We received a comment that,
Requiring a search authorization to be limited to seizing evidence of only a specific crime seems inconsistent with established caselaw. An authorization to search a residence for a missing person allows the investigators to look anywhere in the residence that a person could be hidden, but allows them to seize any evidence of any crime that they find as long as they find that evidence in a place that a person could be (ie in a closet, not a desk drawer). This ruling is basically saying 'ignore the corpses of dead children, you are only allowed to seize evidence of drug possession' This is a huge change.
Thank you for the comment and I have some broader thoughts.
The Common Law was the knowledge base for the Framers. That was their experience having adopted the British common law. Essentially, they like the CL wanted to protect the person’s liberty, papers, homes, and businesses.
The Fourth Amendment safeguards the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” by generally requiring that the government first obtain authorization from a neutral judge or magistrate in the form of a warrant.3 The framers intended the Fourth Amendment to curtail indiscriminate searches and seizures, which the colonists had been subjected to under British rule. Writs of assistance had bestowed on British officers blanket authority to conduct searches of any place, at any time, without notice or reasonable suspicion.
Laura Hecht-Felella, The Fourth Amendment in the Digital Age. Brennan Center for Justice, March 16, 2021.
The enforcement of the right of security was through the law of trespass and false arrest and similar tort law principles. The enforcement was against the erring constable or sheriff or at times the informant who gave false evidence. Much has changed by statute and by appellate decisions. For us, we find this change in various Rules in the Manual for Courts-Martial and the rules of evidence, as interpreted by the military appellate courts. I do not think the notions of plain view, emergency, inevitable discovery, reasonable reliance on a magistrate’s decision, or similar exceptions were known to the founders—and if they were, would likely be rejected. Also, while a tort action may still exist, is that an effective remedy for police misconduct.
I think in principle you are right on the arrest warrant and what may happen if the police intrude into a home where they have reason to believe the person is located. Executing a warrant for a drug dealer’s arrest at his home may lead to the discovery of evidence of drug dealing—the drug sales paraphernalia sitting open to view on the coffee table. I’m not suggesting that a bad concept. But what if the basis for the arrest warrant is demonstrably false, but they still find the drug paraphernalia. See Tammie Beassie Banko, “You’re Not Gonna Reach My Telephone”—The Resurgence of the Fourth Amendment’s Particularity Requirement. 71 SMU L. Rev. 575, 578 (discussing drug cases and cellphone warrants).
Of course, coaches and carts have been replaced by cars and trucks and offices or files have been replaced with CDs, hard drives, and smartphones. (I prefer the term smartphone rather than cellphone.) When I was a kid, the watch I wear today was the stuff of children’s cartoon characters. I’m sure you have heard of Dick Tracy.
I think a warrant to search a smartphone is akin to searching a person’s home, office, place of business, or papers. Here I think the concept of particularity is most important in determining the reasonableness of police actions. Check out Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches. 69 Vanderbilt L. Rev. 585 (2016) for an interesting discussion.
If the warrant says the police may search for stolen property and particularly for washing machines or kitchen appliances, does that, without more, allow the search of the desk—I think not. But that seems to be the practice of the OSI agent (and likely others) in this case. Should that not be considered a “general warrant.” For myself, I consider what happened here, based on experience and anecdote to be the equivalent of a general warrant to search. If the warrant says that the police may search anywhere and anything for evidence of a any crime, would that always withstand scrutiny—should it? That apparently is how this OSI agent acted over two years. I am not satisfied she is alone in that thinking. Here I am relying on the dissenter in this case. I think he’s on to something. Professor Orin Kerr has written a lot on the Fourth Amendment and searching computers, smartphones, and digital media. Walsh recommends adapting Berger v. New York to fashion rules for searches of smartphones and more specifically data in the cloud. Ian Walsh, Revising Reasonableness in the Cloud. 96 Wash. L. Rev. 343, 362 (2021).
I found several interesting articles on the topic generally. George C. Thomas, III, The Common Law Endures in the Fourth Amendment. 27 Wm. & Mary Bill of Rights J. 85 (2018). You might like Laura K. Donohue, The Original Fourth Amendment. 83 U. Chi. L. Rev. 1181 (2016) or Thomas Y. Davies, Recovering the Original Fourth Amendment. 98 Mich. L. Rev. 547 (1999).
I do disagree that an adverse ruling against the government requires ignoring the bodies of children. Rather it’s a case for particularity. If the warrant says search a smartphone for all images depicting CP or suspected CP and the agent comes across a picture of a dead child. They need not ignore that. What they do is go get another particularized warrant. Don’t worry, if OSI goes to a commander and says we found a picture of a dead child in amongst the CP so we’d like to search all of the smartphone because we suspect he’s a child murderer, the CO will sign.
United States v. Lattin. Members convicted this first lieutenant of sexual assault of one victim and sexual assault and abusive sexual contact with another. He was sentenced to ten years, TF, and a Dismissal. On appeal he raised a number of issues.
(1) Factual and legal sufficiency. No problem here.
(2) Did the search of his cell phone violate the terms of the authorization and his Fourth Amendment right to particularity?
Not so fast.
The CAAF has harmonized the four Leon exceptions with the three requirements under Mil. R. Evid. 311(c)(3). “[Mil. R. Evid.] 311(c)(3)(B) addresses the first and third exceptions noted in Leon, i.e., the affidavit must not be intentionally or recklessly false, and it must be more than a bare bones recital of conclusions,” and “[Mil. R. Evid.] 311(c)(3)(C) addresses the second and fourth exceptions in Leon, i.e., objective good faith cannot exist when the police know that the magistrate merely rubber stamped their request, or when the warrant is facially defective.” Hernandez, 81 M.J. at 440-41 (internal quotation marks and citations omitted) (citing United States v. Carter, 54 M.J. 414, 421 (C.A.A.F. 2001)). “Good faith is to be determined using an objective standard.” Mil. R. Evid. 311(c)(3)(C). The “‘good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.’” Herring v. United States, 555 U.S. 135, 145 (2009) (quoting Leon, 468 U.S. at 922 n.23). We further “consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination.” Leon, 468 U.S. at 923 n.24.
In United States v. Osorio, this court addressed requirements regarding search warrants for computers—and by extension for stored electronic or digital media—when evidence of another crime is discovered, stating, [T]here must be specificity in the scope of the warrant which, in turn, mandates specificity in the process of conducting the search. Practitioners must generate specific warrants and search processes necessary to comply with that specificity and then, if they come across evidence of a different crime, stop their search and seek a new authorization. 66 M.J. 632, 637 (A.F. Ct. Crim. App. 2008).
Query: Assume these overbroad boilerplate (perhaps SJA-generated) search authorizations are common. And that when the authorization is challenged the military judge and appellate courts save the case. So, people keep using the same boilerplate because they will be saved by the courts. If there is a common practice of authorizing overly broad searches of electronics, is that not a significant argument to suppress the statement for the educational and curative effect. Otherwise, the government can keep violating the constitution without consequence. Rant is hereby over. Let’s see what the dissenting (in part) judge had to say.
Unlike the majority, I find the military judge abused his discretion ruling that text messages from Appellant’s cellular phone were admissible. I generally agree with my esteemed colleagues’ findings as to assignment of error (2)— whether the search of his cell phone violated both the terms of the authorization and his Fourth Amendment2 right—except as to the application of the exclusionary rule. Specifically, I come to a different conclusion as to whether Air Force Office of Special Investigations Special Agent (SA) LB’s actions were “deliberate, reckless, or grossly negligent” or part of “recurring or systemic negligence.” Herring v. United States, 555 U.S. 135, 144 (2009). I further find that “exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3). Consequently, I would dismiss Specification 1 of the Charge with prejudice and set aside the sentence, and remand for a sentencing rehearing.
Further, it appears SA LB’s conduct was not an isolated incident. During cross examination, SA LB agreed with the proposition that within the last two years prior to her testimony it was her standard practice for phone searches “[t]hat when there’s probable cause for anything on the phone, you can search everything on the phone.” SA LB explained further that “[i]f the warrant allows for the entire phone to be seized, then all the data on the phone becomes property of the [G]overnment and can be searched at any time.” SA testified as to her expansive view with regard to the scope of a search[.]
So, if this is a persistent problem across the MCIOs and not just OSI, there is an educational value in suppressing the results of the search. And, also an education for the SJAs who routinely create or advise on these unlawful authorizations. SA LB must have learned her standard practice somewhere or from someone. Perhaps the FLETC lawyers can add this to the class schedule and discuss avoiding requests for a general warrant or acting like you have a general warrant.
Cheers, Phil Cave
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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