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Update: Judge Grants Defense Motion To Supress Cell Phone Evidence

Gateway to the Air Force
Eileen Pace | Texas Public Radio
Texas Public Radio

(Update: 2/22/2013) Military Judge Don Eller ruled the government’s 77-page list of cell phone data violates the instructor’s Constitutional rights, saying investigators extracted the information without a search warrant.

He added that at some point during the investigation, somebody at Joint Base San Antonio should have had a light bulb go on that told them to find a magistrate and file affidavits to get a search warrant.

Eller told prosecutors: "The Fourth Amendment is so important that we are willing as a society to lose cases sometimes" to preserve our rights to privacy.

The judge told attorneys that statements from the witnesses are inextricably tied to the cell phone evidence, so he won’t be hearing their testimony either

(Update: 1:30 p.m.) The defense's motion to suppress the evidence found in the instructor's cell phone was granted on Wednesday as the judge opened court.

Wicks' girlfriend testified Tuesday that she found the evidence on the instructor's text messages, which included the video and messages to the trainees with whom Wicks was accused of developing intimates relationships. She said she then turned the phone over to authorities.

Detectives told the court that they proceeded to extract data from the cell phone without getting consent from the instructor or a search warrant; the phone evidence is central to the prosecution's case.

Without evidence on the cell phone, all the charges against Wicks could be dismissed. Prosecutors have 72 hours from 9:30 this morning to appeal the case to the Air Force Court of Criminal Appeals.

(Original post 9:13 a.m.) Attorneys at Joint Base-San Antonio-Lackland have brought a motion to dismiss charges against a former military training instructor accused of indecent conduct.

For the second time in two weeks, a defense team is alleging unlawful command influence.

The former instructor, Tech Sgt. Samuel Wicks, is accused of attempting to develop inappropriate relationships with trainees from the fall of 2010 to the summer of 2011.  He is the ninth MTI to go to trial in the ongoing Air Force investigation.

Wicks’ defense attorneys asked the judge to consider unlawful command influence, pointing to comments made before Congress by General Mark Welsh. Welsh told the House Armed Services Committee last month that anyone who commits sexual acts against trainees "doesn’t belong in the Air Force."

Attorneys also raised an issue of fairness, saying the actions alleged against Wicks have historically been punished administratively and not by general court-martial.

Attorneys cited two instances of cases in which defendants accused of similar crimes were referred to special court-martial or punished internally through the Article 15 process, but were not subjected to the possibility of dishonorable discharge.

The more serious charge against Wicks is that he allegedly sent out a video of himself performing a sex act. He faces the possibility of prison time plus dishonorable discharge if found guilty.

Eileen Pace is a veteran radio and print journalist with a long history of investigative and feature reporting in San Antonio and Houston, earning more than 50 awards for investigative reporting, documentaries, long-form series, features, sports stories, outstanding anchoring and best use of sound.