Earlier this term, CAAF decided the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page), reversing the Air Force CCA’s decision on an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of Appellant’s mobile telephone.

The issue in Wicks was whether the Government met its burden to show that a law enforcement search subsequent to a private search did not exceed the scope of the private search. But now the AFCCA considers another trial-stage suppression issue involving a similar question, in United States v. Buford, No. 2013-26 (A.F.Cr.Crim.App. Apr. 4, 2014) (link to order).

In Buford, the accused’s wife “found a ‘fake’ Facebook account that was associated with [his] e-mail address. [She] identified the page as a ‘fake’ account because the name and photo associated with the account were not of the [accused], but the e-mail address belonged to him. She became curious and logged onto [his] e-mail account.” Order at 2. Eventually, she shared the information with Airman First Class  (A1C) “RM,” a male friend of hers who was also an active duty Security Forces member. A1C RM then searched the Facebook account and an email account, preserving screenshots of sexually explicit matters. A1C RM then encouraged the accused’s wife to make a report to law enforcement, and during subsequent searches “A1C RM acted as a ‘conduit’ between [the wife] and the AFOSI agents because ‘he was a cop and he could relate to them.'” Order at 3. Eventually, various electronic media was searched and seized, and the accused was charged with wrongfully committing indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134, UCMJ.

The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C RM was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. The CCA affirms this ruling in part.

Notably, the judge and the CCA make a critical distinction between the electronic devices themselves and the online accounts accessed by the devices:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted) (emphasis added).

The court also considered the possibility that A1C RM’s search did not exceed the wife’s private search, but concludes (in a passage reminiscent of CAAF’s decision in Wicks):

Because the record is not clear about exactly what AB viewed during her private searches of the appellee’s Facebook messages and e-mail account, we are not convinced A1C RM’s subsequent search mirrored AB’s private search.

Order at 7. So the CCA affirms the judge’s ruling. However, this affirmation is only partial, as the CCA does find that the wife did give some valid consent; specifically, for the searches of a thumbdrive and of a Dell laptop:

A few weeks after the AFOSI’s thorough search of her home, AB found a thumb drive near her television. AB provided the thumb drive to A1C RM. A1C RM then searched the thumb drive to determine if it contained any evidence. The thumb drive was not password protected. . . . [W]e disagree with the military judge and conclude that AB was authorized to provide consent to the search of the thumb drive. . . .

Order at 7.

Similarly, the military judge found that AB gave consent to A1C RM to search the Dell laptop. AB also gave written consent for the AFOSI to search the Dell laptop when she provided it to the AFOSI on 18 May 2012. . . . AB had actual and apparent authority over the Dell laptop and was able to provide consent to search the device. We distinguish the search of the hard drive which is a physical component of the laptop from using the laptop as a conduit to access electronic data through internet based services. We conclude that AB was able to consent to the search of the Dell laptop.

Order at 8.

By my count, CAAF’s docket for this term already involves a whopping eight cases with certifications from the Air Force JAG:

  1. United States v. Arriaga, No. 13-5008/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  2. United States v. Lindgren, No. 13-5009/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  3. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (CAAFlog case page) (cross-certification).
  4. United States v. McPherson, No. 14-5002/AF (CAAFlog case page) (Article 12 issue).
  5. United States v. Wilson, No. 14-5003/AF (cert. discussed here) (CCA op. discussed here) (Article 12 issue).
  6. United States v. Burns, No. 14-5001/AF (discussed here) (factual sufficiency issue).
  7. United States v. McIntyre, No. 14-6005/AF (cert. discussed here) (CCA op. discussed here) (corroboration issue).
  8. United States v. Seton, No. 14-6008/AF (cert. discussed here) (CCA op. discussed here) (lost evidence issue).

If this level of certification activity in the Air Force is any indication, Buford will be #9.

2 Responses to “AFCCA partially denies a Government appeal of a suppression ruling”

  1. peanut gallery says:

    tl;dr, but are you telling me the AFCCA ruled against the government?

  2. Sam Adams says:

    I see from the opinion that the record was not clear on how exactly the wife had access to the accounts. If her husband shared the passwords and login information with her, then I can’t see how he would have a reasonable expectation of privacy in the contents and why she wouldn’t have at least apparent authority to allow the search. More interestingly though, what if the browser just happened to automatically store the login information? Is that essentially the same thing as leaving the tumblers on your briefcase zeroed out like in Gallagher? If she has authority to authorize the search of the computer and the login and password a cached in the computer’s memory it seems like the same things as an unlocked briefcase in a room that she gave consent to search. The only way I see the court’s ruling make sense is if the wife somehow obtained the password and login without her husband’s consent, or as is the case here, where the parties don’t spell out the facts clearly enough in the record of trial and the accused gets the benefit of that. I guess that’s part of the takeaway if you’re the big G in this case…get it on the record.