The Security Forces Member, the Facebook Page and the 4th Amendment

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 4^th 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 4^th 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 4^th 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 4^th 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.