              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                           Misc. Dkt. No. 2016-13
                          ________________________

                            UNITED STATES
                                  Appellant
                                      v.
                           Andrew I. LUTCZA
           Airman First Class (E-3), U.S. Air Force, Appellee
                          ________________________

      Appeal by the United States Pursuant to Article 62, UCMJ
                         Decided 18 January 2017
                          ________________________

Military Judge: Ryan A. Hendricks.
SPCM convened at Francis E. Warren Air Force Base, Wyoming.
For Appellant: Captain Matthew L. Tusing, USAF (argued); Colonel
Katherine E. Oler, USAF; and Gerald R. Bruce, Esquire.
For Appellee: Captain Patricia Encarnación Miranda, USAF (argued);
and Colonel Jeffrey G. Palomino, USAF.
Before BENNETT, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge JOHNSON delivered the opinion of the court, in which Judges
BENNETT and SPERANZA joined.
                          ________________________

                PUBLISHED OPINION OF THE COURT
                          ________________________

JOHNSON, Judge:
    On 11 October 2016, counsel for the Government filed an appeal under Ar-
ticle 62, UCMJ, 10 U.S.C. § 862, asserting that the military judge erred as a
matter of law by suppressing the contents of a digital copy of data from Appel-
lee’s cell phone. The Government asserts that Appellee did not have a reason-
able expectation of privacy in the digital copy of his cell phone data created
               United States v. Lutcza, Misc. Dkt. No. 2016-13


from the original with Appellee’s consent. We conclude the military judge
abused his discretion and thus grant the Government’s appeal.

                              I. BACKGROUND
   Appellee is charged with one specification of making a false official state-
ment and one specification of wrongfully using lysergic acid diethylamide
(LSD), in violation of Articles 107 and 112a, UCMJ, 10 U.S.C. §§ 907, 912a.
Trial defense counsel filed a pretrial motion to suppress data extracted from
Appellee’s cell phone and all derivative evidence therefrom. The special court-
martial convened on 30 August 2016.
   After the presentation of evidence and argument by counsel, the military
judge granted the defense motion, issuing a six-page ruling. The military judge
made the following findings of fact, which are not in dispute on appeal:
       a. On 24 March 2016, Special Agents (“SA”) of the Air Force
       Office of Special Investigation[s] (“AFOSI”) interviewed [Appel-
       lee]. During the interview, [Appellee] consented to a search of
       his telephone and signed a Consent for Search and Seizure form
       AF IMT 1364 that authorized AFOSI to search: (1) “Vehicle:
       Black 2009 Audi A4 Reg: WY”; (2) “Phone: Text Messages and
       Multimedia (Apps), Phone Logs, No Pictures”; (3) “Urine”; and
       (4) “Dormitory [].”
       b. Shortly after receiving the consent authorization, SA [BS]
       used a cellphone extraction device, the UFED [Universal Foren-
       sic Extraction Device] Touch, to extract a digital copy of data
       from [Appellee’s] phone from 17:45 to 18:08 on 24 March 2016.
       SA [BS] showed [Appellee] the UFED Touch Settings. After be-
       ing shown the UFED Touch settings, [Appellee] inquired if
       “MMS” referred to pictures. The extraction was completed that
       day during AFOSI’s interview with [Appellee], and the data was
       transferred from the extraction device to a stand-alone com-
       puter.
       c. SA [BS] is the primary AFOSI SA called upon to conduct
       searches and seizures using the UFED hardware and software
       by a ratio of ten to one as compared to any other SA in his De-
       tachment.
       d. On 26 April 2016, [Appellee] revoked all prior consents to
       search.
       e. Between 4 May and 6 May [2016], SA [BS] contacted the
       three individuals identified from the search of [Appellee’s] text



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       messages. SA [BS] would not have hesitated to follow up on in-
       formation found as a result of his analysis.
       f. On some unspecified date after 24 March 2016, SA [BS] used
       UFED software on the stand-alone computer to search the digi-
       tal copy of [Appellee’s] phone data. SA [BS] identified several
       text messages containing the term “Acid” between [Appellee]
       and three individuals. SA [BS] used the UFED software to gen-
       erate a .pdf report.
       g. SA [BS] is unable to recall the date when he searched the
       digital copy of [Appellee’s] phone data, or whether he searched
       the copy before or after consent to search was revoked.
    Although not specifically included in the military judge’s findings of fact, it
is clear from the record and uncontested by the parties that SA BS returned
Appellee’s cell phone to him on the date of the interview, 24 March 2016, after
using the UFED Touch to extract data. AFOSI did not retake possession of
Appellee’s cell phone at any point before Appellee revoked his consent.
    The military judge concluded that although Appellee authorized the AFOSI
agents to make a copy of data from his cell phone for use after 24 March 2016,
Appellee retained a reasonable expectation of privacy in that copy. Therefore,
the military judge concluded, Appellee’s revocation of his consent on 26 April
2016 extinguished the agents’ ability to rely on the previously given consent to
“search” or analyze their copy of the data. Because the Government could not
establish by a preponderance of the evidence either that SA BS searched the
digital copy before consent was revoked or that the evidence would inevitably
have been discovered, and because the deterrent value of exclusion in this case
was not outweighed by the costs to the military justice system, the military
judge concluded the evidence must be suppressed.
    On 1 September 2016, the Government served notice of appeal on the mil-
itary judge and trial defense counsel. The authenticated record of trial was
docketed with this court on 20 September 2016. We heard oral argument on 8
December 2016.

                II. JURISDICTION AND STANDARD OF REVIEW
    This court has jurisdiction to hear this appeal under Article 62(a)(1)(B),
UCMJ, 10 U.S.C. § 862(a)(1)(B), which authorizes the Government to appeal
“[a]n order or ruling which excludes evidence that is substantial proof of a fact
material in the proceeding” in a court-martial where a punitive discharge may
be adjudged.
   We review a military judge’s ruling on a motion to suppress evidence for an
abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)

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(citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995)). The military
judge’s findings of fact are reviewed for clear error, but his conclusions of law
are reviewed de novo. United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F.
2015). “[T]he abuse of discretion standard of review recognizes that a judge has
a range of choices and will not be reversed so long as the decision remains
within that range.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
However, “[a] military judge abuses his discretion when his findings of fact are
clearly erroneous, when he is incorrect about the applicable law, or when he
improperly applies the law.” United States v. Roberts, 59 M.J. 323, 326
(C.A.A.F. 2004). “In reviewing a ruling on a motion to suppress, we consider
the evidence in the light most favorable to the prevailing party.” Id.
    Because this issue is before us pursuant to a Government appeal, we may
act only with respect to matters of law. Article 62(b), UCMJ. We may not make
findings of fact, as we are limited to determining whether the military judge’s
factual findings are clearly erroneous or unsupported by the record. United
States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 1995). “When a court is limited to
reviewing matters of law, the question is not whether a reviewing court might
disagree with the trial court’s findings, but whether those findings are ‘fairly
supported by the record.’” Gore, 60 M.J. at 185 (quoting United States v. Burris,
21 M.J. 140, 144 (C.M.A. 1985)).

                                 III. ANALYSIS
   The Fourth Amendment provides:
       The right of the people to be secure in their persons, houses, pa-
       pers, and effects, against unreasonable searches and seizures,
       shall not be violated; and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and particu-
       larly describing the place to be searched and the persons or
       things to be seized.
U.S. CONST. amend. IV. Whether a search is “reasonable” depends, in part, on
whether the person subject to the search has a subjective expectation of privacy
in the thing to be searched, and that expectation is objectively reasonable.
United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014). Evidence obtained as a
result of an unlawful search is inadmissible against an accused if the accused
(1) makes a timely objection, and (2) has an adequate interest, such as a rea-
sonable expectation of privacy in the person, place, or property searched. Mil.
R. Evid. 311(a).
    Searches conducted pursuant to a warrant or authorization based on prob-
able cause are presumptively reasonable, whereas warrantless searches are
presumptively unreasonable unless they fall within a few specifically estab-
lished and well-delineated exceptions. United States v. Hoffmann, 75 M.J. 120,

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123–24 (C.A.A.F. 2016). Consent is a specifically established exception to both
the warrant and probable cause requirements of the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “Property . . . may be
seized with consent consistent with the requirements applicable to consensual
searches under Mil. R. Evid. 314.” Mil. R. Evid. 316(c)(3). “Consent [to search]
may be limited in any way by the person granting consent, including limita-
tions in terms of time, place, or property, and may be withdrawn at any time.”
Mil. R. Evid. 314(e)(3). The Government bears the burden of showing the ap-
plicability of the consent exception. Hoffmann, 75 M.J. at 124.
    The military judge found Appellee gave valid consent for the AFOSI agents
to search his cell phone for certain information, to include text messages, and
to make and retain a copy of that data. However, the military judge erred in
concluding that Appellee retained a reasonable expectation of privacy in the
copy. In his written ruling, the military judge explains his conclusion in part
by stating:
       The government relies on a number of unpublished opinions in
       support of its assertion that ‘no reasonable expectation of pri-
       vacy exists in government copies of lawfully seized data.’
       . . . However, the cited case law does not establish that an indi-
       vidual loses their privacy interest in copies made by the govern-
       ment as a matter of law. 1
     Contrary to the military judge’s assertion, the cited cases, including an un-
published opinion of this court, all indicate that a Government-created copy of
evidence that was lawfully seized, whether by consent or by a search warrant,
does not carry a reasonable expectation of privacy and is not to be suppressed
if that copy was created before consent was revoked. See United States v. Cote,
Misc. Dkt. No. 2009-15 at 7 (A.F. Ct. Crim. App. 6 April 2010) (unpub. op.)
(“[N]o reasonable expectation of privacy exists in copies made of lawfully seized
data.”); United States v. Ward, 576 F.2d 243, 244–45 (9th Cir. 1978) (“[W]e
agree with the district court that any evidence gathered or copies made from
the records during the intervening five days [before consent was revoked]
should not be suppressed.”); United States v. Ponder, 444 F.2d 816, 818 (5th



1It is not entirely clear what the military judge meant by this last sentence. He may
have meant simply that the cases cited were merely persuasive authority rather than
binding precedent. However, in context, and in particular considering his parenthetical
summaries of the opinions, it appears likely that he meant the cited cases reached
conflicting conclusions as to whether an individual retains a privacy interest in gov-
ernment-created copies of evidence lawfully obtained.




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Cir. 1971), cert. denied, 405 U.S. 918 (1971) (“Ponder agreed to supply the rec-
ords requested and voluntarily delivered them . . . [a]t that point there was a
valid consent to search, which carries with it the right to examine and photo-
copy.”); United States v. Sharp, 2015 U.S. Dist. LEXIS 101342 at 15–16 (N.D.
Ga. 2015) (“Because the copy of Sharp’s computer was made prior to his revo-
cation of consent, the evidence obtained from a search of this copy will not be
suppressed.”); United States v. Megahed, 2009 U.S. Dist. LEXIS 24441 at 11
(M.D. Fla. 2009) (“[N]either the defendant nor [his father] retained a reasona-
ble expectation of privacy in the mirror image copy that the FBI had obtained
already with [the father’s] consent and had begun already to search.”) 2; see also
Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977) (“This withdrawal [of con-
sent] does not affect the validity of [the agent’s] actions prior to the time he
received notice that his right to retain Mason’s papers was gone. The district
court correctly refused to require the return of copies made prior to the demand
by Mason’s attorney.”) Although these decisions are merely persuasive author-
ity, the military judge’s failure to recognize their unanimity and the signifi-
cance of their holdings suggests his ruling was informed by an erroneous view
of the state of the law. Regardless, we find the military judge erred in his ap-
plication of the law and thereby abused his discretion.
    We find the reasoning of the cited decisions persuasive, particularly where,
as in the case at bar, not only was consent given to provide the cell phone data,
but also specifically to copy it. Once Appellee consented to expose the data in
this manner to the AFOSI agents, it did not matter for Fourth Amendment
purposes whether the agents accomplished their search by directly reading the
messages from the cell phone itself, taking written notes, photographing the
screen, or using the UFED Touch to copy the data. In these hypothetical cases,
the agents would not have been required to destroy their photographs, notes,
or memories, and in the instant case they were not required to destroy their
copy of the data. Appellee retained a privacy interest in his cell phone—his


2 We recognize that in Megahed, unlike the instant case, the investigators began the
actual review of the copied data prior to the revocation of consent. United States v.
Megahed, 2009 U.S. Dist. LEXIS 24441 at 11 (M.D. Fla. 2009). However, the court in
Meghahed cited the Ponder, Mason, and Ward decisions with approval, none of which
relied on the investigators’ actual review of the copies in finding the copies were not to
be suppressed. Id. Therefore, it does not appear this distinction was essential to the
court’s ruling in that case. Cf. United States v. Sharp, 2015 U.S. Dist. LEXIS 101342
at 14 (N.D. Ga. 2015) (employing Megahed as persuasive authority for the proposition
that a “defendant did not ‘retain [] a reasonable expectation of privacy in the mirror
image copy that the FBI had already obtained,’” without reference to the fact that the
FBI agents had begun to review the imaged copy before consent was revoked).




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property—but not in the copy created by AFOSI, which was not Appellee’s
property. We conclude the military judge abused his discretion by finding Ap-
pellee had a reasonable expectation of privacy in the copy of data Appellee al-
lowed AFOSI agents to create using the UFED Touch. 3
    Appellee contends the reasoning of these cases does not survive the Su-
preme Court’s opinion in Riley v. California, 134 S. Ct. 2473 (2014). We disa-
gree. The holding of Riley is that a warrant is generally required in order to
search the information on a cell phone, even when that cell phone is seized
during a search incident to arrest. Id. at 2493. The significance of Riley to the
instant case is simply that an individual normally has a substantial privacy
interest in the contents of his cell phone. See id. at 2494. Consent is, of course,
an exception to the warrant requirement. See Schneckloth, 412 U.S. at 219;
Mil. R. Evid. 314(e)(1). The Supreme Court in Riley did not create a privacy
interest in a copy of data created by investigators from a cell phone that the
owner of the cell phone knowingly and voluntarily consented to have searched.
However importantly an individual’s cell phone features in the individual’s life,
however much private information it may contain, that individual nevertheless
may consent to reveal that information to investigators. When the individual
does so, within the limits of the specific consent granted, as between himself
and the Government, he does not retain a reasonable expectation of privacy in
the data the investigators thereby retrieve and copy from the cell phone. That
is what occurred here.
    As there is no reasonable expectation of privacy in a copy of data that in-
vestigators create from lawfully seized evidence, the reliance of the military
judge and Appellee on United States v. Dease, 71 M.J. 116 (C.A.A.F. 2012), is
misplaced. In Dease, our superior court found the military judge did not abuse
his discretion by finding the appellant retained a reasonable expectation of pri-
vacy in a urine sample he provided by consent, and, therefore, it was not an
abuse of discretion for the military judge to suppress the results of a urinalysis
performed after the appellant withdrew consent. Id. at 121–23. Unlike Dease,
where the search (i.e., the urinalysis) was performed after consent was with-
drawn, in Appellee’s case the search (i.e., the extraction of data using the
UFED Touch) occurred during the period of consent—indeed, with Appellee’s
participation. SA BS’s later review of the copied information previously ob-
tained was not a search for Fourth Amendment purposes because, unlike the



3As noted above, “[c]onsent may be limited in any way by the person granting consent,”
Mil R. Evid. 314(e)(3), and the result might be different if Appellee had refused AFOSI
consent to make an electronic copy of the data from his cell phone. Here, the military
judge specifically found Appellee did validly consent to the creation of the electronic
copy.


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cell phone itself, the copy of the data always belonged to AFOSI, not Appellee,
and Appellee had no reasonable expectation of privacy in it.
   Because the military judge erroneously concluded Appellee retained a rea-
sonable expectation of privacy in the copy of data AFOSI obtained from his cell
phone by consent, he abused his discretion when he suppressed the results of
SA BS’s “search” of that copied data after Appellee withdrew his consent to the
search of his cell phone.

                              IV. CONCLUSION
   The appeal of the United States under Article 62, UCMJ, is GRANTED.
The military judge’s ruling to grant the defense motion to suppress the con-
tents of the UFED report and all derivative evidence therefrom is vacated. The
record is returned to the Judge Advocate General for remand to the military
judge for action consistent with this opinion.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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