UNITED STATES, Appellee

                                    v.

                  Samuel A. WICKS, Technical Sergeant
                       U.S. Air Force, Appellant

                              No. 13-6004

                        Misc. App. No. 2013-08

       United States Court of Appeals for the Armed Forces

                        Argued October 22, 2013

                       Decided February 20, 2014

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN and RYAN, JJ., and COX, S.J., joined. STUCKY, J., filed
a separate opinion concurring in part and dissenting in part.

                                 Counsel

For Appellant: Captain Christopher D. James (argued); Major Ja
Rai A. Williams (on supplement).

For Appellee: Major Charles G. Warren (argued); Major Tyson D.
Kindness and Gerald R. Bruce, Esq. (on answer).



Amicus Curiae for Appellant: Anthony Pellegrini (law student)
(argued); D’lorah L. Hughes, Esq. (supervising attorney) (on
brief) – of the University of Arkansas School of Law.

Amicus Curiae for Appellee: Jonathan Brown (law student -
University of Arkansas School of Law) (argued); Duane A. Kees,
Esq. (supervising attorney) (on brief).

Military Judge:    Donald R. Eller Jr.
       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wicks, No. 13-6004/AF


        Chief Judge BAKER delivered the opinion of the Court.

        This case arises out of an interlocutory appeal under

Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

862 (2012), in a pending court-martial.    Appellant was charged

with four specifications of violating general regulations

pursuant to Article 92, UCMJ (one of which was later dismissed);

one specification of committing indecent conduct pursuant to

Article 120, UCMJ; and one specification of impeding an

investigation pursuant to Article 134, UCMJ.1    These

specifications were referred to trial by general court-martial.

Trial defense counsel subsequently filed a motion to suppress

evidence obtained from Appellant’s cell phone and related

derivative evidence.    Upon conducting a preliminary hearing, the

military judge granted the defense motion and suppressed the

evidence.    Trial counsel immediately requested reconsideration

of the ruling, which the military judge upheld while providing

findings on the record.    Specifically, the military judge noted

in his findings that the Government “failed to satisfy its

burden as required under [Military Rule of Evidence (M.R.E.)]

311.”    He continued that the “evidence that is the result of the

cell phone analysis and all derivative evidence is inadmissible

and suppressed as there were repeated violations of the

1
  With the consent of both parties, oral argument was held at the
University of Arkansas School of Law in Fayetteville, Arkansas,
on October 22, 2013, as part of the Court’s Project Outreach.
                                   2
United States v. Wicks, No. 13-6004/AF


accused’s rights in that he had a reasonable expectation of

privacy in his phone which was stolen.”    Upon the Government’s

Article 62, UCMJ, appeal, the United States Air Force Court of

Criminal Appeals (CCA) vacated the military judge’s decision.

Appellant then filed his timely appeal to this Court.2

       This case presents a series of Fourth Amendment questions,

including some of first impression for this Court.    The first

question is whether Appellant possessed a reasonable expectation

of privacy in his cell phone.    The next question is whether

there was a Fourth Amendment search of Appellant’s cell phone

and, if so, whether the search was lawful.    The third and final

inquiry is whether the exclusionary rule should apply to the

evidence.

       Based on the analysis below, we hold that the military

judge did not err in concluding that the Government’s search of

Appellant’s cell phone violated Appellant’s reasonable

expectation of privacy, thus rendering the evidence obtained

from the cell phone inadmissible.




2
    The petition for grant of review was granted on this issue:

       Whether the Air Force Court of Criminal Appeals erred by
       finding law enforcement’s repeated warrantless searches of
       Appellant’s iPhone did not violate the Fourth Amendment.

    United States v. Wicks, 

(C.A.A.F. 2013) (order
    granting review).
                                  3
United States v. Wicks, No. 13-6004/AF


                            BACKGROUND

      Appellant was a military training instructor (MTI) assigned

to Joint Base San Antonio-Lackland, Texas.   His duties included

training new recruits.   While at the base, Appellant was

involved in a personal relationship with Technical Sergeant

(TSgt) Ronda Roberts, also a MTI assigned to Lackland.    In

November 2010, while Appellant was sleeping, TSgt Roberts viewed

text messages on his cell phone without his permission.     She

testified that she saw “disturbing text messages,” but the

record did not elaborate much further.   By December 2010, TSgt

Roberts and Appellant had ended their relationship.

      Several months later, in May 2011, TSgt Roberts took

Appellant’s cell phone from the Charge of Quarters (CQ) area

without his permission while Appellant was on duty.   She later

testified that she did this because she thought Appellant was

acting inappropriately and because she was angry with him.

Appellant noticed his cell phone was missing and tried to find

it.   Both Appellant and TSgt Roberts’s supervisor asked TSgt

Roberts if she had seen the cell phone, but she lied and

answered in the negative.   Appellant continued searching for his

cell phone and sent an e-mail to members of his squadron

alerting them to his missing cell phone.   Later that day, in the

privacy of her home, TSgt Roberts read through various text

messages and noticed several communications between Appellant

                                 4
United States v. Wicks, No. 13-6004/AF


and women whom she believed were trainees based on their

initials and pictures.   She testified that she believed they

were trainees based on their “faces look[ing] real familiar.”

TSgt Roberts also saw a sexually explicit video of a man

masturbating -- whom TSgt Roberts believed to be Appellant --

which was sent to a former trainee.

       TSgt Roberts did not tell anyone that she had stolen

Appellant’s phone and went on leave shortly thereafter.     Upon

returning from leave nearly three weeks later, TSgt Roberts

confronted Appellant with what she had seen on the cell phone

but without mentioning that she had stolen the cell phone from

him.   According to the testimony of TSgt Roberts, she advised

Appellant that she thought his behavior was inappropriate.    TSgt

Roberts stated that in response, Appellant acknowledged sending

text messages to recruits, but told her to “[g]et out of [his]

face.”

       On January 10, 2012, nearly eight months after TSgt Roberts

took Appellant’s cell phone and in response to a general inquiry

from the command regarding whether anyone had information on MTI

misconduct, Detective Rico from the Security Forces Office of

Investigations (SFOI) interviewed TSgt Roberts.   During this

interview, TSgt Roberts told Detective Rico she had evidence

that could prove Appellant had inappropriate relationships with

trainees.   Prior to this interview, SFOI did not suspect

                                  5
United States v. Wicks, No. 13-6004/AF


Appellant of engaging in MTI misconduct.   Although TSgt Roberts

did not supply the cell phone at that meeting, TSgt Roberts

provided verbal descriptions of the text messages she had seen.

For example, the military judge determined that TSgt Roberts

shared partial names of women -- Wade and Benoit -- with whom

she thought Appellant was having a relationship.   After this

first interview -- but before receiving the cell phone --

Detective Rico consulted with the base legal office.   She also

secured recruit flight rosters for the preceding five years to

search for potential trainees with the same last name or

initials as those mentioned by TSgt Roberts.   This was the first

of three times that Detective Rico sought advice from the legal

office.

     On January 11, 2012, TSgt Roberts provided a SIM card to

Detective Rico which Roberts represented to Detective Rico

contained information from Appellant’s phone that had been

downloaded from her iTunes account.   Detective Rico consulted

the legal office for a second time and sent the SIM card to the

Bexar County Sheriff’s Office for analysis.    However, the

analysis revealed that the SIM card did not contain any

information.   Detective Rico informed TSgt Roberts about this

development.   TSgt Roberts testified that Detective Rico then

urged TSgt Roberts to find the evidence and give it to her, and

that Detective Rico “put pressure on me to provide them

                                 6
United States v. Wicks, No. 13-6004/AF


evidence.”   On January 17, 2012, TSgt Roberts returned to SFOI

and provided a phone to Detective Rico.   According to Detective

Rico, TSgt Roberts represented that the phone belonged to an

unnamed airman but contained information downloaded from

Appellant’s cell phone via her iTunes account.

     After TSgt Roberts gave Detective Rico the cell phone, Rico

did not ask Roberts to show her the text messages she had

previously seen.    Instead, after receipt of the phone, Detective

Rico reviewed some text messages by scrolling through the cell

phone.   TSgt Roberts was not present during this search.

Detective Rico then turned the cell phone over to the Bexar

County Sheriff’s Office for analysis on January 18, 2012.     SFOI

verbally informed the Bexar County detective assigned to analyze

the cell phone that the search was a consent search.   However,

Detective Rico did not ask TSgt Roberts to complete paperwork

related to consent for search, nor did she seek a search

authorization.   At the request of SFOI, the Sheriff’s Office

“hit[] the entire phone,” extracting all the information and

copying it onto a disk.

     The Bexar County analysis indicated that Appellant’s

information was the only data on the cell phone.   At this point,

Detective Rico said she felt “uncomfortable” with the steps

taken and thought it “odd” that the phone only contained

Appellant’s data.   Detective Rico –- for the third time --

                                  7
United States v. Wicks, No. 13-6004/AF


consulted the legal office and informed them about the amount of

information on the cell phone.   According to Detective Rico,

there was still no discussion of a need for a search warrant.

Subsequently, SFOI sent Appellant’s cell phone to a third-party

vendor -- Global CompuSearch -- on March 28, 2012, for a more

comprehensive forensic analysis.

     Detective Rico also interviewed former trainees whom she

suspected had personal relationships with Appellant, based on

her interview of TSgt Roberts, and data from Appellant’s cell

phone from Bexar County.   Specifically, she interviewed Senior

Airman (SrA) Benoit.   The interview was conducted with the

benefit of text messages exchanged between Appellant and SrA

Benoit extracted from Appellant’s cell phone.   During the

interview, SrA Benoit confirmed what Detective Rico knew from

the text messages.   But SrA Benoit also testified that she had

not planned on disclosing or discussing the details of her

relationship with Appellant prior to Detective Rico’s interview.

She also indicated that Appellant had called her nine months

prior to the interview (circa May/June 2011) to tell her that

someone took his cell phone and to encourage her to deny that

she had any contact with Appellant after graduation, even though

she had maintained contact with Appellant for about two months

after graduation.



                                   8
United States v. Wicks, No. 13-6004/AF


     In November 2012, TSgt Roberts admitted that the cell phone

she provided to Detective Rico was actually Appellant’s cell

phone.   In response, Detective Rico advised Roberts of her

rights with reference to the cell phone theft.    Finally, in

February 2013, during the pendency of Appellant’s suppression

motion and at the request of trial counsel, Global CompuSearch

analyzed Appellant’s cell phone including searching over 45,000

text messages to extract the texts relevant to the

investigation.   Trial counsel used the results of this

examination to argue the Government’s motion for reconsideration

of the military judge’s initial suppression ruling.

     In summary and in accordance with the military judge’s

findings, there were three Government searches:   the search by

Detective Rico, the search by Bexar County, and the search by

Global CompuSearch.3   The first Government search of the cell


3
  In reviewing the record, we found a total of six searches of
Appellant’s cell phone data by various parties. The first
search occurred in November 2010 when TSgt Roberts examined
Appellant’s cell phone while he was sleeping and looked at the
contents of the cell phone. The military judge found that “TSgt
Roberts was acting in her private capacity at the time she
reviewed the phone.” Next, in May 2011, TSgt Roberts once again
searched Appellant’s cell phone after she stole it from him from
the CQ desk. Third, Bexar County searched Appellant’s SIM card
provided to them by Detective Rico on January 11, 2012. The
military judge concluded that Bexar County’s “analysis of the
SIM card revealed that no information was resident on the card.”
Fourth was Detective Rico’s search of Appellant’s cell phone
which she received from TSgt Roberts. The fifth search was on
January 18, 2012, when the Government sent the phone for
analysis by the Bexar County Sheriff’s Office. The sixth and
                                 9
United States v. Wicks, No. 13-6004/AF


phone occurred on January 17, 2012, when Detective Rico received

Appellant’s cell phone from TSgt Roberts.    In his findings, the

military judge noted that after TSgt Roberts left, Detective

Rico “turned on the cell phone and reviewed [the] text

messages.”   The military judge concluded that this review was

“not conducted while TSgt Roberts was present” nor did Detective

Rico “mirror the actions taken by TSgt Roberts.”   Accordingly,

the military judge found that Detective Rico “engaged in a

general search of the cell phone.”   The second Government search

was on January 18, 2012, when Bexar County conducted a

comprehensive analysis of the cell phone.    The military judge

also determined that these “results were used as a basis for

further computer forensic examination by Global CompuSearch and

used by SFOI personnel in conducting further investigation into

the accused.”   The third and final Government search was when

Global CompuSearch searched over 45,000 text messages in

February 2013 and provided this data -- at the behest of the

Government -- for use in its motion for reconsideration.

                        STANDARD OF REVIEW

     In an Article 62, UCMJ, petition, this Court reviews the

military judge’s decision directly and reviews the evidence in

the light most favorable to the prevailing party at trial.



final search was when the Government sent the phone to Global
CompuSearch.
                                10
United States v. Wicks, No. 13-6004/AF


United States v. Baker, 

, 287–88 (C.A.A.F. 2011).

“‘In reviewing a military judge’s ruling on a motion to

suppress, we review factfinding under the clearly-erroneous

standard and conclusions of law under the de novo standard.’”

(quoting United States v. Ayala, 

, 298

(C.A.A.F. 1995)).   We apply this standard when reviewing

evidentiary rulings under Article 62(b), UCMJ.   Therefore, on

mixed questions of law and fact, a military judge “abuses his

discretion if his findings of fact are clearly erroneous or his

conclusions of law are incorrect.”    

.   The

abuse of discretion standard calls “‘for more than a mere

difference of opinion.   The challenged action must be arbitrary

. . . , clearly unreasonable, or clearly erroneous.’”    United

States v. White, 

, 239 (C.A.A.F. 2010) (quoting

United States v. Lloyd, 

, 99 (C.A.A.F. 2010))

(internal quotation marks omitted).

                             ANALYSIS

A.   The Fourth Amendment and Core Principles

      Our analysis starts with the text of the Fourth Amendment.

The Fourth Amendment of the U.S. Constitution protects “the

right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures.”   U.S. Const. amend. IV.   Whether a search is

reasonable depends, in part, on whether the person who is

                                11
United States v. Wicks, No. 13-6004/AF


subject to the search has a subjective expectation of privacy in

the object searched and that expectation is objectively

reasonable.   Katz v. United States, 

, 361 (1967)

(Harlan, J., concurring); see also United States v. Runyan, 

, 457 n.9 (5th Cir. 2001).    In Katz, for example, the

Supreme Court recognized that the Fourth Amendment protects

privacy interests outside the home and directly associated with

the person, in that case, a person taking bets in a public

telephone booth.   

.

     The Fourth Amendment further provides that “no Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”   U.S. Const.

amend. IV.    A search that is conducted pursuant to a warrant is

presumptively reasonable whereas warrantless searches are

presumptively unreasonable unless they fall within “a few

specifically established and well-delineated exceptions.”    

.   “Where the government obtains evidence in a

search conducted pursuant to one of these exceptions, it bears

the burden of establishing that the exception applies.”    United

States v. Basinski, 

, 833 (7th Cir. 2000); see also

M.R.E. 311; Coolidge v. New Hampshire, 

, 455 (1971)

(“[T]he burden is on those seeking the exemption to show the

need for it.”) (quotation marks and citations omitted).    See

                                 12
United States v. Wicks, No. 13-6004/AF


generally 42 Geo. L.J. Ann. Rev. Crim. Proc. 46–47 & nn. 106-14

(2013) (surveying warrantless search and seizure cases in the

Supreme Court and federal courts of appeals); M.R.E. 314.    In

this case, the Government proceeded without a warrant or search

authorization.

B.   Cell Phones and Reasonable Expectations of Privacy

      Applying these principles, we hold that the military judge

did not err as a matter of law in determining that Appellant had

a reasonable expectation of privacy in his cell phone and that

his expectation was objectively reasonable.   To begin, every

federal court of appeals that has considered the question of

cell phone privacy has held there is nothing intrinsic about

cell phones that place them outside the scope of ordinary Fourth

Amendment analysis.   See, e.g., United States v. Wurie, 

, 8–9 (1st Cir. 2013), cert. granted, 

(U.S.

Jan. 17, 2014) (No. 13-212); United States v. Flores–Lopez, 

, 805-06 (7th Cir. 2012); United States v. Murphy, 

, 411 (4th Cir. 2009); United States v. Zavala, 

, 577 (5th Cir. 2008); see also United States v. Yockey, No.

CR09-4023-MBW, U.S. Dist. LEXIS 67259, at *7-*8, 

, at *3 (N.D. Iowa Aug. 3, 2009) (citing federal

appellate and district courts in stating that “[a] search

warrant is required to search the contents of a cell phone

unless an exception to the warrant requirement exists”).

                                13
United States v. Wicks, No. 13-6004/AF


      This conclusion is unremarkable.   From the perspective of

Katz, a cell phone used as a communications device is like a

portable phone booth albeit with modern media capacity.   Modern

cell phones can also serve as an electronic repository of a vast

amount of data akin to the sorts of personal “papers[] and

effects” the Fourth Amendment was and is intended to protect.

“The papers we create and maintain not only in physical but also

in digital form reflect our most private thoughts and

activities.”   United States v. Cotterman, 

, 957 (9th

Cir. 2013).    Today, individuals “store much more personal

information on their cell phones than could ever fit in a

wallet, address book, briefcase, or any of the other traditional

containers.”   

.

      Therefore, cell phones may not be searched without probable

cause and a warrant unless the search and seizure falls within

one of the recognized exceptions to the warrant requirement.

See 

; see also 

–06.   Here no exception applied.   Thus, the question becomes

did TSgt Roberts’s search of Appellant’s cell phone frustrate

Appellant’s Fourth Amendment right of privacy such that one or

more of the subsequent Government searches were lawful?

C.   Private Search Doctrine and Its Limits

      Before this Court, the Government argues that the military

judge erred in applying the private search doctrine to this

                                 14
United States v. Wicks, No. 13-6004/AF


case.    The Government does not dispute that TSgt Roberts acted

in a private capacity when she searched Appellant’s phone.

However, it argues, as the CCA concluded, that subsequent

Governmental searches did not materially exceed the scope of the

original private search and that any remaining expectation of

Appellant’s privacy was not violated by the Government’s

subsequent search because TSgt Roberts’s private search had

already frustrated that expectation.

        The private search doctrine is based on the well-

established principle that the Fourth Amendment and its

antecedent case law-derived search and seizure rules do not

apply to searches conducted by private parties.    United States

v. Jacobsen, 

, 113-14 (1984).     As such, once a

private party has conducted a search, any objectively reasonable

expectation of privacy a person may have had in the material

searched is frustrated with respect to a subsequent government

search of the same material.    See United States v. Reister, 

, 415–16 (C.A.A.F. 1996) (concluding that government was

not restrained from using information obtained from a private

party’s search of the appellant’s logbook and notes because the

original expectation of privacy was frustrated); United States

v. Portt, 

, 334 (C.M.A. 1986) (upholding government’s

warrantless search of an unlocked locker as valid where private

party had already searched contents).

                                  15
United States v. Wicks, No. 13-6004/AF


     However, there are two essential limits to this doctrine.

First, the government cannot conduct or participate in the

predicate private search.   Specifically, “[t]o implicate the

Fourth Amendment in this respect, there must be ‘clear indices

of the Government’s encouragement, endorsement, and

participation’ in the challenged search.”    United States v.

Daniels, 

, 71 (C.A.A.F. 2004) (quoting 

–16).   There is no bright line test as to when the

government involvement goes too far, rather, courts have relied

on the particular facts of particular searches to make this

determination.   See United States v. Steiger, 

,

1045 (11th Cir. 2003) (“A search by a private person does not

implicate the Fourth Amendment unless he acts as an instrument

or agent of the government.”); United States v. Jarrett, 

, 344 (4th Cir. 2003); United States v. Hall, 

, 993 (7th Cir. 1998).

     The second limitation on the private search doctrine

pertains to the scope of any subsequent Government search.      The

government may not exceed the scope of the search by the private

party, including expansion of the search into a general search.

, 117-18.   This rule is based on the

theory behind the private search doctrine.   Once the

“frustration of the original expectation of privacy occurs, the

Fourth Amendment does not prohibit governmental use of the now-

                                16
United States v. Wicks, No. 13-6004/AF


nonprivate information” unless the government uses information

for which the expectation of privacy has not already been

frustrated.   

  Thus, the “additional invasions of

respondents’ privacy by the government agent must be tested by

the degree to which they exceeded the scope of the private

search.”   

     Applying this to modern computerized devices like cell

phones, the scope of the private search can be measured by what

the private actor actually viewed as opposed to what the private

actor had access to view.   See generally Orin S. Kerr, Searches

and Seizures in a Digital World, 119 Harv. L. Rev. 531, 548,

556–57 (2005).

     This in turn depends partly on how and, perhaps more

crucially, whether one analogizes a cell phone to a discrete

container.    We discuss the container analogy in greater detail

in the following section because it formed the basis of the

CCA’s ruling.    Nevertheless, it bears mentioning here as well

because the scope of a private party’s search can depend on how

one categorizes the item being searched.    Put another way, if

one likens turning on a cell phone to opening a container, then

everything within the cell phone would lose its privacy

protections where the private party merely turned the phone on

before turning it over to the government.   Accordingly, the



                                 17
United States v. Wicks, No. 13-6004/AF


scope would not be dependent on what was actually viewed but

rather what the private actor could have viewed.

     In the present case, however, the military judge correctly

concluded that what was actually viewed by TSgt Roberts in her

search of Appellant’s cell phone mattered when determining the

scope of subsequent searches.   And because the military judge

was unable to determine whether Detective Rico limited her

search of Appellant’s cell phone to the information that TSgt

Roberts had previously discovered during her private search, the

judge concluded that the Government failed to meet its burden,

thus excluding the evidence.    Specifically, noting that

“Detective Rico was limited in being able to go only as far as

the private search of Tech Sergeant Roberts,” the military judge

concluded that there was “no evidence before this court as to

what Tech Sergeant Roberts actually saw.”   Thus, in the absence

of such information, the military judge found that Detective

Rico engaged in a “general search at whatever looked

interesting” because in reviewing the texts, Detective Rico “did

not limit herself to what Tech Sergeant Roberts did,”

particularly as TSgt Roberts was not present during Detective

Rico’s search.   The military judge further concluded that the

Government failed to indicate that they were “acting to respect

[Appellant’s] constitutional rights” and that this “disregard

occurred during the initial search of the SIM card . . . and

                                 18
United States v. Wicks, No. 13-6004/AF


again when the cell phone was examined by the Bexar County

Sheriff’s Office and later further examined by Global

Compusearch.”   In fact, the military judge took particular

exception to the Government authorizing Global CompuSearch to

analyze and prepare the report on the contents of Appellant’s

cell phone after his initial ruling that the previous Government

searches of the cell phone were in violation of the Fourth

Amendment.   This search covered over 45,000 texts which were

later collected, sorted, and prepared for presentation and

covered not only the text location on the cell phone but also

areas where the internal processing inadvertently stored

responsive information.   Further, the information presented

included texts that would have been viewable by a person in cell

phone format as well as “deleted items which would not have been

viewable to the normal user.”

     Thus, in both a material qualitative and quantitative

manner, the Government exceeded the scope of the initial private

search.   Nor did the Government meet its burden to demonstrate

by a preponderance of the evidence that the search of the cell

phone was limited to the information provided to the agent by

the private person.   “[T]he evidence is unclear as to the extent

that Det. Rico’s general search may have exceeded the private

search conducted by TSgt Roberts.”   United States v. Wicks, slip

op. at 3 (A.F. Trial Judiciary Feb. 20, 2013) (finding Detective

                                19
United States v. Wicks, No. 13-6004/AF


Rico “engaged in a general search”).     And although Appellant’s

expectation of privacy had been frustrated by TSgt Roberts

viewing a few text messages and the accompanying video, it was

not eliminated altogether; that did not happen until the

Government sent the phone for forensic analysis by the Bexar

County Sheriff’s Office and then by Global CompuServe, thus

breaching the remaining portion of Appellant’s privacy that had

not been frustrated.

      These findings support the military judge’s conclusion of

law that the Government failed to meet its burden that the

initial search mirrored TSgt Roberts’s private search.    Further,

the Government’s subsequent searches not only exceeded the scope

but actually eliminated Appellant’s remaining expectation of

privacy entirely.

D.   Assessing the Container Analysis

      As referenced in the preceding section, because the CCA

overruled the military judge on the basis of the United States

Court of Appeals for the Fifth Circuit’s Runyan container

analysis, we address it here briefly.    In Runyan, the Fifth

Circuit determined “that the police [did] not exceed the scope

of a prior private search when they examine[d] particular items

within a container that were not examined by the private

searchers.”   

.    There, the “containers”

referenced by the court were the disks the private party had

                                20
United States v. Wicks, No. 13-6004/AF


searched and the particular “items” were files the private party

had not viewed on the disks.    

Fifth

Circuit analogized the previously viewed disks to containers

that had already been opened.    

analysis

was applied in United States v. Simpson, where the United States

Court of Appeals for the Eleventh Circuit concluded the

government did not exceed the prior private search even though

the subsequent government search was a more thorough and time-

consuming search of a box containing pornographic videos and

magazines.    United States v. Simpson, 

, 610 (11th

Cir. 1990).   This is because the “box’s contents had already

been examined, their illicit character had been determined, and

they were open for viewing” by the time government agents had

arrived at the scene.   

Bowman, the United States

Court of Appeals for the Ninth Circuit held a government agent’s

search “permissible, and constitutional, to the extent that it

mimicked the private search” conducted by the manager of a

storage company.   United States v. Bowman, 

, 963

(9th Cir. 2000).

     Here, the CCA found that the military judge “incorrectly

interpreted the law when he held that Detective [Rico’s] search

had to exactly mirror TSgt Roberts’s search in order to be

lawful.”   United States v. Wicks, No. ACM 2013-08, 2013 CCA

LEXIS 621, at *15-*16, 

, at *5 (A.F. Ct. Crim.

                                  21
United States v. Wicks, No. 13-6004/AF


App. June 24, 2013) (unpublished).   Instead, the CCA concluded

that Detective Rico’s viewing of the cell phone was “analogous

to examination of the computer disks in Runyan” where the cell

phone and its contents were “akin to a ‘closed container.’”

Wicks, 2013 CCA LEXIS 621, at *16, 

at *5.     In

its brief before this Court, the Government similarly analogizes

Appellant’s cell phone to a singular closed container, i.e., one

of the disks searched by the private parties in Runyan.     In so

doing, it would treat all the data contained on Appellant’s cell

phone as derivative of the same container.    Because TSgt Roberts

frustrated Appellant’s expectation of privacy by reading some

texts -- thereby opening the container -- the Government argues,

she frustrated the expectation of privacy in all the texts, and

by that measure any other cell phone content.   Thus, the

Government contends the subsequent, more thorough analyses were

valid, as in Runyan.

     Assuming without deciding that the Runyan court was correct

in determining that the “container” was the entire computer

disk, we nonetheless do not find the CCA’s reliance on the

Runyan analysis persuasive in light of the facts of this case

and this particular phone.   The problem with applying

“container” metaphors is that modern computer technologies, such

as cell phones and laptops, present challenges well beyond

computer disks, storage lockers, and boxes.   Because of the vast

                                22
United States v. Wicks, No. 13-6004/AF


amount of data that can be stored and accessed, as well as the

myriad ways they can be sorted, filed, and protected, it is not

good enough to simply analogize a cell phone to a container.

Moreover, modern cell phones have the capability to be linked to

one’s bank account, personal calendar, e-mails, financial

portfolios, and home security systems.      See 

; Charles E. MacLean, But, Your Honor, a Cell Phone is Not

a Cigarette Pack:    An Immodest Call for a Return to the Chimel

Justifications for Cell Phone Memory Searches Incident to Lawful

Arrest, 6 Fed. Cts. L. Rev. 37, 60 (2012).      This is far more

expansive than mere CDs or cardboard boxes.      In fact, “[t]he

potential invasion of privacy in a search of a cell phone is

greater than in a search of a ‘container’ in a conventional

sense” because a cell phone can provide access to a “vast body

of personal data.”   

.

     As such, the searches in the present case differ from the

searches in Runyan and Simpson.    In both of those cases, the

items searched were static storage containers unlike a cell

phone that can be linked to a vast amount of personal data, some

readily accessible and some not.       And unlike Jacobsen -- where

the contents of the container were easily exposed -- the record

reflects that the contents of Appellant’s cell phone were not

readily exposed or subject to examination.      Instead, the

Government had to send the cell phone to two different forensic

                                  23
United States v. Wicks, No. 13-6004/AF


experts to extract and sort data and in doing so gathered a

universe of information, including contacts.    Further, contrary

to Jacobsen, where the Supreme Court concluded there was no

“‘private’ fact” at risk of being revealed by a chemical test

that merely confirmed or negated the presence of one chemical

component, 

, in the present case the

military judge found that the Government generally scrolled

through a number of private texts.     Later, the Government

searched over 45,000 texts, including six deleted messages that

would not have been viewable by the private actor.    Unlike

Jacobsen, many “private facts” of the Appellant were, in fact,

revealed.

        Thus, on the basis of the record in this case and with

respect to this particular phone, we disagree with the CCA’s

application of the Runyan container analysis, noting that the

Government’s subsequent search of Appellant’s cell phone was

sufficiently distinct from the Runyan containers.     In doing so,

we conclude that the military judge did not abuse his discretion

in finding that the Government failed to carry its burden that

their searches did not exceed the scope of TSgt Roberts’s

private search.    As a final point, we now consider whether the

military judge erred in applying the exclusionary rule to this

case.



                                  24
United States v. Wicks, No. 13-6004/AF


E.   Exclusionary Rule and the Inevitable Discovery Exception

      Having determined that the military judge did not err in

finding the Government exceeded the scope of TSgt Roberts’s

private search in the conduct of its subsequent searches, we now

consider whether the military judge erred in applying the

exclusionary rule to this case.

      The exclusionary rule is a judicially created remedy for

violations of the Fourth Amendment.    Weeks v. United States, 

(1914), overruled on other grounds by Mapp v. Ohio, 

(1961).   The rule applies to evidence directly obtained

through violation of the Fourth Amendment as well as evidence

that is the indirect product or “fruit” of unlawful police

activity.   Wong Sun v. United States, 

, 488 (1963).

“[S]uppression is not an automatic consequence of a Fourth

Amendment violation,” but turns on the applicability of specific

exceptions as well as the gravity of government overreach and

the deterrent effect of applying the rule.    United States v.

Herring, 

, 137 (2009).     Evidence that would

otherwise be suppressed is admissible if it meets a limited

number of exceptions to the exclusionary rule, such as (1)

evidence can be derived from an independent source; (2) it has

an “attenuated link to the illegally secured evidence”; or (3)

it “inevitably would have been discovered during police

investigation without the aid of the illegally obtained

                                  25
United States v. Wicks, No. 13-6004/AF


evidence.”   

(quoting United States v.

Miller, 

, 995 (5th Cir. 1982) (internal citations

and quotation marks omitted)).    See also M.R.E. 311(b)(2).

     We turn first to inevitable discovery.   For this to apply

in this case, the Government had to demonstrate by a

preponderance of the evidence that “when the illegality

occurred, the government agents possessed, or were actively

pursuing, evidence or leads that would have inevitably led to

the discovery of the evidence” in a lawful manner.   United

States v. Dease, 

, 122 (C.A.A.F. 2012) (quoting

United States v. Kozak, 

, 394 (C.M.A. 1982)).

“[M]ere speculation and conjecture” as to the inevitable

discovery of the evidence is not sufficient when applying this

exception.   United States v. Maxwell, 

, 422 (C.A.A.F.

1996).   This exception is only applicable “[w]hen the routine

procedures of a law enforcement agency would inevitably find the

same evidence.”    United States v. Owens, 

, 204

(C.A.A.F. 1999).   Moreover, the inevitable discovery doctrine

“‘cannot rescue evidence obtained via an unlawful search simply

because probable cause existed to obtain a warrant when the

government presents no evidence that the police would have

obtained a warrant.’”   

(Baker, J.,

concurring in the result) (quoting United States v. Allen, 

, 842 (4th Cir. 1998)).

                                  26
United States v. Wicks, No. 13-6004/AF


     In the present case, the Government argues that it would

have been able to determine the trainees with whom Appellant had

an inappropriate relationship by using the information provided

by TSgt Roberts during the first interview and that these names

alone would have inevitably led the Government to the text

messages subsequently found on Appellant’s cell phone.   This may

be so.   But the military judge found that the Government did not

meet its burden of showing such an inevitable discovery.    The

military judge also concluded that he could not determine

whether the text messages seen by Detective Rico were the same

as those seen by TSgt Roberts.   Nor did the military judge, in

his findings, indicate whether the number of messages seen by

Detective Rico between Appellant and Wade and Appellant and

Benoit paralleled those seen by TSgt Roberts or varied in a

legally significant manner.

     In addition, the military judge concluded that “the

Government made no effort to secure a warrant or even explore

the possible ramifications of searching a phone which law

enforcement was clearly on notice contained personal information

of the accused and was unlawfully taken.”   Although Detective

Rico dutifully consulted with the legal office, no efforts were

made to secure search authority even when Bexar County officials

inquired about the basis for conducting an extraction.   The

military judge continued that “the Government has not met its

                                 27
United States v. Wicks, No. 13-6004/AF


burden of showing that the multiple, unlimited, general searches

and examinations of the cell phone would have been inevitably

discovered by lawful means.”   Instead, the Government proceeded

in conducting multiple warrantless searches:   first of the SIM

card, then of the cell phone by the Bexar County Sheriff’s

Office, and finally of the phone by Global CompuSearch.

     The record, to the extent it is developed, supports these

conclusions.   Because the record does not indicate what

Detective Rico reviewed and the extent to which it mimicked TSgt

Roberts’s own review, we cannot know the universe of what the

Government may have inevitably discovered in the course of

investigation absent the additional searches of Appellant’s cell

phone.    Instead, the record reflects that the Government’s next

investigative step following Rico’s review of the phone was to

send the phone for additional search and analysis.   Nor does the

Government present compelling evidence that they would have

sought a warrant; on the contrary, Detective Rico conceded that

it was not her practice to obtain a search authorization.

Further, on three separate occasions Detective Rico consulted

the legal office without subsequently seeking a search

authorization.   Finally, there is no indication Detective Rico

was independently pursuing leads from her interview of TSgt

Roberts without relying on or benefiting from the cell phone

search.   Detective Rico did gather prior recruit rosters, but

                                 28
United States v. Wicks, No. 13-6004/AF


she did not contact or interview prior recruits before first

gathering and reviewing the cell phone search data.     On this

record, the Government has not shown that the military judge

erred in concluding that the Government did not meet its burden

of demonstrating that the routine procedures of the law

enforcement agency would inevitably find the same evidence.

        In the absence of the inevitable discovery exception, we

turn to the military judge’s decision to apply the exclusionary

rule.    The exclusionary rule “applies only where it ‘result[s]

in appreciable deterrence’” for future Fourth Amendment

violations and where the “benefits of deterrence must outweigh

the costs.”    

(internal citations

omitted).

        Here, three factors favor exclusion.   First, the

Government’s search of Appellant’s cell phone exceeded TSgt

Roberts’s private search.    Where the military judge found that

Roberts’s search was limited to a few texts, photographs, and

one video, the Government searches included tens of thousands of

text images, including some deleted texts that were not -- and

could not have been -- viewed by TSgt Roberts.     Second, the

Government conducted its searches in reliance upon legal advice.

Three times Detective Rico consulted the relevant legal office

with probable cause in hand, and three times the Government

proceeded to search Appellant’s cell phone without benefit of a

                                  29
United States v. Wicks, No. 13-6004/AF


search authorization.   Further, Detective Rico testified that it

was not her practice to seek search authorization in such

contexts.   Finally, the Government ordered the most exhaustive

analysis of Appellant’s cell phone during trial while the issue

of Appellant’s Fourth Amendment rights was being litigated

before the military judge.4

     As a result, we do not take issue with the military judge’s

decision to apply the exclusionary rule to the direct and

indirect evidence that he determined to be derived from the

Government’s unlawful searches of Appellant’s cell phone.

                              CONCLUSION

     We conclude that the military judge did not abuse his

discretion in finding that the Government failed to carry its

burden to show that the Government searches did not exceed the

scope of the private search.    As such, we hold that the military

judge did not err in excluding the evidence obtained from the

cell phone as a result of the Government’s searches.

4
  As an additional matter, the Military Rules of Evidence
proscribe that evidence obtained from the government’s unlawful
search or seizure is inadmissible if two conditions are met:
(1) the accused makes a timely motion to suppress and (2) the
accused had a reasonable expectation of privacy, a legitimate
interest in the property seized, or other legal grounds to
object. M.R.E. 311(a)(1)-(2). Here, Appellant made a timely
motion, meeting the first condition. And Appellant had a
reasonable expectation of privacy as well as a legitimate
interest in his cell phone. On this interlocutory record, both
conditions are met and the evidence obtained from the
Government’s search is inadmissible.

                                  30
United States v. Wicks, No. 13-6004/AF


Accordingly, the decision of the United States Air Force Court

of Criminal Appeals is reversed and the record of trial is

returned to the Judge Advocate General of the Air Force for

further proceedings.




                               31
United States v. Wicks, No. 13-6004/AF


     STUCKY, Judge (concurring in part and dissenting in part):

     I concur that the Government’s successive searches,

forensic and otherwise, of Appellant’s iPhone clearly exceeded

the scope of the original private search, and that the results

of those searches must be excluded from evidence.   While the

full extent of the private search is not clear, the military

judge found that it revealed text messages from “D. Wade” and

“Benoit.”   United States v. Wicks, __ M.J. __, __ (6) (C.A.A.F.

2014).   I believe that the Government has carried its burden of

showing that these messages were within the scope of the initial

private search, and I would hold that they are therefore

admissible at trial.

     In all other respects, I concur in the majority opinion.