U.S. v. Allen, 53 M.J. 402

First Principles: Constitutional Matters: Generally

1. any constitutional right protecting sexual relations within a marital relationship must bear a reasonable relationship to activity that is in furtherance of or supportive of the interests of the marital relationship
2. appellant’s acts of sodomy were not in furtherance of his marital relationship where the sodomy was a part of a pattern of degradation and depersonalization that appellant visited upon his former wife; such a pattern falls outside the ambit of conduct that could be considered in furtherance of the marriage

Core Criminal Law Subjects: Evidence: Search and Seizure › Exclusionary rule

1. 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants do not confer a protection upon the individual accused which is enforceable by virtue of the exclusionary rule; nor is the failure to coordinate with the United States Attorney unreasonable conduct by law enforcement which would serve to violate any of the accused’s Fourth Amendment protections
2. although no warrant was obtained to seize electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant, there is no exclusionary rule under 18 USC § 2703, which is part of Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”

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

1. court does not address whether stored logs of transactional records of an internet service provider without any accompanying text are such that an accused has a subjective expectation of privacy that society is willing to recognize

Core Criminal Law Subjects: Evidence: Search and Seizure › Inevitable discovery

1. court finds that stored logs of transactional records of an internet service provider without any accompanying text would have inevitably been obtained pursuant to a warrant where there was nothing to show that officers would not have obtained such a warrant had the internet service provider not indicated that it had authority to turn over the records

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

1. probable cause is determined by the totality of the circumstances, and is a practical, common sense decision; deference is accorded the judge or magistrate making the probable cause determination
2. there is no requirement for a higher standard of probable cause for material protected by the First Amendment; a fair probability that the material sought is obscene is sufficient
3. there was substantial evidence in the record to support the decision to issue a warrant to search appellant’s off-base home where: (1) information showed that appellant accessed child pornography through his on-line server while on duty; (2) appellant had access to the same service at home; (3) appellant admitted that he had erotica at his home; and (4) appellant was evasive about possessing child pornography at home

Core Criminal Law Subjects: Evidence: Search and Seizure › Warrants

1. where the findings of the military judge showed that OSI officers did not seek the search warrant in issue, 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants did not apply - a civilian law enforcement officer sought the warrant from a civilian judge
2. warrant was not general or overbroad where the listing of items to be searched for related to the information constituting probable cause; it focused specifically on sources of child pornography, the computer system and internet service provider, and persons who may be involved in the criminal activity at the specific address
3. military judge’s findings of fact that affidavits in support of a search warrant were not knowingly and intentionally false was binding on Court of Appeals for the Armed Forces in that it was not clearly erroneous
4. electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant fell within Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”, and release of such information did not require a warrant

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

1. issues involving admissibility of evidence are reviewed for abuse of discretion; underlying findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record of trial; conclusions of law will be reviewed de novo and will not be overturned unless the decision was based upon an erroneous view of the law

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. where there was an independent and continuing military interest in the investigation of appellant, it was not a violation of the Posse Comitatus Act, 18 USC § 1385, for OSI agents to participate in the search of appellant’s off-base home
2. although no warrant was obtained to seize electronic data stored by an internet service provider which identified the date, time, user, and internet site addresses accessed by appellant, there is no exclusionary rule under 18 USC § 2703, which is part of Title II of the Electronic Communications Privacy Act of 1986, “Stored Wire and Electronic Communications Transactional Records Access”

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Regulations

1. 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants do not confer a protection upon the individual accused which is enforceable by virtue of the exclusionary rule; nor is the failure to coordinate with the United States Attorney unreasonable conduct by law enforcement which would serve to violate any of the accused’s Fourth Amendment protections
2. where the findings of the military judge showed that OSI officers did not seek the search warrant in issue, 28 CFR § 60.1 and related provisions of AFOSI Regulation 124-82 relating to obtaining the concurrence of an United States Attorney prior to seeking certain search warrants did not apply - a civilian law enforcement officer sought the warrant from a civilian judge