U.S. v. Larson, 66 M.J. 212

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment of the Constitution generally requires probable cause for searches of places and things in which people have a reasonable expectation of privacy; in addressing Fourth Amendment privacy claims, the threshold issue is whether the person has a legitimate expectation of privacy in the invaded place; this inquiry invites a court to address whether the individual had a subjective expectation of privacy, and if so whether the subjective expectation of privacy is one that society is prepared to accept as reasonable

Military Justice Personnel: Defense Function: Responsibilities

1. defense counsel undoubtedly has a duty to consult with the client regarding important decisions, including questions of overarching defense strategy; whether the client must consent to the strategic decision made by counsel before counsel may proceed is a different question

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different
2. assuming deficient performance of defense counsel for failing to consult with appellant on the strategic decision to concede guilt in argument to one of the offenses charged, appellant was not prejudiced and there was no ineffective assistance of counsel, where the evidence supporting the charged offenses was overwhelming, no plausible defense to the conceded offense was raised by appellant, appellant did not argue that his defense at trial to the remaining charges was in any way undercut by counsel’s strategic choice, and the military judge instructed the members three times that the arguments of counsel were not evidence

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

1. the Fourth Amendment of the Constitution generally requires probable cause for searches of places and things in which people have a reasonable expectation of privacy; in addressing Fourth Amendment privacy claims, the threshold issue is whether the person has a legitimate expectation of privacy in the invaded place; this inquiry invites a court to address whether the individual had a subjective expectation of privacy, and if so whether the subjective expectation of privacy is one that society is prepared to accept as reasonable
2. under MRE 314(d), government property may be searched unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search; under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is not issued for personal use; the presumption that there is no reasonable expectation of privacy in government property is rebuttable; whether there is a reasonable expectation of privacy in government property is determined under that totality of the circumstances, which includes the rebuttable presumption
3. in this case, the military judge did not abuse his discretion in concluding that the government carried its burden of establishing that appellant had no reasonable expectation of privacy in the government computer; based on the totality of circumstances presented including the factors identified below, appellant failed to rebut and overcome the presumption that he had no reasonable expectation of privacy in the government computer provided to him for official use; there was no evidence that appellant had a subjective expectation of privacy in the government computer, and he did not testify that he did; moreover, the access to this computer by both appellant’s commander and the system administrator supported the validity of the presumption that he had no reasonable expectation of privacy in the government computer; finally, the military judge found as fact that when appellant used the computer, a banner appeared that stated that it was a DOD computer, it was for official use, not to be used for illegal activity, and that it also had a statement that users of the computer consented to monitoring; this factual finding was supported by the record, was not clearly erroneous and, taking the facts in the light most favorable to the prevailing party, established both that appellant was put on notice that the computer was not to be used for illegal activity and that there could be third-party monitoring; the military judge did not abuse his discretion in concluding that appellant had no expectation of privacy in the government computer

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. under MRE 314(d), a person, under normal circumstances, is presumed not to have a reasonable expectation of privacy in government property that is not issued for personal use; the presumption that there is no reasonable expectation of privacy in government property, however, is rebuttable

Trial Stages: Appeals: Harmless / Prejudicial Error

1. whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different
2. assuming deficient performance of defense counsel for failing to consult with appellant on the strategic decision to concede guilt in argument to one of the offenses charged, appellant was not prejudiced and there was no ineffective assistance of counsel, where the evidence supporting the charged offenses was overwhelming, no plausible defense to the conceded offense was raised by appellant, appellant did not argue that his defense at trial to the remaining charges was in any way undercut by counsel’s strategic choice, and the military judge instructed the members three times that the arguments of counsel were not evidence

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; evidence is considered in the light most favorable to the prevailing party
2. whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different