NMCCA has an interesting case on the scope of a consent search and subsequent actions when looking for evidence on a cellphone. I think many times we have seen this issue.
The MCIO gets a “limited” or narrow consent, but then just goes ahead and looks at everything claiming “plain view” and inevitablity.
United States v. Crocker is a government appeal worth the read–NMCCA affirms suppression of much of the search and also the resultant confession.
[The military judge] determined that a reasonable observer would have understood the scope of Appellee’s consent to search to extend only to the messages between Appellee and LCpl DW from the Facebook Messenger application. The military judge ruled that Agent MS exceeded the scope of consent when he searched the images folder of the UFED report. Therefore, that search was unlawful and the suspected images of child pornography he discovered in the images folder were not in plain view. The military judge ruled that NCIS continued the illegal search and that even if Agent MS found the initial images in plain view, the follow-on actions of NCIS were not done to merely confirm the nature of the images but to expand the scope of the search by identifying several additional suspect images. Immediately after NCIS discovered additional images of suspected child pornography, Appellee was brought in for questioning and admitted to possessing child pornography and to sexually abusing his nephew. However, the military judge ruled that Appellee would not have made these confessions if he had not been confronted with the illegally obtained evidence. The military judge, sua sponte, determined that the evidence of suspected child pornography found on Appellee’s phone would not have been inevitably discovered because at the time of the unlawful searches, law enforcement was not pursuing any leads or evidence that would have inevitably led to the discovery of the images in a lawful manner. Finally, after balancing the deterrence of future unlawful searches or seizures against the costs to the military justice system of excluding the evidence, the military judge found that exclusion of the two images unlawfully discovered by Agent MS would not appreciably deter future unlawful searches.15 However, with respect to the additional evidence discovered by Special Agent SI, the military judge found that Special Agent SI compounded Agent MS’s unlawful conduct and that resulted in recurring negligence, at best, that must be deterred even at high cost to the justice system. Upon balancing, he found that the appreciable deterrence of further unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.