CORE CRIMINAL LAW SUBJECTS: Evidence: Search and Seizure

Generally:

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable). 

(the Fourth Amendment provides that 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; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).    

(the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, 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; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view). 

(MRE 311(a) proscribes that evidence obtained from a government’s unlawful search or seizure is inadmissible if two conditions are met:  (1) the accused makes a timely motion to suppress, and (2) the accused had a reasonable expectation of privacy, a legitimate interest in the property seized, or other legal grounds to object).   

2012 (September Term)

United States v. Kelly, 72 M.J. 237 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures).

(the Fourth Amendment provides in relevant part 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; however, 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). 

(pursuant to MRE 313(a), evidence obtained from inspections and inventories in the armed forces conducted in accordance with that rule is admissible at trial when relevant and not otherwise inadmissible under the MREs). 

(an All Army Activities (electronic) Message did not amend the Army regulation governing the disposition of the personal effects of deceased and missing personnel to apply to wounded and medically evacuated soldiers, and no one who was otherwise authorized to impose such an amendment by directive or order did so; the method adopted by the Army to apply the provisions of the Army regulation governing the disposition of the personal effects of deceased and missing personnel to wounded or medically evacuated soldiers through an electronic message violated the Army’s own procedure for adopting or amending an Army regulation). 

(while the Army could not amend an Army regulation through an electronic message, it also could not effectively achieve the same result by independently mandating the use of the procedures found in the Army regulation governing the disposition of the personal effects of deceased and missing personnel to the personal effects of wounded and medically evacuated soldiers; not only was the manner of the attempted amendment improper, the application of that regulation to wounded soldiers directly conflicted with the existing provisions of the regulation, and it generally conflicted with the provisions of the Army regulation governing the processing of personal effects for wounded soldiers who are admitted for treatment in medical facilities). 

(the justification for conducting an inventory is that it is necessary to protect the property rights of the person and protect the government against false claims that the property, which it has seized, has been damaged, lost, or destroyed; an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence).

(MRE 313(c) addresses inventories and provides that unlawful weapons, contraband, or other evidence of crime discovered in the process of an inventory, the primary purpose of which is administrative in nature, may be seized; inventories shall be conducted in a reasonable fashion; 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 inventory within the meaning of the rule). 

(inventories are upheld when conducted in accordance with service regulations and customs, which provides some assurance that the inventory is not a mere pretext for a prosecutorial motive). 

(it is not an unreasonable search to conduct a shakedown of an individual’s effects to determine his readiness to carry out his military duties; an obvious and legitimate reason for the inventory exception is manifest in the nature of the military unit). 

(although the initial inventory of appellant’s belongings in Iraq by a summary court-martial officer following appellant’s medical evacuation appeared to be a proper inventory, the Joint Personal Effects Depot’s subsequent search for gore, inappropriate, or porn did not fall within MRE 313(c)’s inventory exception). 

(while inventories pursuant to standard police procedures are reasonable, the relevant test is the reasonableness of the seizure under all the circumstances). 

(in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts). 

(with respect to the expectations of privacy under the Fourth Amendment during a traditional military inspection, no serviceperson whose area is subject to the inspection may reasonably expect any privacy which will be protected from the inspection). 

(like the inventory exception to the Fourth Amendment’s protection against unreasonable searches, the primary purpose of an inspection cannot be to obtain evidence for use in a trial by court-martial). 

(the reasonableness of an inspection is determined by whether the inspection is conducted in accordance with the commander’s inspection authorization, both as to the area to be inspected, and as to the specific purpose set forth by the commander for ordering the inspection). 

(the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation did not fall within MRE 313(c)’s inventory exception; the search amounted to a specific search for contraband; the search was not conducted to ascertain appellant’s readiness to carry out his military duties; on balance, the government intrusion into appellant’s privacy interest in his computer was not outweighed by legitimate governmental interests; further, the search did not produce anything resembling an inventory - once the articles were searched, they were simply shipped out; this is in conflict with the primary purpose of a traditional inventory; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure). 

(the search by the Joint Personal Effects Depot of appellant’s personal laptop for gore, inappropriate, and porn following his medical evacuation was not a valid inspection as prescribed by MRE 313(b); the search was not authorized as an inspection by anyone, let alone an officer with authority to order an inspection, and the primary purpose of the search did not determine or ensure the security, military fitness, or good order and discipline of the unit, but rather was to avoid embarrassment or added sorrow to the recipient; as such, the search of appellant’s laptop violated his Fourth Amendment right to be protected from unreasonable search and seizure). 

United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable). 

(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable). 

United States v. Cote, 72 M.J. 41 (the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness). 

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). 

 

2008 (September Term)

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). 


2008 (Transition)

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). 


United States v. Miller, 66 M.J. 306 (evidence obtained from a military inspection is admissible at trial when relevant and not otherwise inadmissible under the Military Rules of Evidence). 

 

(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). 

 

2007

United States v. Leedy, 65 M.J. 208 (in granting the investigator’s search authorization request of appellant’s computer, the magistrate did not simply rubber stamp that request, but acted in a neutral and detached manner, where he closely read the affidavit, questioned the investigator about the matter for more than twenty minutes and did not immediately accept his answers, and he proceeded to speak with others including the roommate’s and appellant’s commanding officer to gain further insight about whether there was any motive for the roommate to fabricate charges against appellant).    

 

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).


2006

United States v. Long, 64 M.J. 57 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures; CAAF has described a search as an official governmental intrusion into an individual’s reasonable expectation of privacy; whether such an expectation of privacy exists is therefore a question in any search and seizure analysis; the question 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).

 

(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).


Apprehension/arrest:

 

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).


Automobile exception:

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)).


Bodily views and intrusions:


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 DNA, because the second vial was not drawn incidental to medical treatment, MRE 312(f) was not applicable to it and did not otherwise obviate appellant’s reasonable expectation of privacy). 

 

(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 DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception).

 

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).



Commanders
:

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).  


2008 (Transition)

 

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).


Consent:

2012 (September Term)

United States v. Hutchins, 72 M.J. 294 (a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes). 

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). 

 

2008 (Transition)


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


United States v. Moran, 65 M.J. 178 (under the Fourth Amendment, an accused has the right to deny a special agent’s initial request for his consent to the collection of his body hair). 

 

(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). 

 

(appellant’s consent to search did not cure the prior constitutional violation where (1) in terms of the temporal proximity of the illegal conduct and the consent, less than three hours elapsed; (2) there were no intervening circumstances sufficient to remove the taint from the initial illegal search; and (3) the exploitation of the information obtained from the illegal search was flagrant even if the search itself was not).


2004


United States v. Daniels, 60 MJ 69 (it is possible that an individual functioning as a government agent might own or exercise adequate control over the property searched that he or she could lawfully consent to the search). 

 

(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).

 

(accused’s initial consensual encounter with state trooper during traffic stop evolved into a Fourth Amendment seizure, where shortly after accused gave his consent to trooper for a routine search of his vehicle, and trooper began his search, between 10 to 12 ATF agents arrived on the scene to conduct an intensive search of vehicle, and began questioning him; under the circumstances a reasonable person would not have felt free to decline the agents’ requests and terminate the encounter).


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).


Derivative evidence:

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).


Exclusionary rule:

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence). 

(the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs). 

(the exclusionary rule applied to evidence obtained by the government from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search, where (1) the government’s search of appellant’s cell phone exceeded the servicemember’s private search – that is, where the private search was limited to a few texts, photographs, and one video, and the government searches included tens of thousands of text images, including some deleted texts that were not and could not have been viewed by the servicemember, (2) three times the government investigator consulted a legal office for advice with probable cause in hand, and three times the government proceeded to search appellant’s cell phone without the benefit of a search authorization, and (3) the government ordered the most exhaustive analysis of appellant’s cell phone during trial while the issue of appellant’s Fourth Amendment rights was being litigated before the military judge). 

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”).


Expectations of privacy:

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable). 

(the accused had a reasonable expectation of privacy in his cell phone and his expectation was objectively reasonable; every federal court of appeals that has considered the question of cell phone privacy has held there is nothing intrinsic about cell phones that place them outside the scope of ordinary Fourth Amendment analysis). 

(in this case, in both a material qualitative and quantitative manner, the government exceeded the scope of the initial private search by a servicemember of appellant’s cell phone; furthermore, the government failed to meet its burden to demonstrate by a preponderance of the evidence that the search of the cell phone was limited to the information provided to the government investigator by the servicemember; that is, the government failed to meet its burden that its  initial search of the phone mirrored the servicemember’s private search; although there was some evidence before the court that the servicemember saw various text messages and an accompanying video on the phone that she believed showed inappropriate contact between appellant and some trainees, there was no specific evidence as to what the servicemember actually saw on the phone, and the government investigator engaged in a general search of the phone by scrolling through a number of private texts and did not limit herself to what the servicemember had seen, particularly as the servicemember was not present during the investigator’s search; while appellant’s expectation of privacy had been frustrated by the servicemember viewing a few text messages and an accompanying video on his cell phone, any remaining expectation of his privacy was eliminated when the investigator sent the phone to the county sheriff’s office for forensic analysis and then sent the phone to a computer company for further examination; this final examination revealed over 45,000 text messages, some that would have been viewable by a person in cell phone format as well as deleted items which would not have been viewable to the normal user, thus breaching the remaining portion of appellant’s privacy that had not been frustrated). 

(the potential invasion of privacy in a search of a cell phone is greater than in a search of a container in a conventional sense because a cell phone can provide access to a vast body of personal data). 

2012 (September Term)

United States v. Kelly, 72 M.J. 237 (official intrusions into areas where there is a reasonable expectation of privacy 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). 

(with respect to the expectations of privacy under the Fourth Amendment during a traditional military inspection, no serviceperson whose area is subject to the inspection may reasonably expect any privacy which will be protected from the inspection). 

United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable). 

(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable). 

(appellant’s command representatives did not violate his Fourth Amendment rights when they entered his off-base apartment without a warrant at the behest of his landlord after appellant stopped paying rent, was in default of his lease agreement, and the landlord discovered unsanitary conditions inside the apartment while checking to see if appellant had abandoned it; although appellant had a reasonable expectation of privacy in his apartment and a “search” under the Fourth Amendment occurred, the Fourth Amendment does not prohibit all warrantless searches, only those that are “unreasonable”; once appellant failed to pay his rent, a reasonable reading of the lease terms permitted the landlord to enter, and once the landlord discovered damages, it was reasonable for him to take action to minimize the damages and seek prompt restitution by the quickest and least intrusive manner, including contacting appellant’s command representatives; and the command representatives acted reasonably where they did not enter for a law enforcement or even a regulatory purpose, but instead entered at the behest of the landlord to effectuate their command functions of protecting appellant’s interests by minimizing possible adverse consequences to appellant, such as loss of his living quarters and overcharging for damages to his apartment, and of maintaining good relations with the local community by assisting a landlord who did not want to pursue civil legal remedies against a military member; by failing to pay his rent, damaging the apartment, and failing to respond to his landlord’s inquiries, appellant significantly diminished his expectation of privacy in the apartment).

(under Texas law, an accused can knowingly and voluntarily contract to allow third parties to enter a space where the accused has a reasonable expectation of privacy). 

(where command representatives entered a subordinate’s off-base residence at the behest of the landlord and without a warrant (1) in order to effectuate their command responsibilities, and (2) with no law enforcement purpose and no expectation that a crime had been committed, or that evidence would be found, it would be unreasonable to expect command representatives to seek a warrant prior to entering; where, as here, attempting to obtain a warrant is impracticable, and does not further the purposes of the Fourth Amendment, it is unnecessary to try to get a warrant and the absence of one does not render a search unreasonable). 

(where (1) command representatives are performing a command function; (2) a reasonable reading of the lease terms permits the landlord to enter; (3) military officials entered the premises at the behest of the landlord; and (4) the purpose of the entry is not for law enforcement purposes or a mere pretext for conducting a warrantless search, an exception to the warrant requirement because the “search” is reasonable makes eminent sense; under the circumstances of this case, the NCOs intrusion into Appellant’s apartment was not a violation of the Fourth Amendment, and the military judge did not abuse his discretion in refusing to suppress a military aircraft part found in plain view). 

United States v. Bowersox, 72 M.J. 71 (the States retain broad power to regulate obscenity; however, that power simply does not extend to mere possession by the individual in the privacy of his own home). 

(while servicemembers have a reasonable expectation of privacy in a shared barracks room that protects them from unreasonable government intrusions, one’s privacy interest in a shared barracks room is not coextensive with one’s privacy interest in their home). 

(while a servicemember has a reasonable expectation of privacy in the files kept on a personal, password-protected computer for purposes of the Fourth Amendment, that privacy interest is not congruent with the discrete and special privacy interest in one’s home permitting the possession of obscene material in one’s home that was recognized by Stanley v. Georgia, 394 US 557 (1969), and was, in this case, overcome by a lawful warrant authorizing a search for contraband based on probable cause). 

(a shared barracks room is not a “home,” for the limited holding of Stanley v. Georgia, 394 US 557 (1969), which recognized an individual’s right to possess obscene materials “in the privacy of his own home”; Stanley has been limited to its facts, and its holding does not extend to a shared barracks room). 

2008 (Transition)

United States v. Michael, 66 M.J. 78 (it is well settled that a person retains no expectation of privacy in abandoned property). 

 

(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).

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). 

 

(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 DNA, because the second vial was not drawn incidental to medical treatment, MRE 312(f) was not applicable to it and did not otherwise obviate appellant’s reasonable expectation of privacy). 

 

(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). 

 

(the accused’s subjective expectation of privacy in e-mails that she sent from her HQMC office computer, that were transmitted over the HQMC network system, and that were stored on the HQMC server was objectively reasonable, where HQMC policies and practices required individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy, limited outside network access to the network administrator, and described very limited conditions under which the administrator would monitor the network for unauthorized use; the accused was authorized to use the government computer for personal use and the log-on banner did not provide her with notice that she had no right of privacy; rather, the banner focused on the idea that her use of the system may be monitored for limited purposes; while the log-on banner may have qualified the accused’s expectation of privacy in her e-mail, it did not extinguish it; simply put, in light of all the facts and circumstance in this case, the “monitoring” function detailed in the log-on banner did not indicate to the accused that she had no reasonable expectation of privacy in her e-mail; thus, the accused’s expectation of privacy was, in fact, recognized as reasonable by virtue of the rules, regulations, practices, and procedures of HQMC, and her subjective expectation of privacy was one which society is prepared to recognize as reasonable).  

2004

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).

 
2003

United States v. Springer
, 58 MJ 164 (the Fourth Amendment to the Constitution states 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; however, a Fourth Amendment violation occurs only when the government violates a reasonable expectation of privacy; a reasonable expectation of privacy exists where a person exhibits an actual subjective expectation of privacy and, second, that expectation is one that society is prepared to recognize as reasonable; what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection; but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected).

(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).

2002

United States v. Pinson
, 56 MJ 489 (even though two allegedly privileged documents were used to analyze appellant’s handwriting, an individual has no expectation of privacy in his handwriting).

United 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

United States v. Monroe
, 52 MJ 326 (based on totality of circumstances, appellant had no reasonable expectation of privacy in electronic mail messages or an electronic mail box where:  (1) the computer system was owned by the government; (2) there was specific notice that users consented to monitoring; and, (3) once received by the government system, there was a risk that government officials with access to the network would access the electronic mail).

(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).

1999

United States v. Owens, 51 MJ 204 (where item of stolen property was voluntarily surrendered by appellant’s roommate, appellant’s Fourth Amendment rights were not violated because appellant had no reasonable expectation of privacy in his roommate’s portion of the room or his roommate’s property; MRE 311(a)(2)).


Good faith exception:


2000

United 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).


Inevitable discovery:

2013 (September Term)

United States v. Wicks, 73 M.J. 93 (for the doctrine of inevitable discovery to apply, the government has to demonstrate by a  preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner; mere speculation and conjecture as to the inevitable discovery of the evidence is not sufficient when applying this exception; this exception is only applicable when the routine procedures of a law enforcement agency would inevitably find the same evidence; moreover, the inevitable discovery doctrine cannot rescue evidence obtained via an unlawful search simply because probable cause existed to obtain a warrant when the government presents no evidence that the police would have obtained a warrant). 

(in this case, the doctrine of inevitable discovery did not apply where the government failed to meet its burden of showing that the evidence it obtained from multiple, unlimited, general warrantless searches of appellant’s cell phone after a servicemember’s initial private search would have been inevitably discovered by lawful means, particularly in the absence of information as to the extent of the initial private search by the servicemember; because the record did not indicate what the government investigator reviewed and the extent to which that review mimicked the servicemember’s own private review, what the government may have inevitably discovered in the course of investigation, absent the additional searches of appellant’s cell phone, is unknown; in addition, the government failed to present compelling evidence that it would have sought a warrant; finally, the government failed to meet its burden of demonstrating that the routine procedures of the law enforcement agency would inevitably have found the same evidence). 

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).


(in this case, the military judge correctly denied a defense motion to suppress the results of a search of appellant’s computer; while appellant’s ultimate acquiescence to the seizure came under pressure from authority, no error occurred in the military judge’s denial because investigators would have inevitably discovered the images of child pornography on appellant’s computer hard drive pursuant to a validly executed search authorization based on probable cause; during his interrogation, appellant had admitted to a sexual relationship with a young girl with whom he communicated mostly via email and instant messenger; this alone encouraged investigators to focus on his computer as a source of evidence and created sufficient probable cause to allow the investigators to obtain an authorization to search for and seize emails and messages between appellant and the girl on his computer; though the authorization would have been limited to emails and messages, the forensic software employed would have skimmed the computer’s hard drive, recovering all saved data; investigators would have had to sift through all the captured data to find relevant email traffic; as such, the files containing child pornography would have been inevitably discovered through this valid search). 

 

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)).



Investigatory stop:

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).

 

(investigatory detention was supported by reasonable suspicion that accused was transporting one or more handguns for unlawful resale where surveillance indicated a pattern of apparent straw purchases of handguns by accused and co-actor during days preceding the stop, and ATF had received a tip from a confidential informant that accused would be traveling to New York, suggesting to agents the possibility of interstate transport and sale of the guns).


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).


Neutral and detached:

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


United States v. Hall, 50 MJ 247(officer did not loose neutrality by re-entering room to corroborate information supporting probable cause; such conduct is not reflective of a foul motivation or vindictiveness).



Plain view:


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).
 


Probable cause:


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).

2008 ( September Term)

 

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). 


2007


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). 

 

(because the search for e-mails in this case went beyond work-related monitoring or an investigatory search of work-related misconduct, it was not one exempt from the probable cause requirement; thus, to be admissible, the evidence obtained in the search must have been pursuant to authorization; because there was no command authorization, the evidence should have been suppressed).


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)).


Stop and frisk:


1999

United States v. Marine, 51 MJ 425 (a “stop and frisk” is a limited exception to the Fourth Amendment requirement for probable cause for government searches and seizures requiring, first, that the police officer’s stop must be justified at its inception by a reasonable suspicion that criminal activity is afoot and, second, that the stop be reasonably related in scope to the circumstances giving rise to the stop).

(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).



Warrants:


2013 (September Term)

United States v. Wicks, 73 M.J. 93 (the Fourth Amendment provides that 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; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).   

(cell phones may not be searched without probable cause and a warrant unless the search and seizure falls within one of the recognized exceptions to the warrant requirement).  

2012 (September Term)

United States v. Cote, 72 M.J. 41 (while technical or de minimis violations of a search warrant’s terms do not warrant suppression of evidence, generally the search and seizure conducted under a warrant must conform to the warrant or some well—recognized exception). 

(even if there were no time limitation contained in a warrant for conducting an off-site search, the government nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration). 

(the ultimate touchstone of any Fourth Amendment inquiry is always reasonableness, and mere technical or de minimis violations of a warrant’s terms are not unreasonable and do not warrant suppression). 

(a search and seizure conducted under a warrant must conform to the warrant, or some well-recognized exception). 

(the government’s violation of a search warrant’s 90-day time limit for conducting an off-site search of a seized electronic device over a year after the search warrant was issued constituted more than a de minimis violation of the warrant and resulted in an unreasonable search; the 90-day limitation, which was handwritten into the warrant, reflected a judicial determination that under the circumstances of this case, 90 days was a reasonable period of time in which to conduct the off-site search; in addition, the judge who issued the warrant indicated in the warrant that the 90-day limitation could be extended by the judge for good cause shown, but the government never sought an extension of time; performing a search over a year after the expiration of the search period, without following already established procedures for requesting a new warrant or an extension of the existing warrant, was not a de minimis violation, and the government failed to show any fact which would support the argument that its violation of the warrant’s terms was reasonable). 

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).  


2008 ( September Term)


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). 


(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). 


2008 (Transition)

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 DNA from the second vial of blood was not incident to his treatment for diabetes under MRE 312(f) and was not otherwise authorized by warrant or warrant exception).

 

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)

United States v. Toy, 65 M.J. 405 (under MRE 317(a), wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of MRE 311 when such evidence must be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the armed forces or if such evidence must be excluded under a statute applicable to members of the armed forces).

(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).


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