The Air Force Court of Criminal Appeals posted its December decisions on line today. So only today did I learn that the court issued a published opinion on 7 December. United States v. Larson, __ M.J. ___, No. ACM 35934, 2007 WL 15905 (A.F. Ct. Crim. App. 7 Dec. 2006). I continue to be perplexed by why the Air Force Court would care enough about its opinion to publish it, but then keep it under wraps for 29 days — especially when it has the means (to wit, a web site) to share it with world instantaneously. So Air Force and Navy-Marine Corps Courts — if you don’t want to move to daily updating of your opinions, could you at least do it at the end of each week?
Now for the compliment. Judge Mathews, who wrote the Larson opinion, is quickly becoming my favorite military appellate judge. I previously praised Judge Mathews’ opinion in United States v. Carr, 63 M.J. 615 (A.F. Ct. Crim. App. 2006). Larson is a case about an Air Force major who arranges a sexual liaison with a 14-year-old girl named Kristin who turns out to be, surprise, a Colorado Springs police officer. Here’s the part of the opinion that I really enjoyed: Major Larson “quickly learned that Kristin was 14 years old, lived in Colorado Springs, and, up until recently, owned a pet hamster. After a few minutes of further conversation, the appellant steered the topic of discussion from rodents to sex.” Slip op. at 2. We all have to read so much, it’s such a joy when we read something written with a bit of flair. Judge Mathews writes with flair. (The Super Muppet is probably also a fan, since Judge Mathews wrote an opinion setting aside the sentence in a case called United States v. Grover, 63 M.J. 653, 657 (A.F. Ct. Crim. App. 2006). Now if only he could do something about the timeliness with which his artful opinions are disseminated . . . .)
But enough points for presentation — let’s move on to the points for technical merit. (I am fairly certain that is the first figure skating metaphor I have ever written; I hope it will also be my last.) The main issue in Larson was whether the military judge should have suppressed evidence found in a warrantless search of the government computer on which Major Larson worked while filling in for another officer who was deployed. The Air Force Court described this as an issue of first impression, explaining:
In military jurisprudence, the focus of Fourth Amendment litigation involving computers has primarily been on the expectation of privacy to be afforded to e-mail: personal communications between users, sent via computers using networks or the Internet. The search of the government computer here did not focus on such communications. Instead, the AFOSI searched for certain data files, created as part of the “normal operating procedure” of the Microsoft Windows operating system, which record the date, time, and Internet address of web sites visited by the computer user, as well as information about the user account in use on the computer at the time the sites were visited. Such files are like a “documented history of [the user’s] travels on the Internet.” United States v. Romm, 455 F.3d 990, 994 n.5 (9th Cir. 2006).
Slip op. at 5 (internal citation and footnote omitted).
The Air Force Court, not surprisingly, held that the military judge had not abused his discretion by denying the defense’s suppression motion. First, the Air Force Court explained, Major Larson apparently wasn’t even aware that the incriminating data files existed, and “we are unconvinced the appellant could entertain a subjective expectation of privacy in them without such knowledge.” Id. Even if Major Larson did have a subjective expectation of privacy, the Air Force Court held, that expectation would be unreasonable. “The data in question was recorded automatically, not for law enforcement purposes, but as part of the computer’s operating system. The appellant could not expect to keep private automatically-recorded data stored on government property he would reasonably have known would be turned over to another officer on that officer’s return from deployment.” Id.
The Air Force Court also rejected a few cats-and-dogs arguments, including IAC, multiplicity, and entrapment. But the opinion never clarifies whether the hamster was real, fictitious, or a Colorado Springs police officer.