The Army Court of Criminal Appeals recently decided the case of United States v. Strong. SSG Strong was driving a military tactical vehicle with several cadets from the United States Military Academy in the back. Her truck was last in a convoy that was transporting a group of cadets to a land navigation course in a mountainous training area. The convoy was traveling over a single-lane, unpaved road with a steep drop off on one side.
Cadets in the back of the truck directly in front of SSG Strong’s saw her vehicle hit a tree at one point and then later drift towards the drop off side of the road before correcting. Shortly thereafter, the cadets saw SSG Strong’s truck again veer towards the drop off. The truck was unable to correct course and the truck slid down the embankment and rolled over. Several of the cadets riding in the back of SSG Strong’s truck were injured, and one was killed.
The PFC who had been in the passenger seat reported that SSG Strong had been using her smart watch at the time of the accident. As a result, agents from CID obtained a warrant to seize SSG Strong’s iPhone and Apple Watch. When the agent executing the warrant left the room to let the SSG get dressed, SSG Strong repeatedly attempted to access her iPhone. Even when the agent returned and seized the phone, the SSG attempted to grab it out of the agent’s hands.
The agent eventually seized the phone and smart watch and placed them in a “Faraday bag.” These bags block signals from reaching the devices inside in order to prevent remote access. However, the bag in which SSG Strong’s phone and watch were placed was mislabeled and did not actually block signals. When the forensic analysts at CID attempted to extract the data from SSG Strong’s iPhone, it had been reset to factory settings and all data had been erased. The agents later learned that shortly after the iPhone was seized, SSG Strong used her MacBook to access her Apple account and initiate a factory reset of the phone.
The Government charged SSG Strong with negligent homicide and prevention of an authorized seizure. The members found her guilty of both offenses and sentenced her to three years confinement, a bad conduct discharge, and reduction to E-1. On appeal, SSG Strong argued that she should not have been found guilty of preventing an authorized seizure because her iPhone had already been seized when the data was erased.
The Army appellate court disagreed. The statute requires a person to remove, destroy, or dispose of evidence that the Government is “seizing, about to seize, or endeavoring to seize.” Therefore, the Court did find that in order to violate this statute, the action must occur before the item is seized. However, the Court also determined that digital devices are not “seized” until the device 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 Court based its holding on the idea that the offense is intended to criminalize an individual who retains enough possession of an item to be able to destroy its evidentiary value. Because SSG Strong still was able to destroy the iPhone’s evidentiary value, the Government was still “endeavoring to seize” the phone and had not yet seized it. The Court affirmed the findings and sentence.
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