CAAF decided the Air Force case of United States v. Wicks, No. 13-6004/AF, 73 M.J. 93 (CAAFlog case page) (link to slip op.), on February 20, 2014. The case is an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone. The search revealed evidence that Appellant engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed. But CAAF reverses the Air Force CCA and reinstates the military judge’s ruling suppressing the results of the search.
Chief Judge Baker writes for a near-unanimous court. Judge Stucky writes a very brief separate opinion that concurs in the vast majority of the Chief Judge’s opinion, but dissents on the exclusion of text messages from two specific identified trainees.
Appellant is a Technical Sergeant (E-6), and he was involved in a personal relationship with another Technical Sergeant (TSgt) named Ronda Roberts. Both were military training instructors. One day in November 2010, while Appellant was sleeping, TSgt Roberts accessed his mobile phone without his permission. She found “disturbing text messages.” Slip op. at 4. Soon after, the relationship between Appellant and TSgt Roberts ended. A few months later, in May 2011, TSgt Roberts stole Appellant’s mobile phone and conducted a number of searches, reading text messages and viewing pictures and videos. From these searches TSgt Roberts concluded that Appellant was communicating with trainees and confronted Appellant. “Appellant acknowledged sending text messages to recruits, but told her to “[g]et out of [his] face.'” Slip op. at 5.
In January 2012, a general inquiry into instructor misconduct resulted in an interview of TSgt Roberts by Detective Rico of the Air Force Security Forces Office of Investigations. Detective Rico didn’t suspect Appellant of any misconduct until TSgt Roberts told Detective Rico about Appellant’s mobile phone. Eventually TSgt Roberts gave Detective Rico a SIM card, and then she gave Detective Rico the phone that she stole from Appellant (while lying about its origin). Over the course of about a week, Detective Rico consulted with base legal three times about how to proceed, but never sought a search warrant or authorization. Detective Rico ultimately conducted three searches of Appellant’s phone: She generally scrolled through the contents and viewed text messages; she delivered the phone to the local county sheriff’s office for forensic extraction; and she sent the phone to private company for a detailed forensic analysis (conducted at the request of the trial counsel).
Appellant moved to suppress evidence obtained from his cell phone and all derivative evidence, and the military judge granted the motion. The judge ruled that “there were repeated violations of the accused’s rights in that he had a reasonable expectation of privacy in his phone which was stolen.” Slip op. at 2-3. This reasonable expectation of privacy is crucial to CAAF’s resolution of this case, and the court’s decision may have far broader implications.
For instance, last month the Supreme Court granted review in two cases that address privacy in the context of mobile telephones that were searched after their owners were arrested by police (as part of a “search incident to arrest”): Riley v. California and United States v. Wurie. The cases are discussed in this SCOTUSblog post that explains that, “Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest.” Chief Judge Baker’s opinion in Wicks reads like a preview of what the Supreme Court might say in Riley and Wurie. He begins his majority opinion by considering the Fourth Amendment interests at stake, and he makes a significant citation to the decision of the First Circuit in Wurie that is now before SCOTUS: