CAAF will hear oral argument in the interlocutory Air Force case of United States v. Buford, No. 14-6010/AF (CAAFlog case page), on Tuesday, December 9, 2014. The case involves a Government appeal of a military judge’s ruling that suppressed evidence discovered on 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 Air Force CCA affirmed the military judge’s ruling in part and reversed it in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and the court granted a second issue:

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.

Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

The procedural posture puts the Government in the position of Appellant and Cross-Appellee, while the accused is Appellee and Cross-Appellant. I will refer to the parties as the Government and Appellee.

Appellee is charged with committing an indecent act with a minor in violation of Article 120, and six specifications relating to receipt receipt, possession (on three separate devices: a Dell laptop, a Hewlett-Packard (HP) laptop, and a Centon flash drive), access, and distribution of child pornography, in violation of Article 134, UCMJ. On October 5, 2013, the military judge granted a Defense motion to suppress evidence contained on the three electronic devices. After granting a Government motion for reconsideration and hearing additional argument, the military judge affirmed the suppression ruling. The Government then appealed to the AFCCA, which reversed the military judge in part. The Judge Advocate General of the Air Force then certified the case to CAAF, and CAAF subsequently granted a separate petition for review filed by Appellee.

The facts of the case involve the discovery by Appellee’s wife of evidence of sexually explicit communications between Appellee and other females. Appellee’s wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow, who was also an active duty Air Force Security Forces member. A1C Marlow preserved screenshots of sexually explicit matters and encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators, resulting in the search and seizure of various electronic media.

The case presents a dense and complex web of legal issues, including private searches, consent to search, inevitable discovery, the validity of a search authorization, the applicability of law enforcement’s good faith reliance on the search authorization, and the appropriateness of the application of the exclusionary rule. A number of these issues have received significant recent attention from CAAF. For instance, the court considered private searches in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page), and I discussed the court’s ongoing debate about the application of the exclusionary rule in this post.

It’s hard to predict what CAAF will focus on in this week’s oral argument, but I think the question that has the greatest significance is whether A1C Marlow was acting as a Government agent during his early involvement in the case.

The Government’s brief asserts that:

Here, A1C [Marlow] was not acting as an agent of the government. To be sure, when A1C [Marlow] visited [the resident of a friend of Appellee’s wife] that day, he did not do so at the direction of security forces or AFOSI. (J.A. at 58-59, 108-09.) He was not acting as a security forces gate guard, or a patrolman, and he certainly was not acting as an investigator, as this is a duty he was never trained to do. . . . Once [Appellee’s wife] voluntarily made A1C [Marlow] aware of the Facebook profile and of her access to Appellee’s e-mail account, this act did not suddenly transform A1C [Marlow] into an agent of the government merely because he was a security forces member. As this Court made clear in Daniels, there must be clear indices of the government’s encouragement, endorsement, and participation in a search. Daniels, 60 M.J. at 71. That did not occur here.

Gov’t Br. at 15-16. The Government’s argument relies on CAAF’s per curiam opinion in United States v. Daniels, 60 M.J. 69 (C.A.A.F. 2004), in which the court concluded that a sailor who asked his chief for direction regarding suspected drugs possessed by the sailor’s roommate, and who then seized the drugs at the chief’s direction, was acting as a government agent. In Daniels CAAF explained:

[T]he 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.'” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614-15, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (internal citations omitted). 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. Id. at 615-16, 109 S.Ct. 1402.

In the instant case, rather than retrieve the vial on his own initiative and then bring it to Chief Wilt for consultation, SA Voitlein instead first consulted Chief Wilt about the issue, and then, only after he received the order from Chief Wilt to do so, retrieved the vial. In other words, Chief Wilt’s specific order as a government official triggered SA Voitlein’s actual seizure of the vial. In light of these facts, we hold that Chief Wilt clearly encouraged, endorsed, and participated in SA Voitlein’s seizure of the vial and, accordingly, that SA Voitlein acted as Chief Wilt’s agent when he seized the vial.

60 M.J. at 71. In Buford, where A1C Marlow did not call a superior for direction, the Government asserts that A1C Marlow “was not acting at the behest of any government authority” when he searched for and preserved digital evidence. Gov’t Br. at 16. But Appellee claims that it is the very nature of A1C Marlow’s actions that make him a Government agent:

The government’s attempts to make A1C Marlow a private actor fall short. Gov. Br. at 15-18. In Reister, this Court held that a house-sitter who was acting out of curiosity did not violate that appellant’s Fourth Amendment rights. 44 M.J. at 409. A1C Marlow was no such person. He was not searching the laptop out of curiosity. He was searching to obtain evidence against Appellee.

App. Br. at 10. Appellee also seeks to distinguish Daniels on the basis that CAAF’s “discussion of motivation centered on whether the government actor was seizing evidence on his own accord or at direction of a superior. This Court said the government actor’s motivation did not matter.” App. Br. at 11. In other words, Appellee asserts that Daniels didn’t turn on why the sailor seized the evidence, but instead on the fact that his actions were a deliberate seizure of evidence. Underscoring this point, Appellee’s brief asserts as dispositive the facts that:

A1C Marlow was a law enforcement officer who had previously conducted searches. His search was solely to collect evidence.

App. Br. at 11. Appellee’s argument also draws on a 1954 decision of the Court of Military Appeals (CAAF’s predecessor court) that distinguished between service members who normally perform law enforcement duties and those who do not. In United States v. Volante, 16 C.M.R. 263 (C.M.A. 1954), the court considered a search of the appellant’s personal property conducted by fellow service members who were concerned that they would be held personally responsible for items stolen by the appellant. The court observed that:

Plainly, not every search made by persons in the military service is under the authority of the United States. However, we need not attempt to establish categories of persons or situations which will make the search either official or private. Certainly, a search by a person duly assigned to law enforcement duty and made for the sole purpose of enforcing military law, is conducted by a person acting under the authority of the United States.

Volante, 16 C.M.R. at 265-66. An interesting twist in Volante is that the personnel who conducted the search not only did not normally perform law enforcement duties, but they also sought advice from their superior and were not instructed to conduct a search; the opposite of what happened in Daniels.

CAAF may well give new life to the reasoning of Volante with its decision in Buford by holding that service members in law enforcement billets are presumed to be acting under the authority of the United States when they conduct searches and seizures of evidence.

Another interesting issue in this case is the Government’s assertion that when Appellee’s wife searched his Facebook and email accounts, using a password that she obtained in an unknown manner, she “frustrated Appellee’s expectation of privacy in that evidence.” Gov’t Br. at 18. The Government claims that:

Under Mil. R. Evid. 311(a)(2), a search within the context of the Fourth Amendment only occurs when a person maintains an expectation of privacy in the item to be searched. After [the wife]’s searches, Appellee had no expectation of privacy in his fake Facebook account (and messages), nor did he have a remaining expectation of privacy in his e-mail. It is also interesting that [the wife] had full access to both the fake Facebook profile and e-mail. Indeed, if Appellee gave [his wife] his passwords or if they were readily available, this is even more of an indication that he had no reasonable expectation of privacy in these accounts. Unfortunately, the record is silent as to this fact since [the wife] ceased cooperation with the prosecution.

Gov’t Br. at 21. This is almost certainly wrong and I think the Government will face tough questioning from CAAF on this point. Without evidence that Appellee actually authorized his wife to access the Facebook and email accounts, her actions were no different than those of any hacker who successfully obtains access to an electronic account. To say that unauthorized access frustrates an expectation of privacy would be to create an exception that swallows the rule.

But I don’t think the Appellee’s expectation of privacy in his online accounts will be dispositive, because of the third-party doctrine and the relative ease with which the Government could obtain the contents of the accounts.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Blog post: AFCCA partially denies a Government appeal of a suppression ruling
Blog post: The Air Force certifies Buford
Blog post: Hernandez appeals and CAAF grants in Buford
Appellant’s (Government) brief on the certified issue
Appellee’s brief on the certified issue
Cross-Appellant’s supplement to the petition for grant of review
Cross-Appellee’s (Government) answer to the petition for grant of review
Blog post: Argument preview

9 Responses to “Argument Preview: United States v. Buford, No. 14-6010/AF”

  1. The Silver Fox says:

    I wonder what, if any, impact CAAF’s recent decision in U.S. v. Jones, 73 M.J. 357 (CAAF 2014) will have on the determination of whether this young Airman was a private actor.

  2. AF JAG says:

    “Exception that swallows the rule”?  What rule are you talking about?  Because the rule on 3rd party searches (and Appellant’s civilian wife is certainly a third party) is that there is no “reasonableness” requirement.  BLACK LETTER LAW, folks:  the 4th Amendment pertains to GOVERNMENT searches–not 3rd party searches.  “This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'”  United States v. Jacobsen, 466 U.S. 109, 113 (citing Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J. dissenting)).
    Wicks was all about government searches the Court viewed to be IN EXCESS of the underlying third party search–that’s when the 4th Amendment kicks in.  The Court in Wicks never said that the 3rd party’s stealing the Appellant’s cell phone and then passing on information to the government she obtained from her 3rd party search of the phone violated the 4th Amendment.  Instead, it was the fact that the Court construed the government’s subsequent search efforts of the phone (which included forensic analysis of all digital data on the phone–not just what the third party search had discovered) as significantly exceeding the scope of the private search.  In fact, in Wicks CAAF re-affirmed the applicability of Jacobsen as the seminal decision for the “private search doctrine.”  United States v. Wicks, 73 M.J. 93, 100 (C.A.A.F. 2014).   
    So in Buford, it does not matter if the wife secretly discovered or “hacked” her husband’s Facebook or not–everything she discovered in her “private” 3rd party search is completely admissible to the government.  ” This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”  Jacobsen, 466 U.S. at 114-15. 
    No 4th Amendment exclusionary rule applies unless the government “unreasonably”  searches beyond the scope of the 3rd party search.  As the Supreme Court has held, the expectation of privacy is frustrated to the extent of a 3rd party search:  “Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information”  Jacobsen, 466 U.S. at 117.
    So ultimately, while the government may well lose on the issue of whether the Security Forces patrolman was acting in a “private capacity” when he conducted a follow-on search from Appellant’s wife’s initial private search (and I agree with Silver Fox that the “objective test” of CAAF’s Article 31 decision in Jones may be applicable here), ultimately it will not matter because all the evidence discovered by Appellant’s civilian wife in the course of her independent 3rd party “private search” is completely admissible to the government.

  3. Zachary D Spilman says:

    And yet, AF JAG, the wife cannot be compelled to testify against her husband. The Government still bears the burden to define the scope of any private search (rightly so, if it expects to rely on its private nature), and that may be insurmountable in this case.

    The exception that swallows the rule is the notion that no expectation of privacy survives a private search. I think common sense (and Wicks) clearly says otherwise.

  4. stewie says:

    Do you really think the wife’s going to need compelling in this case?

  5. Zachary D Spilman says:

    Despite initial cooperation with investigators, the wife has refused to participate in the prosecution, Stewie.

  6. stewie says:

    Surprising but ok. Still, that’s more a practical problem then a legal issue.

  7. AF JAG says:

    @Zachary Spilman–I think you and I just have different readings of Wicks.
    I read Wicks as standing for the modest proposition that a 3rd party search does not frustrate an accused’s “expectation of privacy” for those areas of the accused’s property beyond the scope of the 3rd party search
    In Wicks, CAAF upheld the trial judge’s decision to suppress the proceeds of the government’s follow-on search after a 3rd party search because he asserted that the record did not specify the particular areas of the phone searched.  Therefore, since the trial judge asserted he could not identify the precise bounds of the 3rd party search, and the government searched the whole phone, he would suppress all.  CAAF then upheld that suppression, but NOT because the fruits of a third party search aren’t fully admissible at trial, but rather because the Court could not identify with specificity what those fruits were.
    Wicks did not seek to overturn the Supreme Court’s decisions in Walter and Jacobsen that any material discovered by a 3rd party search may be used against the accused at trial.  Again, as I cited in my post above, the Court in Wicks re-affirmed the underlying rationale of Walter and Jacobsen on these points.  United States v. Wicks, 73 M.J. 93, 100 (C.A.A.F. 2014).
    Bottom line:  the Supreme Court permits full government use of the fruits of a 3rd party search.  So discussion about whether the accused retains an “expectation of privacy” over his property despite a third party search seems pretty academic at that point, because whatever expectation of privacy he may retain still does not function to exclude the fruits of the underlying 3rd party search.

  8. Zachary D Spilman says:

    I think I agree with your interpretation of Wicks, AF JAG. My dispute is with the following language from the Government’s brief:

    After [the wife]’s searches, Appellee had no expectation of privacy in his fake Facebook account (and messages), nor did he have a remaining expectation of privacy in his e-mail.

    Gov’t Br. at 21. The Government’s position is unqualified; any third-party search eviscerates all privacy interest. As I wrote, that’s almost certainly wrong.

  9. AF JAG says:

    @Zachary Spilman–so we DO agree on something!  Now you KNOW it must be Christmas time:)