CAAFlog » September 2013 Term » United States v. Wicks

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:

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Today CAAF decided United States v. Wicks, No. 13-6004/AF (CAAFlog case page) (link to slip op.). Wicks is an interlocutory appeal of a military judge’s ruling that suppressed the fruits of a search of Appellant’s cell phone. The Air Force CCA granted the Government appeal and reversed the judge’s ruling. CAAF now reverses the CCA and reinstates the judge’s ruling on the basis that “the military judge did not err in concluding that the Government’s search of Appellant’s cell phone violated Appellant’s reasonable expectation of privacy.” Slip op. at 3.

I’m reviewing the opinion now and will post my analysis tonight or tomorrow morning.

CAAF also granted review in an interesting looking Coast Guard case:

No. 14-0265/CG.  U.S. v. Jaason LEAHR.  CCA 1365.  Review granted on the following issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.
II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.
III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

The CGCCA’s opinion is available here.

Audio of Tuesday’s oral argument in United States v. Wicks, No. 13-6004/AF (CAAFlog case page), is available here: Argument audio.

CAAF will hear oral argument in United States v. Wicks, No. 13-6004/AF (CAAFlog case page), on Tuesday, October 22, 2013. The argument will take place at the University of Arkansas School of Law, 1045 W. Maple Street, Fayetteville, Arkansas, as part of Project Outreach.

Appellant Wicks is accused of violating a lawful general regulation by wrongfully attempting to develop and conduct personal and/or sexual relationships with three female airmen while they were trainees and he was a military training instructor (MTI) at Lackland Air Force Base between 2010 and 2011, engaging in indecent conduct with one of those trainees by sending her a sexually explicit video-recording, and obstructing justice by telling one of the trainees to lie to investigators about her personal contact with him.

Yes, “is accused of.” That’s not a typo, because CAAF will review a decision of the Air Force CCA that granted a Government appeal and reversed the trial judge’s ruling suppressing evidence seized from Appellant’s cell phone; a phone that was stolen by one of his co-workers and delivered to a security forces detective who first conducted her own search of the phone and then sent the phone for a comprehensive forensic examination, all without obtaining a search authorization from Appellant’s commander or a search warrant from local authorities. These searches yielded damaging evidence (primarily text messages), but the evidence was suppressed after the judge determined that the detective’s searches violated Appellant’s Fourth Amendment rights.

In particular, the judge applied United States v. Jacobsen, 466 U.S. 109 (1984), and Walter v. United States, 447 U.S. 649 (1980), to conclude that the co-worker’s search was a private search that doesn’t raise Fourth Amendment concerns, but that the detective’s searches were not private and violated the Fourth Amendment where they exceeded the private search conducted by the co-worker. The judge then concluded that the detective’s searches exceeded the private searches where they involved viewing digital contents (such as text messages) that had not been viewed by the co-worker.

But the Government may appeal “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Art. 62(a)(1)(B). The Government did just that, and the AFCCA reversed the trial judge’s ruling, finding that:

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