Legal Tech • September 2025

Device Settings

When Is Digital Evidence Seized?

Written by Pierre Grosdidier

Is digital evidence seized when authorities take possession of a digital device, or when they acquire exclusive control over the device’s digital contents? The question is important because digital devices can be remotely wiped after their physical seizure. In United States v. Strong, the U.S. Court of Appeals for the Armed Forces (CAAF) held for the second option.1

U.S. Army Staff Sgt. Ladonies P. Strong was at the wheel of a personnel truck that overturned during a training exercise, resulting in a cadet fatality. A witness claimed to have seen her on her Apple Watch at the moment of the accident. Acting under authority, Army investigators seized Strong’s Apple Watch and her connected iPhone over her “belligerent” resistance. Investigators unsuccessfully tried to place the iPhone in airplane mode to protect its contents from remote interference. They resorted to placing the devices in a Faraday bag but discovered the next day that the iPhone had been remotely set to factory settings and, with it, the Apple Watch. A forensic investigation revealed that someone issued the reset command from Strong’s iCloud account using an Apple MacBook Pro of the same model as the one she owned. That command somehow overcame the ineffective Faraday bag.2

Strong was court-martialed and convicted of negligent homicide and, separately, of “preventing an authorized seizure of property in violation of Article 131e,” Uniform Code of Military Justice.3 This article states that a person commits an offence when, inter alia, that person knowingly destroys property that authorities “are seizing, are about to seize, or are endeavoring to seize[.]”4 On appeal, Strong argued that the statute was inapplicable to her because she remotely reset her iPhone after authorities had seized it and its data, and the seizure of both was, therefore, complete. The CAAF rejected her arguments and affirmed her conviction.5

The court first held that, under its plain meaning, the statute applies to ongoing actions, and, therefore, the unlawful conduct “must occur before the seizure is complete.”6 The case’s disposition, therefore, hinged on when the seizure was complete, and on whether investigators were endeavoring to seize the digital contents after they seized the physical devices and when Strong wiped her iPhone.

The court held that merely seizing a digital device did not also constitute the seizure of its digital contents. Additional steps were required to complete the seizure to prevent illicit remote manipulation, including erasure. Relying on Black’s Law Dictionary, the court concluded that authorities complete their seizure of a device for the purpose of Article 131e when they physically possess it and “exercise[] dominion over property to the exclusion of others.” The fact that Strong somehow managed to erase her iPhone after investigators seized and inserted it in a Faraday bag proved that they did not yet fully and exclusively control it.7 The seizure was, therefore, incomplete when Strong wiped the iPhone and the statute potentially applied.

Finally, and still relying on Black’s Law Dictionary, the court held that “endeavoring to seize certain property” in Article 131e meant “to be in the process of exerting effort to exercise [exclusive] dominion over property.” The court concluded that the investigators were endeavoring to seize the digital contents when Strong wiped the iPhone because they were engaged in “continuing efforts” to protect and extract its digital contents. Indeed, investigators had first unsuccessfully tried to place the iPhone in airplane mode, then placed it in a Faraday bag, and finally tried to extract its digital contents even after Strong remotely wiped it. Thus, Article 131e applied and the court affirmed her conviction.8

Notes

  1. 85 M.J. 58, 60 (C.A.A.F. 2024), cert. denied, 2025 WL 889170 (U.S. Mar. 24, 2025).

  2. Id. at 62–63.

  3. Id. at 60 (citing 10 U.S.C. § 931e (2018)).

  4. Id. at 63.

  5. Id. at 61, 65, 67.

  6. Id. at 64 (emphasis in original).

  7. Id. at 65.

  8. Id. at 65, 67.

PIERRE GROSDIDIERPIERRE GROSDIDIER is a litigation attorney in Houston. He is certified in construction law by the Texas Board of Legal Specialization. Prior to practicing law, Grosdidier worked in the process control industry. He holds a Ph.D. from Caltech and a J.D. from the University of Texas. Grosdidier is a member of the State Bar of Texas, a fellow of the Texas Bar Foundation, and a registered P.E. in Texas (inactive). He was the State Bar of Texas Computer & Technology Section chair for 2022-2023 and was elected medium section representative to the State Bar of Texas for the 2023-2026 term.