2023 (October Term)
United States v. Strong, 85 M.J. 58 (Article 131e, UCMJ, criminalizes actions taken by an accused to prevent the seizure of property by authorized personnel when the accused then knew that the authorized personnel were seizing, about to seize, or endeavoring to seize the property).
(because Article 131e, UCMJ, criminalizes action taken with the intent to prevent an authorized seizure of property, the unlawful action must occur before the seizure is complete; specifically, it must occur while authorized personnel are seizing, about to seize, or endeavoring to seize the property in question, and the accused must act with intent to prevent the seizure thereof).
(the first element of the Article 131e, UCMJ, offense of preventing an authorized seizure requires the government to prove that an authorized individual is seizing, about to seize, or endeavoring to seize certain property; seizing and endeavoring to seize describe ongoing actions, while about to seize describes an action that has not yet occurred; once a seizure is complete, no one is about to seize or is in the process of seizing or endeavoring to seize the property in question; the second element requires proof that the accused destroyed, removed, or otherwise disposed of that property with intent to prevent the seizure thereof; one cannot intend to prevent an event that has already occurred; the plain meaning of these terms indicates that a violation of Article 131e, UCMJ, can only occur before a seizure is complete).
(a seizure is complete for purposes of Article 131e, UCMJ, when a person authorized to seize certain property has possession of the property and exercises dominion over it to the exclusion of all others).
(the plain meaning of endeavoring to seize certain property in Article 131e, UCMJ, is to be in the process of exerting effort to exercise dominion over property to the exclusion of all others).
(in this case, the seizure of appellant's iPhone did not constitute seizure of the digital content of the iPhone; in light of the ethereal nature of digital evidence and its capacity for remote manipulation, it is no longer enough for law enforcement officials executing a warrant for digital media to simply take possession of the physical device containing the media; in order to seize the digital content of the iPhone, law enforcement had to take additional steps to protect it from unauthorized remote manipulation or destruction, whether by moving or copying the digital content to a secure location or by some other means; here the iPhone was remotely reset and its digital content was erased before law enforcement could complete the necessary additional steps to secure the iPhone's digital content; the fact that appellant was able to remotely delete the digital content even after the iPhone was seized conclusively demonstrates that law enforcement did not have exclusive control over the digital content even if they had control over the iPhone itself; accordingly, the seizure was not complete when the iPhone was seized or placed in a Faraday-labeled bag, a bag designed to block signals from being sent or received by phone).
(in this case, law enforcement was endeavoring to seize the digital content of appellant's iPhone after they seized the phone itself when appellant wiped the iPhone; law enforcement attempted to secure the digital content from remote manipulation or destruction by attempting to put it in airplane mode and placing it in a Faraday-labeled bag, a bag designed to block signals from being sent or received by phone; then law enforcement sought to remove the digital content from the iPhone for forensic analysis, stopping only upon discovering that the digital content had been wiped; law enforcement had not achieved the purpose of the seizure, that is, the possession of and exclusive dominion over the digital evidence, when appellant wiped the iPhone; by engaging in continuing efforts to take exclusive possession of the digital content on appellant's iPhone even after it was erased, law enforcement was endeavoring to seize the digital content when appellant wiped the iPhone).
(routine efforts of law enforcement to protect digital media on a seized physical device are part and parcel of the seizure of digital media; a seizure is ongoing while those authorized to seize the property execute the protocols necessary to isolate and preserve the digital media; and for purposes of Article 131e, UCMJ, digital media is seized, and beyond the reach of the statute, when the device containing it is secure from passive or active manipulation, even if that does not occur until the targeted data is copied or otherwise transferred from the seized device at some other location).
(the seizure of digital evidence is complete for purposes of Article 131e, UCMJ, when the digital content is in the exclusive control of authorized personnel, secure from unauthorized manipulation or destruction; and authorized personnel are endeavoring to seize digital evidence while they are executing processes to acquire such exclusive control).