U.S. v. Wicks, 73 M.J. 93

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable
2. the Fourth Amendment provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies
3. the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, to implicate the Fourth Amendment in this respect, there must be clear indices of the government’s encouragement, endorsement, and participation in the challenged search; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view
4. the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence
5. the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs

Core Criminal Law Subjects: Evidence: Search and Seizure › Generally

1. the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable
2. the Fourth Amendment provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies
3. the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, to implicate the Fourth Amendment in this respect, there must be clear indices of the government’s encouragement, endorsement, and participation in the challenged search; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view
4. MRE 311(a) proscribes that evidence obtained from a government’s unlawful search or seizure is inadmissible if two conditions are met: (1) the accused makes a timely motion to suppress, and (2) the accused had a reasonable expectation of privacy, a legitimate interest in the property seized, or other legal grounds to object

Core Criminal Law Subjects: Evidence: Search and Seizure › Exclusionary rule

1. the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence
2. the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs
3. the exclusionary rule applied to evidence obtained by the government from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search, where (1) the government’s search of appellant’s cell phone exceeded the servicemember’s private search – that is, where the private search was limited to a few texts, photographs, and one video, and the government searches included tens of thousands of text images, including some deleted texts that were not and could not have been viewed by the servicemember, (2) three times the government investigator consulted a legal office for advice with probable cause in hand, and three times the government proceeded to search appellant’s cell phone without the benefit of a search authorization, and (3) the government ordered the most exhaustive analysis of appellant’s cell phone during trial while the issue of appellant’s Fourth Amendment rights was being litigated before the military judge

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable
2. the accused had a reasonable expectation of privacy in his cell phone and his expectation was objectively reasonable; every federal court of appeals that has considered the question of cell phone privacy has held there is nothing intrinsic about cell phones that place them outside the scope of ordinary Fourth Amendment analysis
3. in this case, in both a material qualitative and quantitative manner, the government exceeded the scope of the initial private search by a servicemember of appellant’s cell phone; furthermore, the government failed to meet its burden to demonstrate by a preponderance of the evidence that the search of the cell phone was limited to the information provided to the government investigator by the servicemember; that is, the government failed to meet its burden that its initial search of the phone mirrored the servicemember’s private search; although there was some evidence before the court that the servicemember saw various text messages and an accompanying video on the phone that she believed showed inappropriate contact between appellant and some trainees, there was no specific evidence as to what the servicemember actually saw on the phone, and the government investigator engaged in a general search of the phone by scrolling through a number of private texts and did not limit herself to what the servicemember had seen, particularly as the servicemember was not present during the investigator’s search; while appellant’s expectation of privacy had been frustrated by the servicemember viewing a few text messages and an accompanying video on his cell phone, any remaining expectation of his privacy was eliminated when the investigator sent the phone to the county sheriff’s office for forensic analysis and then sent the phone to a computer company for further examination; this final examination revealed over 45,000 text messages, some that would have been viewable by a person in cell phone format as well as deleted items which would not have been viewable to the normal user, thus breaching the remaining portion of appellant’s privacy that had not been frustrated
4. the potential invasion of privacy in a search of a cell phone is greater than in a search of a container in a conventional sense because a cell phone can provide access to a vast body of personal data

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. for the doctrine of inevitable discovery to apply, the government has to demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner; mere speculation and conjecture as to the inevitable discovery of the evidence is not sufficient when applying this exception; this exception is only applicable when the routine procedures of a law enforcement agency would inevitably find the same evidence; moreover, the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant
2. in this case, the doctrine of inevitable discovery did not apply where the government failed to meet its burden of showing that the evidence it obtained from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search would have been inevitably discovered by lawful means, particularly in the absence of information as to the extent of the initial private search by the servicemember; because the record did not indicate what the government investigator reviewed and the extent to which that review mimicked the servicemember’s own private review, what the government may have inevitably discovered in the course of investigation, absent the additional searches of appellant’s cell phone, is unknown; in addition, the government failed to present compelling evidence that it would have sought a warrant; finally, the government failed to meet its burden of demonstrating that the routine procedures of the law enforcement agency would inevitably have found the same evidence

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. the Fourth Amendment provides that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies
2. cell phones may not be searched without probable cause and a warrant unless the search and seizure falls within one of the recognized exceptions to the warrant requirement

Trial Stages: Writs and Interlocutory Appeals: Generally

1. in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous
2. where the government obtains evidence in a search conducted pursuant to one of the exceptions to the warrant requirement, it bears the burden of establishing that the exception applies