Opinion Analysis: Affiliation with law enforcement does not equate to official action in United States v. Buford, No. 14-6010/AF
CAAF decided the interlocutory Air Force case of United States v. Buford, 74 M.J. 98, No. 14-6010/AF (CAAFlog case page) (link to slip op.), on Monday, March 24, 2015. A divided court finds that the military judge was wrong when she concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case. CAAF therefore summarily reverses the military judge’s ruling that suppressed the evidence, and the decision of the Air Force CCA that partially affirmed that ruling.
Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Erdmann dissents, joined by Judge Stucky.
Appellee is pending trial by general court-martial on charges that he committed an indecent act with a minor in violation of Article 120, and six specifications relating to child pornography, in violation of Article 134. On October 5, 2013, the military judge granted a Defense motion to suppress evidence discovered on three electronic devices. The Government appealed, and the AFCCA partially affirmed. The Judge Advocate General of the Air Force then certified one issue to CAAF, and the court granted review of 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.
These devices were discovered after Appellee’s wife learned of sexually explicit communications between Appellee and other females, and the wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow. A1C Marlow was an active duty Air Force Security Forces member, and he searched Facebook and email accounts connected to Appellee, preserving screenshots of sexually explicit matters. He also encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators.
The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C Marlow was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. In a dense decision, the CCA affirmed that ruling in part. But Judge Ohlson’s majority opinion for CAAF reverses the ruling with a relatively-simple holding:
[T]he fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case.
Slip op. at 7.