The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.
The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:
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).
At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:
No. 14-6010/AF. U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.
I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).