The Air Force Court issued a published opinion yesterday. It’s not up on its web site yet, so I’ve posted it on CAAFlog.com. United States v. Sanders, __ M.J. ___, No. ACM 36707 (A.F. Ct. Crim. App. Mar. 26, 2008).
AFOSI agents received information suggesting that SrA Sanders had possessed child pornography in his base quarters during his previous tour. They brought Sanders in for questioning and advised him of his rights. He admitted that if they were to search his home computer, they would “probably” find child pornography. When asked if he would consent to such a search, he refused and asked to speak with counsel. The OSI agents responded to this apparent setback by asking Sanders’ First Sergeant to keep him occupied while they tried to obtain a search authorization and consent from Sanders’ wife. That little stratagem worked like a charm — or at least most of it did. Sanders was kept busy, but the agents didn’t succeed in reaching the magistrate so they left a message for him. They were more lucky with Mrs. Sanders, who signed a form consenting to the search and seizure of the Sanders family’s computer.
As the OSI agents were driving off with the Sanders’ computer, they received a call from the military magistrate. After the agents told the magistrate that SrA Sanders had admitted that child pornography would probably be found on his computer, the magistrate verbally authorized the computer’s search and seizure. He reduced that authorization to writing the following day. Child pornography was eventually found on the computer and the defense lost a suppression motion at trial.
In its opinion, the Air Force Court strongly suggests, but ultimately doesn’t hold, that arranging for SrA Sanders to be tied up while seeking consent from his wife without telling her that her husband had refused to consent violated Georgia v. Randolph, 547 U.S. 103 (2006), characterizing the OSI agents’ conduct as “disturbing.” Sanders, slip op. at 4.
But the court ultimately punts on the Randolph issue because it concludes that the evidence would inevitably have been discovered via the search authorization.