United States v. Secord

A summary

Secord was charged with multiple offenses stemming from alleged cocaine use with junior enlisted soldiers. Army Criminal Investigation Division (CID) seized his cell phone but could not access its encrypted, passcode-protected data. Secord refused to provide his password or PIN.

Defense moved to compel the government to allow a defense digital forensic examiner to inspect the phone and extract data, arguing that the information fell “within the possession, custody, or control of military authorities” under R.C.M. 701(a)(2). The military judge denied the motion but offered conditional access: the defense could extract the data if the government received equal and simultaneous access. The judge also required the inspection to occur at CID headquarters in the presence of a CID representative and barred the government from installing tracking software on the device. Secord rejected the offer. Both sides proceeded to trial without accessing the phone’s data.

A general court-martial convicted Secord of all charges, and the United States Army Court of Criminal Appeals affirmed.

CAAF held that the military judge was correct. R.C.M. 701(a)(2) did not require the government to give Secord access to the seized phone’s data. The government physically possessed the phone, but lacked “possession, custody, or control” of the data because it could not unlock the device. Relying on United States v. Strong, the court treated the phone’s digital contents as distinct from the physical handset. The court also emphasized that discovery rules—particularly R.C.M. 701(e)—ensure both parties have an “equal opportunity to inspect evidence.” Allowing Secord unilateral access would have undermined that parity. Having answered the first issue in the negative, the court declined to reach the second and third issues and affirmed the ACCA.

The court rejects the appellant’s plain-language reading of R.C.M. 701(a)(2)(A). Although the Government indisputably possessed the physical phone, the court holds that this fact does not place the encrypted digital contents in the Government’s “possession, custody, or control” for discovery. The court aligns with the prevailing federal view under Fed. R. Crim. P. 16: when investigators cannot access encrypted contents, those data fall outside the Government’s Rule 16/R.C.M. 701 control.

Relying on Riley v. California, 573 U.S. 373, 393–97 (2014), and CAAF precedent, the court treats a phone and its data as distinct objects for legal analysis.

Because R.C.M. 701(e) guarantees equal opportunity to inspect evidence, the court refuses to grant the defense unilateral access to data the Government cannot reach; doing so would upset parity and undermine the discovery regime’s fairness aims.

The court also rejects the appellant’s reliance on Strong. Even if the Government “seized” the data for Fourth Amendment purposes by cutting off the user’s ability to access or delete it, “seizure” does not equal “possession, custody, or control” for discovery. The Fourth Amendment guards against unreasonable interference with possessory interests, while discovery rules promote fair pretrial access. Different purposes yield different thresholds.
​
The appellant reads R.C.M. 701(a)(2)(A)’s disjunctive “possession, custody, or control” and clause (iv) covering items “obtained from or belong[ing] to the accused” to favor inspection of an accused’s own data. The court instead reads 701(a) alongside 701(e)’s equal-access mandate and the rules’ purpose to eliminate pretrial gamesmanship and ensure fairness. That integrated reading fits Roberts, 59 M.J. at 325, and the Rule 16 district-court line.

Riley’s core principle—that a smartphone’s digital cache dwarfs traditional containers—justifies treating “phone” and “data” differently. 573 U.S. at 393–97. Strong carries that logic into military law by refusing to equate seizing a handset with seizing its bits. This decision applies the same separation in discovery: physical custody does not equal digital control.

Judge Maggs dissented. He would have answered all three granted questions in Secord’s favor. In his view, the data rested in the “custody” of military authorities because CID guarded, preserved, and safeguarded the phone and its contents. He further argued that the military judge erred by conditioning Secord’s access on giving the government access to all of his personal data, a condition that exceeded the scope of the original search authorization. Because the record left a realistic possibility that the phone contained exculpatory evidence, Judge Maggs concluded the government failed to prove the error harmless beyond a reasonable doubt.
​
​So now what?

Could the parties and the military judge have agreed to a different approach? "The authorization ordered a forensic search of Appellant’s cell phone for “SMS, MMS messages, photos, and videos for evidence pertaining to the wrongful use, possession and distribution of cocaine.”"

An accused and defense counsel are rightly concerned about MCIO voyeurism when they search digital media. So, it's hard to fault the defense here.

On its face the items and information search seems a reasonably narrowed one. Keep in mind that "Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson. Riley v. California, 573 U.S. 373, 386, 134 S. Ct. 2473, 2485 (2014). The use of general search warrants of smart phones intrudes into a person's life and privacy more than a search of their pocket, wallet, or briefcase.

Id., at 396, citing United States v. Kirschenblattt, 16 F. 2d 202, 203 (2d Cir. 1926). 

"[I]t is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” ​

Id., at 396, citing United States v. Kirschenblattt, 16 F. 2d 202, 203 (2d Cir. 1926). 
​
Personally, it looks like a majority of CAAF does not discriminate ala Judge Learned Hand's comment on the size and potential content of a "box," and directly or tacitly approves of ransacking a cell phone. See United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023) cert. denied Lattin v United States, 217 L. Ed. 2d 75, 2023 U.S. LEXIS 3788 (Oct 2, 2023).

In the words of the AFCCA, Special Agent L.B. decided to "rummage [through the phone] for anything that might be interesting for [the Air Force Office of Special Investigation's] investigation into Appellant.

Lattin, 83 M.J. at 194.

In dissent, the CJ and J. Hardy characterize the search as "voyeuristic." However, the unrebutted trial testimony was even more concerning. AFCCA had found the search authorization was overbroad, but found no prejudice because "exclusion of the evidence would not “result[] in appreciable deterrence of future unlawful searches” and that the benefits of future deterrence would not “outweigh the costs to the justice system” Read on, because at trial the Special Agent testified that,

[She] further affirmed her belief that "she could search [Appellant's] whole phone" because "when there's probable cause for anything on the phone, [law enforcement] can search everything on the phone." (Emphasis added.) Moreover, Special Agent L.B. stated that she had conducted cell phone searches in this manner for the last two years, [huumm, repetitive behavior?] and she testified that she was taught to search this way at the Federal Law Enforcement Training Center (FLETC) [huuuum, widespread repetitive behavior?]. These are sure signs of both recurring and systemic negligence—or worse.

83 M.J. at 200 (Ohlson, C.J., and Hardy, J., dissenting). A Freedom of Information Act request to FLETC and a review of their online training materials fails to shed any light on whether that was or was not the FLETC training as she testified.

The problem of voyeuristic rummaging being capable of repetition (if you consider that many digital search warrants read as a general warrant (kudos to the agents her for narrowing their search to start with)), we can understand defense counsel concerns here. So, back to how the parties and military judge might have approached the compromise.

1. The military judge orders the Government to engage a digital forensics expert as a Neutral Court Forensics Expert (NCFE).

2. The judge orders the parties (which could include a Gov. DFE) to meet with the expert, and for the Government to bring the cellphone with them and follow a general protocol.

3. In the presence of the parties the NCFE then makes the appropriate Cellebrite copy, retains the copy, provides a copy to defense, and returns the cellphone to the Government (or the DFE for chain of custody reasons). All civilian DFEs use equipment and protocols approved in NIST Special Publication 800-101, Revision 1, Guidelines on Mobile Device Forensics

4. Separately, the NCFE meets with the Government and its agents to ensure the NCFE knows what they are looking for. The judge could order that this meeting be "privileged." The order would include a directive that the NCFE is not to "go fishing." The judge might also Order that Production under this Order does not waive any claim of privilege, privacy, or constitutional right.

5. Separately, the NCFE meets with the Defense and provides them a copy of the DFE. (The NCFE should keep the original.)

6. The NCFE then goes to work to carve out what the investigators sought and then informs the judge when her work is completed. She might engage in a narrowing process.

Stage 1 (Metadata filter): The NCFE filters by date range, accounts, contact identifiers, file types, and app containers before any content review.

Stage 2 (Content filter): Within Stage-1 hits, the NCFE runs jointly supplied keyword lists (each side may propose up to [X] queries; disputes go to the Court). Queries must be audit-logged.

No fishing. The NCFE shall not explore outside the defined containers, time windows, or query results. If a tool returns out-of-scope data, the NDFE shall immediately segregate and seal it. This might include a Privilege screen. The Court authorizes a privilege filter by the NDFE (or a separate taint reviewer). Before any production to a party, the NDFE will sequester items potentially reflecting attorney-client, clergy-penitent, psychotherapist-patient, spousal communications, or medical/financial records and provide a privilege log (date, type, participants, app/container, short description) for motion practice if needed.

7. The judge then approves disclosure to the Government of the carve out for information within the terms of the search authorization.

If this sounds like a quasi-Special Master, I suspect you'd be right. CAAF certainly has used special masters.

Of course my suggestion still has its problem--the Fifth Amendment if the accused doesn't want to participate? That's a tough question for the defense in balancing their certainty there is helpful information in the data against the consequences of giving over the information the Government is seeking.
​
Last question. Could the judge have ordered the Government to produce the phone for the defense DFE only, to take an image anyway? (Possibly jurisdictional for Article 62(a)--of course, if the Government doesn't have the data that might affect the CCA's answer.)

You might check out Jenia L. Turner, Managing Digital Discovery in Criminal Cases, 109 J. Crim. L. & Criminology 237 (2019).