Q. Can law enforcement officers take a service member's phone and read his text messages?

A. Cellphones and text messages can be treasure troves for military law enforcement officers trying to catch a service member who engaged in inappropriate relationships or used illegal drugs.

However, when officers lack a warrant or probable cause, they generally can no more enter a service member's home and confiscate items than they can snoop around his or her cellphone for incriminating text messages. The Fourth Amendment of the Constitution prohibits unreasonable searches and seizures, and military courts have found that data stored within a cellphone "fall within the Fourth Amendment's protections," as the U.S. Navy-Marine Corps Court of Criminal Appeals noted in a ruling earlier this year, U.S. v. Nicholas Tienter.

In another case from this year, U.S. v. Samuel A. Wicks, the U.S. Court of Appeals for the Armed Forces likened a cellphone to "a portable phone booth albeit with modern media capacity" that can "also serve as an electronic repository of a vast amount of data akin to the sorts of personal 'papers and effects' the Fourth Amendment was and is intended to protect."

When law enforcement officers conduct a warrantless search of a cellphone, the government may argue the search was justifiable because the information it contained would have been inevitably discovered.

In Wicks, for example, an Air Force Security Forces Office of Investigations detective searched the cellphone belonging to the appellant, a technical sergeant, after receiving a tip that he had been engaging in inappropriate relationships with trainees. The government, citing the inevitable discovery doctrine, argued this search did not violate the Fourth Amendment because the tipster's leads eventually would have led the detective to discover incriminating text messages stored on the appellant's cellphone.

But the court concluded that the government "did not meet its burden of demonstrating that the routine procedures of the law enforcement agency would inevitably find the same evidence."

It's also important to remember that search warrants generally are limited in scope; the issuance of a search warrant or authorization does not mean law enforcement officers can comb through a cellphone for the purposes of digging up any and all dirt on a service member.

In Tienter, for example, a Criminal Investigation Division special agent had obtained authorization to seize and search the cellphone of the appellant, a Marine lance corporal. The search authorization was limited to electronic communications between the appellant and a corporal and relating to controlled substances. An initial search discovered a message relating to illegal drug use and another relating to adultery.

Months later, the special agent conducted another search of the previously examined cellphone data, but this time he honed his search on messages relating to sexual assault. The government argued this search was permissible, even though the search authorization was limited to controlled substance issues, because the text messages relating to sexual assault issues were in plain view.

But the NMCCA found this later search "exceeded the scope of the search authorization in searching the extraction report for evidence of sexual assault. Since the plain view doctrine requires that law-enforcement agents act within the scope of the authorization at the time of discovery, the doctrine is inapplicable under the facts of this case."

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com.

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