Argument Preview: Considering whether the Fourth Amendment requires a temporal limitation for a search in United States v. Richards, No. 16-0727/AF
CAAF will hear oral argument in the Air Force case of United States v. Richards, No. 16-0727/AF (CAAFlog case page), on Wednesday, March 15, 2017, at 1 p.m. The court will hear argument on one issue challenging the validity of a search authorization as overbroad (an Ortiz trailer issue won’t be argued):
I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.
II. Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.
Lieutenant Colonel (O-5) Richards was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of possession of child pornography and committing indecent acts with children under the age of 16 in violation of Article 134, and of four specifications of failing to obey a lawful order in violation of Article 92. The military judge sentenced Richards confinement for 17 years and a dismissal. In a lengthy opinion the CCA affirmed the findings and the sentence.
The charges arose after a former participant in a Big Brothers of America program alleged sexual assault by Richards some years earlier. The Air Force Office of Special Investigations (AFOSI) began an investigation that revealed evidence of an ongoing sexual relationship with another minor and involving electronic communications. That evidence supported a search authorization “to conduct a search to obtain ‘all electronic media and power cords for devices cable of transmitting or storing online communications.'” App. Br. at 7. Numerous devices were seized and searched by digital forensic analysis, eventually leading to the discovery of “thousands of images of child pornography.” Gov’t Div. Br. at 8.
At trial Richards moved to suppress the child pornography and derivative evidence “on several grounds, including that the search authorization was overbroad.” Gov’t Div. Br. at 9. The military judge denied the motion, concluding that the authorization was not overbroad and also that the good faith exception would apply even if it were overbroad. Richards renewed this claim at the Air Force CCA, where it was also rejected. He now takes the claim to CAAF to determine:
whether the Fourth Amendment requires a search authorization to include a temporal limitation when that information was available and known to law enforcement at the time the authorization was requested.
App. Br. at 17.
The core of Richards’ argument is that the suspected sexual relationship with a minor involving electronic communications, that was the basis for the seizure and search of his electronic devices, was known to law enforcement to have occurred within a limited time period and so the Fourth Amendment requires that the searches of data be limited to that time period:
In this case, SA Winchester was aware that AP [the minor] had stated that he was engaged in a sexual relationship with Appellant since April of 2011, and had met Appellant online approximately a year prior to that. She made those facts known to the military magistrate at the time she requested the search authorization. JA at 271-72. Thus, the military magistrate was aware that the crime currently under investigation was violation of “Florida Statute Section 847-0135 Computer Pornography; Traveling to meet a minor,” and was aware that the earliest date of commission was approximately April of 2010.
. . .
In this case, it appears that neither law enforcement nor the magistrate made any attempt to impose a temporal limitation on the search – not in the request for the search authorization, in the search authorization itself, or in the execution of the search authorization. When SA Winchester requested that DCFL examine the hard drives, she made no mention to DCFL of the date ranges in which to search. Yet it was obvious from AP’s interview that any communications must have occurred within the last year and a half.
App. Br. at 22-23. Considering a broad array of civilian precedent, Richards’ brief concludes that:
[I]t appears that every Circuit to consider the issue has concluded, at the very least, that a temporal limitation regarding the offense is a relevant consideration with respect to formulating a constitutionally valid warrant, and in some cases may be determinative of the warrant’s validity, particularly where that information is available and known to law enforcement.
App. Br. at 21. Richards also argues that neither the good faith not the inevitable discovery doctrines apply.
The Air Force Appellate Government Division not only does not agree that the Fourth Amendment requires a temporal limitation, but it also argues that such a limitation would unreasonably impede computer searches:
The nature of computer searches, in fact, dictates against imposing date limitations in search authorizations, because such limitations could cause law enforcement agents to miss incriminating evidence that has been hidden or mislabeled, or that is located in unallocated space. In this particular case, where Appellant could have deleted or attempted to hide evidence of his relationship with A.P., a date limitation on the search authorization would have unreasonably restricted the AFOSI agents’ search for incriminating evidence.
Gov’t Div. Br. at 11. The Division’s brief includes the argument that:
Limiting the agents to searching only for files with certain dates or times could have caused the agents to miss incriminating evidence of Appellant’s illicit online communications with A.P.
At the time they applied for the search authorization, the AFOSI agents had no way of knowing for certain whether Appellant had deleted evidence of his online communications with A.P., if evidence had been hidden and mislabeled, or if evidence still remained in allocated space on his computer. Therefore, at that juncture in the investigation, the 9 November 2011 search authorization could not have reasonably or practically been more specific in directing the agents to search only for files containing a certain date.
Gov’t Div. Br. at 24.
The impact of a temporal limitation on the ability to search for deleted files seems to be a significant problem with Richards’ argument that the Fourth Amendment requires such a limitation. If a temporal limitation is required, and an electronic file lacks any data establishing that it is within or outside the limitation, then can the file be searched or not?
A reply brief from Richards seemingly avoids this question:
pictures will often contain internal data (including the date the picture was taken), that law enforcement certainly had the capability of determining whether the file had catalogue information or metadata associated with it, and if the file had metadata associated with it indicating that the file fell outside of the date range, it should not have been opened.
Reply Br. at 4. Additionally:
Law enforcement in this case had the ability to segregate the files and only open the files that fell within the date range for which there was probable cause. It could have done that without requiring any specific “search methodology” to be spelled out in the warrant. It did not segregate the files by date because the search authorization did not require the government to search only for files related to criminal activity within the date range. In this regard, the search authorization was overbroad.
Reply Br. at 11-12. But a footnote suggests that Richards’ argument requires CAAF to hold that any file not definitively within the temporal limitation is off-limits:
Appellant does not concede that it is appropriate for law enforcement to open files found in unallocated space that do not contain metadata or for which there is no catalogue available. He merely states that where the range of dates of the offense is known to law enforcement, agents must at the very least first determine whether the file falls within the range of dates, and if it does not, and the agents know that it does not, it cannot be opened.
Reply. Br. at 16 n.3 (emphasis in original). Such a rule would significantly limit the reach of a search authorization or warrant involving digital media.