U.S. v. Shields, 83 M.J. 226

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects against unreasonable searches and seizures; these constitutional protections fully apply to cell phone searches
2. merely inspecting items that come into view while conducting a lawful search for other items produces no additional invasion of an individual’s privacy interests protected by the Fourth Amendment
3. taking action, unrelated to the objectives of an authorized search, which expose to view concealed items invades privacy protected by the Fourth Amendment
4. as always under the Fourth Amendment, the standard is reasonableness; and when it comes to cell phones and computers, although one search method may be objectively better than another, a search method is not unreasonable simply because it is not optimal

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when the Fourth Amendment and technology intersect, military judges may need to hear from, and rely on, expert witnesses
2. a military judge, as the trier of fact, has the discretion, indeed, responsibility, to credit one expert over another

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s findings of fact that the forensic examiner did not search unauthorized areas of appellant’s phone, that the examiner saw the suspected contraband image during the process of trying to sort the images by size and date, and that the examiner attempted to stay within the scope of the search authorization were not clearly erroneous, especially when the evidence is viewed in a light most favorable to the government, where the military judge properly heard from two experts with conflicting views on best practices when using software for organizing extracted data from a cell phone into a readable format and the military judge was entitled to credit one expert over another
2. a military judge, as the trier of fact, has the discretion, indeed, responsibility, to credit one expert over another

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

1. the Fourth Amendment protects against unreasonable searches and seizures; these constitutional protections fully apply to cell phone searches
2. instead of attempting to set out bright line rules for limiting searches of electronic devices, the courts have looked to what is reasonable under the circumstances
3. merely inspecting items that come into view while conducting a lawful search for other items produces no additional invasion of an individual’s privacy interests protected by the Fourth Amendment
4. taking action, unrelated to the objectives of an authorized search, which expose to view concealed items invades privacy protected by the Fourth Amendment
5. as always under the Fourth Amendment, the standard is reasonableness; and when it comes to cell phones and computers, although one search method may be objectively better than another, a search method is not unreasonable simply because it is not optimal

Core Criminal Law Subjects: Evidence: Search and Seizure › Plain view

1. one exception to the warrant requirement for items not otherwise subject to a lawful search is the plain view doctrine, which allows law enforcement officials conducting a lawful search to seize items in plain view if they are acting within the scope of their authority and have probable cause to believe the item is contraband or evidence of a crime
2. a prerequisite for the application of the plain view doctrine is that the law enforcement officers must have been conducting a lawful search when they stumbled upon evidence in plain view
3. for the plain view exception to the warrant requirement to apply to a forensic examiner’s search of appellant’s cell phone: (1) the examiner must not have violated the Fourth Amendment in arriving at the spot from which he plainly viewed the suspected incriminating image; (2) the incriminating character of the image must have been immediately apparent to the examiner; and (3) the examiner must have had lawful access to appellant’s cell phone
4. merely inspecting items that come into view while conducting a lawful search for other items produces no additional invasion of an individual’s privacy interests protected by the Fourth Amendment
5. taking action, unrelated to the objectives of an authorized search, which exposes to view concealed items, invades privacy protected by the Fourth Amendment

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

1. a search conducted pursuant to a search authorization is presumptively reasonable
2. one exception to the warrant requirement for items not otherwise subject to a lawful search is the plain view doctrine, which allows law enforcement officials conducting a lawful search to seize items in plain view if they are acting within the scope of their authority and have probable cause to believe the item is contraband or evidence of a crime
3. merely inspecting items that come into view while conducting a lawful search for other items produces no additional invasion of an individual’s privacy interests protected by the Fourth Amendment
4. taking action, unrelated to the objectives of an authorized search, which exposes to view concealed items, invades privacy protected by the Fourth Amendment
5. it is folly for a search warrant to attempt to structure the mechanics of the search and a warrant imposing such limits would unduly restrict legitimate search objectives
6. the manner in which a warrant is executed is subject to later judicial review as to its reasonableness
7. a military judge’s findings of fact that the forensic examiner did not search unauthorized areas of appellant’s phone, that the examiner saw the suspected contraband image during the process of trying to sort the images by size and date, and that the examiner attempted to stay within the scope of the search authorization were not clearly erroneous, especially when the evidence is viewed in a light most favorable to the government, where the military judge properly heard from two experts with conflicting views on best practices when using software for organizing extracted data from a cell phone into a readable format and the military judge was entitled to credit one expert over another
8. in this case, the forensic examiner's methodology of sorting extracted image files from appellant’s cell phone by size before filtering by date was not general exploratory rummaging in violation of Fourth Amendment, where the examiner was authorized to search by warrant for all data on the phone for files containing location information corresponding to a specific date; the examiner reasoned that sorting by size first would bring user-generated images to top of his screen giving him an array of files that were more likely to contain location data and that would avoid the need to re-sort every time he applied a new filter after sorting by file size; the examiner's next step was going to be filtering for the date indicated in search authorization, and the examiner was in process of sorting images by date when he came across the suspected image of child pornography
9. in this case, the evidence supported the military judge’s implied finding, on motion to suppress, that the forensic examiner did not need to scroll through images on appellant’s cell phone to see suspected child pornography, where the examiner testified that the contraband image was visible within his screen without even scrolling, and the defense expert's testimony did not establish that the table view only displayed a certain number of lines; because the military judge found that the examiner did not need to scroll through the images to see the suspected child pornography, the examiner did not take action unrelated to the objectives of the authorized search warrant intrusion

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. when reviewing a CCA’s decision on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge’s ruling

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

1. an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion
2. an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
3. an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
4. a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed
5. when reviewing a lower court’s decision on a military judge’s ruling, an appellate court typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the lower court was right or wrong in its examination of the military judge’s ruling
6. in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion
7. the manner in which a warrant is executed is subject to later judicial review as to its reasonableness
8. instead of attempting to set out bright line rules for limiting searches of electronic devices, the courts have looked to what is reasonable under the circumstances