76 M.J. 698
AFCCA2017Background
- Appellee consented on 24 March 2016 to AFOSI searching his car, phone (text messages, multimedia apps, phone logs, no pictures), urine, and dormitory, and signed a written consent form.
- During the interview, SA used a UFED Touch device to extract a digital copy (image) of Appellee’s phone data, completed that same day; the phone was returned to Appellee that day. The extracted data was transferred to a stand-alone computer.
- Appellee revoked all consent on 26 April 2016. Agents did not retake the phone prior to revocation.
- At an unspecified date after the extraction, SA searched the government’s digital copy using UFED software and generated a PDF report identifying messages referencing "Acid." The SA could not recall whether that search occurred before or after revocation.
- Trial defense moved to suppress the extracted data and derivatives; the military judge granted suppression, finding Appellee retained a reasonable expectation of privacy in the government-created copy and that later analysis after revocation required suppression. The Government appealed under Article 62.
Issues
| Issue | Appellee's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Appellee retained a reasonable expectation of privacy in a government-created digital copy of his phone data after consenting to its creation | Appellee argued he kept a privacy interest in the copied data and could revoke consent to bar later government analysis | Government argued that once Appellee consented to copying, he had no reasonable expectation of privacy in the government’s copy and revocation cannot reach copies already made | Court held Appellee had no reasonable expectation of privacy in the copy made during the consent period; suppression was erroneous |
| Whether analysis of the government’s copy after revocation of consent required suppression | Appellee said revocation extinguished government authority to search or analyze the copy and therefore evidence must be excluded | Government said the copy belonged to investigators and analysis of that copy did not implicate Fourth Amendment privacy once lawfully copied | Court held analysis of the government-created copy did not constitute a Fourth Amendment search w.r.t. Appellee and need not be suppressed |
| Applicability of Riley v. California to bar use of copied phone data | Appellee relied on Riley to stress strong privacy interests in phone contents | Government contended Riley recognizes phone privacy generally but does not create a new privacy interest in investigator-made copies created with consent | Court held Riley recognizes phone privacy generally but does not prevent enforcement of consent exception or bar use of lawfully created government copies |
| Whether Dease controls (urinalysis-after-revocation holding) | Appellee invoked Dease to argue withdrawal of consent can require suppression of later analyses | Government distinguished Dease as involving physical sample whose analysis occurred after revocation; here the copy was made during consent | Court held Dease distinguishable; here the extraction (the taking of the copy) occurred during consent, so Dease does not mandate suppression |
Key Cases Cited
- Riley v. California, 134 S. Ct. 2473 (2014) (cell phones generally carry substantial privacy interests but consent remains an exception to warrant requirement)
- United States v. Ward, 576 F.2d 243 (9th Cir.) (copies made of lawfully seized records prior to revocation need not be suppressed)
- United States v. Ponder, 444 F.2d 816 (5th Cir.) (voluntary delivery of records allows agents to examine and photocopy them)
- Mason v. Pulliam, 557 F.2d 426 (5th Cir.) (withdrawal of consent does not invalidate copies made prior to withdrawal)
- United States v. Dease, 71 M.J. 116 (C.A.A.F.) (consented urine sample analysis performed after withdrawal of consent supported suppression in that context)