U.S. v. Wallace, 66 M.J. 5

First Principles: Constitutional Matters: Search and Seizure

1. Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted

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

1. a seizure of property, for purposes of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interest in property; as such, a seizure can occur either with or without an attendant search; in either case, the search and the seizure necessitate separate analyses under the Fourth Amendment; if searches and seizures are separate concepts, consent to one is not, without more, consent to the other; similarly, revoking consent to one does not of itself revoke consent to the other

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

1. MRE 314(e)(3) states that consent to search may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time
2. it is the objective reasonableness of the consent - not an accused’s supposed impression - that controls
3. MRE 314(e)(3) implements a limited scope rule, which requires investigators to account for any express or implied limitations on a consent to search; those limitations, however, cannot be determined on the basis of the subjective intentions of the consenting party; the standard is that of objective reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect
4. in this case, clearly, a reasonable person could conclude that an authorization permitting the search and seizure of “my computer” would permit investigators not only to search, but also to remove the computer from the premises
5. even though appellant initially consented to a general search of his home and computer, his subsequent exhortation to investigators that they could not take his computer revoked any consent to seize the computer; his exhortation may have revoked his consent to seize the computer, but disapproval of the seizure cannot, without more, affect the consent to search in the first place
6. a seizure of property, for purposes of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interest in property; as such, a seizure can occur either with or without an attendant search; in either case, the search and the seizure necessitate separate analyses under the Fourth Amendment; if searches and seizures are separate concepts, consent to one is not, without more, consent to the other; similarly, revoking consent to one does not of itself revoke consent to the other
7. where appellant signed a “Consent for Search and Seizure” that clearly gave investigators the right to search his residence and computer and to take away anything they considered evidence of an offense, appellant’s later objection that the investigators could not take his computer clearly embraced the seizure of the computer, and nothing more; as such, while appellant consented to both a search and any attendant seizures, his pleas to investigators to leave the computer revoked his consent to this particular seizure, but not to the search
8. a non-accused co-resident cannot supersede the wishes of the accused co-resident to consent to search because, after all, Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted
9. an appellate court determines the voluntariness of a consent to seizure from the totality of all the circumstances
10. the following non-exhaustive factors should be considered in determining the voluntariness of consent: (1) the degree to which the suspect’s liberty was restricted; (2) the presence of coercion or intimidation; (3) the suspect’s awareness of his right to refuse based on inferences of the suspect’s age, intelligence, and other factors; (4) the suspect’s mental state at the time; (5) the suspect’s consultation, or lack thereof, with counsel; and (6) the coercive effects of any prior violations of the suspect’s rights
11. in this case, as soon as appellant revoked his consent to the seizure, investigators informed him that they would have to take his computer as a matter of routine, and appellant acceded; this second so-called consent amounted to mere passive acquiescence to the color of authority and was not a valid consent; under the totality of the circumstances, appellant’s acquiescence did not constitute free and voluntary consent to his computer’s seizure after revocation of his initial consent to seize; appellant’s ultimate consent to his computer’s seizure lacked sufficient indicia of voluntariness, where he clearly faced restrictions on his liberty by being escorted by two investigators and his first sergeant, where the facts of the escort and the presence of several authority figures also created a coercive and intimidating atmosphere that stifled appellant’s inclination to refuse consent, where, even though appellant was a twenty-six-year-old staff sergeant with nearly eight years of service, it is doubtful that he knew he could withdraw consent once given in light of the investigator’s assurance that seizure was a routine procedure and the fact that neither the written consent form nor the Article 31, UCMJ, rights warnings explicitly stated that he could withdraw consent, and where appellant never consulted counsel throughout his questioning and the subsequent search

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

1. the doctrine of inevitable discovery creates an exception to the exclusionary rule allowing admission of evidence that, although obtained improperly, would have been obtained by another lawful means; MRE 311(b)(2) embodies this exception, stating that evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made
2. in this case, the military judge correctly denied a defense motion to suppress the results of a search of appellant’s computer; while appellant’s ultimate acquiescence to the seizure came under pressure from authority, no error occurred in the military judge’s denial because investigators would have inevitably discovered the images of child pornography on appellant’s computer hard drive pursuant to a validly executed search authorization based on probable cause; during his interrogation, appellant had admitted to a sexual relationship with a young girl with whom he communicated mostly via email and instant messenger; this alone encouraged investigators to focus on his computer as a source of evidence and created sufficient probable cause to allow the investigators to obtain an authorization to search for and seize emails and messages between appellant and the girl on his computer; though the authorization would have been limited to emails and messages, the forensic software employed would have skimmed the computer’s hard drive, recovering all saved data; investigators would have had to sift through all the captured data to find relevant email traffic; as such, the files containing child pornography would have been inevitably discovered through this valid search

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

1. an appellate court reviews a military judge’s ruling on a defense motion to suppress the results of a search of appellant’s computer for an abuse of discretion; findings of fact and conclusions of law are reviewed under the clearly erroneous and de novo standards, respectively
2. an appellate court determines the voluntariness of a consent to seizure from the totality of all the circumstances