Having one’s cell phone on his person and being directed to come to the scene of the search under a military search authorization [equivalent to a search warrant] does not permit search and seizure of the phone under Summers and Bailey. Here, however, there was an independent source for the information ultimately found, and there was thus no prejudice. United States v. Drinkert, 2021 CCA LEXIS 131 (N.-M. Ct. Crim. App. Mar. 29, 2021):
Because we have determined Appellant’s consent to search his phone was not voluntary, we next look at whether the phone was lawfully obtained under the authority of the search warrant. Specifically, we examine whether law enforcement had the authority to search and seize the phone by virtue of Appellant, who had the phone in his pocket, being on the premises that was the subject of the warrant.
The search warrant authorized law enforcement to search for and seize items of evidentiary value from Appellant’s residence, to include cell phones. It did not authorize a search of Appellant’s person. The presumptive validity of the search warrant was not challenged at trial; however, both sides agreed the warrant only covered phones found inside the residence during the search. As discussed above, the record indicates that once the search of the home was underway, the NCIS agent requested that members of Appellant’s command transport Appellant to the residence and was “pretty sure” Appellant had his cell phone with him. Further, the NCIS agent testified that once Appellant was in the house he immediately conducted an “officer safety” search by asking Appellant to empty his pockets, which led to the discovery of the phone on his person.
As discussed above, we find the NCIS agent’s action runs afoul of Bailey, wherein the Supreme Court held the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant cannot be justified under Michigan v. Summers. In Summers the Court recognized three important law enforcement interests that, taken together, justify the detention of an occupant who is on the premises during the execution of a search warrant: officer safety, facilitating the completion of the search, and preventing flight.38Link to the text of the note However, in Summers and later cases, the occupants detained were found on or immediately outside the premises at the time the police officers executed the search warrant, which is a requirement under the Court’s subsequent holding in Bailey.
Here, Appellant was approximately 20 miles away when he was brought to the residence at the behest of NCIS. While it is not uncommon in the military to have a suspect transported to NCIS in order to conduct an interview (if, after being advised of his or her rights, the suspect elects to participate), here the intent was not to interview Appellant. Rather, it is clear from the record that the reason for having Appellant transported to the residence was to bring the cell phone to the situs of the search. Once there, Appellant was told to empty his pockets and then directed into the kitchen, where the phone became the sole focus of the interaction between law enforcement and Appellant.
We conclude that obtaining the phone in this manner was unlawful under Bailey. As there is nothing in the record to indicate that Appellant was asked to, or did in fact, facilitate the search of his home, we find that when Appellant was brought to the residence by members of his command at the NCIS agent’s behest, there was no valid reason to inject Appellant into the residence during the ongoing search other than to bring him and his phone into the purview of the warrant. As this is precisely the sort of governmental action that Bailey prohibits, we conclude that the phone was not lawfully obtained incident to the search warrant’s authorization to search and seize evidence within Appellant’s residence.