U.S. v. Long, 64 M.J. 57

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures

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

1. the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures; CAAF has described a search as an official governmental intrusion into an individual’s reasonable expectation of privacy; whether such an expectation of privacy exists is therefore a question in any search and seizure analysis; the question is resolved by examining whether the individual challenging the alleged intrusion had a subjective expectation of privacy which was objectively reasonable; if such an expectation is established, the inquiry then moves to the remaining issues raised by the Fourth Amendment
2. official intrusions into protected areas in the military require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces
3. there are two situations where employer searches into zones of privacy are legitimate even if not supported by normal Fourth Amendment warrant and probable cause requirements; the first is where the search is for noninvestigatory, work-related purposes; the second is if the search by the employer is investigatory but involves matters of workplace misconduct; in either of these situations the search is evaluated using the standard of reasonableness based on all the surrounding facts and circumstances; when the reasonableness standard is applicable, the government must establish: (a) that the search was justified at its inception; and (b) that the conduct of the investigation was reasonably related in scope to the circumstances which justified the interference in the first place

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

1. the question of whether there was a reasonable expectation of privacy in any search and seizure analysis is resolved by examining whether the individual challenging the alleged intrusion had a subjective expectation of privacy which was objectively reasonable; if such an expectation is established, the inquiry then moves to the remaining issues raised by the Fourth Amendment
2. the determination of the reasonableness of an expectation of privacy is understood to differ according to context; in the context of the government workplace, employees may have a reasonable expectation of privacy against certain intrusions; however, public employees’ expectations of privacy in their offices, desks, and file cabinets may be reduced by virtue of actual office practices and procedures, or by legitimate regulation; the rationale for this suggestion is the efficient and proper operation of the agency; thus, an employee’s expectation of privacy must be assessed in the context of the employment relation and the operational realities of the workplace
3. if the practices of the workplace establish an environment where the employee enjoys no reasonable expectation of privacy, the protections of the Fourth Amendment would simply not apply; if an expectation of privacy is supported by the workplace environment, however, the analysis must continue
4. in the government workplace, a reasonable expectation of privacy may not provide the employee with complete Fourth Amendment protection; the need for a search warrant based on probable cause is not required for legitimate workplace searches conducted by supervisors; public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances; while police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct
5. in examining Fourth Amendment privacy interests, the courts look first to whether the individual had a subjective expectation of privacy; if the courts ascertain that a subjective expectation of privacy exists, they then determine if that expectation is one that society is prepared to accept as reasonable
6. the lower court was not clearly erroneous in its determination that the accused had a subjective expectation of privacy in the e-mails she sent from her military office computer and in the e-mails that were stored on the military government server, where she had a password known only to her, the system’s log-on banner described access to “monitor” the computer system, not to engage in law enforcement intrusions by examining the contents of particular e-mails in a manner unrelated to maintenance of the e-mail system, and agency practice recognized the privacy interests of users in their e-mail
7. MRE 314(d) indicates that searches of government property may be made without probable cause unless an individual has a reasonable expectation of privacy in that property and that the determination of the reasonableness of an expectation of privacy depends on the facts and circumstances at the time of the search
8. privacy expectations in the workplace may be reduced by virtue of office practices, procedures, or regulation
9. the accused’s subjective expectation of privacy in e-mails that she sent from her HQMC office computer, that were transmitted over the HQMC network system, and that were stored on the HQMC server was objectively reasonable, where HQMC policies and practices required individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy, limited outside network access to the network administrator, and described very limited conditions under which the administrator would monitor the network for unauthorized use; the accused was authorized to use the government computer for personal use and the log-on banner did not provide her with notice that she had no right of privacy; rather, the banner focused on the idea that her use of the system may be monitored for limited purposes; while the log-on banner may have qualified the accused’s expectation of privacy in her e-mail, it did not extinguish it; simply put, in light of all the facts and circumstance in this case, the “monitoring” function detailed in the log-on banner did not indicate to the accused that she had no reasonable expectation of privacy in her e-mail; thus, the accused’s expectation of privacy was, in fact, recognized as reasonable by virtue of the rules, regulations, practices, and procedures of HQMC, and her subjective expectation of privacy was one which society is prepared to recognize as reasonable

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

1. official intrusions into protected areas in the military require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces
2. the need for a search warrant based on probable cause is not required for legitimate workplace searches conducted by supervisors; public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances; while police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct
3. MRE 314(d) indicates that searches of government property may be made without probable cause unless an individual has a reasonable expectation of privacy in that property and that the determination of the reasonableness of an expectation of privacy depends on the facts and circumstances at the time of the search
4. while government employers may need to enter an employee’s office space or intrude into an employee’s computer or e-mail account for work-related reasons, searches conducted for the primary purpose of obtaining evidence of illegal conduct require probable cause
5. because the search for e-mails in this case went beyond work-related monitoring or an investigatory search of work-related misconduct, it was not one exempt from the probable cause requirement; thus, to be admissible, the evidence obtained in the search must have been pursuant to authorization; because there was no command authorization, the evidence should have been suppressed

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the government’s use at trial of the accused’s e-mails seized without a warrant from a government computer system to support the unlawful drug use charges against the accused was not harmless error beyond a reasonable doubt, where the prosecution witnesses were all admitted drug users and potential accomplices who had incentives to testify for the government, and the trial counsel used the constitutionally inadmissible evidence as a cornerstone of his opening statement and closing argument

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

1. in examining Fourth Amendment privacy interests, the courts look first to whether the individual had a subjective expectation of privacy; if the courts ascertain that a subjective expectation of privacy exists, they then determine if that expectation is one that society is prepared to accept as reasonable; the first question is one of fact, which is reviewed using a clearly erroneous standard; the second is one of law, which is reviewed de novo
2. whether error is harmless beyond a reasonable doubt is a question of law reviewed de novo
3. in determining whether error is harmless beyond a reasonable doubt, the burden is on the government to show whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained