Army Court of Criminal Appeals

The en banc published opinion in United States v. Strong, 5-4, deals with digital media and when it is being seized or is seized when chargin a violation of UCMJ art. 131e. CAAF, here we come? The “requirements” in U.S.C.A.A.F. Rule 21(b)(5)(A), (D) seem to be satisfied and the uniqueness of the charge and facts, seem grant-worthy. Read on.

Appellant was convicted of negligent homicide and preventing the authorized seizure of digital evidence, for which the sentence was three years, RiR, and a BCD.

Army CID executed a search authorization for Appellant's iPhone. Having physical possession, the agent tried to set the phone to airplane mode but couldn't make that happen. The agent then put the phone in a Faraday bag. Oh no! The manufacturer had mislabelled the bag and electronic signals could get through to the phone. This error allowed the Appellant to remotely factory reset the phone, destroyng the data sometime after CID had physical possession but before they made the DFE copy. CID figured out it was Appellant who had done the reset by DFE'ing other electronic devices.

by definition, any action to "prevent" a seizure of property must occur before the seizure of the property. As such, the statutory phrase, "are seizing, are about to seize, or are endeavoring to seize" contemplates the destruction, removal, or disposal of the targeted property either before the seizure or while the seizure is ongoing. As appellant observes, it is not designed to cover conduct occurring after the property is seized. 

Finding the statute and MCM unhelpful the court found a different but analogous case.

However, in a different factual context, the Court of Appeals for the Armed Forces (CAAF) held that property is seized when there is "meaningful interference with an individual's possessory interest in that property." United States v. Hahn, 44 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).
. . . 
Based upon the foregoing, we find that the routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel of the seizure of digital media. Under this analysis, a seizure is ongoing while those authorized to seize the property execute the protocols necessary to isolate and preserve the digital media. For purposes of Art. 131 e, UCMJ, we further find that digital media is "seized," and beyond the reach of the statute, when the device containing it is secure from passive or active manipulation, even if that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location. 

The court recognizes it is dealing with "evolving technology and the ethereal nature of digital evidence." It seems that a completed seizure of digital evidence requires the agents to have (1) completely prevented any remote access, or (2) made the DFE copy. The digits being the evidence the phone merely being the briefcase. The bright line is not when the agents have physical possession of the container which Appellant had argued, but physical possession of the digital media.

*Note to JSC, the court cites 18 U.S.C. § 2232(a) as the corollary federal statute and implies the facts here would not have presented a challenge under the elements of that statute.