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.
Last week CAAF granted review in an Air Force case presenting an interesting computer search issue:
No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
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.
Briefs will be filed under Rule 25 on Issue II only.
The AFCCA’s decision is available here and reveals that:
The affidavit requesting search authorization for Appellant’s residence stated AFOSI was investigating “Florida Statute Section 847.0135 Computer Pornography; Traveling to meet a minor.” . . .
The military magistrate granted AFOSI’s request for authorization to conduct a search of Appellant’s residence to obtain “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.” AFOSI’s search of the residence resulted in the seizure of standalone computer hard drives, phones, thumb drives, floppy diskettes, and camera memory cards. . . .
At trial and on appeal, Appellant asserts that the search authorization was unconstitutional because it was overbroad in defining what could be seized. Appellant contends the Government only had information that Appellant had engaged in “online communications” with AP. Instead of using vague terms such as “electronic media,” he asserts the search authorization should have more particularly described types of electronics that could be used for such communications, such as laptop computers, smart phones, or gaming systems. Appellant also asserts that the manner in which AFOSI conducted the search and seizure reinforced the overbroad nature of the search authorization, as AFOSI indiscriminately seized multiple types of electronics that could not reasonably be expected to store such online communications. . . .
United States v. Richards, No. 38346, slip op. at 21-22 (A.F. Ct. Crim. App. May 2, 2016).
The AFCCA decided that the authorization was not overbroad, concluding:
While computer technology involves greater dangers of invasion of privacy and overreaching, computer searches are fundamentally no different than other searches involving commingled documents. When commingled records are searched, “it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andersen v. Maryland, 427 U.S. 463, 482 n.111 (1976). In these types of searches, “responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Id. Investigators must be allowed a “brief perusal of documents in plain view in order to determine whether probable cause exists for their seizure under the warrant.” United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981). Because computers and other electronic devices with internal digital storage have the capacity to store tremendous amounts of intermingled data, there may not be a practical substitute for briefly examining many, if not all, of the contents. United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Richards, 659 F.3d 527, 539–40 (6th Cir. 2011).“The general touchstone of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998).
Based on these legal principles, we find no constitutional overbreadth concern with either the terms of the search authorization or the manner in which the search was carried out.
Slip op. at 24-25.