U.S. v. Harborth, 85 M.J. 469

First Principles: Constitutional Matters: Generally

1. when constitutional rights are at issue, an appellate court applies a presumption against finding waiver

First Principles: Constitutional Matters: Right to Counsel

1. The Sixth Amendment guarantees the right to effective assistance of counsel

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; it restrains government action, not private conduct; as such, its protections do not extend 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 government official; determining whether a person is a private actor or an agent of the government requires consideration of all the facts and circumstances
2. the ultimate touchstone of the Fourth Amendment protection against unreasonable searches and seizures is reasonableness

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

1. an ineffective assistance of counsel claim requires the appellant to demonstrate (1) counsel's performance was deficient, and (2) this deficiency caused prejudice; under prong (1), to overcome the presumption of competence and show that counsel's performance was deficient where the claim of ineffective assistance of counsel is premised on counsel's failure to make a motion, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; to establish prejudice under prong (2), the appellant must show a reasonable probability that the verdict would have been different absent the excludable evidence
2. to succeed on a claim of ineffective assistance of counsel on the basis of failing to file a motion, an appellant must show a reasonable probability of success; in this case, because there was no reasonable probability of success on a motion to suppress based on the duration of the seizure of appellant's devices, the trial defense counsel was not deficient in failing to preserve the issue

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

1. the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; it restrains government action, not private conduct; as such, its protections do not extend 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 government official; determining whether a person is a private actor or an agent of the government requires consideration of all the facts and circumstances
2. in this case, the parties agree that appellant's wife was not acting as a government actor when she handed over appellant's exclusive electronic devices to law enforcement; because appellant's wife was a private actor, her seizure of appellant's devices did not implicate the Fourth Amendment, and her seizure of appellant's devices did not violate the Fourth Amendment prohibition against unreasonable seizures
3. there is nothing wrongful about the government's acquisition of evidence that was seized, searched and turned over to the government by a private actor
4. when a private party produces evidence for government inspection, it is not incumbent on the police to stop that person or avert their eyes; to hold otherwise would unreasonably require law enforcement to reject potential evidence of a known crime by a known suspect offered by a private actor
5. in this case, although the initial seizure of appellant's electronic devices by a private actor was not constrained by the Fourth Amendment and law enforcement did nothing wrong in accepting the devices from that person, once the government took possession of the devices for its own purposes, it became a seizure subject to the Fourth Amendment; as a result, the government still had to obtain a warrant or meet an exception to the warrant requirement to seize such evidence
6. in this case, to the extent law enforcement's acceptance of appellant's electronic devices from a private actor was a seizure, it was reasonable even if the circumstances did not rise to probable cause; the seizure was justified on a reasonable, articulable suspicion that the devices contained child pornography where the private actor showed the police nude images of her minor daughter that were saved on appellant's phone and where she told them that she had seen child pornography recorded by the home security system on appellant's iPad
7. although there is no per se rule determining when an initially lawful seizure becomes unreasonable, a seizure can become unreasonable because its length unduly intruded upon constitutionally protected interests
8. in this case, whether the three-month delay between the government's receipt of appellant's electronic devices and obtaining a command authorization for search and seizure was unreasonable need not be decided because the military judge would not have applied the exclusionary rule even if he found the delay unreasonable

Core Criminal Law Subjects: Evidence: Search and Seizure › Exclusionary rule

1. the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence; for the exclusionary rule to apply, the deterrent effect of suppression must be substantial and outweigh any harm to the justice system; suppression of evidence is a last resort
2. in this case, there can be no doubt that appellant's possessory interests in his electronic devices were implicated to some degree by the government's retention of his devices prior to the command authorization for search and seizure; however, even if the military judge agreed with appellant on the merits of the duration challenge, from the military judge's perspective the exclusionary rule would not have been appropriate because: (1) law enforcement's actions could not be described as deliberate, reckless, grossly negligent, or symptomatic of a recurring systemic issue, and (2) the cost to the justice system was high; in this regard, appellant's failure to request the return of his devices either before or after the command authorization was obtained suggests he was not harmed by the continued retention; furthermore, the cost to the justice system of applying the exclusionary rule would be high as it would result in dismissal of one specification and rehearing on two others; this cost is not outweighed by the low deterrent effect where the record indicates that law enforcement did not deliberately or recklessly violate appellant's rights, but rather was sensitive to those rights

Core Criminal Law Subjects: Evidence: Search and Seizure › Probable cause

1. the warrant requirement of the Fourth Amendment is subject to certain exceptions, and one such exception allows for the temporary seizure of effects based upon probable cause or a reasonable, articulable suspicion, premised on objective facts

Core Criminal Law Subjects: Evidence: Suppression

1. where the defense moves to suppress evidence obtained from an unlawful search or seizure under MRE 311, the prosecution may defeat the motion by proving by a preponderance of the evidence that the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system of excluding the evidence

Core Criminal Law Subjects: Evidence: Waiver

1. suppression arguments not raised at trial are waived; when an issue is waived, it is extinguished and may not be raised on appeal; preserving an argument requires a particularized objection
2. in this case, notwithstanding the presumption against waiver of constitutional issues, appellant waived challenging the duration of the seizure of evidence by failing to make a particularized objection to the duration at trial

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. when constitutional rights are at issue, an appellate court applies a presumption against finding waiver
2. in this case, the presumption against waiver of constitutional issues was overcome because the lack of a challenge to the duration of the seizure failed to meet the particularized objection requirement of MRE 311(d)(2)(A)

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

1. when reviewing a CCA's decision on a military judge's ruling, the CAAF typically pierces through that intermediate level and examines the military judge's ruling and then decides whether the CCA was right or wrong in its examination of the military judge's ruling

Trial Stages: Appeals: Preservation of Error / Plain Error

1. suppression arguments not raised at trial are waived; when an issue is waived, it is extinguished and may not be raised on appeal; preserving an argument requires a particularized objection
2. in this case, the presumption against waiver of constitutional issues was overcome because the lack of a challenge to the duration of the seizure failed to meet the particularized objection requirement of MRE 311(d)(2)(A)

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

1. an appellate court reviews de novo whether an accused has waived an issue
2. when reviewing a CCA's decision on a military judge's ruling, the CAAF typically pierces through that intermediate level and examines the military judge's ruling and then decides whether the CCA was right or wrong in its examination of the military judge's ruling
3. an appellate court reviews the military judge's ruling on a motion to suppress for abuse of discretion, considering the evidence in the light most favorable to the prevailing party; there is an abuse of discretion when the military judge's findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law
4. an appellate court reviews ineffective assistance of counsel claims de novo

Trial Stages: Appeals: Waiver

1. suppression arguments not raised at trial are waived; when an issue is waived, it is extinguished and may not be raised on appeal; preserving an argument requires a particularized objection
2. when constitutional rights are at issue, an appellate court applies a presumption against finding waiver
3. in this case, the presumption against waiver of constitutional issues was overcome because the lack of a challenge to the duration of the seizure failed to meet the particularized objection requirement of MRE 311(d)(2)(A)