This post examines an from the U.S. Air Force Court of Criminal Appeals in what seems to have
been a prosecution of Senior Airman Aaron M. Buford. U.S. v.
Buford, 2014 WL 2039102. I say
“appears to have been” because the opinion does not explicitly
say Buford was prosecuted. What it does say is that the evidence at issue in the opinion was “the primary source of
evidence showing [Buford] wrongfully committed indecent conduct and wrongfully
received and possessed child pornography in violation of Articles 120 and
134, [Uniform Code of Military Justice], 10 U.S. Code §§ 920, 934." U.S.
v. Buford, supra.
Since the issue is whether the military judge erred in granting Buford’s motion to suppress evidence on
which the prosecution apparently depended, the court begins by explaining that in March of 2012, Buford’s wife, “AB”,
found a `fake’ Facebook account that
was associated with [Buford’s e-mail address. AB identified the page as a
`fake’ account because the name and photo associated with the account were not
of [Buford], but the e-mail address belonged to him. She became curious and
logged onto [his] e-mail account.
On or about 17 May 2012, Airman First
Class (A1C) RM was an active duty Security Forces member who was at the
home of CH. AB was also present in the home, but [Buford] was not. At some
point that evening, A1C RM noticed AB was distraught while she was looking at
the screen of her Dell laptop. AB, knowing RM was a Security Forces member,
asked him to look at the laptop where he saw [Buford’s] `fake’ Facebook page.
While RM thought it might involve something like [Buford] cheating on his wife,
[he] proceeded to search further for more information.
He went into the `messages’ section
where he allegedly found multiple conversations with females, pictures of male
genitalia, and other sexually explicit communication. RM created `screen shots’
of what he saw on the Facebook page as well as what was in the messages
section. He saved these screen shots to a portable flash-drive. He then
continued his search by going into the `Yahoo’ e-mail account associated with
the `fake’ Facebook page using a password provided by AB.
AB gave A1C RM consent to search her
Dell laptop. However, the `fake’ Facebook account and associated e-mail account
belonged to [Buford]. The e-mail account was password protected. There was no
evidence on how AB obtained the password to either of these accounts. Although
the Facebook account and the e-mail account were accessed through AB's laptop,
they do not physically reside on the laptop.
Based upon his law enforcement
background, RM encouraged AB to go to the Security Forces investigations flight
chief. RM drove her to the Security Forces Squadron (SFS) and explained to the
SFS flight chief what was happening. The SFS flight chief looked at the
information on the flash-drive and turned the case over to the Air Force Office of Special Investigations (AFOSI). In an interview with the AFOSI, AB provided
a written statement and signed a form consenting to the search and seizure of a
Dell laptop, a PN 8GB Flashdrive, and a one gigabyte memory card.
Later that day, AFOSI agents conducted
a search of the joint residence of [Buford] and AB. RM informed AB, that based
on his knowledge and experience investigations could take quite a bit of time,
and that during that time she would not have access to any items she gave to
the AFOSI. During the search, RM acted as a `conduit’ between AB and the AFOSI
agents because `he was a cop and he could relate to them.’ AB became upset when
the AFOSI agents were seizing a video camera that contained photos and/or
pictures of her son, so RM, on her behalf, asked about a warrant. RM `didn't
want [AFOSI] to overstep their bounds.’ Because of RM's question about a
warrant, the AFOSI agents stopped the search and obtained a warrant. After
retuning with a warrant, they seized a Hewlett Packard (HP) laptop which
belonged to [Buford].
In early June 2012, AB gave RM a Centon
thumb drive AB found behind the television in her home. RM conducted his
own `search’ to see whether there was actually evidence on it. RM opened
multiple folders in the thumb drive, some of which contained work materials
such as Air Force Instructions and others which contained pornography. Based on
the information on the thumb drive, RM determined it belonged to [Buford]. A1C
RM contacted an AFOSI agent to turn in the thumb drive. The AFOSI agents took
possession of the thumb drive the next day.
U.S. v. Buford, supra. In a footnote, the court explains
that because Buford “and his wife both have the initials AB, for the purpose of
this order, AB is only in reference to the [his] wife and not [Buford
himself].” U.S. v. Buford, supra. In another note it says “[w]e use `Centon
thumb drive’ or `thumb drive’ . . . to distinguish it from the flash drive used
by RM on 17 May 2012 to save screenshots from his search of [Buford’s] Facebook
and e-mail account, which he conducted on AB's Dell laptop.” U.S. v. Buford, supra.
Buford’s motion to suppress was based on the argument that
when RM took the actions described above he was acting not as a private citizen
who was trying to help AB but, basically, as a law enforcement officer. U.S. v.
Buford, supra. As I have explained in prior posts, the 4th Amendment protects citizens from “state action,” i.e., from the acts of law
enforcement agents or other government officials who are seeking evidence that
could be used to prosecute someone for a crime, seize their property or arrest
them. If RM was acting as a law
enforcement officer, the 4th Amendment applied to his conduct; if he
was acting as a private citizen, it would not.
Here, the military judge granted Buford’s motion to suppress
after concluding that
although RM
stated he was not acting in an official capacity, his testimony led the
military judge to believe otherwise. . . . [T]he military judge stated RM's
actions went far beyond those expected of a private citizen. The judge
noted the deficiencies in the Government's argument and concluded that but for
the actions of RM, a `conduit’ between
AB and the AFOSI, the search of the Dell laptop would not have occurred. As a
result, the Government had not proven by a preponderance of the evidence that
the items seized and ultimately searched (the Dell Laptop, the Hewlett Packard
Laptop and Centon thumb drive) were seized in accordance with the 4th Amendment.
U.S. v. Buford, supra.
The government appealed. U.S. v.
Buford, supra.
After noting that it is “well established that the 4th
Amendment applies “to Governmental action and is not applicable when effected
by a private individual who is not acting as a Government agent or with
participation or knowledge of any Governmental official”, the Court of Criminal
Appeals explained that in deciding whether someone was acting as
a Government agent, it does not matter
what the person’s individual/subjective motivation may have been, you must look
at the `degree of the Government's participation in the private party's
activities, a question that can only be resolved “in light of all the circumstances.”’
U.S. v. Daniels, 60 M.J. 69 (Air Force Court of Criminal Appeals 2004)
(quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S.602 (1989)). To trigger the 4th Amendment . . . it must be clear that the Government encouraged, endorsed, and
participated in the challenged search. Id.
U.S. v. Buford, supra.
It also noted that
not all searches by law enforcement
individuals have been deemed Government searches. U.S. v. Portt, 21
M.J. 333 (U.S. Court of Military Appeals 1986) (a security policeman acted
in his private capacity when he searched the accused's locker out of curiosity
while performing janitorial duties). Therefore, RM's status as a Security
Forces member does not categorically make him a Government actor for the
purpose of the searches at issue. Instead, the analysis is fact specific as to
whether RM was acting under the authority of the United States.
U.S. v. Buford, supra.
The court then explained that “[u]nlike the security
policeman in Portt,” here there was
substantial evidence in the record of
trial to support the finding that RM was acting as a Government agent.
Consistent with the military judge's conclusions and in light of all the
circumstances, we are convinced RM acted as a Government agent for several
reasons to include: (1) As a Security Forces member his job was to enforce the
law; (2) RM and AB were mere acquaintances prior to this investigation; (3) AB
asked for RM's help knowing he was a law enforcement officer; (4) he actively
inserted himself on multiple occasions into the role of an investigator both
prior to and during the formal investigation; and (5) he participated in the
challenged search and collected evidence for future law enforcement use.
U.S. v. Buford, supra.
Since the appellate court found RM was acting as a law enforcement officer, i.e., an agent of the state,
it then considered whether his conduct fell within one of the exceptions to the
4th Amendment’s requirement that officers get a warrant before
searching and/or seizing evidence. U.S.
v. Buford, supra. As Wikipedia explains, one of the exception
is consent, i.e., when someone consents to a search of their property they
essentially waive their 4th Amendment rights. The appellate court in this case agreed with
the military judge’s decision on the issue of consent:
AB gave consent to the search of the
Dell laptop and had both actual and apparent authority over that laptop.
Nevertheless, we also agree that consent to search the Dell laptop did not
extend to the Facebook and email accounts of the appellee. Consent to search an
electronic device does not automatically extend to consent to search all
electronic `papers’ not contained on the device but accessed through the
device.
RM had clear indications the `fake’
Facebook account and e-mail account belonged to [Buford]. The e-mail account
was password protected. The evidence is that RM should have known the e-mail account
was not under the authority of AB. . . . Although AB had knowledge
of the password, this does not automatically result in a conclusion that she
had actual or apparent authority over an otherwise private separate account
maintained by her husband. . . . We concur with the military judge's ruling
that the Government failed to meet its burden of establishing that the consent
exception applied to the search of the Facebook and e-mail accounts.
U.S. v. Buford, supra.
The appellate court then took up the issue as to whether AB’s
search of Buford’s
Facebook account amounted to a private
search that frustrated [Buford’s] expectation of privacy. There are two
limitations to the private search exception: (1) The Government cannot conduct
or participate in the private search; and (2) The Government may not go beyond
the scope of the private party's search, to include expanding the search into a
general search. . . . When applied to modern computerized devices such as
laptops and cell phones, `[T]he scope of the private search can be measured by
what the private actor actually viewed as opposed to what the
private actor had access to view.’ [U.S.
v. Wicks, 73 M.J. 93 (U.S. Court of Appeals for the Armed Forces 2014)
(emphasis in the original).]
AB accessed [Buford’s] Facebook and
email accounts in March 2012 and was accessing his Facebook account again on 17
May 2012 when she asked RM to look at the account. Because the record is not
clear about exactly what AB viewed during her private searches of [Buford’s] Facebook
messages and e-mail account, we are not convinced RM's subsequent search
mirrored AB's private search. Therefore, because we must review the evidence in
the light most favorable to the prevailing party, it is impossible for us
to conclude the Government met the requirements of this exception. Therefore,
the private search exception does not apply to these subsequent searches.
U.S. v. Buford, supra.
Next the court considered whether “the Government had proper
search authority with regards to the HP laptop.” U.S. v. Buford, supra. As noted above, the officers obtained a
search warrant before searching it. U.S.
v. Buford, supra. The court began its analysis of this issue by
noting that the probable cause needed to justify a search cannot be
based on illegally obtained information
or evidence. . . . The search warrant used for the search of the home of
AB and [Buford] where the HP laptop was seized was based on information
obtained by RM's unconstitutional search of [Buford’s] Facebook and e-mail
accounts.
Therefore, the Government cannot rely
on the subsequent search warrant as legal authorization to search the HP laptop.
U.S. v. Buford, supra.
The court then considered whether the search of two other
items were lawful consent searches. U.S. v. Buford, supra. It noted that “a few
weeks” after the
AFOSI's thorough search of her home, AB
found a thumb drive near her television. AB provided the thumb drive to RM. RM searched
the thumb drive to determine if it contained any evidence. The thumb drive was
not password protected. Because RM was a Government agent, we examine to see if
an exception applies. . . .
[W]e disagree with the military judge
and conclude AB was authorized to . . .consent to the search of the thumb
drive. `Where one party has joint access and control to a property and
voluntarily consents to a search, the warrantless search is reasonable.’ U.S.
v. Weston, 67 M.J. 390 (U.S.
Court of Appeals of the Armed Forces 2009). `Common authority over a home
extends to all items within the home, unless the item reasonably appears to be
within the exclusive domain of the third party.’ Id.
Here the thumb drive was in the home AB
shared with [Buford]. There is no evidence [it] was in the exclusive domain of [Buford].
In the context of personal computers and associated digital devices, `[C]ourts
examine whether the relevant files were password-protected or whether the
[appellee] otherwise manifested an intention to restrict third-party access.’ United
States v. Rader, 65 M.J. 30 (U.S. Court of Appeals of the Armed Forces
2007).
Examining the evidence in the light
most favorable to [Buford], (1) He had a thumb drive he solely used; (2) He
left it in the common area of the house he shared with his wife; and (3) He did
not password protect it to prevent her access to the device. The thumb drive is
not like a cellphone or a laptop connected to the internet, it is a `static
storage container’ more akin to an electronic briefcase. . . . [T]he
thumb drive `was kept in a common area and opened without manipulation of the
tumblers.’ U.S. v. Gallagher, 66 M.J. 250 (U.S. Court of
Appeals of the Armed Forces 2008). We conclude AB had common authority over
this unsecured device in her home, and like any other unsecured storage device,
she had the ability to consent to the search of the thumb drive. Because proper
search authority was given by AB's consent, the military judge abused her
discretion in the application of the law by suppressing the evidence from the
search of the Centon thumb drive.
U.S. v. Buford, supra.
Finally, the court considered the search of the Dell laptop,
noting that the
military judge found AB gave consent to
RM to search the Dell laptop. AB also gave written consent for the AFOSI to
search the Dell laptop when she provided it to the AFOSI on 18 May 2012. While
there is some evidence AB became upset as the AFOSI agents searched and planned
to seize additional items from her home, there is no evidence she ever revoked
her consent to search her Dell laptop.
For the reasons explained above, AB had
actual and apparent authority over the Dell laptop and was able to provide consent
to search the device. We distinguish the search of the hard drive which is a
physical component of the laptop from using the laptop as a conduit to access
electronic data through internet based services. We conclude AB was able to
consent to the search of the Dell laptop. The military judge abused her
discretion in the application of the law as to AB's consent to the search of
the Dell laptop.
U.S. v. Buford, supra.
The appellate court therefore affirmed the military
judge’s granting the motion to suppress evidence obtained from Buford’s
Facebook page, e-mail account, and HP laptop. U.S. v. Buford, supra. It reversed the judge’s granting the motion
to suppress as it applied to the Centron thumb drive and the Dell laptop. U.S. v.
Buford, supra.
