Army Court of Criminal Appeals

United States v. Strong

The case presents a novel issue. As part of an investigation into a truck rollover during a training mission at the USMA, investigators had information to believe the driver was using her cell phone or smartwatch at or near the rollover time. Thus, a warrant to seize the digital devices was obtained and executed.

The Agent, accompanied by a Noncommissioned Officer ("NCO") from appellant's unit, located appellant in her sleeping area, at whichtime the Agent identified herself to appellant as a CID agent. She further told appellant she had a warrant to seize appellant's cellular phone and smart watch. The Agent briefly left appellant alone with the NCO while appellant was getting dressed, instructing the NCO not to let appellant use her phone or watch. After the Agent heard the NCO say "you're not allowed to be on the phone" several times, she entered the room and saw appellant attempting to use her phone. Indeed, even after the Agent seized the phone, appellant tried multiple times to physically snatch the phone back out of the Agent's hands. Specifically, the Agent testified that appellant was "belligerent" in
trying to take back her phone, such that the Agent finally had to tell her "at ease, Sergeant." The Agent also described how that was the only time in her career that she had to give such an admonishment to the subiect o f a seizure warrant.

Having taken physical possession of the phone, the agent followed standard procedure and put the phone in airplane mode and then in a Faraday bag. Uuum, turns out the bag was mislabelled. So, sometime after the seizure, the Appellant was able to "wipe" the phone. The issue then was whether the appellant could be convicted of violating Article 131e, UCMJ, based on the evidence. The appellant argued that the phone had already been seized when she took action to wipe it.

The statute criminalizes actions taken by an accused to prevent the seizure of property by authorized personnel. "Prevent" means to keep something from happening or existing. Therefore, 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. See United States v. Hamilton, 82 M.J. 530, 531 (Army Ct. Crim. App. 2022).

​Neither the text ofArticle 131e, UCMJ, nor the explanation in Part IV of the MCM, define when a seizure is complete for purposes ofthe statute. 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, 4 M.J. 360, 362 (C.A.A.F. 1996) (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)). 

The court provides a lengthy explanation of what investigators must do to secure digital evidence on a cell phone before the "seizure" is complete. With that in mind, 

we find that the routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel o f 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. 131e, UCMJ, we further find that digital media is "seized," and beyond the reach o f the statute, when the device containing it is secure from passive or active manipulation, even i f that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location.

​This framework is necessary to address both evolving technology and the ethereal nature ofdigital evidence. Moreover, it is consistent with the holding in United States v. Hahn, 4 M.J. 360 (C.A.A.F. 1996), because the only "possessory interest" of any relevance to Article 131e, UCMJ, is the capacity to destroy, remove, or otherwise dispose of the putative evidence.