U.S. v. Rader, 65 M.J. 30

First Principles: Constitutional Matters: Confrontation

1. the Confrontation Clause of the Constitution bars the admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the accused had a prior opportunity for cross-examination

First Principles: Constitutional Matters: Search and Seizure

1. a law enforcement officer does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures where a third party who possesses common authority over the premises or effects consents to the search

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

1. a law enforcement officer does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures where a third party who possesses common authority over the premises or effects consents to the search
2. ordinarily, the search of a home, to include a search of items within the home, such as a computer, is prohibited in the absence of a warrant; the prohibition does not apply, however, to situations in which voluntary consent has been obtained; valid consent to search can be provided, under some circumstances, by a third party
3. the validity of the third party consent does not hinge on niceties of property law or on legal technicalities; rather, a third party has authority to consent to a search when he possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected; that consent is valid as against the absent, nonconsenting person with whom that authority is shared
4. common authority for the purposes of the validity of third party consent is mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the search; MRE 314(e)(2) recognizes this same concept: a third party may grant consent to search property when the person exercises control over that property
5. consent to use a computer can be limited in scope by its owner to certain applications or files; in the personal computer context, courts examine whether the relevant files were password-protected or whether the accused otherwise manifested an intention to restrict third-party access
6. appellant’s roommate had sufficient access and control of appellant’s computer to consent to the search and seizure of certain unencrypted files in appellant’s non-password-protected computer; the record supports the military judge’s conclusion that the roommate had common authority over appellant’s computer for most purposes, where appellant’s computer was physically located in his roommate’s bedroom, where neither appellant’s computer nor the folder at issue was protected by a password, where appellant never told his roommate not to access his computer or any files within the computer, where his roommate used appellant’s computer to play computer games with appellant’s knowledge and consent, and where his roommate accessed appellant’s computer approximately every two weeks to perform routine maintenance; in this case, it would be difficult to imagine how there could have been a greater degree of joint access, mutual use, or control

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

1. an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo
2. the control a third party exercises over property or effects is a question of fact; an appellate court will not disturb the military judge’s findings of fact unless they are clearly erroneous or unsupported by the record; whether these facts rise to the level of joint access or control for most purposes is a question of law that an appellate court reviews de novo