Earlier this month CAAF granted review of two search and seizure issues in the Air Force case of United States v. Eppes:
No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE SEARCH OF APPELLANT’S PERSONAL BAGS EXCEEDED THE SCOPE OF THE SEARCH AUTHORIZATION WHERE THE AGENT REQUESTED AUTHORITY TO SEARCH APPELLANT’S PERSON, PERSONAL BAGS, AND AUTOMOBILE, BUT THE MILITARY MAGISTRATE AUTHORIZED ONLY THE SEARCH OF APPELLANT’S PERSON AND AUTOMOBILE AND DID NOT AUTHORIZE THE SEARCH OF APPELLANT’S PERSONAL BAGS.
II. WHETHER APPELLANT’S RIGHT TO FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT WAS VIOLATED WHEN THERE WAS NO PROBABLE CAUSE FOR THE 7 DECEMBER 2012 WARRANT.
Briefs will be filed under Rule 25.
The Air Force CCA’s opinion is available here. The appellant is an Air Force Captain who was convicted of various offenses primarily involving travel claim fraud. The CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination is supported by the evidence of appellant’s abuse of his official position (Issue II).
CAAF also denied two notable petitions.
First, CAAF denied further review of the Air Force CCA’s opinion that granted a Government Article 62 appeal in United States v. Lutcza, 76 M.J. 698, No. 2016-13 (A.F. Ct. Crim. App. Jan. 18, 2017) (link to slip op.).
Lutcza consented to a search of his cell phone but later revoked that consent. Before the revocation, however, investigators made a copy of the phone’s data. The copy was searched after revocation of consent, revealing incriminating evidence. But the military judge suppressed the evidence, finding that the accused retained a reasonable expectation of privacy in the copy of the data and relying in part on United States v. Dease, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page) (reasonable expectation of privacy in voluntarily-produced urine sample). The CCA reversed, concluding:
Unlike Dease, where the search (i.e., the urinalysis) was performed after consent was withdrawn, in Appellee’s case the search (i.e., the extraction of data using the UFED Touch) occurred during the period of consent—indeed, with Appellee’s participation. SA BS’s later review of the copied information previously obtained was not a search for Fourth Amendment purposes because, unlike the cell phone itself, the copy of the data always belonged to AFOSI, not Appellee, and Appellee had no reasonable expectation of privacy in it.
Lutcza, __ M.J. at __, slip op. at 7-8. The CCA’s opinion doesn’t distinguish between the seizure and the search of the cell phone data (making the copy was likely merely a seizure, with the actual search occurring later), and it bases its ultimate conclusion on numerous civilian cases (see slip op. at 5-6). But Mil. R. Evid. 314(e)(3) – which permits withdrawal of consent to a search at any time and which was the basis of CAAF’s holding in Dease – is a military-specific rule that would likely apply if the making of a copy of the data was merely a seizure and not an actual search. CAAF, however, won’t answer that question now.
Finally, on June 22, CAAF denied review of an Air Force Appellate Government Division petition for reconsideration of the court’s opinion that found an appearance of unlawful command influence and reversed the convictions in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page):
No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 76 M.J. 242 C.A.A.F. 2017), and the motion filed by Protect Our Defenders to file an amicuscurie brief out of time in support of Appellee’s petition for reconsideration, it is ordered that said motion filed by Protect Our Defenders to file an amicus curiae brief out of time is hereby denied, and said petition for reconsideration is hereby denied.
Considering that CAAF was unanimously and obviously troubled by the pressure exerted on Lieutenant General Franklin as he performed his duties as convening authority in Boyce (though it was deeply divided on the remedy under the facts of this case) it’s hard to know who exactly Protect Our Defenders was trying to defend with its support of the Appellate Government Division’s petition for reconsideration.