In early 2023, the Army Court of Criminal Appeals issued its decision in United States v. Strong, which was discussed here. SSG Strong was the driver of a military vehicle transporting several USMA cadets to a land navigation course. The vehicle went over an embankment, injuring several cadets and killing one. The Soldier riding with SSG Strong told investigators that she had been using her Apple Watch at the time of the accident. CID seized her Apple Watch and iPhone pursuant to a search authorization. Although the investigators placed the items into a bag intended to protect digital devices from remote access or interference, the contents of the iPhone were remotely erased after they were taken from SSG Strong. CID later found that SSG Strong’s iCloud account had been used to issue the remote command to reset the iPhone to factory settings.
At trial, SSG Strong was convicted of both negligent homicide and prevention of an authorized seizure. On appeal to the Army Court, SSG Strong argued that her iPhone had already been seized when it was remotely accessed and that she could not then be guilty of preventing a seizure that had already taken place. The Army Court of Criminal Appeals did not agree, finding that the seizure of the digital contents of the phone was not complete until the device was “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 Army Court affirmed the conviction.
SSG Strong then appealed this decision to the Court of Appeals for the Armed Forces (CAAF). CAAF released its decision this month, affirming the Army Court’s decision. The Court held that a seizure is complete for purposes of this offense “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 Court also determined that the CID agents were still “endeavoring to seize” the digital contents of the iPhone at the time that it was remotely accessed. It held that law enforcement continues to endeavor to seize an item so long as it is “in the process of exerting effort to exercise dominion over property to the exclusion of all others.” The Court pointed out that CID had not achieved the purpose of the seizure of the phone–possession of and dominion over its digital contents–so it was still “endeavoring to seize” it. Additionally, the fact that the phone was able to be remotely accessed and erased proved that the Government did not have dominion over the contents to the exclusion of all others. The conviction stands.
If you or your loved one wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.