U.S. v. Buford, 74 M.J. 98

First Principles: Constitutional Matters: Search and Seizure

1. the protections provided by the Fourth Amendment do not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official
2. in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case; rather, it is necessary to examine all the facts and circumstances in a case when determining an individual’s authority as an agent of the government
3. in this case, although the individual involved in the search and seizure of appellee’s fake Facebook page and email account served as a member of the security forces, he was not acting as an agent of the government to invoke the protections of the Fourth Amendment where (1) he was off duty, (2) he was not a criminal investigator, (3) the government had no prior knowledge of his activities, (4) his actions could be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend, (5) he told his friend that it was up to her to decide what to do with the information that was discovered and that it was up to her to report the matter to appropriate authorities, (6) once investigators learned of the matter, they took steps to exclude him from further involvement in the case, (7) the record did not reveal any other clear indices of government encouragement, endorsement, or participation in the challenged search, and (8) the military judge erred when she applied a subjective test and relied on the individual’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the military judge erred when she applied a subjective test and relied on the individual's expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent

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

1. the protections provided by the Fourth Amendment do not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official
2. in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case; rather, it is necessary to examine all the facts and circumstances in a case when determining an individual’s authority as an agent of the government
3. in this case, although the individual involved in the search and seizure of appellee’s fake Facebook page and email account served as a member of the security forces, he was not acting as an agent of the government to invoke the protections of the Fourth Amendment where (1) he was off duty, (2) he was not a criminal investigator, (3) the government had no prior knowledge of his activities, (4) his actions could be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend, (5) he told his friend that it was up to her to decide what to do with the information that was discovered and that it was up to her to report the matter to appropriate authorities, (6) once investigators learned of the matter, they took steps to exclude him from further involvement in the case, (7) the record did not reveal any other clear indices of government encouragement, endorsement, or participation in the challenged search, and (8) the military judge erred when she applied a subjective test and relied on the individual’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed below

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

1. in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed below
2. in reviewing a military judge’s ruling on a motion to suppress, an appellate court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard
3. when an appeal presents a mixed question of law and fact, an appellate court will find that a military judge abused her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect; a finding by an appellate court that a military judge abused her discretion requires more than a mere difference of opinion