U.S. v. Secord, 86 M.J. 56

First Principles: Constitutional Matters: Search and Seizure

1. seizure under the Fourth Amendment and possession, custody, and control under RCM 701(a) are not coterminous legal standards; rather, they are different concepts with distinctly different aims; the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; because the rights of privacy and personal security protected by the Fourth Amendment are to be regarded as of the very essence of constitutional liberty, courts rigorously enforce this constitutional protection from unreasonable seizures; accordingly, a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property; nothing more is required; however, even if data has been seized under the Fourth Amendment, that does not demand that the data is in the possession, custody, or control of military authorities for purposes of RCM 701; this is because discovery is a practical process focused on fairness and intended to eliminate pretrial gamesmanship, minimize pretrial litigation, and reduce the potential for surprise and delay at trial; the goal of RCM 701 is to provide the parties with equal access to the evidence, not to protect the accused from unreasonable government searches and seizures; property need not be considered in the government's possession, custody, or control for discovery purposes any time there is some meaningful interference with an accused's possessory interests in that property

Trial Stages: Pretrial: Discovery

1. the military rules pertaining to discovery focus on equal access to evidence to aid the preparation of the defense and enhance the orderly administration of military justice
2. RCM 701 governs discovery in courts-martial, and RCM 701(a) imposes obligations on trial counsel to provide certain things to the defense, including cell phone electronic data that is within the possession, custody, or control of military authorities and the cell phone obtained from or belongs to the accused
3. seizure under the Fourth Amendment and possession, custody, and control under RCM 701(a) are not coterminous legal standards; rather, they are different concepts with distinctly different aims; the Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; because the rights of privacy and personal security protected by the Fourth Amendment are to be regarded as of the very essence of constitutional liberty, courts rigorously enforce this constitutional protection from unreasonable seizures; accordingly, a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property; nothing more is required; however, even if data has been seized under the Fourth Amendment, that does not demand that the data is in the possession, custody, or control of military authorities for purposes of RCM 701; this is because discovery is a practical process focused on fairness and intended to eliminate pretrial gamesmanship, minimize pretrial litigation, and reduce the potential for surprise and delay at trial; the goal of RCM 701 is to provide the parties with equal access to the evidence, not to protect the accused from unreasonable government searches and seizures; property need not be considered in the government's possession, custody, or control for discovery purposes any time there is some meaningful interference with an accused's possessory interests in that property
4. in this case, where the government lawfully seized appellant's cell phone pursuant to a search and seizure authorization based upon probable cause but could neither unlock nor break into the cell phone and had no access to the data stored on the phone, the cell phone data was therefore not within the possession, custody, or control of military authorities under RCM 701(a); the mere fact that the government possessed appellant's cell phone and had the ability to exclude appellant from any data on that phone did not, without more, trigger the government's discovery obligations under RCM 701(a) with respect to the cell phone data

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

1. the interpretation of a provision of a Rule for Courts-Martial is a question of law that an appellate court reviews de novo