U.S. v. Black, 82 M.J. 447

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects against unreasonable searches and seizures such that ordinarily searches are prohibited absent a search warrant except for a few specifically established and well-delineated exceptions; one of those exceptions is when the government obtains voluntary consent, which can be provided either from the individual whose property is searched, or from a third party who possesses common authority over that property
2. the key consideration in assessing Fourth Amendment consent cases is reasonableness, rather than technical property interests; widely shared social expectations carry great significance in determining reasonableness in Fourth Amendment consent cases

Military Justice Personnel: Military Judge: Discretion

1. in this case, the military judge did not abuse his discretion in holding that a fellow soldier lacked common authority to consent to the search of appellant’s entire phone or that the inevitable discovery doctrine or the doctrine of attenuation could transform the contents of the unlawful search into admissible evidence

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

1. the Fourth Amendment protects against unreasonable searches and seizures such that ordinarily searches are prohibited absent a search warrant except for a few specifically established and well-delineated exceptions; one of those exceptions is when the government obtains voluntary consent, which can be provided either from the individual whose property is searched, or from a third party who possesses common authority over that property
2. the validity of the third party consent to search does not hinge on niceties of property law or on legal technicalities, but is instead determined by whether the third party has joint access or control of the property for most purposes; the burden lies with the government to prove by clear and convincing evidence that a third party has joint access and control to the degree that such control confers a right to consent to search; the degree of control a third party possesses over property is a question of fact, and whether that control is sufficient to establish common authority is a question of law
3. apparent common authority can establish the proper basis for a consent search; a person has apparent common authority to consent to a search if investigators reasonably believe that the person has authority to consent to a search, even if the person does not actually have such authority
4. no binding precedent equates physical access to property with common authority or requires express or actual restrictions on use
5. the key consideration in assessing Fourth Amendment consent cases is reasonableness, rather than technical property interests; widely shared social expectations carry great significance in determining reasonableness in Fourth Amendment consent cases
6. an implied restriction may limit the scope of common authority
7. in this case, the military judge did not abuse his discretion in holding that a fellow soldier lacked common authority to consent to the search of appellant’s entire phone based on his factual findings that appellant only loaned his phone to the soldier for one night, that appellant told the soldier that that he could use the phone to send text messages and make phone calls, play games, and watch YouTube, that appellant had no expectation that the soldier would do anything else with the phone, and that appellant never gave the soldier permission to look at his photo galleries; appellant’s manifested intention to restrict the soldier’s use of the phone cabined the soldier’s common authority over the phone
8. to determine whether an accused’s voluntary consent to a search is sufficiently attenuated from an earlier unlawful search, three factors are assessed: (1) the temporal proximity of the unlawful police activity and the subsequent consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct; with respect to the third factor, the misconduct need not be outrageous or demonstrate bad motive or intent by the government official; it is sufficient that the misconduct be unnecessary and unwise
9. in this case, appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error where (1) during the twelve hours between the illegal search and the consent, the relevant parties were asleep for much of that time, (2) there were no intervening circumstances that severed the causal connection between the unlawful search and the accused’s consent, and although the government’s actions were not malicious, they were unwise, avoidable, and unlawful

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

1. when the government unlawfully obtains evidence, that evidence may still be admissible if the evidence would have been obtained even if such unlawful search or seizure had not been made; to prevail under this doctrine, the government must prove by a preponderance of the evidence that at the time of the unlawful search, government agents were already taking actions or pursuing leads such that their simultaneous actions and investigations would have inevitably led to the discovery of the evidence even absent the unlawful conduct; an appellate court reviews a military judge’s ruling on the application of the doctrine of inevitable discovery for an abuse of discretion
2. in this case, the government failed to show that the evidence of child pornography obtained from appellant’s cell phone absent the illegal search would have been inevitably discovered where the government did not prove by a preponderance of the evidence that it would have investigated appellant based solely on images of the clothed female soldiers discovered on his phone or that such an investigation would have resulted in a lawful search authorization for appellant’s phone

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. the CAAF directly reviews a military judge’s decision when presented with an interlocutory appeal, and in such appeals, it reviews the evidence in the light most favorable to the prevailing party and is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF directly reviews a military judge’s decision when presented with an interlocutory appeal, and in such appeals, it reviews the evidence in the light most favorable to the prevailing party and is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous

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

1. an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; an abuse of discretion occurs when the military judge either applied the law erroneously or clearly erred in making findings of fact; and an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous
2. the validity of the third party consent to search does not hinge on niceties of property law or on legal technicalities, but is instead determined by whether the third party has joint access or control of the property for most purposes; the burden lies with the government to prove by clear and convincing evidence that a third party has joint access and control to the degree that such control confers a right to consent to search; the degree of control a third party possesses over property is a question of fact, and whether that control is sufficient to establish common authority is a question of law
3. when the government unlawfully obtains evidence, that evidence may still be admissible if the evidence would have been obtained even if such unlawful search or seizure had not been made; to prevail under this doctrine, the government must prove by a preponderance of the evidence that at the time of the unlawful search, government agents were already taking actions or pursuing leads such that their simultaneous actions and investigations would have inevitably led to the discovery of the evidence even absent the unlawful conduct; an appellate court reviews a military judge’s ruling on the application of the doctrine of inevitable discovery for an abuse of discretion
4. to determine whether an accused’s voluntary consent to a search is sufficiently attenuated from an earlier unlawful search, three factors are assessed: (1) the temporal proximity of the unlawful police activity and the subsequent consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct; with respect to the third factor, the misconduct need not be outrageous or demonstrate bad motive or intent by the government official; it is sufficient that the misconduct be unnecessary and unwise