CAAFlog » September 2012 Term » United States v. Cote

In United States v. Cote, No. 12-0522/AF (CAAFlog case page), CAAF reviewed a trial judge’s order suppressing the results of a search of a computer hard drive seized pursuant to a warrant issued by a federal magistrate judge. The warrant contained an express 90-day time limit for any search (with the ability to request an extension). But the search occurred long after that time period expired. A divided court found that: “The military judge did not abuse her discretion in suppressing the evidence found on the WD external drive.” United States v. Cote, 72 M.J. 41, 46, slip op. at 13-14 (C.A.A.F. 2012).

In my argument preview of Cote, I noted that GW Law professor Orin Kerr, who blogs at The Volokh Conspiracy, follows developments in the area of ex ante restrictions on computer search warrants. Continuing this trend, Prof Kerr takes note of the Cote opinion, and takes issue with the majority’s approach:

I think the majority was wrong and Judge Ryan was right. First, Judge Ryan is right that the court was not applying the Fourth Amendment, at least in any form I recognize. The relevant Supreme Court precedent is Richard v. Wisconsin, 520 U.S. 385 (1997), in which the magistrate crossed out by hand the part of the warrant application that had allowed the government to execute a warrant at a hotel room without first knocking and announcing their presence. When the police went to execute the warrant, they searched without first knocking and announcing. On review, the United Staes Supreme Court concluded that the magistrate’s ‘decision’ that the officers had to knock and announce was completely irrelevant under the Fourth Amendment. The relevant question was the reasonableness of not knocking and announcing, which was not a question that the magistrate had authority to answer:

In arguing that the officers’ entry was unreasonable, Richards places great emphasis on the fact that the magistrate who signed the search warrant for his hotel room deleted the portions of the proposed warrant that would have given the officers permission to execute a no knock entry. But this fact does not alter the reasonableness of the officers’ decision, which must be evaluated as of the time they entered the hotel room. At the time the officers obtained the warrant, they did not have evidence sufficient, in the judgment of the magistrate, to justify a no knock warrant. Of course, the magistrate could not have anticipated in every particular the circumstances that would confront the officers when they arrived at Richards’ hotel room. [n.7] These actual circumstances–petitioner’s apparent recognition of the officers combined with the easily disposable nature of the drugs–justified the officers’ ultimate decision to enter without first announcing their presence and authority.

I see the magistrate’s hand-written 90-day limitation in Cote as analogous to the hand-crossed-out knock-and-announce limitation in Richards. In both cases, the magistrate cannot make a “ruling” about what Fourth Amendment reasonableness is going to require in some future that the magistrate does not know. Reasonableness must be judge ex post, at the time the events occurred, not ex ante, at the time the warrant is signed. As a result, the magistrate’s ex ante limitation is irrelevant to the reasonableness of the resulting search under Richards.

I’m in no position to argue with Prof Kerr’s analysis on the Fourth Amendment question, but I do wonder about the significance of the standard of review used by CAAF. As I noted in my opinion analysis, the trial judge initially suppressed the results of the search because of the violation of the term of the warrant, but then:

The Government appealed, the AFCCA reversed, and CAAF declined to consider the case. Trial resumed, the Appellant was acquitted, by a general court-martial composed of members, of all charges except a charge of possession of sexually explicit visual depictions of minors that was based solely on the evidence found on the WD external drive. He was sentenced to confinement for twelve months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed (almost two years post trial). CAAF then granted review to determine:

Whether evidence found on Appellant’s computer should be suppressed because it was found pursuant to a search that violated the terms of the warrant.

Early in his majority opinion, Judge Erdmann notes that “On direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, we review whether the military judge’s initial decision was an abuse of discretion.” Slip op. at 7 N.4. This is an interesting twist in the case, as CAAF is reviewing the action that ultimately didn’t happen, and providing the military judge with a very late reason to say “I told you so” to the CCA.

“We review a military judge’s ruling on a motion to suppress for abuse of discretion. We review findings of fact under the clearly erroneous standard and conclusions of law de novo.” Cote, 72 M.J. at 44, slip op. at 7 (citations omitted). This is a deferential standard, and I think there’s a lot to be said about the fact that CAAF reviewed the suppression of the evidence for an abuse of discretion, as opposed to reviewing the admission of the evidence for an abuse of discretion (more commonly the case when reviewing a conviction). The procedural history of this case (suppression, successful government appeal to the CCA, denial of review by CAAF, admission of the evidence, conviction at trial, affirmance by the CCA, CAAF grant) distinguishes it from virtually all other cases CAAF normally reviews.

So, considering Prof Kerr’s analysis, Judge Ryan’s dissent might be prophetic.

Case Links:
AFCCA Article 62 (interlocutory) opinion
AFCCA Article 66 (merits) opinion
Appellant’s Brief
Appellee’s (Government) Brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis
Blog post: Some outside scrutiny of CAAF’s opinion in Cote

When a federal judge issues a search warrant with an express limitation, and the Government violates that limitation, and a military judge suppresses the results of the search, how long does it take for CAAF to issue an opinion finding that the military judge’s suppression was correct?

Three and a quarter years.

That’s how long it took for a divided CAAF to find that: “The military judge did not abuse her discretion in suppressing the evidence found on the WD external drive.” United States v. Cote, No. 12-0522/AF, 72 M.J. 41, slip op. at 13-14 (C.A.A.F. 2012). But the story of how Judge Erdmann came to review the ruling suppressing the evidence, when the Appellant was convicted after the evidence was not suppressed, is as interesting as why he wrote what he did.

When a federal magistrate judge in North Dakota issued a search warrant in 2008 that authorized the seizure of items suspected to contain child pornography from the on-base residence of the Appellant, the magistrate included a limitation that any search of electronic items must be completed withing 90 days of the warrant. This is not an unusual term these days (among federal magistrates), as computer forensics are “essentially a computer strip search.” United States v. Cotterman, 09-10139, 2013 WL 856292 (9th Cir. Mar. 8, 2013). The warrant was executed in July 2008, but over a year passed before 21 videos believed to contain child pornography were discovered. The Appellant was charged, but a military judge granted a motion to suppress all evidence obtained from searches that occurred after the 90-day deadline.

The Government appealed, the AFCCA reversed, and CAAF declined to consider the case. Trial resumed, the Appellant was acquitted, by a general court-martial composed of members, of all charges except a charge of possession of sexually explicit visual depictions of minors that was based solely on the evidence found on the WD external drive. He was sentenced to confinement for twelve months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The AFCCA affirmed (almost two years post trial). CAAF then granted review to determine:

Whether evidence found on Appellant’s computer should be suppressed because it was found pursuant to a search that violated the terms of the warrant.

Early in his majority opinion, Judge Erdmann notes that “On direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, we review whether the military judge’s initial decision was an abuse of discretion.” Slip op. at 7 N.4. This is an interesting twist in the case, as CAAF is reviewing the action that ultimately didn’t happen, and providing the military judge with a very late reason to say “I told you so” to the CCA.

But the balance of Judge Erdmann’s analysis is “mindful that the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness, and that, as noted previously, mere ‘technical,’ or ‘de minimis’ violations of a warrant’s terms are not unreasonable, and do not warrant suppression.” Slip op. at 11 (internal citation omitted). He sees a range before the court in this case of first impression, with the Appellant at one end arguing a bright-line test for suppression based on the violation of the term of the warrant, and the Government at the other end arguing that any delay was reasonable regardless of the terms of the warrant. Then he rejects the bright-line, and disagrees with the Government’s conclusion.

The majority “believe[s], instead, that the Fourth Amendment harm being protected against by the ninety-day provision in this case is from a seizure of unreasonable duration and the resulting interference with Cote’s possessory interest in noncriminal materials.” Slip op. at 10-11. The 90-day limitation in the warrant – handwritten on the face of the document – “reflects a judicial determination that under the circumstances of this case, ninety days was a reasonable period of time in which to conduct the off-site search.” Id. at 11-12. It “was tailored to the facts of this case.” Id. at 12. And while the majority rejects per se exclusion due to violation of the term, “[they] do believe that the violation imposes an additional burden on the Government to show that the violation was either de minimis or otherwise reasonable under the circumstances.” Id.

Weighing that burden, the majority finds that the violation was not de minimis, occurring “over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant.” Slip op. at 13. Nor did the Government, at trial, “show any fact which would support the argument that its violation of the warrant’s terms was reasonable under the circumstances.” Id. And so the military judge did not abuse her discretion in suppressing the evidence, the finding of guilty is set aside, and the charge is dismissed (unsaid is the restoration to the Appellant of all rights, privileges, and property deprived as a result of the execution of the sentence, pursuant to Article 75).

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Greetings from Atlanta.

CAAF has issued its opinion in United States v. Cote, available here.  More later.

I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:

CAAF Arguments:

NMCCA Arguments:

Next week, on Tuesday, November 27, 2012, at 9:00am, CAAF will hear oral argument in United States v. Cote, No. 12-0522/AF, which presents the following issue:

Whether evidence found on Appellant’s computer should be suppressed because it was found pursuant to a search that violated the terms of the warrant.

It’s generally regarded as true that once government agents have your stuff, they can search it for evidence of a crime. However, there’s a growing body of law addressing the restrictions that a number of federal magistrate judges have imposed on what government agents can do with digital data after it is seized (Professor Orin Kerr has been following these developments over at the Volokh Conspiracy). These restrictions collided with the UCMJ in 2008, when a federal magistrate judge in North Dakota issued a search warrant authorizing the seizure of items that might contain child pornography from the on-base residence of Airman First Class Cote, the Appellant. The warrant included the following restriction:

the agents had to seize any property within 10 days and that any search regarding electronic devices, storage media, and electronic data “shall be completed within 90 days of the warrant.” The warrant did provide for an exception to this ninety day requirement if good cause could be shown to extend this time period [but the exception was not invoked]. The warrant also stated “[s]hould the government not locate in an Electronic Device or Storage Media any of the items specified in the warrant, the government shall promptly return the Electronic Device or Storage Media not containing such items to the owner.”

Appellant’s Br. at 6. The warrant was executed on July 2, 2008, and multiple items including a hard drive were seized. But the drive didn’t function properly, and over a year passed before it was submitted to the Defense Computer Forensics Laboratory for repair, and 21 videos believed to contain child pornography were discovered. The Appellant was soon after charged with multiple violations of Article 134, UCMJ, and brought to trial by a general court-martial. However, the military judge granted a motion to suppress all evidence obtained from searches that occurred after the 90-day deadline. The Government appealed, and the AFCCA reversed the trial judge, finding that (1) the 90-day time limit in the warrant only applies to devices and media, not data; and (2) no reasonable expectation of privacy exists in government copies of lawfully seized data.

CAAF denied a motion for an emergency stay (69 M.J. 178 (June 3, 2010)), and the trial resumed on June 11, 2010, when the Appellant was convicted, contrary to his pleas, by members with enlisted representation, of one specification of violation of Article 134 for wrongful possession of visual depictions of minors engaging in sexually explicit conduct. He was sentenced to a bad-conduct discharge, confinement for twelve months, forfeiture of all pay and allowances, and reduction to Airman Basic. Post-trial, CAAF denied the Appellant’s petition for review of the AFCCA’s decision. 69 M.J. 210 (July 30, 2010).

The AFCCA reviewed the conviction in the ordinary course, and issued an unpublished opinion on March 28, 2012 (almost two years post-trial; see here and here  and here for discussions of delays in the AFCCA’s docket). In that opinion, the CCA revisited the suppression issue, and applied the three-part test established in United States v. Syphers, 426 F.3d 461 (1st Cir. 2005), cert. denied, 547 U.S. 1158 (2006):

First, as already discussed, probable cause did not lapse as a result of the delay since the data on the WD drive remained as it was on the date it was seized. Second, for reasons similar to those supporting continued probable cause, the evidence shows no prejudice to the appellant in the sense that either (1) evidence was discovered after the delay that would not have been discovered had the search taken place before the delay or (2) the appellant‟s property rights were adversely affected. As with the continuing probable cause, the data remained unchanged and the appellant’s property interest did not change from when the item was first seized. Third, the record shows no evidence of bad faith. The military judge‟s summary finding of ‘good cause’ to get an extension not only recognizes the continued existence of probable cause but also implicitly finds no prejudice or bad faith. Evidence obtained from the WD drive was properly admitted against the appellant.

United States v. Cote, No. 37725, slip op. at 4-5 (A.F.Ct.Crim.App. March 28, 2012). A footnote went even further:

Assuming arguendo that the delayed search of the WD drive rose to the level of a constitutional violation, we find that the evidence would have been inevitably discovered in the normal course of processing seized evidence. Mil. R. Evid. 311(b)(2). As discussed above, the warrant directed the return of only those devices and media that did not contain contraband. Although agents could not access the inoperable WD drive, probable cause to believe that child pornography would be found on it continued to exist. Therefore, the drive could not be returned to the owner without analyzing it for contraband. To ultimately dispose of the property as directed by the warrant, agents would have had to either repair it and analyze it for contraband or destroy it.

Id., slip op. at 5, N.3. Soon thereafter, CAAF granted review of the suppression issue. 71 M.J. 371 (July 12, 2012).

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