenting these efforts.

But then a trial counsel started looking through the extraction report:

Several months later, the senior trial counsel at MCAS Miramar notified SA Perez that she had located a text message in the extraction file pertaining to the sexual assault offenses then pending trial. She asked SA Perez to go back and search the same extraction file for any additional text messages that may relate to the appellee’s pending sexual assault charges.

SA Perez, with the assistance of SA Stemen of the Naval Criminal Investigative Service (NCIS) and using search terms specific to the sexual assault allegations, discovered several additional text messages which formed the basis of the defense motion to suppress. Even though more than 90 days elapsed since the search authorization had been granted, SA Perez did not seek an additional search authorization.

The military judge suppressed the text messages because “the agents involved exceeded the scope of the authorized search at the time of the discovery of the additional texts and therefore the plain view exception does not apply.” Slip op. at 6. The CCA agrees with the judge and affirms the suppression.

Regarding the scope of the search, Senior Judge Ward explains:

During SA Perez’s original search of the cell phone data, he only discovered one text message unrelated to illegal drug use, and that message related to adultery. At the motions hearing, he admitted that had he come across the additional texts during his original search, he would not have interpreted them as evidence of a sexual assault. Only months later did SA Perez re-examine the extraction file with the aid of SA Stemen for any additional evidence of sexual assault. Last, and perhaps most significant, is that nowhere did the search authorization specify searching for evidence of sexual assault.

Under these circumstances, we agree with the military judge that the agents exceeded the scope of the search and accordingly lacked probable cause to seize these additional text messages. Even if, as the Government contends, the search authorization might reasonably have permitted SA Perez to “review[] all of the texts messages by reading every page of the PDF,” in his search for drug evidence, the authorization did not permit a search for evidence pertaining to sexual assault. Therefore, the agents could lawfully seize the additional text messages only if they were in plain view.

Slip op. at 6-7. As for the plain view exception, Senior Judge Ward provides this common-sense explanation:

The Government argues that these additional text messages were in plain view because they were contained in the same raw data file as the text messages related to prescription medication. But SA Perez did not discover these text messages during his original search for drug-related communications, despite finding one unrelated message concerning adultery. It does not follow that one piece of data is in plain view simply because it is co-located with another piece of data somewhere within 2,117 pages of material. To the contrary, the record indicates that law-enforcement agents only located these text messages by using search terms specifically aimed at finding evidence of sexual assault.

Slip op. at 7.

12 Responses to “The NMCCA denies a Government appeal involving a search of data seized from a mobile phone in connection with a different case”

  1. DCGoneGalt says:

    Lesson:  In the military if you are in trouble, especially when an allegation of sexual assault has been made, don’t trust the Government.  In any way.  Ever.  Any questions? Re-read the lesson. 
    Sadly, if he didn’t bring the matter to the attention of the Government he would have probably been disciplined for not being a snitch had the request for the prescription drugs been discovered in some other way at a later time.   

  2. Dave Roberts says:

    Probably the right result, but I am confused by this opinion.  It appears that the Govt’s fatal flaw was using “control-f” to quickly “search” the data set.  If, given more time or resources, the trial counsel or investigator had read through all 2117 pages and personally found the incriminating texts, they would be admissible under plain view?

  3. stewie says:

    I think the fatal flaw was not getting another search warrant.

  4. anon81 says:


  5. Zachary D Spilman says:

    I think the significant fact, Dave Roberts, is that Appellee did not consent to a search of his phone. Had he consented, the Government could use the phone’s contents freely. But because he did not consent, the search had to be limited in scope (consistent with the Fourth Amendment’s particularity requirement).

    Compare this case with CAAF’s decision last term in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 204) (CAAFlog case page), where the court focused on the ways the Government’s search exceeded the scope of the private search. In this case, the trial counsel’s search exceeded the scope of the authorization.

    Another way to look at the facts is that the use of the Cellebrite extraction device in this case was an unjustifiably overbroad seizure. Considering Appellee was (at least initially) a cooperating witness for the Government in the other case, it’s hard to understand why use of the Cellebrite was necessary (the commander could have ordered Appellee to turn over just the messages at issue). And even if it was necessary to duplicate the entire phone’s memory (for authentication purposes, perhaps), there should have been safeguards to protect Appellee’s reasonable expectation of privacy in everything that wasn’t the messages related to the painkiller issue. One can only imagine what other private facts of Appellee’s life were wrongfully exposed by this seizure.

    After all, as Chief Justice Roberts recently wrote:

    In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202 , 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form-unless the phone is.

    Riley v. California, 134 S. Ct. 2473, 2480-91 (Jun. 25, 2014). 

    Or, as Chief Judge Baker wrote a few months earlier in Wicks:

    Modern cell phones can also serve as an electronic repository of a vast amount of data akin to the sorts of personal “papers[] and effects” the Fourth Amendment was and is intended to protect. “The papers we create and maintain not only in physical but also in digital form reflect our most private thoughts and activities.” United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013). Today, individuals “store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers.” Wurie, 728 F.3d at 9.

    Wicks, 73 M.J. at __, slip op. at 14.

  6. Dave Roberts says:

    Thanks Zach, good analysis.  This issue probably could have gone either way at the trial level, but on AOD review the CCA probably got it right.  It will probably be a while before we get a solid, consistent approach to the manner in which data lawfully extracted from cell phones or other mobile computing devices can be used.  

  7. Zachary D Spilman says:

    You think it comes out differently de novo? I’m not so sure given the facts we have. Even if inevitable discovery applies (and I doubt that it does – there’s a good discussion of the doctrine in Wicks at page 26 in the slip opinion), there’s still the possibility of exclusion as a judicial response to Government overreaching (like discussed in my post about the Ninth Circuit’s decision in Dreyer).

    And when a cooperating witness (one might even call Appellee a victim in the painkiller case) doesn’t want to give the Government his entire life in a cell phone extraction, but the Government goes and takes it anyway, and then shares it with who knows how many people, and goes searching through it for evidence, that might just provoke a judicial response.

  8. Dave Roberts says:

    I don’t know if it does.  Maybe.  Here you have property lawfully searched, and data lawfully seized.  CCA appears to be saying that, even given such facts, the Govt can’t go back and look through the same for evidence of a different crime, simply because of the medium.  If the property at issue were a duffel bag, searched per warrant for drugs, only to reveal a bloody knife, the result would be different.  But the lesson after Riley et al is that Phones Are Different. Judge Ward’s invocation of the particularity requirement (slip op. at 5-6) is intriguing, pointing to a practical yet broad doctrine that would effectively handicap any application of plain view in this context.

  9. Zeke says:

    Dave Roberts: I think you get the same outcome even with your duffel bag analogy.  Scenario – a warrant allows a law enforcement officer to, within 90 days, search accused’s duffel for evidence of drugs, and to seize said evidence.  The officer conducts such search and takes notes of his findings.  The notes mention that the officer found a bloody knife, but did not secure it.  100 days later, after the warrant expires, trial counsel reads the officer’s notes, notices mention of the knife, and wishes to open the duffel and take that knife.  I think, given the 90 day time limit on that warrant and the subject matter scope of the warrant, the trial counsel has no more right to open that duffel than the trial counsel in this case had authorization to have the phone re-searched.  The search was not for evidence sought by the initial warrant, and even if it was, that warrant no longer existed at the time of the subsequent search.  

  10. Mike says:

    Did the government seek search authorization for the cell phone of the Marine who actually sent the text messages vice simply going after the appellee, who received them?  Curious.  At any rate, I think it’s forseeable that the government would start to dig around the appellee’s phone under these circumstances if given the chance and all they needed to do was seek a new search warrant.  Not sure why the senior trial counsel in this case didn’t simply take the safe course of action here…

  11. Matt says:

    Mike:  What would be the probable cause to warrant a new search authorization?  The government is not entitled to “dig around” just because they would like to.

  12. Zachary D Spilman says:

    Matt says:

    What would be the probable cause to warrant a new search authorization? 

    I have the same question, and I see no facts supporting a probable cause determination that Appellee’s cell phone contained evidence (nevermind particularly describing that evidence) relevant to the sexual assault allegations. 

    The facts supporting issuance of a search authorization in connection with the sexual assault allegations look to be even more attenuated than the awfully slim factual basis for the authorization at issue in the search of defense counsel offices at Camp Pendleton (where at least the Government had evidence of a text message conversation between the accused and the alleged victim, though I still think that basis too speculative to justify the seizure).