Army: Loaning one’s phone to another without express limitations is a waiver of REP

The military judge abused his discretion in concluding that defendant did not essentially waive all his reasonable expectation of privacy in his cell phone by loaning it to another person, including the passcode to open it. “Understandings” aren’t enough; express limits are required. “However, permitting a third party’s use of an electronic device requires that a person place express restrictions on its use or password protect those portions of the device for restricted access in order to prevent common authority over the device.” United States v. Black, 2021 CCA LEXIS 559 (Army Ct. Crim. App. Oct. 22, 2021) (unpublished).

Probable cause wasn’t necessarily “‘a leap of logic’ to conclude that evidence pertaining to any assaults [on his wife] would be found on appellant’s phone.” There’s reason why it could be reasonable to conclude that. Nevertheless, the good faith exception saves the warrant without even having to decide the probable cause and nexus questions. United States v. Colonrodriguez, 2021 CCA LEXIS 560 (Army Ct. Crim. App. Oct. 22, 2021) (unpublished). {Sounds suspiciously like “the proof is in the pudding” rationale of the good faith exception.]