Cellphones


If you are called in to be taken for an interview with military investigators, do not take your cell phone with you.  Do not destroy it or anything that might be on it, just don't take it to the interrogation.

Do not consent to the taking or search of a cellphone make them get a warrant.

Should it be too late--contact a military defense lawyer immediately.  The goal would be to revoke and consents--it may be too late, but give it a try and make a record of what you did.

From CAAF: Orders Granting Petition for Review

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted on the following issues:

 I.   WHETHER APPELLANT'S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD-PARTY CONSENT TO SEARCH GIVEN BY APPELLANT'S WIFE IN APPELLANT'S ABSENCE.

II.  WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A "DEAD-END" UNTIL THE WARRANTLESS SEARCH.

 The ACCA opinion was issued in February this year.

Eugene’s problem began when his wife gave permission to CID for seizure and search of his cellphone.  Thus, we have a third-party search.  Eugene then tried to get the cellphone back which leads to the first issue above—he didn’t get it, they searched it, and they found evidence against him.  Part of his problem is of his own creation it seems.  Prior to going into the field, he gave his cellphone to his wife, so she could pay bills and because he was not allowed to take the cellphone to the field. He had already her to register her fingerprint on the phone, and he never placed any restrictions on her use of the cellphone.  Turns out that his wife found some incriminating materials which she told the platoon sergeant about.  In principle, the investigators seem to have been acting within the law.  They did not, however, get a search warrant because they were relying on a theory of common authority.  By the time Eugene tried to get his phone back, the search had already been done.

Note that CAAF has jurisprudence on third-party consent post Randolph v. Georgia, for example:

Ordinarily, warrantless entry into a person's house is unreasonable per se. Randolph, 547 U.S. at 109. While the rule against warrantless entry is vigilantly guarded, the voluntary consent of an individual possessing authority is one "carefully drawn" exception. Jones v. United States, 357 U.S. 493, 499 (1958); see Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Voluntary consent to search may be obtained from the person whose property is to be searched or from a fellow occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 171 (1974); United States v. Gallagher, 66 M.J. 250, 253 (C.A.A.F. 2008).

Where one party has joint access and control to a property and voluntarily consents to a search, the warrantless search is reasonable.

 United States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009).

 Here are the reasons CAAF wants to look at the case.

 Military Rule of Evidence 314(e)(4) states “[c]onsent [to search] may be limited in any way by the person granting consent . . . and may be withdrawn at any time.” (emphasis added). Neither this rule nor any other specifically addresses whether one person can withdraw another person’s consent. Likewise, we have found no binding precedent from our superior court.

Like the military judge, the court held that Eugene did not actually tell them he withdrew any consent to search or ask them not to search without a warrant.

Give a military defense counsel a call if you have a situation where your cellphone or computers are seized—the earlier you call the better we can help.