United States v. Long

61 M.J. 539, 2005 CCA LEXIS 155, 2005 WL 1125647
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMay 11, 2005
DocketNMCCA 200201660
StatusPublished
Cited by2 cases

This text of 61 M.J. 539 (United States v. Long) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Long, 61 M.J. 539, 2005 CCA LEXIS 155, 2005 WL 1125647 (N.M. 2005).

Opinion

WAGNER, Judge:

A special court-martial composed of officer and enlisted members convicted the appellant, contrary to her pleas, of use of ecstasy, ketamine, and marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. The appellant was sentenced to confinement for 2 months, reduction to pay grade E-l, and a bad-conduct discharge. There was no pretrial agreement. The convening authority approved the sentence as adjudged.

The appellant claims that the military judge erred by denying the defense motion to suppress e-mails sent and received by the appellant on her Government computer. The appellant contends these e-mails were seized from the Government network domain server at the behest of law enforcement officials, without the appellant’s consent, and without a lawful search authorization based on probable cause.

After carefully considering the record of trial, the appellant’s sole assignment of error, the Government’s response, the appellant’s reply brief, and oral argument, we conclude that the military judge erred in admitting the e-mails. We also conclude that the error did not materially prejudice the appellant’s substantial rights. Therefore, we decline to grant relief. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Facts

The appellant was charged with using ecstasy, ketamine, and marijuana with fellow-Marines in the barracks. The evidence at trial consisted primarily of eye-witness testimony. The Government also sought to admit [541]*54117 pages of e-mail transcripts (Prosecution Exhibit 1) wherein the appellant discussed her fear of urinalysis testing and her own efforts to mask her drug use. The e-mails in the exhibit consisted of three strings of email exchanges between the appellant and three different individuals.

During the motion stage of the trial, the defense unsuccessfully moved to suppress the e-mails. The defense asserted the emails were seized without the appellant’s consent or a lawful search authorization and, therefore, in violation of the 4th Amendment of the Constitution.

The only witness to testify on the motion was the senior network administrator for Headquarters, Marine Corps. The following facts relating to the seizure of the e-mails are derived from that testimony and are uncon-troverted. The appellant was assigned a Government computer, including an e-mail account. Although issued for official use, personal use of Government computers and e-mail accounts was permissible as long as such use did not interfere with official business or constitute a prohibited use under departmental regulations. Access to e-mail required a user-generated password, which prevented unauthorized users from accessing an individual’s Government e-mail account. E-mails originating from or being received by a Government computer within the network went to a central Government computer system domain server for delivery to their intended recipients via the domain server network or the internet. Copies of sent emails remained on the domain server unless the user specifically set up their e-mail account to not save outgoing messages. Even e-mails thereafter deleted by the user could be retrieved using a “restore” function. A system administrator could access all e-mail accounts serviced by the domain server.

E-mail could be sent from the Government computer workstation or from a remote computer. When accessing the network via the Government computer workstation a banner was displayed warning the user of possible monitoring of the computer network system. The banner was titled “Notice and Consent to Monitoring.” The text is reproduced in whole, as follows:

This is a Department of Defense computer system. This computer system, including all related equipment, networks and network devices (specifically including Internet access), are provided only for authorized U.S. Government use. DoD computer systems may be monitored for all lawful purposes, including to ensure that their use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability and operational security. Monitoring includes active attacks by authorized DoD entities to test or verify the security of this system. During monitoring, information may be examined, recorded, copied and used for authorized purposes. All information, including personal information, placed on or sent over this system may be monitored. Use of this DoD computer system, authorized or unauthorized, constitutes consent to monitoring of this system. Unauthorized use may subject you to criminal prosecution. Evidence of unauthorized use collected during monitoring may be used for administrative, criminal or other adverse action. Use of this system constitutes consent to monitoring for these purposes.

Appellate Exhibit XIII. A different banner appeared when accessing the network remotely that simply notified the user that they were accessing the Government network.

The system administrator conceded in testimony that the e-mails in question were not retrieved during monitoring of the system or discovered as a result of the appellant’s unauthorized use of a Government computer. Rather, they were retrieved as the result of a specific request by law enforcement officials to provide any e-mails related to the appellant’s drug use. No search warrant or authorization accompanied the request. There was no ongoing monitoring of the system by the network administrator at the time the request was received.

The military judge found that the network administrator’s actions constituted a search for evidence and that there was no actual consent by the appellant to this search. He also found that there was no search authorization issued based on probable cause. The [542]*542military judge found, however, that the appellant had no reasonable expectation of privacy in the e-mail account and denied the motion to suppress on that sole basis.

Three enlisted Marines testified for the prosecution regarding the appellant’s use of ecstasy, ketamine, and marijuana. All three testified that the appellant had used ecstasy in their presence and two of them testified that they had observed the appellant using ketamine and marijuana in their presence. Specifically, the Government witnesses testified that during June and July of 2000, they used ecstasy, ketamine, and marijuana in the barracks with the appellant and other Marines. They described the drugs and the effects they felt from using the drugs. They also testified to observing the physical effects of the drugs in the appellant’s behavior following her ingestion of each substance. The witnesses testified about methods used to mask the smell of marijuana smoke in the barracks, such as gathering in the bathroom and turning on the shower and exhaust fan during use. They testified that the drug use typically occurred on a Friday or Saturday night, prior to going out to local clubs or after returning from the clubs. Each testified to the use of sensory enhancements such as music, blacklights, menthol inhalers, and massage intended to heighten the drug-induced experience.

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Related

United States v. Long
64 M.J. 57 (Court of Appeals for the Armed Forces, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 539, 2005 CCA LEXIS 155, 2005 WL 1125647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-long-nmcca-2005.