2011 (September Term)
United States v. Dease, 71 M.J. 116 (searches and seizures are not necessarily coterminous, particularly in the context of a urinalysis case; often they are not).
2009 (September Term)United
States v. Ayala, 69 M.J. 63 (evidence
obtained from an inspection conducted
in accordance with MRE 313 is admissible at trial when relevant and not
otherwise inadmissible under the MREs; an inspection is an examination
of the
whole or part of a unit, organization, or installation conducted as an
incident
of command, the primary purpose of which is to determine and to ensure
the
security, military fitness, or good order and discipline of the unit,
organization, or installation; an examination made for the primary
purpose of
obtaining evidence for use in a trial by court-martial or in other
disciplinary
proceedings is not an inspection within the meaning of MRE 313).
(a wing commander’s policy
memorandum to his
command stating that his purpose in ordering a follow-up urinalysis to
a
previous positive drug test was to ensure security, military fitness,
and good
order and discipline, a policy subsequently reaffirmed in an affidavit,
established that such a reexamination was a lawful inspection in
accordance
with MRE 313(b)’s definition of an inspection, despite the fact that
the SJA
had proposed the policy to increase the likelihood of conviction;
appellant
offered no objection to the admission of the wing commander’s
affidavit; if
appellant had desired to further test the purpose of the policy, he
could have
sought to depose the wing commander or demand his presence at trial so
he would
be subject to cross-examination; he did not do so, and he did not
present any
other evidence showing that the examination’s purpose was other than
the one
announced by the wing commander; as such, the military judge’s finding
that the
government had proved by clear and convincing evidence that the
examination was
conducted to ensure the security, military fitness, and good order and
discipline of the wing was not clearly erroneous, and that being the
case, the
military judge did not err in finding that appellant’s follow-up
urinalyses
were conducted for a permissible purpose).
United
States v. Huntzinger, 69 M.J. 1 (the military
rules of evidence with
respect to the search and seizure powers granted to military commanders
in MREs
311 to 317 apply in domestic and deployed locations; although the
application
of the rules and the exceptions therein depend upon the context, there
is no
general exception for locations or living quarters in a combat zone).
(there is no constitutional
requirement that the person issuing a search authorization have some
minimal
legal or educational qualifications).
United
States v. Weston, 67 M.J. 390 (the Fourth
Amendment provides that the right
of the people to be secure in their persons, houses, papers, and
effects,
against unreasonable searches and seizures, shall not be violated, and
no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the
persons or things to be seized).
(ordinarily, warrantless entry
into a person’s
house is unreasonable per se).
United
States v. Michael, 66 M.J. 78 (the Fourth Amendment
does not protect against all searches; rather, it proscribes only
unreasonable
searches; the
ultimate standard set forth in the
Fourth Amendment is reasonableness; for the purposes of military
law, a
Fourth Amendment search is a
government
intrusion into an individual’s reasonable expectation of privacy).
(the authority to order an
inspection under
MRE 313 is directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s responsibility
to ensure
fitness of a unit, that keeps a valid inspection scheme within
constitutional
parameters, and is important in justifying the reasonableness of what
is
otherwise a warrantless search).
(a urinalysis test that was
the product of an
order issued by a civilian Air Reserve Technician who did not have
command
authority to issue the order was not incident to command, did not
comply with
MRE 313, and was an unlawful search; accordingly, that urinalysis and
the
resulting confession, which was the fruit of the unlawful search, must
be
suppressed).
United
States v. Wallace, 66 M.J. 5 (a seizure of
property, for purposes of the
Fourth Amendment, occurs when there is some meaningful interference
with an
individual’s possessory interest in property; as such, a seizure can
occur
either with or without an attendant search; in either case, the search
and the
seizure necessitate separate analyses under the Fourth Amendment; if
searches and
seizures are separate concepts, consent to one is not, without more,
consent to
the other; similarly, revoking consent to one does not of itself revoke
consent
to the other).
United States v. Flores, 64 M.J. 451 (evidence
obtained as a result of an unlawful search is inadmissible against an
accused who makes a timely motion or objection establishing a
reasonable expectation of privacy in the person, place, or property
searched; an accused bears the burden of demonstrating a subjective
expectation of privacy which is objectively reasonable).
(an
accused has no privacy
interest in voluntarily abandoned property, and lacks standing to
complain of the search or seizure of such property; if, however, a
person discards articles in reaction to illegal police conduct, such
action does not deprive the individual of the right to object to the
illegitimacy of the police action in searching or seizing those
articles).
(the
military judge’s finding
that appellant voluntarily abandoned his bag by switching bags with
another recruit before a search was ordered was not clearly erroneous
when the evidence was viewed in the light most favorable to the
government; because the military judge properly determined that
appellant abandoned his bag voluntarily and not in response to the
allegedly illegal police conduct, appellant did not carry his burden at
the motion hearing or on appeal of demonstrating that he had a
reasonable expectation of privacy in the bag; accordingly, appellant
lacked standing to challenge the validity of the search or the
admission of derivative evidence, including his confession).
(official
intrusions into
protected areas in the military require search authorization supported
by probable cause, unless they are otherwise lawful under the Military
Rules of Evidence or the Constitution of the United States as applied
to members of the armed forces).
(there
are two situations
where employer searches into zones of privacy are legitimate even if
not supported by normal Fourth Amendment warrant and probable cause
requirements; the first is where the search is for noninvestigatory,
work-related purposes; the second is if the search by the employer is
investigatory but involves matters of workplace misconduct; in either
of these situations the search is evaluated using the standard of
reasonableness based on all the surrounding facts and circumstances;
when the reasonableness standard is applicable, the government must
establish: (a) that the search was justified at its inception; and (b)
that the conduct of the investigation was reasonably related in scope
to the circumstances which justified the interference in the first
place).
United States v. Conklin, 63 M.J. 333 (evidence
derivative of an unlawful search, seizure, or interrogation is commonly
referred to as the fruit of the poisonous tree and is generally not
admissible at trial).
(although initial entry into
appellant’s room was a valid military inspection to ensure unit fitness
and proper standards, after an inspector inadvertently disturbed the
keyboard of appellant’s personal computer causing the monitor to
activate and reveal a wallpaper containing an image of a partially nude
woman, a subsequent examination of computer files on the computer that
were not in plain view exceeded the authorized purpose and scope of the
inspection; because an individual sharing a two-person dormitory room
has a reasonable expectation of privacy in files kept on a personally
owned computer, the subsequent examination was an unlawful search).
(the
test used in evaluating
the question of a reasonable expectation of privacy is a twofold
requirement: (1) a person must exhibit an actual (subjective)
expectation of privacy and, (2) the expectation must be one that
society is prepared to recognize as reasonable).
(an
individual sharing a
two-person dormitory room has a reasonable expectation of privacy in
files kept on a personally owned computer; such an individual has a
subjective expectation of privacy in the files stored on the hard drive
of his computer and military society would recognize such an
expectation as reasonable).
(the
fundamental purpose of
the exclusionary rule is to deter improper law enforcement conduct).
2005
United
States v. Garlick, 61 M.J. 346 (any error in failing to disclose to
the
accused information about factual inaccuracies in a search warrant
affidavit of
an FBI special agent who conducted a child pornography investigation
which led
to the charges against the accused was harmless beyond a reasonable
doubt,
where the government’s undisclosed information was within the accused’s
knowledge
well before trial; even after being formally notified after trial of a
disclosure error, and obtaining a delay to consider legal options,
accused’s
counsel declined to litigate the issue or advocate its importance to
the
convening authority in her RCM 1105 submission).
2004
United
States v. Daniels, 60 MJ 69 (the Fourth Amendment by
its
express terms protects individuals against unreasonable searches and
seizures;
under the Military Rules of Evidence, which implement the Fourth
Amendment,
evidence illegally seized by government agents from a protected place
is
inadmissible).
(the
question of
whether a private actor performed as a government agent does not hinge
on
motivation, but rather on the degree of the government’s participation
in the
private party’s activities, a question that can only be resolved in
light of
all the circumstances; to implicate the Fourth Amendment in this
respect, there
must be clear indices of the government’s encouragement, endorsement,
and
participation in the challenged search).
(in
the instant
case, rather than retrieve a vial of suspected cocaine on his own
initiative
from his roommate’s nightstand and then bring it to his chief petty
officer for
consultation, the servicemember instead first consulted his chief, and
then,
only after he received the order from his chief to do so, retrieved the
vial;
in other words, the chief’s specific order as a government official
triggered
the servicemember’s actual seizure of the vial; in light of these
facts, we
hold that the chief clearly encouraged, endorsed, and participated in
the
servicemember’s seizure of the vial and, accordingly, that the
servicemember
acted as the chief’s agent when he seized the vial).
(given
the
servicemember’s role as a government agent, his warrantless search of
appellant’s nightstand drawer to seize the vial of cocaine was
unlawful).
United
States v. Rodriguez, 60 MJ 239 (where appellant
was not
aware of police presence, his claim that police formed a moving
roadblock while
surveilling him on highway did not rise to a Fourth Amendment seizure).
2002
United
States v. Khamsouk, 57 MJ 282 (the Constitution
does not
permit military investigators greater power to conduct warrantless
entries into
a civilian home than their civilian counterparts).
1999
United
States v. Hall, 50 MJ 247 (direction to maintain the status
quo and not let anyone leave a given room did not violate the
Fourth
Amendment where there was probable cause to believe that evidence of
criminal
activity was on the premises; temporary securing of a dwelling to
prevent the
removal or destruction of evidence is reasonable).
United
States v. Owens, 51 MJ 204 (it is not a search for law
enforcement officials to look into an automobile through a window or
open
door).
2002
United
States v. Khamsouk, 57 MJ 282 (the arrest of a
person
inside his own home made with a valid arrest warrant does not violate
the
Fourth Amendment, and does not require a search warrant; an arrest
warrant is
sufficient to protect a citizen’s privacy interest in his own home when
he is
arrested there).
(status as an overnight guest is alone enough to show that an
individual had
an expectation of privacy in the home that society is prepared to
recognize as
reasonable; the overnight guest has a sufficient interest in another’s
home and
therefore, is protected from a warrantless arrest in that home under
the Fourth
Amendment).
(military or civilian officials acting pursuant to a DD Form 553
request to
apprehend a military absentee, may not do so by entering a civilian
residence
without a civilian warrant).
(the DD Form 553 is not the functional equivalent of a civilian
arrest
warrant in the context of entering a civilian home).
1999
United States v. Owens, 51 MJ 204 (there are two constitutional bases for the automobile exception to the warrant requirement: (1) mobility, and (2) reduced expectation of privacy; without deciding whether an automobile must be operable at time of a search under the automobile exception, Court holds search lawful where officer did not know vehicle was inoperable and had no duty to ascertain functional capability of vehicle; MRE 315(g)(3)).
United States v. Richter, 51 MJ 213 (observation of several items in truck during lawful investigative stop provided probable cause to believe that appellant had stolen government property in his truck, which provided legal basis for search of truck under automobile exception and MRE 315(g)(3)).
2008
(Transition)
United
States v. Stevenson, 66 M.J. 15 (ordinarily, a
person has a
reasonable expectation of privacy in his blood).
(while military service
necessitates a reduced expectation of privacy in bodily fluids with
respect to
drug testing, servicemembers otherwise generally retain their Fourth
Amendment
right against unreasonable search and seizure).
(within the context of bodily
fluids, there are a number of exceptions to the warrant requirement as
well as
circumstances that would negate the need for a warrant; these include
situations where there exists both probable cause and the need to
prevent the
loss of evidence, where the search is necessary to save someone’s life
and the
evidence is in plain view, and where the government demonstrates
special needs,
beyond the normal need for law enforcement; in addition, MRE 312(f),
rather
than being an exception to the warrant requirement, authorizes the
admission of
evidence that was developed incident to a valid medical purpose).
(MRE 312(f) permits the
admission
of evidence found or seized during the regular course of medical
treatment, that
is, incidental to medical treatment; however, the rule is not intended
to serve
as cover and concealment for law enforcement inquiries or as an
exception to
otherwise applicable Fourth Amendment requirements; therefore, the rule
does
not serve to permit additional searches and seizures that are not
incident to
treatment; whether such additional searches are admissible is a
question of
Fourth Amendment analysis).
(there is no indication that
either
Congress, through delegated authority to the President under Article
36, UCMJ,
or the President, through promulgation of MRE 312, intended to abolish
servicemembers’ expectation of privacy in blood drawn in furtherance of
military preparedness).
(in this case, where
appellant had
one vial of blood drawn by medical personnel for the purpose of
treatment and a
second, additional vial drawn at the request law enforcement
authorities so
that they might have the blood tested to identify appellant’s
(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).
(in this case, the Fourth
Amendment
problem was that the second vial of blood taken from appellant and
provided to law
enforcement authorities represented a distinct search and seizure from
that
undertaken incident to appellant’s treatment for diabetes with respect
to the
first vial of blood; whatever might be said of appellant’s expectation
of
privacy with regard to the blood draw itself, a search for
2000
United
States v. Stevenson,
53 MJ 257 (in determining whether prolonged
insertion of a needle to extract a second vial of blood, solely for law
enforcement purposes, was a de minimus intrusion with respect to
the Fourth Amendment and MRE 312(f), the military judge will consider
the
effect of the type of intrusion, the length of the prolonged insertion,
the quantity of fluid extracted, and the legal significance of the
nature
of the fluid extracted).
2009 (September Term)
United
States v. Huntzinger, 69 M.J. 1 (the military
rules of evidence with
respect to the search and seizure powers granted to military commanders
in MREs
311 to 317 apply in domestic and deployed locations; although the
application
of the rules and the exceptions therein depend upon the context, there
is no
general exception for locations or living quarters in a combat zone).
(a military commander may
authorize
a search based upon probable cause with respect to persons or property
under
the control of the commander in accordance with MRE 315(d)(1).
(MRE 315(d) provides that a
person
authorizing a probable cause search must be an impartial individual;
the
evaluation of impartiality includes consideration of whether a
commander’s
actions call into question the commander’s ability to review
impartially the
facts and circumstances of the case; to the extent that appellate case
law has
indicated that a commander acting as a law enforcement official with a
police
attitude may be disqualified from authorizing a search, the
disqualification
applies when the evidence demonstrates that the commander exhibited
bias or
appeared to be predisposed to one outcome or another; the participation
of a
commander in investigative activities in furtherance of command
responsibilities, without more, does not require a per se
disqualification of a
commander from authorizing a search under MRE 315; in that regard, a
commander’s
direction to take reasonable investigative steps to ascertain the facts
prior
to making an impartial probable cause decision does not disqualify the
commander from issuing a search authorization under MRE 315).
(there is no constitutional
requirement that the person issuing a search authorization have some
minimal
legal or educational qualifications).
(the requirement for
impartiality of
a commander issuing a search authorization serves to establish an
orderly
process and prevent the magistrate from representing a law enforcement
interest
while at the same time authorizing searches and seizures).
(the critical inquiry in
determining
if a commander was biased or participated in an investigation to such
an
extent, or in such a manner, that he compromised his ability to act
impartially
in issuing a search authorization is whether the commander conducted an
independent assessment of the facts before issuing the search authority
and
remained impartial throughout the investigation process).
(commander who ordered
investigation
after he learned that child pornography was potentially circulating
among members
of his unit was not disqualified from authorizing a search of the
accused’s
computer on the ground that he was not impartial, where he did not
predetermine
any issues or the outcome of the probable cause decision prior to
hearing and
viewing the evidence; he did not authorize the search until after the
investigating officer had narrowed the potential suspects to three
soldiers,
including the accused, and his subsequent actions, such as requesting
the
computer password from the accused, reviewing the files on the
computer, and
evaluating the evidence, reflect the reasonable actions of a commander
charged
with maintaining good order and discipline within his unit; as such, he
was not
disqualified from viewing the fruits of the search for the purposes of
exercising
his responsibilities over the unit as a commander).
United
States v. Miller, 66 M.J. 306 (the authority
to order an inspection under
MRE 313 is directly tied to a commander’s inherent authority; it is the
connection with command authority, and the commander’s responsibility
to ensure
fitness of a unit, that keeps a valid inspection scheme within
constitutional
parameters, and is important in justifying the reasonableness of what
is
otherwise a warrantless search).
(a valid inspection is
conducted as an
incident of command).
(a urinalysis test that was
the product of an
order issued by a civilian Air Reserve Technician who did not have
command
authority to issue the order was not incident to command, did not
comply with
MRE 313, and was an unlawful search; accordingly, that urinalysis and
the
resulting confession, which was the fruit of the unlawful search, must
be
suppressed).
2002
United
States v. Khamsouk, 57 MJ 282 (while a commander
has
powers similar to a federal magistrate judge, those powers are
constrained in
scope to persons and places under military control).
(a military commander — no matter how neutral and impartial he
strives to be
— cannot pass muster constitutionally as a “magistrate” in the strict
sense).
1999
United States v. Hall, 50 MJ 247 (in the absence of regulations to the contrary, commander may resume command during a temporary term of absence at his discretion).
United States v. Owens, 51 MJ 204 (when reviewing a commander’s decision to authorize a search, an appellate court determines whether the commander had a substantial basis for concluding that probable cause existed).
2011 (September Term)
United States v. Dease, 71 M.J. 116 (MRE 314(e)(3) states that consent to search may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time; the language is plain; consent may be withdrawn at any time, provided of course that the search has not already been conducted).
(appellant, who consented to a urinalysis during a drug investigation, had an ongoing privacy interest in his urine sample after it was seized and before it was searched at the drug laboratory; therefore, appellant could assert this privacy interest by withdrawing his consent to search under MRE 314 prior to the sample being tested; accordingly, the military judge did not abuse his discretion in ruling that appellant had a privacy interest in his urine sample and could withdraw consent prior to the search; and, the CCA erred in determining that appellant’s privacy interest in his urine sample was extinguished by his voluntary surrender of his sample to the government; appellant did not abandon his urine, only to have it later collected and tested; he consented to the search of his urine for evidence of drug use, and later withdrew that consent).
2008 (September Term)
United
States v. Weston, 67 M.J. 390 (while the rule
against warrantless entry is
vigilantly guarded, the voluntary consent of an individual possessing
authority
is one carefully drawn exception; voluntary consent to search may be
obtained
from the person whose property is to be searched or from a fellow
occupant who shares
common authority over the property).
(the consent to search of one
who possesses
common authority or other sufficient relationship over premises or
effects is
valid as against the absent, nonconsenting person with whom that
authority is
shared; common authority over a home extends to all items within the
home,
unless the item reasonably appears to be within the exclusive domain of
the
third party; additionally, common authority can be obtained via mutual
use of the
property by a person with joint access or control).
(express refusal to search a
home by a
physically present co-occupant renders a warrantless search based on
the
consent of another co-occupant unreasonable and invalid as to him; the
specific
combination of the physical presence of the cotenant at the scene, plus
the
cotenant’s immediate challenge renders the warrantless search
unreasonable and
invalid).
(reasonableness of a
warrantless search due to
voluntary consent is a simple binary proposition; either there is
consent or
there is not).
(where one party has joint
access and control
to a property and voluntarily consents to a search, a warrantless
search is
reasonable, unless a nonconsenting party who shared authority over the
premises
was physically present and immediately objected to the search; the term
“nonconsenting” is general and inclusive; it encompasses all who do not
expressly
consent, including those who refuse, those who remain silent, and those
who are
not asked).
(the search of appellant’s
house was
reasonable based on his wife’s consent, where his wife possessed common
authority over the premises, where appellant was a nonconsenting party
who
shared authority over the premises, but was not physically present to
provide
an immediate challenge to his wife’s consent to search, and where there
was no
evidence that appellant was removed from his house so that he could not
effectively object to its search; physical presence and immediate
challenge are
required for a nonconsenting tenant’s objection to nullify the
reasonableness
of the search).
United
States v. Gallagher, 66 M.J. 250 (ordinarily the
search of a home,
to include a search of items, such as a briefcase within the home, is
prohibited in the absence of a warrant; the prohibition does not apply,
however, to situations in which voluntary consent has been obtained).
(valid consent to search can be
provided, under some circumstances, by a third party; a third party has
authority to consent to a search when he possesses common authority
over or
other sufficient relationship to the premises or effects sought to be
inspected).
(under the apparent authority
doctrine, a search may be reasonable under the Fourth Amendment even
though the
person purporting to give consent lacks actual authority to consent,
if, viewed
objectively, the facts available to the law enforcement officer at the
moment
would warrant a man of reasonable caution to believe that the
consenting party
had authority over the premises or effects).
(the scope of the apparent
authority to consent with respect to a container on the premises
depends on
whether it was objectively unreasonable under the circumstances for a
law
enforcement officer to believe that the consent extended to the
particular container
on the premises and the container could reasonably hold the object of
the
search).
(while the scope of consent to
search a premises may be delimited by the consenter, if the consent
would
reasonably be understood to extend to a particular container, the
Fourth
Amendment provides no grounds for requiring a more explicit
authorization).
(absent evidence tending to
show
that an officer should have known that a closed container on the
premises was
not under the authority of a person who consented to the search, the
search of
a closed container belonging to a third party will be deemed
reasonable).
(a military judge did not
abuse
his discretion denying a motion to suppress on the ground that a spouse
had
apparent authority to consent to the search of the briefcase where
there was
nothing to indicate that common authority over the briefcase had been
withheld,
the briefcase was kept in a common area and opened without manipulation
of the
tumblers, and the law enforcement officer who discovered the briefcase
was
reasonable in relying on the spouse’s consent to search the home, which
was not
limited in any way, because he possessed no facts that reasonably
should have
caused him to believe the briefcase was the exclusive domain of
appellant and
it would have been just as reasonable to conclude the briefcase was
primarily
used by the consenting spouse).
(when one
spouse consented to a
search of the entire house, the apparent authority doctrine extended
that
consent to an androgynous, unmarked, unlocked, briefcase kept in a
common area
of the home, which could reasonably hold the object of the search,
videotapes
and pictures, as it was objectively reasonable for a law enforcement
officer to
believe the general consent to search the home for videotapes and
pictures
included valid consent to search unlocked containers which might hold
such
evidence, to include the briefcase).
United
States v. Wallace, 66 M.J. 5 (MRE 314(e)(3)
states that consent to search may
be limited in any way by the person granting consent, including
limitations in
terms of time, place, or property and may be withdrawn at any time).
(it is the objective
reasonableness of the
consent - not an accused’s supposed impression - that controls).
(MRE 314(e)(3) implements a
limited scope rule,
which requires investigators to account for any express or implied
limitations
on a consent to search; those limitations, however, cannot be
determined on the
basis of the subjective intentions of the consenting party; the
standard is
that of objective reasonableness -- what would the typical reasonable
person
have understood by the exchange between the officer and the suspect).
(in this case, clearly, a
reasonable person
could conclude that an authorization permitting the search and seizure
of “my
computer” would permit investigators not only to search, but also to
remove the
computer from the premises).
(even though appellant
initially consented to a
general search of his home and computer, his subsequent exhortation to
investigators that they could not take his computer revoked any consent
to
seize the computer; his exhortation may have revoked his consent to
seize the
computer, but disapproval of the seizure cannot, without more, affect
the
consent to search in the first place).
(a seizure of property, for
purposes of the
Fourth Amendment, occurs when there is some meaningful interference
with an
individual’s possessory interest in property; as such, a seizure can
occur
either with or without an attendant search; in either case, the search
and the
seizure necessitate separate analyses under the Fourth Amendment; if
searches
and seizures are separate concepts, consent to one is not, without
more,
consent to the other; similarly, revoking consent to one does not of
itself
revoke consent to the other).
(where appellant signed a
“Consent for Search
and Seizure” that clearly gave investigators the right to search his
residence
and computer and to take away anything they considered evidence of an
offense,
appellant’s later objection that the investigators could not take his
computer
clearly embraced the seizure of the computer, and nothing more; as
such, while
appellant consented to both a search and any attendant seizures, his
pleas to
investigators to leave the computer revoked his consent to this
particular
seizure, but not to the search).
(a non-accused co-resident
cannot supersede the
wishes of the accused co-resident to consent to search because, after
all,
Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted).
(an appellate court determines
the voluntariness
of a consent to seizure from the totality of all the circumstances).
(the following non-exhaustive
factors should be
considered in determining the voluntariness of consent: (1) the degree
to which
the suspect’s liberty was restricted; (2) the presence of coercion or
intimidation; (3) the suspect’s awareness of his right to refuse based
on
inferences of the suspect’s age, intelligence, and other factors; (4)
the
suspect’s mental state at the time; (5) the suspect’s consultation, or
lack
thereof, with counsel; and (6) the coercive effects of any prior
violations of
the suspect’s rights).
(in this case, as soon as
appellant revoked his
consent to the seizure, investigators informed him that they would have
to take
his computer as a matter of routine, and appellant acceded; this second
so-called consent amounted to mere passive acquiescence to the color of
authority and was not a valid consent; under the totality of the
circumstances,
appellant’s acquiescence did not constitute free and voluntary consent
to his
computer’s seizure after revocation of his initial consent to seize;
appellant’s ultimate consent to his computer’s seizure lacked
sufficient
indicia of voluntariness, where he clearly faced restrictions on his
liberty by
being escorted by two investigators and his first sergeant, where the
facts of
the escort and the presence of several authority figures also created a
coercive and intimidating atmosphere that stifled appellant’s
inclination to
refuse consent, where, even though appellant was a twenty-six-year-old
staff
sergeant with nearly eight years of service, it is doubtful that he
knew he
could withdraw consent once given in light of the investigator’s
assurance that
seizure was a routine procedure and the fact that neither the written
consent
form nor the Article 31, UCMJ, rights warnings explicitly stated that
he could
withdraw consent, and where appellant never consulted counsel
throughout his
questioning and the subsequent search).
2007
(refusing to consent to a
warrantless search is privileged conduct which cannot be considered as
evidence of criminal wrongdoing).
United States v. Rader, 65 M.J. 30 (a law
enforcement officer does not violate the Fourth Amendment’s
proscription against unreasonable searches and seizures where a third
party who possesses common authority over the premises or effects
consents to the search).
(ordinarily,
the search of a
home, to include a search of items within the home, such as a computer,
is prohibited in the absence of a warrant; the prohibition does not
apply, however, to situations in which voluntary consent has been
obtained; valid consent to search can be provided, under some
circumstances, by a third party).
(the validity of the third
party consent does not hinge on niceties of property law or on legal
technicalities; rather, a third party has authority to consent to a
search when he possesses common authority over or other sufficient
relationship to the premises or effects sought to be inspected; that
consent is valid as against the absent, nonconsenting person with whom
that authority is shared).
(common authority for the
purposes of the validity of third party consent is mutual use of the
property by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own right
and that the others have assumed the risk that one of their number
might permit the search; MRE 314(e)(2) recognizes this same concept:
a third party may grant consent to search property when the
person exercises control over that property).
(consent
to use a computer can
be limited in scope by its owner to certain applications or files; in
the personal computer context, courts examine whether the relevant
files were password-protected or whether the accused otherwise
manifested an intention to restrict third-party access).
(appellant’s roommate had
sufficient access and control of appellant’s computer to consent to the
search and seizure of certain unencrypted files in appellant’s
non-password-protected computer; the record supports the military
judge’s conclusion that the roommate had common authority over
appellant’s computer for most purposes, where appellant’s computer was
physically located in his roommate’s bedroom, where neither appellant’s
computer nor the folder at issue was protected by a password, where
appellant never told his roommate not to access his computer or any
files within the computer, where his roommate used appellant’s computer
to play computer games with appellant’s knowledge and consent, and
where his roommate accessed appellant’s computer approximately every
two weeks to perform routine maintenance; in this case, it would be
difficult to imagine how there could have been a greater degree of
joint access, mutual use, or control).
2006
United
States v. Conklin, 63 M.J. 333 (the granting of
consent to search may
sufficiently attenuate the taint of a prior constitutional violation;
however, if
an accused’s consent, albeit voluntary, is determined to have been
obtained
through exploitation of the illegal entry, it can not be said to be
sufficiently attenuated from the taint of that entry).
(to
determine
whether an accused’s consent was
an independent act of free will, breaking the causal chain between the
consent
and a prior constitutional violation, three factors are considered: (1) the temporal proximity of the illegal
conduct and the consent; (2) the presence of intervening circumstances;
and (3)
the purpose and the flagrancy of the initial misconduct).
2004
(implicit
in the
military judge’s ruling that appellant
had a reasonable expectation of privacy in his nightstand drawer is
that his roommates
did not have adequate control of the nightstand to exercise independent
authority to consent).
United States
v. Rodriguez,
60 MJ 239 (after
accused’s brief detention for traffic stop
concluded,
encounter between accused and state trooper was consensual in nature
and not a
seizure subject to Fourth Amendment scrutiny, notwithstanding accused’s
contention that trooper’s request for consent to search his vehicle
initiated a
subsequent detention; accused did not show that after issuing a
citation,
trooper prevented him from leaving, by physically blocking his vehicle,
engaging in questioning, or otherwise signaling to accused that he was
not free
to leave).
2003
United States v. McMahon, 58 MJ 362 (a search of a residence conducted without a warrant based on probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search conducted with the resident’s consent).
(consent is valid only if it is freely and voluntarily given; the determination as to whether consent is voluntarily given is a question of fact to be determined from the totality of all the circumstances; considerations include age, intelligence, experience, length of military service, whether the environment was custodial or coercive, and knowledge of the right to refuse consent; consent must be more than acquiescence to a claim of lawful authority; the expressed object of the search generally defines the scope of the consent).
(the evidence in the present case clearly supports the judge’s finding that appellant validly consented to the initial search of his residence; in light of the stated purpose of the search (to search the house for clues to a woman's death), appellant’s calm demeanor, and his apparent understanding of the agents’ objectives, the military judge did not abuse her discretion in finding appellant’s consent to have been voluntary and valid).
(while searching pursuant to appellant’s valid consent, agents found items indicative of criminal activity, but unrelated to the woman's death and therefore beyond the scope of appellant’s consent; the agents promptly stopped their search and properly obtained a search authorization from a military magistrate; the search authorization was for, among other things, items of U.S. Government property, including Government-owned CDs; we hold that the magistrate’s search warrant authorized an agent to search appellant's binder; the agent was justified in opening the binder because it was a place where CDs might reasonably be kept; once inside the binder, having observed what appeared to be a falsified award certificate, the agent had probable cause to believe the item was contraband or evidence of a crime, and he was authorized under the plain view doctrine to seize the certificate therein).
(law enforcement officials conducting a lawful search may seize items in plain view if the officials are acting within the scope of their authority, and they have probable cause to believe the item is contraband or evidence of a crime).
1999
United States v. Owens, 51 MJ 204 (prosecution bears burden of showing consent by clear and convincing evidence as determined by the totality of the circumstances; MRE 314(e)(5)).
(in reviewing consent to search, appellate court must be satisfied by clear and convincing evidence that subtle and implicit pressures did not overwhelm appellant’s will; review of a military judge’s determination of consent will be deferential, and the determination will not be overturned unless it is unsupported by the evidence or clearly erroneous).
United States v. Richter, 51 MJ 213 (consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous).
(law enforcement officials may properly use sting operations and informants in order to gain valid consent; however, where a third party is used by law enforcement to tell a person that law enforcement authorities have a warrant, the prosecution cannot establish voluntary consent merely by showing the absence of direct communication between law enforcement authorities and the person giving consent).
United States v. Richter, 51 MJ 213 (search cannot be justified as based on consent where that consent was given only after the official conducting the search has asserted that he has a warrant; such purported consent is mere acquiescence to authority).
(where appellant was informed during pretext phone conversation that law enforcement officials had a warrant to search his home, the mere mention of a warrant or command authorization did not vitiate a subsequent consent where that consent was shown, under the totality of the circumstances, to be truly voluntary).
United States v. Vassar, 52 MJ 9 (military judge’s ruling on a motion to suppress is reviewed for an abuse of discretion, and the judge will be reversed if the military judge’s findings of fact are clearly erroneous or if the decision was influenced by an erroneous view of the law; consent to search is a factual determination that will not be disturbed on appeal unless that determination is unsupported by the evidence or clearly erroneous).
(military judge erred in evaluating issue of consent to search if that judge applied the appellate standard of evaluating conflicts in the evidence in the light most favorable to the government).
(any incorrect view of the law on consent to search held by the military judge was harmless where the Court found there was no evidence suggesting a lack of consent).
(assuming that any error in the military judge’s evaluation of evidence on issue of consent to search implicates the Fourth Amendment, the error was harmless beyond a reasonable doubt where: (1) appellant’s consent was given immediately; (2) appellant was aware of his surroundings; (3) the atmosphere was non-coercive and even light-hearted; (4) first consent form advised appellant of right to refuse; (5) second consent form was signed with knowledge that urine sample would not be sent to lab without consent; (6) appellant’s statements reflect an awareness of the right to refuse consent; (7) appellant did not go so far in his testimony as to claim his consent was not voluntary; and (8) there was no conflicting evidence to resolve).
United States v. Wright, 52 MJ 136 (responding to a suspect that one would seek a warrant or authorization to search if consent is not given does not foreclose a finding of voluntary consent; this is significantly different than telling a suspect falsely that one has a warrant).
(appellant’s consent was not
rendered involuntary by statement that, if appellant did not consent,
law
enforcement agent would get a search warrant where appellant was fully
advised that he had the right to refuse to give consent and he waived
that
right).
2011 (September Term)
United States v. Dease, 71 M.J. 116 (granting of consent to search may sufficiently attenuate the taint of a prior unlawful search; the threshold question is whether consent is voluntary, without influence of the prior violation; in order to sufficiently attenuate the taint of a prior violation, a court must examine the consent with respect to three factors: (1) the temporal proximity of the illegal conduct and the consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the original unlawful conduct; none of these three factors is dispositive of attenuating the taint of the original wrongdoing, but rather they are examined in aggregate).
(appellant’s consent to search his dormitory room and his subsequent statement to investigators were not sufficiently attenuated from the illegal testing of his urine sample conducted after he withdrew his consent to a urinalysis to make the evidence stemming from the search of his room and his statement admissible as derivative evidence in a drug prosecution; although appellant consented to the search and made the statement two months after he withdrew his consent to the testing of his sample and one month after the test was performed, he consented to the search of his room and gave his statement only a few hours after learning of the test results, there were no intervening circumstances of significance to the investigation between the revocation of his initial consent to the urinalysis and his subsequent consent to search his room, and once he had revoked his initial consent, the government should have known that consent had been withdrawn, and negligently failed to act accordingly).
1999
United
States v. Owens, 51 MJ 204 (because items previously seized
during searches of appellant’s automobile were admissible, there was no
taint to the commander’s authorization to search appellant’s dormitory
room).
United States v. Marine, 51 MJ 425 (in determining whether evidence has been derived from illegal police activity and, therefore, is the fruit of the poisonous tree, the pertinent inquiry is whether the seizure of the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint considering factors such as temporal proximity between the illegality and the seizure of the evidence, the presence of intervening circumstances, and the flagrancy of the official misconduct).
(a lawful arrest of a person who was initially illegally detained or seized is an intervening circumstance sufficient to dissipate any taint caused by an earlier illegal stop).
(any
taint derived from an initial
improper investigative stop of appellant did not bar admission of
evidence
seized during a subsequent search incident to apprehension where:
(1) there was an intervening lawful apprehension of appellant for
disrespect
which was sufficient to dissipate any taint caused by an earlier
illegal
stop; and (2) any misconduct by guards was not so flagrant as to
warrant
application of the exclusionary rule).
2000
United States v. Allen, 53 MJ 402 (28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants do not confer a protection upon the individual accused which is enforceable by virtue of the exclusionary rule; nor is the failure to coordinate with the United States Attorney unreasonable conduct by law enforcement which would serve to violate any of the accused’s Fourth Amendment protections).
(although no warrant was obtained to seize electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant, there is no exclusionary rule under 18 USC § 2703, which is part of Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”).
2008 (Transition)
(mislaid
property is
that which is intentionally put into a certain place and later
forgotten; in
this case, the military judge’s findings indicate that under the
circumstances
of its recovery, a laptop computer found in a barracks lavatory could
appropriately have been characterized as mislaid property; while an
owner
retains some expectation of privacy in lost or mislaid property, that
interest
is outweighed by the interest of law enforcement officials in
identifying and
returning such property to the owner; presumably, the owner of valuable
mislaid
property anticipates and hopes that if the mislaid property is found it
will be
turned in to authorities; similarly, he expects that authorities will
make
reasonable efforts to determine the identity of the owner and keep the
property
safe until its return to him).
(resolution
of the
issue of a search of mislaid property necessarily requires a weighing
of the
governmental interests at stake against the constitutionally protected
interest
of the servicemember in the privacy of his effects).
(the
reasonableness of any particular governmental activity does not
necessarily or
invariably turn on the existence of alternative less intrusive means).
(whether
a military
instructor’s search of a mislaid laptop computer was reasonable or
unreasonable
does not hinge on whether less intrusive means were available; rather,
it
depends on whether appellant had a subjective (actual) expectation of
privacy
in the property searched that was objectively reasonable; this in turn
depends,
in part, on the location of the property searched; the threshold of a
barracks/dormitory
room does not provide the same sanctuary as the threshold of a private
room;
the same can be said of a public restroom; the reasonableness of the
search
also depends on the nature and scope of the governmental intrusion).
(in this case, a military
training instructor’s
search of a mislaid laptop computer in order to determine the identity
of its
owner was reasonable at least up to the point that the instructor powered
it up and performed a cursory
examination of folders likely to reveal the owner’s identity; appellant
possessed a diminished
expectation of privacy in his personal computer that was mislaid in a
common
area; further, the legitimate governmental interest in identifying the
owner of
mislaid property and safekeeping it until its return to the owner
outweighed
the interest appellant retained in his mislaid and subsequently found
laptop).
(while military service
necessitates a reduced expectation of privacy in bodily fluids with
respect to
drug testing, servicemembers otherwise generally retain their Fourth
Amendment
right against unreasonable search and seizure).
(there is no indication that
either
Congress, through delegated authority to the President under Article
36, UCMJ,
or the President, through promulgation of MRE 312, intended to abolish
servicemembers’ expectation of privacy in blood drawn in furtherance of
military preparedness).
(in this case, where
appellant had
one vial of blood drawn by medical personnel for the purpose of
treatment and a
second, additional vial drawn at the request law enforcement
authorities so
that they might have the blood tested to identify appellant’s
(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).
United
States v. Larson, 66 M.J. 212 (the
Fourth Amendment of the Constitution generally requires probable cause for
searches of places and things in which people have a reasonable
expectation of
privacy; in addressing Fourth Amendment privacy claims, the threshold
issue is
whether the person has a legitimate expectation of privacy in the
invaded
place; this inquiry invites a court to address whether the individual
had a
subjective expectation of privacy, and if so whether the subjective
expectation
of privacy is one that society is prepared to accept as reasonable).
(under MRE 314(d), government
property may be searched unless the
person to whom the property is issued or assigned has a reasonable
expectation
of privacy therein at the time of the search; under normal
circumstances, a
person does not have a reasonable expectation of privacy in government
property
that is not issued for personal use; the presumption that there is no
reasonable expectation of privacy in government property is rebuttable;
whether
there is a reasonable expectation of privacy in government property is
determined under that totality of the circumstances, which includes the
rebuttable presumption).
(in this case, the military
judge did not
abuse his discretion in concluding that the government carried its
burden of
establishing that appellant had no reasonable expectation of privacy in
the
government computer; based on the totality of circumstances presented
including
the factors identified below, appellant failed to rebut and overcome
the
presumption that he had no reasonable expectation of privacy in the
government
computer provided to him for official use; there was no evidence that
appellant
had a subjective expectation of privacy in the government computer, and
he did
not testify that he did; moreover, the access to this computer by both
appellant’s
commander and the system administrator supported the validity of the
presumption that he had no reasonable expectation of privacy in the
government
computer; finally, the military judge found as fact that when appellant
used
the computer, a banner appeared that stated that it was a DOD computer,
it was
for official use, not to be used for illegal activity, and that it also
had a
statement that users of the computer consented to monitoring; this
factual
finding was supported by the record, was not clearly erroneous and,
taking the
facts in the light most favorable to the prevailing party, established
both
that appellant was put on notice that the computer was not to be used
for
illegal activity and that there could be third-party monitoring; the
military
judge did not abuse his discretion in concluding that appellant had no
expectation of privacy in the government computer).
2006
United
States v. Long, 64 M.J. 57 (the question of
whether there was a reasonable
expectation of privacy in any search and seizure analysis is resolved
by
examining whether the individual challenging the alleged intrusion had
a
subjective expectation of privacy which was objectively reasonable; if
such an
expectation is established, the inquiry then moves to the remaining
issues
raised by the Fourth Amendment).
(the
determination of the reasonableness of an
expectation of privacy is understood to differ according to context; in
the
context of the government workplace, employees may have a reasonable
expectation of privacy against certain intrusions; however, public
employees’
expectations of privacy in their offices, desks, and file cabinets may
be
reduced by virtue of actual office practices and procedures, or by
legitimate
regulation; the rationale for this suggestion is the efficient and
proper
operation of the agency; thus, an employee’s expectation of privacy
must be
assessed in the context of the employment relation and the operational
realities of the workplace).
(if
the practices
of the workplace establish an
environment where the employee enjoys no reasonable expectation of
privacy, the
protections of the Fourth Amendment would simply not apply; if an
expectation
of privacy is supported by the workplace environment, however, the
analysis
must continue).
(in
the
government workplace, a reasonable
expectation of privacy may not provide the employee with complete
Fourth
Amendment protection; the need for a search warrant based on probable
cause is
not required for legitimate workplace searches conducted by
supervisors; public
employer intrusions on the constitutionally protected privacy interests
of
government employees for noninvestigatory, work-related purposes, as
well as
for investigations of work-related misconduct, should be judged by the
standard
of reasonableness under all the circumstances; while police, and even
administrative enforcement personnel, conduct searches for the primary
purpose
of obtaining evidence for use in criminal or other enforcement
proceedings,
employers most frequently need to enter the offices and desks of their
employees for legitimate work-related reasons wholly unrelated to
illegal
conduct).
(in
examining
Fourth Amendment privacy
interests, the courts look first to whether the individual had a
subjective
expectation of privacy; if the courts ascertain that a subjective
expectation
of privacy exists, they then determine if that expectation is one that
society
is prepared to accept as reasonable).
(the
lower court
was not clearly erroneous in
its determination that the accused had a subjective expectation of
privacy in
the e-mails she sent from her military office computer and in the
e-mails that
were stored on the military government server, where she had a password
known
only to her, the system’s log-on banner described access to “monitor”
the
computer system, not to engage in law enforcement intrusions by
examining the
contents of particular e-mails in a manner unrelated to maintenance of
the
e-mail system, and agency practice recognized the privacy interests of
users in
their e-mail).
(MRE
314(d)
indicates that searches of
government property may be made without probable cause unless an
individual has
a reasonable expectation of privacy in that property and that the
determination
of the reasonableness of an expectation of privacy depends on the facts
and
circumstances at the time of the search).
(privacy
expectations in the workplace may be
reduced by virtue of office practices, procedures, or regulation).
United
States v. Daniels, 60 MJ 69 (the Supreme
Court defines a Fourth Amendment
search as a government intrusion into an individual’s reasonable
expectation of
privacy; the Court’s twofold expectation of privacy test asks, first,
whether
the individual by his conduct has exhibited an actual (subjective)
expectation
of privacy and, second, whether the expectation is one that society is
prepared
to recognize as reasonable, or, in other words, whether the
expectation, viewed
objectively, is justifiable under the circumstances).
(sealed letters sent through the postal system are papers within the meaning of the Fourth Amendment; courts have also recognized that a reasonable expectation of privacy generally exists in the contents of sealed letters sent through the U.S. Postal System; however, no reasonable expectation of privacy exists in the information visible on the outside of an envelope; letters and sealed packages are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles).
(application of the Fourth Amendment is necessarily fact intensive; a person may have an objectively reasonable expectation of privacy in one context, but not another, based on small variations in material fact or circumstance; moreover, the analysis is multidimensional including consideration of the scope of the search, the location of the search, and the object searched).
(the addressee and return address information on the outside of a sealed letter are not private because this information is knowingly exposed to the public; disclosure of this information is necessary for the delivery of mail and a reasonable person has no expectation that it will remain private).
(there is no reasonable expectation of privacy in discarded trash left at the curb to be picked up; while many people would be offended by the notion that someone is examining garbage left for collection or letters left for others to deliver to postal facilities, a reasonable person is aware of the potential risk and knows that what is plainly visible to anyone viewing the outside of an envelope, such as address information, is knowingly exposed to the public).
(as a general rule, persons joining the armed forces do not forfeit the same reasonable expectation of privacy in the contents of their mail enjoyed by the other members of American society they serve and protect; however, this general rule is not blind to circumstance, just as the Fourth Amendment is not absolute in application, but adjusts to that which society, as measured through our courts, is prepared to accept as objectively reasonable in the context presented).
(under the circumstances of this case, where appellant left a letter at the informal outgoing mail area on the front office desk of a trainee dormitory, appellant may have had a subjective expectation of privacy in the contents of his letter that were visible through the envelope, but such an expectation was not objectively reasonable; if appellant had desired to afford his letter greater protection, he could have mailed the letter himself or used a thicker, more opaque envelope; by failing to do so, he took the risk that others would see the information that was visible through the envelope; the contents at issue here were seen with the naked eye by a person who was not unlawfully viewing the outside of the letters and had reason to consider the envelope further after seeing appellant’s name in light of the command policy on social contact with trainees; therefore, this Court holds based on the facts of this case, that appellant’s expectation of privacy in the parts of his letter that were readily visible to the naked eye through the envelope was not one that society would recognize as reasonable).
(based on the facts of this case, including appellant’s voluntary decision to place his letter on the office table for someone else to mail, a quick inspection and detention of the letter by another service member who worked in the office did not amount to a seizure within the meaning of the Fourth Amendment; appellant did not have a sufficient possessory interest in the letter at the time of its inspection, nor was the detention of sufficient duration to amount to a seizure).
2002United States v. Khamsouk, 57 MJ 282 (status as an overnight guest is alone enough to show that an individual had an expectation of privacy in the home that society is prepared to recognize as reasonable; the overnight guest has a sufficient interest in another’s home and therefore, is protected from a warrantless arrest in that home under the Fourth Amendment).
2000(government computer system operators did not act illegally in disclosing electronic mail to criminal authorities where appellant had no reasonable expectation of privacy in mail within government computer system and where that mail had been opened inadvertently by system operators while troubleshooting the problems the mail messages had created within the computer system; see 18 USC § 2702(b)).
Unite States v. Allen, 53 MJ 402 (court does not address whether stored logs of transactional records of an internet service provider without any accompanying text are such that an accused has a subjective expectation of privacy that society is willing to recognize).
United States v. Tanksley, 54 MJ 169 (seizure of a document displayed on appellant’s computer screen did not violate appellant’s right to be free from unreasonable searches and seizures; appellant had, at best, a reduced expectation of privacy in the government office he occupied; in addition, appellant forfeited any expectation of privacy he might have enjoyed by leaving the document in plain view on a computer screen in an unsecured room; finally, the document was exculpatory and not used at trial, did not reveal confidential information about defense strategy, and produced no information or leads not otherwise known to the government).
1999United States v. Monroe, 52 MJ 326 (even if probable cause determination lacked substantial basis, evidence seized would still be admissible under the good faith exception of MRE 311(b)(3) where: (1) there was no suggestion that investigator acted with other than objective good faith in seeking and executing search authorization; (2) investigator sought legal advice throughout investigation; (3) investigator showed restraint in not searching appellant’s work area when it became obvious that no evidence would be found there; (4) investigator fully disclosed the sources of his information, and there was no reason to view his affidavit as deficient on its face; (5) there was no indication that authorizing official abandoned his judicial role; and, (6) there was no indication that the authorization was facially deficient).
United
States v. Henley, 53 MJ 488 (even if magistrate did not have
a substantial basis for concluding that a search of appellant’s home
would
uncover evidence of wrongdoing, evidence was nonetheless admissible
under
good faith exception where: officers reasonably believed they
were
executing a valid warrant; officers did not act outside scope of
warrant;
and items seized were encompassed by the description in the warrant).
1999
United States v. Carter, No. 00-0314 (a "good faith" exception to the exclusionary rule exists in cases where the official executing the warrant relied on the magistrate’s probable cause determination and the technical sufficiency of the warrant, and that reliance was objectively reasonable).
(a "good faith" exception to the exclusionary rule will not apply where: (1) the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the magistrate wholly abandoned his judicial role or was a mere rubber stamp for the police; (3) where the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid).
(Mil. R. Evid. 311(b)(3) contains the good faith exception to the exclusionary rule, and the rule does not establish a more stringent rule than was established in United States v. Leon, 468 U.S. 897 (1984), did for civilian courts; specifically, the phrase "substantial basis" used as the second element of good faith in the rule examines the affidavit and search authorization through the eyes of a reasonable law enforcement official executing the search authorization, and is satisfied if the law enforcement official had an objectively reasonable belief that the magistrate had a "substantial basis" for determining the existence of probable cause).
(even if probable cause was lacking because of the failure to establish a nexus with appellant’s home, the breadth of the information in the affidavit justified the inference that the material sought would be at appellant’s residence, and application of the good faith exception seems appropriate).
2011 (September Term)
United States v. Dease, 71 M.J. 116 (the doctrine of inevitable discovery is an exception to the exclusionary rule of the Fourth Amendment; MRE 311(b)(2) codifies this doctrine, stating that evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made).
(the doctrine of inevitable discovery did not apply to the warrantless analysis of appellant’s urine after he withdrew his consent to a urinalysis, absent probable cause to suspect evidence of illegal drug use in appellant’s urine or any parallel investigation that would have led to the discovery of the evidence; although appellant and his vehicle were seen in an area of known narcotic trafficking accompanied by a stranger who appeared to purchase narcotics, appellant was a clean confidential source who had been recruited to act as an undercover agent during an ongoing drug investigation; as a result, the military judge did not abuse his discretion in concluding that the urinalysis evidence would not have been subject to inevitable discovery).
2008 (Transition)
United
States v. Wallace, 66 M.J. 5 (the doctrine of
inevitable discovery creates an
exception to the exclusionary rule allowing admission of evidence that,
although obtained improperly, would have been obtained by another
lawful means;
MRE 311(b)(2) embodies this exception, stating that evidence that was
obtained
as a result of an unlawful search or seizure may be used when the
evidence
would have been obtained even if such unlawful search or seizure had
not been
made).
2000
United
States v. Allen, 53
MJ 402 (court finds that stored logs of transactional
records of an internet service provider without any accompanying text
would
have inevitably been obtained pursuant to a warrant where there was
nothing
to show that officers would not have obtained such a warrant had the
internet
service provider not indicated that it had authority to turn over the
records).
1999
United
States v. Owens, 51
MJ 204 (when the routine procedures
of a law enforcement agency would inevitably find the same evidence,
the
rule of inevitable discovery applies even in the absence of a prior or
parallel investigation; MRE 311(b)(2)).
2004
United States
v. Rodriguez,
60 MJ 239 (Fourth
Amendment seizure was an investigatory
detention
rather than an arrest, where there was no evidence that the ATF agents
brandished their weapons or handcuffed accused, or that accused was
prevented
from speaking to his passengers).
2003
United States v. Robinson, 58 MJ 429 (an investigative stop of an individual is permissible under the Fourth Amendment where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot; similarly, an investigative stop of a motor vehicle is constitutionally permissible where there is reasonable suspicion that the occupants are engaged in wrongdoing; based on the totality of the circumstances, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity).
(the concept of particularized suspicion has two elements; the first element is that the assessment must be based upon all the circumstances; the second element of the particularized suspicion required is that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing).
(the factual basis for reasonable suspicion must be more than a mere hunch; however, it need not rise to the level of probable cause, and it falls considerably short of a preponderance of the evidence).
(in considering the totality of the circumstances, the detaining officer may consider a series of acts which are innocent in themselves, but which, taken together, warrant further investigation; while mere presence in a high-crime area, standing alone, is insufficient for reasonable suspicion, it is a relevant contextual consideration; unprovoked flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of such; evasive behavior is a relevant consideration; the fact that a vehicle appears out of place is relevant; and finally, the time of day is relevant).
(the facts found by the military judge were sufficient to establish reasonable suspicion for an investigative stop of appellant's vehicle where the police officer twice observed appellant's vehicle in a high crime area at an unusual time, where appellant’s vehicle was out of place and appellant’s presence was unusual, and where appellant made a sudden turn into an unpaved alley that was (1) evasive, (2) an indicator of impaired driving, and (3) unusual because it was a sudden turn into an alley that was not a customary roadway).
1999
United States v. Richter, 51 MJ 213 (reasonable suspicion justifying an investigative stop under MRE 314(f)(1) existed where: (1) agents received information that appellant had taken a government-owned bicycle for personal use; (2) appellant had been observed loading tents into a privately owned vehicle; (3) a medical cabinet surrendered to law enforcement reportedly came from appellant; and (4) after a pretext phone call appellant was observed loading a large box into his truck and driving toward the gate).
2009 ( September Term)
United
States v. Clayton, 68 M.J. 419 (determinations
of probable cause made by a
neutral and detached magistrate are entitled to substantial deference).
1999
1999
United
States v. Richter,
51 MJ 213 (once officers make a valid
investigative stop, it is not a violation of the Forth Amendment for
them
to observe items in plain view).
2009
(September Term)
United
States v. Huntzinger, 69 M.J. 1 (a military
commander may authorize
a search based upon probable cause with respect to persons or property
under
the control of the commander in accordance with MRE 315(d)(1).
(MRE 315(d) provides that a
person
authorizing a probable cause search must be an impartial individual;
the
evaluation of impartiality includes consideration of whether a
commander’s
actions call into question the commander’s ability to review
impartially the
facts and circumstances of the case; to the extent that appellate case
law has
indicated that a commander acting as a law enforcement official with a
police
attitude may be disqualified from authorizing a search, the
disqualification
applies when the evidence demonstrates that the commander exhibited
bias or
appeared to be predisposed to one outcome or another; the participation
of a
commander in investigative activities in furtherance of command
responsibilities, without more, does not require a per se
disqualification of a
commander from authorizing a search under MRE 315; in that regard, a
commander’s direction to take reasonable investigative steps to
ascertain the
facts prior to making an impartial probable cause decision does not
disqualify
the commander from issuing a search authorization under MRE 315).
(MRE 315(f)(2) defines
probable
cause as a reasonable belief that the person, property, or evidence
sought is
located in the place or on the person to be searched).
(in this case, the search of
the
accused’s computer during an investigation of child pornography was
supported
by probable cause, where the accused was one of a small number of
individuals
who had shared music files with another individual who later passed on
these
files to another soldier and both discovered a suspected video clip of
child
pornography on their computers).
United
States v. Clayton, 68 M.J. 419 (MRE 315(f)(2)
defines probable cause as a
reasonable belief that the person, property, or evidence sought is
located in
the place or on the person to be searched).
(determinations of probable
cause made by a
neutral and detached magistrate are entitled to substantial deference).
(probable cause determinations
are inherently
contextual, dependent upon the specific circumstances presented as well
as on
the evidence itself; probable cause is founded not on the determinative
features of any particular piece of evidence provided an issuing
magistrate,
but rather upon the overall effect or weight of all factors).
(in a particular case, the
contextual
circumstances bearing upon the determination of whether there was
probable
cause to issue a search warrant may involve the timing of the
determination and
the nexus between the alleged criminal activity and the place searched;
the
question of timing focuses on the information presented to the search
authority, as well as information known by the search authority, at the
time
the decision to search was made; the question of nexus focuses on
whether there
was a fair probability that contraband or evidence of a crime will be
found in
a particular place; the nexus between the items to be seized and the
place to
be searched need not be based on direct observation but can be inferred
from
the facts and circumstances of a particular case; determinative factors
include
the type of crime, the nature of the items sought, the extent of the
suspect’s
opportunity for concealment, and normal inferences as to where a
criminal would
likely hide the property).
(the information provided to a magistrate that
included (1) appellant’s membership in a website group,
“Preteen-Bestiality-and-Anything-Taboo,” (2) the group’s use of the
website to
share child pornography and exploitation information, as admitted by
other
group members who had been arrested, (3) appellant’s request for digest
notification, which enabled him to receive up to 25 postings
automatically each
day from the group to the e-mail account bearing his name, (4) the fact
that
the e-mail account bearing his name had been accessed by a government
computer
in Kuwait, and (5) the fact that appellant, who was stationed in
Kuwait, had
been provided with a laptop computer by the Army, was sufficient to
support a
practical, commonsense decision by the magistrate that there was a fair
probability that contraband would be located in appellant’s quarters in
view of
the ease with which laptop computers are transported from work to home
and the
ease with which computer media may be replicated on portable devices;
thus, the
evidence seized pursuant to the search warrant issued by the magistrate
did not
have to be suppressed, even though the evidence before the magistrate
did not
show that appellant had posted messages to the website, participated in
discussions, or uploaded or downloaded child pornography and did not
indicate
how long he belonged to the group, how often he accessed the website,
or
whether he received the digests he requested).
United
States v. Cowgill, 68 M.J. 388 (a military
judge would not abuse her
discretion when denying a motion to suppress evidence from appellant’s
home if
the magistrate who issued the search warrant had a substantial basis
for
determining that probable cause existed; probable cause exists when
there is
sufficient information to provide the authorizing official a reasonable
belief
that the person, property, or evidence sought is located in the place
or on the
person to be searched).
(in accordance with MRE
311(g)(2), at a
hearing reviewing whether probable cause existed for a search warrant,
the
defense has the burden of establishing by a preponderance of the
evidence the
allegation of knowing and intentional falsity or reckless disregard for
the
truth).
(erroneous information in a
civilian police
officer’s search warrant affidavit, based on his conversation with an
OSI
agent, was provided to a civilian magistrate with reckless disregard
for the
truth and could not be considered in determining whether the warrant to
search appellant’s
home for drugs was supported by probable cause, where the officer
failed to
first validate the affidavit and its contents with the OSI, even though
he did
not have direct contact with the confidential informant mentioned in
the
affidavit, have information regarding the nature of the informant,
including
his military status, or have information about an allegedly
corroborative
urinalysis drug test).
(probable cause relies on a
common-sense
decision whether, given all the circumstances, there is a fair
probability that
contraband will be found).
(search of appellant’s home
pursuant to a
magistrate’s search warrant was supported by probable cause, even
absent
erroneous corroboration indicating that a positive urinalysis test was
conducted as the result of a confidential informant’s information,
where the
supporting affidavit included the police officer’s statements about his
conversation with an OSI agent that the informant was reliable, a
description
of the statements from the informant, and verification of appellant’s
address
along with confirmation of the description of appellant’s home as
provided by
the informant, where the informant had described witnessing appellant
along
with his roommate smoke marijuana, the drug paraphernalia they used to
do so, and
the persistent smell of drugs in appellant’s home, and where
appellant’s
roommate had failed a drug test during the time that the informant
asserted the
drug use was occurring; based on the totality of the circumstances, the
military judge did not abuse her discretion in admitting the evidence
seized
from appellant’s home; while the drug test was not recent, it was not
stale for
the purposes of corroborating the informant’s statement with respect to
appellant’s generalized use of marijuana over a six-month period; in
addition,
the police officer’s verification of appellant’s address confirmed the
source’s
description of the home and the source’s incriminating statements were
specific
as to time and granular as to deed).
United
States v. Macomber, 67 M.J. 214 (probable cause
to search exists when there is
a reasonable belief that property or evidence sought is located in the
place or
on the person to be searched).
(the search authority is
required to make a
probable cause determination based on the
totality-of-the-circumstances).
(a probable cause
determination is a
practical, common-sense decision whether, given all the circumstances
set forth
in the affidavit before the search authority, there is a fair
probability that
contraband or evidence of a crime will be found in a particular place).
(probable
cause
deals with probabilities; it is not a technical standard, but rather is
based
on the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act; probable cause
requires
more than bare suspicion, but something less than a preponderance of
the
evidence; thus, the evidence presented in support of a search need not
be
sufficient to support a conviction, nor even to demonstrate that an
investigator’s belief is more likely true than false; there is no
specific
probability required, nor must the evidence lead one to believe that it
is more
probable than not that contraband will be present; probable cause is
founded
not on the determinative features of any particular piece of evidence
provided
an issuing magistrate, but rather upon the overall effect or weight of
all
factors presented to the magistrate).
(while
courts have
relied on generic personal profiles to inform search determinations,
clearly, a
profile alone without specific nexus to the person concerned cannot
provide the
sort of articulable facts necessary to find probable cause to search).
(timeliness
informs
probable cause to search; the passage of time may diminish the
likelihood that
what is sought will be found in the place to be searched).
(whether too long a
period has elapsed from the time the facts are obtained until the
search is
authorized depends on many factors, including, but not limited
to, the
location to be searched, the type of crime involved, the nature of the
articles
to be seized, and how long the crime has been continuing).
United
States v. Rogers, 67 M.J. 162 (a military
judge reviews a magistrate’s
decision to issue a search authorization to determine whether the
magistrate
had a substantial basis for concluding that probable cause existed).
(a magistrate has a
substantial basis to issue
a warrant when, based on the totality of the circumstances, a
common-sense
judgment would lead to the conclusion that there is a fair probability
that
evidence of a crime will be found at the identified location).
(in light of the constitutional preference for
warrants, substantial deference is afforded in cases where a magistrate
determines that probable cause exists).
(an affidavit containing a
witness’s account
of appellant’s alleged cocaine use provided probable cause for a search
authorization permitting the seizure of appellant’s hair for drug
testing,
where the witness stated that she had seen appellant use cocaine in his
home,
the witness was aware of appellant’s prior court-martial charges and
described
a scar on his stomach, which were not matters of general knowledge
within the
squadron, the witness promptly reported the incident to her chain of
command
and her statements remained consistent, and a forensic science
consultant
confirmed that appellant’s hair would reveal cocaine use if he was a
chronic
user; accordingly, despite some other circumstances that undercut a
finding of
probable cause, the military judge did not abuse his discretion in
upholding
the search authorization in this case; a sufficient nexus existed
between the
alleged crime and the seizure of appellant’s hair; as such, sufficient
facts
existed to support a reasonable belief that testing appellant’s body
hair would
yield evidence of his use of cocaine).
(even though some circumstances existed in
this case that undercut a finding of probable cause, close calls are to
be
resolved in favor of sustaining the magistrate’s decision to issue a
search
authorization).
United States v. Leedy, 65 M.J. 208 (where a
magistrate had a substantial basis to find probable cause, a military
judge would not abuse his discretion in denying a motion to suppress).
(at
its core, the probable
cause that a magistrate must find to authorize a search requires a
factual demonstration or reason to believe that a crime has or will be
committed; as the term implies, probable cause deals with
probabilities; it is not a technical standard, but rather is based on
the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act; probable cause
requires more than bare suspicion, but something less than a
preponderance of the evidence; thus, the evidence presented in support
of a search need not be sufficient to support a conviction, nor even to
demonstrate that an investigator’s belief is more likely true than
false; there is no specific probability required, nor must the evidence
lead one to believe that it is more probable than not that contraband
will be present).
(probable cause
determinations are inherently contextual, dependent upon the specific
circumstances presented as well as on the evidence itself; indeed,
probable cause is founded not on the determinative features of any
particular piece of evidence provided an issuing magistrate -- nor even
solely based upon the affidavit presented to a magistrate by an
investigator wishing search authorization -- but rather upon the
overall effect or weight of all factors presented to the magistrate).
(the
facts set forth in an
affidavit presented by an investigator to a magistrate to obtain a
search authorization of appellant’s computer that included his
roommate’s observation of a file entitled “14 year old Filipino girl”
in a list of files on appellant’s computer, some of which mentioned
ages and some of which mentioned acts, which led the roommate to
believe the files in question contained pornography, were sufficient,
when assessed through the lens of the circumstances under which the
magistrate came to know this information – including the investigator’s
experience investigating child pornography and the magistrate’s own,
independent analysis of the facts – to provide a substantial basis for
a magistrate to conclude that there was a fair probability that child
pornography would be found on appellant’s computer, even though the
affidavit did not contain any description of the substance of the
images suspected to depict pornography and even though the roommate’s
observations were one month old).
2006
United
States v. Long, 64 M.J. 57 (official
intrusions into protected areas in
the military require search authorization supported by probable cause,
unless
they are otherwise lawful under the Military Rules of Evidence or the
Constitution of the United States as applied to members of the armed
forces).
(the
need for a
search warrant based on probable
cause is not required for legitimate workplace searches conducted by
supervisors; public employer intrusions on the constitutionally
protected
privacy interests of government employees for noninvestigatory,
work-related
purposes, as well as for investigations of work-related misconduct,
should be
judged by the standard of reasonableness under all the circumstances;
while
police, and even administrative enforcement personnel, conduct searches
for the
primary purpose of obtaining evidence for use in criminal or other
enforcement
proceedings, employers most frequently need to enter the offices and
desks of
their employees for legitimate work-related reasons wholly unrelated to
illegal
conduct).
(MRE
314(d)
indicates that searches of
government property may be made without probable cause unless an
individual has
a reasonable expectation of privacy in that property and that the
determination
of the reasonableness of an expectation of privacy depends on the facts
and circumstances
at the time of the search).
(while
government
employers may need to enter
an employee’s office space or intrude into an employee’s computer or
e-mail
account for work-related reasons, searches conducted for the primary
purpose of
obtaining evidence of illegal conduct require probable cause).
2005
United
States v. Bethea, 61 M.J. 184 (probable cause to search exists when
there
is a reasonable belief that the person, property, or evidence sought is
located
in the place or on the person to be searched; the test for probable
cause is
whether, under the totality of the circumstances, the magistrate had a
substantial basis for determining that probable cause existed; a
probable cause
determination is a practical, common-sense decision whether, given all
the
circumstances set forth in the affidavit before him, including the
veracity and
basis of knowledge of persons supplying hearsay information, there is a
fair
probability that contraband or evidence of a crime will be found in a
particular place).
(probable cause is a flexible,
common-sense standard; a probable cause determination merely requires
that a
person of reasonable caution could believe that the search may reveal
evidence
of a crime; it does not demand any showing that such a belief be
correct or
more likely true than false; so even though people often use ‘probable’
to mean
‘more likely than not,’ probable cause does not require a showing that
an event
is more than 50% likely).
(a
substantial
basis existed for finding probable cause to support a military
magistrate’s
authorization to seize appellant’s hair to test it for evidence of drug
use
where the affidavit before the magistrate indicated (1) a positive
urinalysis
result from appellant consistent with, though not necessarily
indicative of,
multiple uses of cocaine, and (2) information that an analysis of
appellant’s
hair would detect multiple uses of cocaine; it was as likely as not
that
evidence of drug use would be found in appellant’s hair, and that
degree of
likelihood more than satisfies the probable cause standard).
2004
United
States v. Mason, 59 MJ 416 (nonconsensual extraction
of blood
from an individual may be made pursuant to a valid search
authorization,
supported by probable cause).
(probable
cause
to search exists when there is a reasonable belief that the person,
property,
or evidence sought is located in the place or on the person to be
searched; a
probable cause determination is precisely a practical, common-sense
decision
whether, given all the circumstances set forth in the affidavit before
a
magistrate, including the veracity and basis of knowledge of persons
supplying
hearsay information, there is a fair probability that contraband or
evidence of
a crime will be found in a particular place).
(probable
cause
deals with probabilities; these are not technical; they are the factual
and
practical considerations of everyday life on which reasonable and
prudent men,
not legal technicians, act).
(in
reviewing a
probable cause determination, the duty of a reviewing court is simply
to ensure
that the magistrate had a substantial basis for concluding that
probable cause
existed; importantly, a determination of probable cause by a neutral
and
detached magistrate is entitled to substantial deference; resolution of
doubtful or marginal cases should be largely determined by the
preference for
warrants; close calls will be resolved in favor of sustaining the
magistrate's
decision; a grudging or negative attitude by reviewing courts towards
warrants
is inconsistent with the Fourth Amendment's strong preference for
searches
conducted pursuant to a warrant).
(in
reviewing a
probable cause determination, courts should consider the information
made known
to the authorizing official at the time of his decision which must be
considered in the light most favorable to the prevailing party; the
magistrate
could also consider information known to her personally; thus, the key
inquiry
is whether all the information presented in the affidavit or orally by
a
witness or known to the magistrate personally, considered cumulatively,
was
sufficient to show a fair probability that evidence of a crime would be
found
in the place to be searched; courts should not invalidate the warrant
by
interpreting the affidavit in a hypertechnical, rather than a
commonsense,
manner).
(we
hold that
the magistrate had probable cause to issue the search authorization for
appellant’s blood; the information based on which the magistrate issued
the
search authorization, considered cumulatively, supported a reasonable
belief
that evidence of a crime, in the form of DNA, would likely be found in
appellant – who had the physical features and blood type of the rapist,
who was
known to have owned gloves similar to those left at the crime scene,
who lived
near the victim, and who was identified as the owner of a car seen near
the
crime site at the same time of day as the crime, albeit almost two
months
later, thus giving appellant perhaps an opportunity to have been at the
scene
that day).
(for
an accused
to receive a hearing, and therefore potential relief, on the grounds
that
information allegedly omitted from an affidavit would have extinguished
probable cause had that information been included, the defense must
demonstrate
that the omissions were both intentional or reckless, and that their
hypothetical inclusion would have prevented a finding of probable
cause;
indeed, even if a false statement or omission is included in an
affidavit, the
Fourth Amendment is not violated if the affidavit would still show
probable
cause after such falsehood or omission is redacted or corrected).
(in
this case,
appellant failed to meet his substantial burden to show that the
information
allegedly omitted from the affidavit would have extinguished probable
cause had
that information been included; even if the omitted information had
been
included in the affidavit, none of it would have prevented a finding of
probable cause).
2002
United
States v. Cravens, 56 MJ 370 (special agent’s
state of
mind, i.e., did he knowingly and intentionally, or with
reckless
disregard for the truth, mislead the military magistrate, was a
question of
fact for the trial judge, was resolved adversely to the defense, and
that
finding supported by evidence in the record; the military judge’s
factfinding
as to state of mind was not shown to be clearly erroneous).
(legally sufficient basis for finding probable cause, as defined in
Mil.R.Evid. 315(f)(2), existed where: (1) there was evidence appellant
admitted
using drugs to a police officer on April 1, 1997; (2) there was
evidence that
appellant exhibited a demeanor consistent with drug use at that time;
and (3)
there was evidence presented to the military magistrate that drug
metabolites
can be detected in hair samples after approximately seven (7) days of
ingestion
and will remain present as long as the hair remains).
2001
United
States v. Carter, 54 MJ 414 (in reviewing probable
cause
determinations, courts must look at the information made known to the
authorizing official at the time of his decision; the evidence must be
considered in the light most favorable to the prevailing party).
(the duty of a court reviewing a probable cause determination is
simply to
ensure that the magistrate had a substantial basis for concluding the
probable
cause existed; such a determination by a neutral and detached
magistrate is
entitled to substantial deference; resolution of doubtful or marginal
cases
should be largely determined by the preference for warrants with close
calls
being resolved in favor of sustaining the magistrate’s decision).
(although a probable cause determination by a neutral and detached
magistrate is entitled to substantial deference, there are three
exceptions to
this rule of deference: (1) the deference accorded to a magistrate’s
finding of
probably cause does not preclude inquiry into the knowing or reckless
falsity of
the affidavit on which that determination was based; (2) the magistrate
must
perform his neutral and detached function and not serve merely as a
rubber
stamp for the police; and (3) reviewing courts will not defer to a
warrant
based on an affidavit that does not provide the magistrate with a
substantial
basis for determining the existence of probable cause).
United
States v. Gallo, 55 MJ 418 (even if court assumed
that
appellant’s unwarned response that he owned a personal computer was
improperly
included in an affidavit for a search warrant, such misstatements or
improperly
obtained information can be severed from the affidavit, and the
remainder
examined to determine if probable cause still exists).
(conclusory statements should not be in an affidavit requesting a
search
warrant; however, the review process deals with the question of
probability and
the issue is whether there was a “substantial basis” upon which the
federal
magistrate judge could have found probable cause to believe a search of
a given
place would uncover the evidence sought).
(as to timeliness of information presented in support of a request
for a
search warrant, information more than 6 months old when seeking
pornography on
a computer or a hard drive has been allowed).
(information offered in support of a request for a search warrant
must
establish a nexus between the evidence sought and the place to be
searched;
however, a gap in the nexus may be filled in based on the affiant’s
experience,
allowing the issuing official and appellate courts to (1) consider the
conclusion of an experienced law enforcement officer regarding where
evidence
of a crime is likely to be found and (2) draw reasonable inferences
about where
evidence is likely to be kept, based on the nature of the evidence and
the type
of offense).
(in addition to the affiant’s experience and conclusions drawn
therefrom,
numerous factors bolstered the probability that child pornography would
be
found in appellant’s home and those factors also supported the
inference that
the additional pornographic materials would be secreted in a place
other than
appellant’s office: (1) 262 pornographic pictures were found on
appellant’s government computer; (2) appellant fit the pedophile
profile; (3)
appellant advertised for child pornography; (4) appellant solicited
child
pornography; and (5) appellant downloaded and uploaded child
pornography from
his work computer).
2000
United
States v. Monroe, 52 MJ 326 (applications for
authorizations to search for and to seize materials presumptively
covered by
the First Amendment should be evaluated under the same standard of
probable
cause used to review warrant applications generally; there is no
requirement
that an issuing authority personally view allegedly obscene material
prior to
issuing a warrant).
(authorizing official had borderline basis for finding probable
cause to
search where allegedly obscene materials were not attached but were
described
as “graphic pornographic photographs”, words which ordinarily
communicate to a
reasonable person that the images in all probability depict obscenity
as
legally defined).
United
States v. Allen, 53 MJ 402 (probable cause is
determined
by the totality of the circumstances, and is a practical, common sense
decision; deference is accorded the judge or magistrate making the
probable
cause determination).
(there is no requirement for a higher standard of probable cause for
material protected by the First Amendment; a fair probability that the
material
sought is obscene is sufficient).
(there was substantial evidence in the record to support the
decision to
issue a warrant to search appellant’s off-base home where: (1)
information showed that appellant accessed child pornography through
his
on-line server while on duty; (2) appellant had access to the same
service at
home; (3) appellant admitted that he had erotica at his home; and (4)
appellant
was evasive about possessing child pornography at home).
United
States v. Henley, 53 MJ 488 (although information
presented to magistrate did not indicate that evidence of pornographic
material
had been seen in the 5 years prior to execution of the victims’
affidavits
offered in support of search warrant, under the totality of the
circumstances
presented, the magistrate nonetheless had a substantial basis for
concluding
that a search of appellant’s home would uncover evidence of
wrongdoing).
1999
United
States v. Hall, 50 MJ 247 (1999) (there is a key difference
between
probable cause to search and probable cause to apprehend that concerns
the
timeliness of the given information: probable cause to search
must be
based on timely information with a nexus to the place searched; whereas
probable cause to apprehend does not grow stale with time, absent the
subsequent discovery of exculpatory information that would undermine
the prior
existing probable cause).
United
States v. Owens, 51 MJ 204 (1999) (officer had probable cause
to search
automobile based on knowledge of recent car burglaries and presence of
large
quantity of stereo equipment in automobile with wires cut short rather
than
disconnected).
(where there was reason to believe that appellant stole numerous
items from
several vehicles in the dormitory parking lot, commander had probable
cause to
authorize search of appellant’s dormitory room where he correctly
concluded
that the most logical places for appellant to store items were his
automobile
and dormitory room, and some items were not found in search of
appellant’s
automobile; MRE 315(f)(2)).
1999
(race alone does not amount to reasonable suspicion to justify an investigative detention).
(the
length of an investigative
detention may be so long as to render the stop, even temporarily, of a
person unreasonable under the Fourth Amendment where law enforcement
did
not diligently pursue a means of investigation that was likely to
confirm
or dispel the suspicions quickly).
2009 (September Term)
United
States v. Clayton, 68 M.J. 419 (resolution of
doubtful or marginal cases
should be largely determined by the preference for warrants, and close
calls
will be resolved in favor of sustaining the magistrate’s decision).
(courts should not invalidate
warrants by
interpreting affidavits in a hypertechnical, rather than a commonsense,
manner).
(erroneous statement in a search warrant
affidavit that child pornography had actually been located on
appellant’s
government computer did not constitute a significant element of the
probable
cause equation and did not so taint the information provided to the
magistrate
as to require suppression of the evidence of child pornography found
during a
warranted search of appellant’s quarters, where, excising this
information from
the affidavit, there remained more than adequate information to
demonstrate
that the magistrate had a substantial basis for finding that there was
probable
cause to search appellant’s quarters, based on (1) appellant’s
membership in a
website group, “Preteen-Bestiality-and-Anything-Taboo,” (2) the group’s
use of
the website to share child pornography and exploitation information, as
admitted by other group members who had been arrested, (3) appellant’s
request
for digest notification, which enabled him to receive up to 25 postings
automatically each day from the group to the e-mail account bearing his
name,
(4) the fact that the e-mail account bearing his name had been accessed
by a
government computer in Kuwait, and (5) the fact that appellant, who was
stationed in Kuwait, had been provided with a laptop computer by the
Army).
United
States v. Weston, 67 M.J. 390 (the Fourth
Amendment provides that the right
of the people to be secure in their persons, houses, papers, and
effects,
against unreasonable searches and seizures, shall not be violated, and
no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the
persons or things to be seized).
(ordinarily, warrantless entry
into a person’s
house is unreasonable per se).
United
States v. Macomber, 67 M.J. 214 (the military
judge did not err in ruling that
the magistrate had a substantial basis for finding probable cause to
issue a
warrant authorizing a search of appellant’s dorm room for child
pornography,
where appellant used his dorm address as
the return
address in his correspondence with government agents when he ordered
child pornographic
videotapes and when responding to a sexual interest questionnaire,
where
appellant had subscribed to an Internet child pornography web service
in the
past, and where appellant had expressed an ongoing interest in child
pornography in the questionnaire; based on these facts, common sense
would
suggest a fair probability that any child pornography appellant might
possess
would be located in his dorm room, even though the magistrate was not
informed
that appellant had last accessed the pornographic website 14 months
earlier; the
total circumstances presented to the magistrate raised the fair
probability
that appellant had a present as well as a past sexual interest in or a
sexual
attraction to children, that he probably possessed child pornography
material,
and that it probably was kept where he lived).
United
States v. Rogers, 67 M.J. 162 (a military
judge reviews a magistrate’s
decision to issue a search authorization to determine whether the
magistrate
had a substantial basis for concluding that probable cause existed).
(even though some
circumstances existed in
this case that undercut a finding of probable cause, close calls are to
be
resolved in favor of sustaining the magistrate’s decision to issue a
search
authorization).
United
States v. Stevenson, 66 M.J. 15 (within the
context of bodily
fluids, there are a number of exceptions to the warrant requirement as
well as
circumstances that would negate the need for a warrant; these include
situations where there exists both probable cause and the need to
prevent the
loss of evidence, where the search is necessary to save someone’s life
and the
evidence is in plain view, and where the government demonstrates
special needs,
beyond the normal need for law enforcement; in addition, MRE 312(f),
rather
than being an exception to the warrant requirement, authorizes the
admission of
evidence that was developed incident to a valid medical purpose).
(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).
(in this case, the Fourth
Amendment
problem was that the second vial of blood taken from appellant and
provided to law
enforcement authorities represented a distinct search and seizure from
that
undertaken incident to appellant’s treatment for diabetes with respect
to the
first vial of blood; whatever might be said of appellant’s expectation
of
privacy with regard to the blood draw itself, a search for
2000
United States v. Allen, No. 53 MJ 402 (where the findings of the military judge showed that OSI officers did not seek the search warrant in issue, 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants did not apply - a civilian law enforcement officer sought the warrant from a civilian judge).
(warrant was not general or overbroad where the listing of items to be searched for related to the information constituting probable cause; it focused specifically on sources of child pornography, the computer system and internet service provider, and persons who may be involved in the criminal activity at the specific address).
(military judge’s findings of fact that affidavits in support of a search warrant were not knowingly and intentionally false was binding on Court of Appeals for the Armed Forces in that it was not clearly erroneous).
(electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant fell within Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”, and release of such information did not require a warrant).
1999
United
States v. Fogg, 52 MJ 144 (reviewing a motion to suppress
videotape seized under a warrant which authorized seizure of “crack
cocaine,
packaging and repackaging equipment, papers proving occupancy, records,
weapons, papers, RF detectors, photos, cellular phone[s], police
scanners,
scales/paraphernalia”, court holds that there was a valid warranted
seizure
of the videotape which was covered by the scope of the search warrant
because:
(1) officers executing warrants are often required to exercise
realistic,
common-sense judgment, and they are not obliged to interpret a warrant
narrowly; and, (2) videotape fell within the scope of the warrant which
authorized the seizure of “photographs”).
Wiretaps:
2008
(Transition)
(18 USC §§ 2510-2522 address electronic
surveillance in general, including surveillance conducted under color
of law
for criminal law enforcement purposes and surveillance not conducted
under
color of law; with the enactment of 18 USC §§ 2510-2522, and through
the
operation of the Supremacy Clause and the preemption doctrine, Congress
has
defined the relationship between federal and state law in the area of
oral and
wire intercepts).
(18 USC § 2511(d)(2) provides that it shall
not be unlawful for a person not acting under color of law to intercept
a wire,
oral, or electronic communication where such person is a party to the
communication or where one of the parties to the communication has
given prior
consent to such interception unless such communication is intercepted
for the
purpose of committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any state).
(MRE 317, as a whole, is clearly intended to
operate within the congressional scheme set forth under 18 USC §§
2510-2522).
(MRE 317(a), the military evidence rule
excluding wire or oral communications “if such evidence must be
excluded under
a statute applicable to members of the armed forces,” does not directly
incorporate state law in determining an unlawful interception of an
oral or
wire communication; however, it may implicate state law through the
operation
of the federal wiretap law applicable to servicemembers, because 18 USC
§
2511(2)(d), which makes it unlawful for a person to intercept a
communication
with the purpose of committing a criminal or tortious act in violation
of state
law, may, in context, implicate state law).
(MRE
317 applies to evidence that “must” be
excluded by “a statute applicable to members of the armed forces;” 18
USC §
2511 is a federal statute of general application without military
exception; as
a result, to the extent it is generally applicable, it applies as well
to
members of the armed forces; under this section, it is not unlawful for
a
person not acting under color of law to intercept a communication if
that
person is a party to the conversation or where one of the parties to
the
conversation has given consent; nonetheless, in such circumstances, it
is
unlawful, if the communication is intercepted with the purpose of
committing a
criminal or tortious act in violation of a state law; the
text of 18 USC § 2511(2)(d) conclusively demonstrates
that Congress sought to limit unlawful conduct to situations where the
individual had the specific intent or purpose to violate state law when
that
individual acted; otherwise, the language addressing purpose would be
superfluous; if Congress had wanted to except criminal conduct in the
absence
of specific intent, it could and would have done so without the
additional
“purpose” language).
(audiotape and videotape taken of appellant by
his wife were not excludable under MRE 317(a), a military evidence rule
excluding such evidence if it must be excluded under a statute
applicable to servicemembers,
notwithstanding appellant’s contention that the tapes were excludable
under the
federal wiretap statute because they were made with the purpose of
committing a
criminal act in violation of the Hawaii intercept statute, absent
evidence that
wife had the specific intent to violate state law when she made the
recordings).
2000
United States v. Guzman, 52 MJ 318 (“Neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants.” United States v. Caceres, 440 U.S. 741, 744 (1979)).
(MRE 317(a) is not applicable to instances of recorded conversations with consenting persons because such government conduct does not violate either the Fourth Amendment or a statute applicable to servicemembers).
(MRE 317(c) does not contain an express exclusionary rule; however, excluding evidence from a court-martial to remedy a regulatory violation may be appropriate if the alleged violation implicates constitutional or statutory rights).
(provisions of former DoD Directive dealing with wiretaps, which provided for delegation of authority to authorize consensual intercept requests to certain upper level management officials, did not present the type of issue that required the Court of Appeals for the Armed Forces to create an exclusionary rule when none was provided either in the Constitution or by a statute or regulation).
(where
appellant did not conduct
his activities in reliance upon any limits on delegation of the Navy’s
wiretap approval authority, and where appellant was not harmed by fact
that the interception was approved by the Deputy General Counsel rather
than his immediate superior, exclusion is not required because
appellant’s
due process rights were not violated).