The NMCCA denies a Government appeal involving a search of data seized from a mobile phone in connection with a different case
On Tuesday a three-judge panel of the NMCCA issued an unpublished opinion in United States v. Tienter, No. 201400205 (N-M. Ct.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.