On 22 June 2018, the United States Supreme Court issued their ruling in the Carpenter case.
The case could have some application for military practitioners. The use of digital forensic evidence is becoming increasingly common. Law enforcement often seeks to examine cell phone data, computer hard drives, phone company records, and now GPS data. We've certainly seen military cases in the past where the Army sought to obtain geolocation data from a phone company.
Carpenter asked the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements.
Spoiler alert. The short answer for the Supreme Court was yes. There is a reasonable expectation of privacy in your location information. In Carpenter, ironically, the defendant and his accomplices robbed some Radio Shack stores and T-Mobile stores in Detroit. A magistrate ordered Sprint to provide Cell-Site Location Information (CSLI). Long story short, Carpenter's buddies all rolled on him and claimed he was the ring-leader. The Government obtained the CSLI without a warrant.
Under this ruling, the government must obtain a warrant before obtaining Cell-Site Location Information.
We occasionally get asked whether military members can revoke a consent to search. The answer is yes. The sooner you revoke the consent to search the better.
In a case last year, a service member had a conviction reversed because he revoked consent to search.
The court gave a very nice summary of scope of consent. They wrote:
"The scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time. M.R.E. 314(e)(3), 316(c)(3); see United States v. Dease, 71 M.J. 116, 120 (C.A.A.F. 2012)."
We usually advise revoking consent in writing. It's a simple memo stating that you "hereby revoke previously providing consent to search [location] on [consent date]." They key is to make the revocation clear and unambiguous.
We previously wrote in detail on the subject here.
On 6 September 2016, in United States v. Gurczynski, the Army Court of Criminal Appeals (ACCA) sided with the defense and prevented the Government and Army Criminal Investigation Command (CID) from arbitrarily expanding the scope of a digital forensic search of a computer without first seeking an expanded search warrant. This case represents a refreshing reminder to Government that the warrant requirement is strictly enforced and requires explicit authority to conduct a search. In the wake of recent and constant changes to military law and procedure stripping rights away from Servicemembers, it is nice to see the Court enforce our constitutional protections.
The Accused was under investigation for “’attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related’ to the allegations.” Army CID was properly granted a search warrant for his computer and portable media devices to search for communications between the accused and “the alleged victim of his abuse in order to arrange the meeting where the appellant ultimately engaged in indecent acts and sexual contact with the child.”
During the search of the devices, the Army CID digital forensic examiner encountered files that he reasonably believed to be child pornography based on the file names. Instead of stopping there and seeking an additional warrant to search those files, the CID agent opened the files and discovered child pornography.
At trial, the defense counsel moved to suppress the images based on an unlawful search under the 4th Amendment. The military judge granted the motion finding that Army CID impermissibly exceeded the scope of the search warrant. The Government appealed the trial judge’s ruling.
On appeal, the issue was whether the trial judge abused his discretion by granting the defense motion to suppress. The closely looked at the terms of the search warrant. Ultimately, the court found that an authorization to search for communications between the accused and alleged victim was not sufficiently broad to authorize a search for child pornography. The ACCA affirmed the findings of the military judge, that:
[First] the nature of the charges, given their plain statutory meaning, did not remotely contemplate the possession, creation or distribution of child pornography. Second, to search for child pornography upon seeing the video files, SA CP was required to obtain a new or expanded warrant…Third, the military judge determined that the inevitable discovery doctrine set forth in Mil. R. Evid. 311(c)(2) did not apply since CID did not have probable cause to search for child pornography in the first instance.
The take away from this case is two-fold. First, a thorough review of search warrants is critical in every case. Not only must the warrants be properly based on probable cause, but as demonstrated in this case, the scope of the warrant is controlling and will be enforced. Second, just because a digital forensic examiner or law enforcement have a computer seized, discovery of the information on that computer is not inevitable, and the inevitable discovery doctrine will not excuse violations of the warrant requirement.