Opinion Analysis: The authorization to search electronic media did not require a temporal limitation in United States v. Richards, No. 16-0727/AF
CAAF decided the Air Force case of United States v. Richards, __ M.J. __, No. 16-0727/AF (CAAFlog case page) (link to slip op.), on Thursday, July 13, 2017. The court holds that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search. Applying that rule to the facts of this case, CAAF affirms the military judge’s ruling that admitted the fruits of the search of the appellant’s electronic media, the decision of the Air Force CCA, and the appellant’s convictions.
Judge Sparks writes for a unanimous court.
CAAF granted review to determine:
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 to 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 that he was sexually 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 between Richards and another minor and involving electronic communications. That evidence supported a search authorization “for Appellant’s residence and person for items used to electronically communicate with [the minor].” Slip op. at 3. Numerous devices and hard drives were seized and sent to the Defense Computer Forensic Laboratory (DCFL) for extraction, whereby a software program “goes through the image – the mirrored copy of the drive, it looks for those files, pictures, chat logs, Word documents, Internet history, and it pulls them all out and throws them into a directory on a new drive.” Slip op. at 4 (quoting examiner). “DCFL simply dumped all pictures and on-line chats from these [multiple] drives onto one big drive for review.” Slip op. at 4 (quoting a Special Agent). While searching the compiled extracted materials, the investigator discovered suspected child pornography and obtained new search authorizations. Subsequent investigation revealed more images, leading to Richards’ convictions.
Richards moved to suppress the fruits of the searches on the basis that the original search authorization was overbroad. That motion was rejected at trial and on appeal before the Air Force court, and is now rejected by CAAF as well.
Writing for the unanimous court, Judge Sparks avoids any bright-line rule for electronic searches except for the Fourth Amendment’s particularity requirement that prevents general searches, which are “a general exploratory rummaging in a person’s belongings.” Slip op. at 6 (quoting United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999)). Instead, Judge Sparks explains that “the courts have looked to what is reasonable under the circumstances.” Slip op. at 6. And here, because the authorization was limited to evidence of communications with the minor (which could include images), it was reasonable.
Judge Sparks explains that:
In charting how to apply the Fourth Amendment to searches of electronic devices, we glean from our reading of the case law a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials may be hidden, yet not so broad that they become the sort of free-for-all general searches the Fourth Amendment was designed to prevent.
On one hand, it is clear that because criminals can—and often do—hide, mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the hard drive may be required…. On the other hand, … granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a “limited search into a general one.”
United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (citations omitted).
Slip op. at 8 (omissions in original). But he also notes that:
[I]n the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.
Slip op. at 7 (quoting United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009)).
the authorization did not require a date restriction because it was already sufficiently particularized to prevent a general search. Though a temporal limitation is one possible method of tailoring a search authorization, it is by no means a requirement. Here, the authorization and accompanying affidavit did not give authorities carte blanche to search in areas clearly outside the scope of the crime being investigated. They were entitled to search Appellant’s electronic media for any communication that related to his possible violation of the Florida statute in his relationship with [the minor].
Slip op. at 8.
But the facts of this case are a little more complicated because the first image of suspected child pornography – that led to the further searches – was found in unallocated space (meaning that it was probably a deleted item). CAAF addresses this by concluding that “the possibility that relevant communications could have existed among the unallocated materials provided sufficient basis to subject those materials to an authorized and particularized search.” Slip op. at 8-9.
That’s not all, however, because “the record also does not disclose the origin of the first image of child pornography encountered.” Slip op. at 9. So it’s possible that it came from loose hard drives (not installed in a computer at the time of seizure) with shutdown dates that predated the allegations, meaning that the drives hadn’t been used during the suspect time period. However:
because [other] images of child pornography from the laptop, with a last shutdown date in 2011, appeared in the unallocated materials Agent Nishioka searched, we conclude that he either did discover or inevitably would have discovered child pornography that validly lay within the scope of the search regardless of the significance of the shutdown dates on the two loose hard drives.
Slip op. at 9. Put differently, even though the search involved devices that probably weren’t used during the suspect time period (and so probably should not have been searched), the discovery of the child pornography was inevitable because the search authorization properly allowed a search that would have discovered the images.
And so the “discovery of the child pornography images within the folder of unallocated materials was consistent with Horton v. California and the plain view exception to the Fourth Amendment. 496 U.S. 128 (1990).” Slip op. at 9.
• AFCCA opinion
• Appellant’s brief
• Appellee’s (Air Force App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview (in progress)
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis