United States v. Strong, (2024)

The Court and I agree on a key proposition in this case: the legal sufficiency of the evidence turns on whether the alleged misconduct—erasing the digital content of a cell phone—occurred after government agents had “seized” the phone and its contents. This proposition flows directly from the text of Article 131e, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 931e (2018), under which Appellant was found guilty of “[p]revention of authorized seizure of property.” By its terms, the article concerns only obstructive acts committed while government agents “are seizing, are about to seize, or are endeavoring to seize property.” Misconduct occurring after government agents have already seized the property cannot violate Article 131e, UCMJ. Whether such misconduct might violate some other punitive article is not at issue in this appeal.

The Court and I, however, disagree about the test for when a “seizure” occurs. The Court holds today that a seizure is not complete until “a person authorized to seize certain property has possession of the property and exercises dominion over it to the exclusion of all others.” (Emphasis added.) I cannot agree with this holding because it is contrary to long-standing precedent establishing that a seizure occurs “when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Hahn, 44 M.J. 360, 362 (C.A.A.F. 1996) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). With its new holding, the Court has fundamentally transformed the definition of what constitutes a “seizure” so that, in determining whether a seizure occurred, the Court no longer focuses on whether government agents have interfered with an individual's possession of property but instead focuses on whether government agents have acquired the same exclusive possession as the property owner. This is an unwarranted departure from precedent that significantly raises the bar for what constitutes a seizure. I therefore respectfully dissent.

I. Analysis

Article 131e, UCMJ, provides:

Any person subject to this chapter who, knowing that one or more persons authorized to make searches and seizures are seizing, are about to seize, or are endeavoring to seize property, destroys, removes, or otherwise disposes of the property with intent to prevent the seizure thereof shall be punished as a court-martial may direct.

The specification at issue in this case alleged that Appellant violated Article 131e, UCMJ, “[i]n that [she] did, at or near West Point, New York, on or about 7 June 2019, with intent to prevent its seizure, obstruct, obscure, and dispose of the digital content of her cellphone.”

Appellant contends that the Government failed to prove that the erasure of the digital content occurred when agents were “seizing, [were] about to seize, or [were] endeavoring to seize property.” She argues that the erasure happened after the seizure had already occurred and that the seizure occurred either when the agents took possession of her phone or when they placed it in a Faraday bag 1 to prevent it from receiving signals. Appellant contends that the agents had effectively seized her digital data when they had secured her physical phone and, thus, that the agents were no longer seizing, about to seize, or endeavoring to seize the digital content of the phone.

I agree with Appellant's position based on this Court's precedent in two decisions: Hahn, 44 M.J. 360, and United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. 2016). Both of these cases rely on the Supreme Court's decision in Jacobsen, 466 U.S. 109.

In Hahn, the appellant removed stolen property from a house after learning that government agents were planning to search the house. 44 M.J. at 361. The appellant pleaded guilty to an enumerated offense under Article 134, UCMJ, that was very similar to the offense now codified in Article 131e, UCMJ. Id. (citing Manual for Courts-Martial, United States pt. IV, para. 103 (1995 ed.)). On appeal, the appellant attacked the providence of his plea, arguing that he did not prevent government agents from “seizing or [interfere when they] were about to seize or ․ endeavoring to seize” the property. Id. at 361-62 (internal quotation marks omitted). He asserted that the government agents had already effectively seized the property when they had both located the property and had the opportunity to take physical custody of it before it was removed by the appellant. Id. The Court rejected this argument, holding that a “seizure” of property occurs “when there is some meaningful interference with an individual's possessory interests in that property.” Id. at 362 (emphasis added) (internal quotation marks omitted) (quoting Jacobsen, 466 U.S. at 113). The Court decided that such interference had not occurred because the government had not “even touched the property in question” and because of “the ease with which [the] appellant was able to gather up the property and move it to his car.” Id.

Applying the test in Hahn to this case, I conclude that the Government agents “seized” Appellant's cell phone and its digital content when they took the physical cell phone from her possession, because taking the cell phone meaningfully interfered with her possessory interest. “A person's ‘possessory interest’ in property ‘derives from rights in property delineated by the parameters of law.’ ” United States v. Visser, 40 M.J. 86, 90 (C.M.A. 1994) (quoting United States v. LaFrance, 879 F.2d 1, 7 (1st Cir. 1989)). One such right is “[t]he right to exclude,” which is “ ‘one of the most treasured’ rights of property ownership.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 149 (2021) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982)). In addition, “[p]ossession ․ involves the exercise of dominion and control over the thing allegedly possessed.” United States v. Myers, 20 C.M.A. 269, 270-71, 43 C.M.R. 109, 110-11 (1971) (citing United States v. Romano, 382 U.S. 136 (1965)). “By its very nature possession is unique to the possessor.” Id. at 271, 43 C.M.R. at 111 (emphasis added) (internal quotation marks omitted). Thus, a seizure occurs when the government “deprives the individual of dominion over his or her person or property.” Horton v. California, 496 U.S. 128, 133 (1990) (emphasis added). That is what occurred in this case before the phone was wiped. And although Appellant later appears to have found a way to erase the phone's data remotely, she could not use the phone or freely access its contents using the cell phone's screen as she could have done if she still had possession of the phone. Thus, both her possession of the physical phone—which neither the Government nor the Court denies was seized—and its digital data were seized before the alleged misconduct occurred.

Although the Court cites Hahn in its opinion, the Court departs from Hahn’s holding that a seizure of property occurs “when there is some meaningful interference with an individual's possessory interests in that property.” 44 M.J. at 362. The Court instead adopts a new standard, contrary to precedent, that a seizure occurs only “when a person authorized to seize certain property has possession of the property and exercises dominion over it to the exclusion of all others.” (Emphasis added.) In so doing, the Court turns on its head the test of when a seizure occurs. The test established in Hahn focuses on whether the government has interfered with an individual's possession. The Court's new test improperly focuses instead on whether the government has acquired so great a possessory interest in property that no one else can interfere with it. The Court thereby seemingly creates an unobtainable seizure standard because the government does not acquire the same property interest as the property owner when it takes possession of property for law enforcement purposes. 2

Second, in Hoffmann, the accused initially consented to a search of his quarters but withdrew his consent shortly after investigators started gathering his “digital media,” which included a laptop. 3 75 M.J. at 123. The appellant withdrew his consent while the physical media was still sitting in the room. Id. Although investigators terminated the search, they then removed the digital media items they had started collecting during the search. Id. A dispute arose about whether the investigators had already seized the media before the appellant withdrew his consent while the media was still sitting in the room, or if they had not yet seized the media until they removed the physical items from the room after the appellant withdrew his consent. Id. at 123-24. Applying the test in Hahn, the Court held that the digital media had not been seized before the appellant withdrew his consent, explaining: “While the agents may have moved the media to a central location in the room, they did not meaningfully interfere with it until they removed it.” Id. at 124 (emphasis added). Accordingly, the seizure occurred after the appellant had withdrawn his consent. Id. Notably, throughout its opinion, the Court made no distinction between the seizure of the physical computer equipment and its digital content.

In this case, the seizure of Appellant's phone went far beyond the “inconsequential interference” that occurred in Hoffmann. Id. (citation omitted) (internal quotation marks omitted). And like the Court in Hoffmann, I see no legal distinction in this case between the seizure of Appellant's phone and the digital content of the phone. Accordingly, based on Hahn and Hoffmann, I would conclude that the seizure of both the phone and the data was complete before the phone was remotely wiped.

Two remaining points require attention. First, the Government argues that a seizure of the digital content could not occur “until the law enforcement agents were able to extract the contents of Appellant's cell phone,” which had not happened before the cell phone was wiped. The Government, however, cites no precedent in support of this proposition and does not attempt to reconcile it with the Court's analysis in Hoffmann. The Government's proposal that a seizure does not occur until digital content is extracted, if adopted, would also have sweeping consequences. Although this case involves digital content, the logic of the proposed test would suggest that a recording of a wiretap does not constitute a seizure until agents listen to the recording. This is contrary to Supreme Court precedent. See Katz v. United States, 389 U.S. 347, 353 (1967) (recording oral statements is a seizure). For these reasons, I cannot accept the Government's position.

The second point concerns the rule of lenity, which the dissenting opinion in the United States Army Court of Criminal Appeals briefly addressed. See United States v. Strong, 83 M.J. 509, 519 n.16 (A. Ct. Crim. App. 2023) (Arguelles, J., dissenting). This rule generally provides that “criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused.” United States v. Thomas, 65 M.J. 132, 135 n.2 (C.A.A.F. 2007). For the reasons stated above, I would not find any ambiguity in the application of Article 131e, UCMJ, to digital data. But if the disagreement between the Court and me suggests that the seizure of digital content in this case makes application of the words of Article 131e, UCMJ, and this Court's precedent effectively ambiguous, then the Court should resolve the ambiguity in Appellant's favor using the rule of lenity.

II. Conclusion

The evidence in this case was legally insufficient to show that Appellant's conduct violated Article 131e, UCMJ. Whether Appellant's conduct might have violated some other punitive article is not an issue before this Court. I therefore would set aside the finding that Appellant is guilty of violating Article 131e, UCMJ, and remand the case for a sentence reassessment or a new hearing on sentencing.

FOOTNOTES

1.   The investigating agents do not deny that they placed the phone in a bag, but testimony revealed that the Faraday bag they used was faulty.

2.   The new “dominion ․ to the exclusion of all others” test is not only higher than Hahn’s “meaningful interference” test, but it is so high that it is seemingly impossible to satisfy. For example, suppose the government takes physical evidence from the accused and locks it in a government building, but the accused is still able to destroy the evidence by burning down the building. See United States v. Mix, 35 M.J. 283, 289 (C.M.A. 1992) (concerning an appellant who was charged with burning down the staff judge advocate's office and courtroom, presumably to destroy evidence). If the test is “dominion ․ to the exclusion of all others,” the conclusion must be that the physical evidence locked in the government building, which was physically inaccessible to the accused, had not yet been seized because accused could still destroy it.

3.   The opinion of the Court of Criminal Appeals in this case clarified that the “digital media” included a laptop, thumb drives, and DVDs. United States v. Hoffmann, 74 M.J. 542, 546 (N-M. Ct. Crim. App. 2014), rev'd, 75 M.J. 120 (C.A.A.F. 2016).

Judge MAGGS, dissenting.