U.S. v. Monroe, 52 M.J. 326

Core Criminal Law Subjects: Evidence: Search and Seizure › Expectations of privacy

1. based on totality of circumstances, appellant had no reasonable expectation of privacy in electronic mail messages or an electronic mail box where: (1) the computer system was owned by the government; (2) there was specific notice that users consented to monitoring; and, (3) once received by the government system, there was a risk that government officials with access to the network would access the electronic mail
2. government computer system operators did not act illegally in disclosing electronic mail to criminal authorities where appellant had no reasonable expectation of privacy in mail within government computer system and where that mail had been opened inadvertently by system operators while troubleshooting the problems the mail messages had created within the computer system; see 18 USC § 2702(b)

Core Criminal Law Subjects: Evidence: Search and Seizure › Good faith exception

1. even if probable cause determination lacked substantial basis, evidence seized would still be admissible under the good faith exception of MRE 311(b)(3) where: (1) there was no suggestion that investigator acted with other than objective good faith in seeking and executing search authorization; (2) investigator sought legal advice throughout investigation; (3) investigator showed restraint in not searching appellant’s work area when it became obvious that no evidence would be found there; (4) investigator fully disclosed the sources of his information, and there was no reason to view his affidavit as deficient on its face; (5) there was no indication that authorizing official abandoned his judicial role; and, (6) there was no indication that the authorization was facially deficient

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. applications for authorizations to search for and to seize materials presumptively covered by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally; there is no requirement that an issuing authority personally view allegedly obscene material prior to issuing a warrant
2. authorizing official had borderline basis for finding probable cause to search where allegedly obscene materials were not attached but were described as “graphic pornographic photographs”, words which ordinarily communicate to a reasonable person that the images in all probability depict obscenity as legally defined

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. military judge’s ruling on a motion to suppress is reviewed for abuse of discretion; the judge’s fact-finding is reviewed under a clearly-erroneous standard, and his/her conclusions of law are reviewed de novo; the evidence is reviewed in the light most favorable to the prevailing party
2. whether a party has manifested a subjective expectation of privacy is a question of fact, reviewed under the clearly erroneous standard; whether that subjective expectation is objectively reasonable is a matter of law subject to de novo review
3. in reviewing question of probable cause for a search, a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; a reviewing court will not conduct a de novo determination of probable cause, but will only determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant, with close calls being resolved in favor of sustaining the magistrate’s decision in order to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant