Court of Appeals for the Armed Forces

United States v. Harborth

We have another third-party (3P) consent case for the seizure and search of digital devices on certification by Navy TJAG (wth the grant of a cross-appeal). The issues are:

I. Did the military judge err by (1) finding the warrantless seizure of [Appellant’s] electronic devices was justified by probable cause, and (2) not ruling on law enforcement’s reliance on actual and apparent authority? Mooted.

II. Did the lower court err in ruling that law enforcement could not rely on actual or apparent authority and by holding the delay in securing a search authorization was unreasonable, thereby setting aside [Appellant’s] convictions? Mooted.

III.Did the lower court err in failing to find that [Appellant] waived objection to the duration of the seizure, when [Appellant] never objected at trial to the duration of the seizure, and Mil. R. Evid. 311 states that objections not made at trial are waived? Yes, there was waiver"

• by failing to make a particularized objection to the duration at trial."
• [T]he legal theory was never raised at trial and the record was not fully developed. Instead, Appellant raised an entirely new ground for challenging a Fourth Amendment seizure for the first time on appeal—after any opportunity for the Government to explain or justify the delay had passed. Allowing Appellant to assert this argument for the first time on appeal frustrates the purpose of the “particularized objection” requirement as it prevents the Government from “present[ing] relevant evidence on the objection” at trial."

IV. Did the lower court err in failing to first determine whether Ms. Hotel was a government actor, and if so, did Ms. Hotel’s actions constitute government action, thus implicating Fourth Amendment protection, when she seized [Appellant’s] other devices and provided them to HPD and NCIS? "Ms. Hotel was a private actor, and therefore, the Fourth Amendment was not implicated when she seized Appellant’s devices."

V. Having found a reasonable probability that a motion to suppress the results of the seizure and search of [Appellant’s] iPhone XS would have been meritorious, did the NMCCA err in not finding prejudice from the defense counsel not moving to suppress this evidence? Mooted.

VI. Was the trial defense counsel ineffective by not seeking suppression of all evidence derived from the unlawful seizure of [Appellant’s] property? No.
​

• "[T]here was no reasonable probability of success on a motion to suppress based on the duration of the seizure of Appellant’s devices. Therefore, trial defense counsel was not deficient in failing to preserve the issue."
  

Judge JOHNSON writes the Court, and Chief Judge OHLSON and Judge SPARKS joined and Judge MAGGS and Judge HARDY joined with respect to Parts I, II.A, II.B, and III. Judge MAGGS filed a separate opinion concurring in part and in the judgment, in which Judge HARDY joined.

Some facts. First, how the 3P gets physical possession of the phone and access.

Appellant was driving with his wife, Ms. Hotel, and his fifteen-year-old stepdaughter, Ms. November, when an argument erupted over Appellant’s alleged infidelity. Ms. Hotel asked to see his phone. Appellant resisted, telling her “there were things on his phone he didn’t want [her] to see.” Ms. November grabbed the iPhone XS out of his hand and turned it over to her mother. Ms. Hotel demanded his password, which he eventually surrendered. After arriving home, Ms. Hotel and Ms. November went into the house first, locked all the doors, and looked through the photos. Ms. Hotel did not find any inappropriate photos until Ms. November suggested she look through the deleted photos folder. There, Ms. Hotel found six photos of her daughter. Two were of Ms. November sunbathing. The others were taken by a security camera located in Ms. November’s bedroom3 and showed her changing clothes in her bedroom. In one of the photos, her breasts were exposed. After seeing these photos, Ms. Hotel called the police.
. . .
Officer Tango then spoke with Ms. Hotel, who showed him the four photos she had seen of Ms. November on the iPhone XS. Another HPD officer on scene, Officer Bravo, took photos of the images as Ms. Hotel flipped through them. Ms. Hotel then turned the iPhone XS over to HPD. That same day she attempted to give HPD more devices, but Officer Tango refused to accept them because “there was no probable cause that the devices had content relevant to this particular case.” After HPD left, Ms. Hotel accessed Appellant’s iPad 4. After connecting to iCloud, she saw emails sharing links to video clips associated with the Vivint account. Ms. Hotel testified those emails were sent to Appellant and she personally viewed approximately twenty of them. In the videos, Ms. Hotel saw her naked daughter masturbating. Two days later, on May 13, 2019, she turned that iPad 4, an additional iPad, and another iPhone, all belonging to Appellant, over to HPD.
. . .
[F]our days after the investigation was opened [by NCIS], Ms. Hotel consented to a permissive search authorization “of her residence for electronic evidence.” By the time agents arrived to conduct the search, Ms. Hotel had collected a box of Appellant’s electronic devices she had found amongst his personal belongings. She gave the agents the box of devices, saying, “here’s some stuff that might be helpful to you.” She also showed agents the Vivint wall security panel with surveillance footage from around the house, including surveillance videos of Ms. November nude or partially nude. NCIS agents photographed the location and angle of the Vivint security cameras, including the one in Ms. November’s room, and then seized the Vivint security panel with Ms. Hotel’s permission. Ms. Hotel turned over eleven electronic devices to NCIS on May 15, 2019, including the Vivint security panel, an iPhone 6s, and numerous electronic devices capable of storage. A little more than a week later, NCIS received the devices Ms. Hotel previously turned over to HPD.

Appellant invoked and refused a search consent when NCIS attempted to interrogate him.

The NCIS agent testified at the 39(a) that the wife  “was not tasked to do anything.”

94 days later, a command search authorization is granted. The subsequent Digital Forensics Examination (DFE) found evidence which became the foundation for the charges at court-martial. The MJ 

found that “law enforcement officers did not search the devices, ask for them, or collect them while searching the home. Rather, [Ms. Hotel], of her own volition, collected and provided” Appellant’s electronic devices. Yet, the military judge did not rule on whether the seizure was justified because Ms. Hotel was a private actor. Instead, the military judge denied the motion on the grounds that the seizure was justified by probable cause and inevitable discovery applied.

Was Ms. Hotel a private actor? That issue was not raised at NMCCA by the Government, but it was certified, so CAAF addresses it using the abuse of discretion standard applied to the MJ's ruling.

Whether Ms. Hotel was a private actor or "an agent of the [Government]" is reviewed on the totality of the circumstances.

We also conclude there was nothing unlawful in the Government’s receipt of the devices. The Supreme Court has long recognized “there [is] nothing wrongful about the Government’s acquisition” of evidence that was seized, searched and turned over to the government by a private actor. Walter v. United States, 447 U.S. 649, 656 (1980) (plurality opinion) (first citing Burdeau v. McDowell, 256 U.S. 465 (1921); and then citing Coolidge v. New Hampshire, 403 U.S. 443 (1971)).7 The Supreme Court reaffirmed this principle more recently, acknowledging that an individual “acting on his own initiative may be able to deliver evidence to the police” before police are required to obtain a warrant. Georgia v. Randolph, 547 U.S. 103, 116 (2006) (citing Coolidge, 403 U.S. at 487-89).
. . . 
​“where a private party produced evidence for government inspection, ‘it was not incumbent on the police to stop her or avert their eyes.’ ” Walter, 447 U.S. at 661 (White, J., with whom Brennan, J., joined, concurring in part and in the judgment) (quoting Coolidge, 403 U.S. at 489).

The Court finds that the taking of the devices by NCIS was effectively a seizure, but a reasonable one when a “private party has voluntarily relinquished” it to them and probable cause exists to believe the property contains contraband."

Query. What if after seeing the images on the cellphone, the police or NCIS solicited the wife to see if Appellant had contraband on any other devices (in other words do an initial search for them), and if so, give them over?

Query. Does it matter that the search authorization wasn't obtained for 94 days after the seizure, keeping in mind the evidence is contained in digital devices, which hopefully were protected from contamination (beyond that possible from the spouses searches) when NCIS got physical custody?

This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage.

Is United States v. Place, 462 U.S. 696, 697-98 (1983) good law when applied to the investigative detention of digital devices?

​Huuuum.

"a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable searches.'" Jacobsen, 466 U.S. at 124. Thus, "even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant." Martin, 157 F.3d at 54; see also United States v. Respress, 9 F.3d 483, 488 (6th Cir. 1993) ("even with the existence of probable cause to effect a seizure, the duration of the seizure pending the issuance of a search warrant must still be reasonable."). The reasonableness of the delay is determined "in light of all the facts and circumstances," and "on a case-by-case basis." Mayomi v. United States, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989). "[T]he reasonableness determination will reflect a 'careful balancing of governmental and private interests.'" Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); see also United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006).

United States v. Mitchell, 565 F.3d 1347, 1350-51 (11th Cir. 2009).

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United States v. Leese

A unanimous Court has resolved how to apply Pierce credit under the new segmented sentencing scheme. The result in many cases will be Pyrrhic for most accused--as it is for Leese.

The military judge determined that 28 days of Pierce credit was warranted. The MJ accepted the prosecution's theory that Pierce credit is to be applied to each segmented offense that was the same or similar to that for which the accused was punished at Mast. The MJ rejected the defense's request for credit toward the total sentence. CAAF agrees with the military judge.

We hold: Confinement credit mandated by United States v. Pierce applies only to a segmented sentence that corresponds to an offense that previously served as the basis for nonjudicial punishment; Pierce credit does not apply to an aggregate term of confinement.
. . .
[T]he military judge convicted Appellant of two specifications of willfully disobeying a superior commissioned officer and one specification of assault consummated by a battery[.]

The military judge sentenced Appellant to be reduced to the grade of E-2; a bad-conduct discharge; [confinement] for 14 days for the first Article 90 specification; [confinement] for 30 days for the second Article 90 specification; and confinement for three months for the Article 128 specification. The military judge then ruled that the periods of confinement would run concurrently. [B]ecause Appellant already had received nonjudicial punishment for the two Article 90 specifications, the military judge also ruled that Appellant was entitled to receive Pierce credit.
. . .
[H]e credited Appellant with one pay grade credit against the sentence to reduction, fourteen days of credit against the segmented sentence of confinement imposed for the first Article 90 specification, fourteen days of credit against the segmented sentence of confinement imposed for the second Article 90 specification, and $1,142 against any automatic forfeitures. The military judge noted that even “[a]fter applying those credits and then running the segmented confinement sentences concurrently, the total adjudged sentence to confinement remains 3 months.”

The Government argued that the Appellant would

“receive both the benefit of a concurrent sentence and Pierce credit, with the Pierce credit applying to punishments for offenses that were wholly separate and of a different degree of criminality than the NJP offenses.” Indeed, the Government asserts that taking a different approach could result in a convicted servicemember receiving a sentencing “windfall.”

Appellant asserts that 

[his] approach “is consistent with past practice, [comports with] the awarding of other forms of sentence credit, ensures all portions of the sentence receive meaningful relief, and recognizes that the government controls the charge sheet.” 

The Court rejects application of the Suzuki credit theory because "deterring the government from improperly placing a servicemember in pretrial confinement is patently distinct from ensuring that a convicted servicemember receives sentencing credit at a court-martial if he already had received nonjudicial punishment for the same offense via a lawful Article 15."

The Court found several reasons why the Appellant's arguments were unsound.

• Application of Pierce does not require a "tangible benefit because: applicable statutes are silent on this point; our case law imposes no such requirement; and as reflected below, we find no basis to impose such a mandate[.]"
  
• While Pierce may be easy to apply to a cumulative sentence, because: "all of the benefits cited in favor of applying Pierce credit to the total adjudged sentence pertain equally to a determination that Pierce credit applies only to the segmented sentence[.]"
  
• Pierce does not result in "a convicted servicemember will receiv[ing] “double punishment[.]”
  
• "[W]e conclude that even when a convicted servicemember does not receive tangible relief in terms of a reduction in his period of confinement because of a concurrent sentence, the imperative of the Pierce decision still will be obeyed— namely, the convicted servicemember will not be “twice punished for the same offense.”"

ACCA made the point with clarity and concision 

[Pierce confinement credit should] be applied only to the segmented sentence for the offense previously punished under Article 15, UCMJ, and not to the total sentence to confinement when the accused is convicted of other offenses. This ensures an accused is not punished twice for the same offense while also ensuring the accused does not receive credit when no credit is due. Whether the military judge determines the sentences to confinement shall run concurrently or consecutively, the result is the same. The accused receives relief that is effective and meaningful towards the offense for which he has already been punished and not towards an offense for which he has not.