United States v. Sanders

66 M.J. 529, 2008 CCA LEXIS 127, 2008 WL 818344
CourtUnited States Air Force Court of Criminal Appeals
DecidedMarch 26, 2008
DocketACM 36707
StatusPublished

This text of 66 M.J. 529 (United States v. Sanders) is published on Counsel Stack Legal Research, covering United States Air Force 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. Sanders, 66 M.J. 529, 2008 CCA LEXIS 127, 2008 WL 818344 (afcca 2008).

Opinion

OPINION OF THE COURT

JACOBSON, Senior Judge:

Contrary to his pleas, the appellant was found guilty of knowingly possessing a computer hard drive that contained images of child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934. A military judge sitting alone as a general court-martial sentenced the appellant to a dishonorable discharge, confinement for 2 years, and reduction to E-l. The convening authority approved the findings and only so much of the sentence as called for a bad-conduct discharge, confinement for 18 months, and reduction to E-l.

[530]*530 Background

The appellant was assigned to Royal Air Force (RAF) Alconbury, England prior to his reassignment to Fort Meade, Maryland in 2003. While in England, the appellant and his family lived in government quarters. After arriving at Fort Meade, the appellant moved into government quarters at that installation. Several months after the appellant arrived at Fort Meade, the local Air Force Office of Special Investigations (AFO-SI) was told that suspected child pornography had been found by workers who were cleaning the appellant’s former government quarters in England. Upon receiving this information, the AFOSI opened an investigation on the appellant. The investigators attempted to obtain authorization to search the appellant’s Fort Meade government quarters from the base magistrate, but their request was denied for lack of probable cause. The investigators then brought the appellant in for questioning. The appellant agreed to answer questions after he was read his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831. A discussion of child pornography ensued, during which the appellant admitted that if the investigators were to search his home computer they would “probably” find child pornography. After this admission, the appellant was asked whether he would consent to a search of his home and computer. He unequivocally refused and asked to speak with an attorney. No written statement was accomplished, and the interview was terminated. The AFOSI investigators then contacted the appellant’s First Sergeant and told him to keep the appellant with him until he received further instructions. The appellant accompanied the First Sergeant while the latter presented a briefing to new airmen. After the briefing, the pair went to lunch and then back to their unit where the First Sergeant received a call from the AFOSI telling him the appellant was free to go. The appellant was in the care of the First Sergeant for approximately one to two hours.

The AFOSI investigators had not been idle during this period. They first called the military magistrate with the hope of obtaining a search authorization based on the appellant’s admission during the interview. The magistrate, however, was not at his desk, so they left a message. The investigators then drove to the appellant’s home where his wife greeted them. They told her about the child pornography allegations against her husband and that they had spoken to him about them. They did not lie to her, but they did not tell her everything that had transpired with her husband. Most significantly, they did not tell her that her husband had refused to give his consent to search. Mrs. Sanders told the agents that she had common access to the computer along with her husband and that they would not find any child pornography on it. She then signed a consent form which allowed them to seize and search the family computer. She escorted the investigators to the room in which the computer was located and watched as they disconnected the computer and seized it. The agents placed the computer into the trunk of their car and departed.

Soon after leaving the appellant’s home, the investigators received a return call from the military magistrate. They informed him of the appellant’s statements during the interview regarding the probability of child pornography being present on his home computer. The magistrate then verbally authorized a probable cause search and seizure of the computer and its associated media and followed up his oral authorization with written authorization the next day. No incriminating evidence was observed on the computer until it was analyzed by a government forensics laboratory, an event that occurred well after the oral and written search authorizations were obtained. When the computer was finally analyzed, 13 movie files and over 550 image files containing child pornography were found on the hard drive. At trial, the appellant made a timely but unsuccessful motion to suppress this evidence.

Reasonableness of the Search and Seizure of the Appellant’s Computer

The appellant argues the military judge erred in failing to suppress the search and seizure of the appellant’s computer. We review the military judge’s ruling for an abuse of discretion, analyzing his findings of fact under a clearly erroneous standard and his [531]*531conclusions of law de novo. United States v. Wallace, 66 M.J. 5 (C.A.A.F.2008).

The appellant relies on the Supreme Court’s decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) to support his argument that the evidence obtained via the government’s warrantless search and seizure of his home computer should have been inadmissible at trial because the search was unreasonable under the circumstances. In Randolph, the Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” Id. at 120, 126 S.Ct. 1515. The government, advocating a narrow interpretation of the Randolph decision, focuses on the “physically present” language, arguing that since the appellant in the case sub judiee was not at home when the investigators came to seek permission to search, Randolph by its plain language does not apply. Therefore, argues the government, we should rely on the Court’s earlier decisions in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) and Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) both of which generally held that evidence obtained pursuant to consent to search from one cohabitant was admissible against the other cohabitant.

The government’s narrow and literal interpretation of Randolph is not unreasonable, drawing its initial support from Justice Souter’s explanation that his majority opinion was “drawing a fine line,” and explaining that “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Randolph, 547 U.S. at 121, 126 S.Ct. 1515 (emphasis added). Thus, the majority preserved the efficacy of Matlock and Rodriguez while adding to the jurisprudence of Fourth Amendment reasonableness analysis in consent search cases. Several courts have embraced this narrow interpretation of

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Related

United States v. Matlock
415 U.S. 164 (Supreme Court, 1974)
Nix v. Williams
467 U.S. 431 (Supreme Court, 1984)
Illinois v. Rodriguez
497 U.S. 177 (Supreme Court, 1990)
Georgia v. Randolph
547 U.S. 103 (Supreme Court, 2006)
United States v. Wallace
66 M.J. 5 (Court of Appeals for the Armed Forces, 2008)
United States v. Hudspeth
518 F.3d 954 (Eighth Circuit, 2008)
United States v. Reed
54 M.J. 37 (Court of Appeals for the Armed Forces, 2000)
United States v. Kozak
12 M.J. 389 (United States Court of Military Appeals, 1982)
United States v. Grostefon
12 M.J. 431 (United States Court of Military Appeals, 1982)
United States v. Matias
25 M.J. 356 (United States Court of Military Appeals, 1987)
United States v. Lee
25 M.J. 457 (United States Court of Military Appeals, 1988)

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Bluebook (online)
66 M.J. 529, 2008 CCA LEXIS 127, 2008 WL 818344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanders-afcca-2008.