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.