Digital evidence suppressed

United States v. Taylor, NMCCA 30 April 2020 is a government appeal of a judge’s ruling to suppress evidence.

[T]he military judge granted a Defense motion to suppress evidence resulting from the searches of 12 of Appellee’s electronic devices. We are asked to decide whether we have jurisdiction over this appeal and, if so, whether the military judge abused his discretion by suppressing this evidence. We conclude that we have jurisdiction and that the military judge did not abuse his discretion. We therefore deny the Government’s appeal.
. . .
In November 2016, after the civilian authorities declined to prosecute Appellee, the Naval Criminal Investigative Service [NCIS] took over as lead investigative agency. The record does not account for what happened between November 2016 and May 2018 when the investigation was apparently resumed. However, during that time period, Ms. Yankee and Appellee’s divorce was finalized. By May 2018, when NCIS agents first met with Ms. Yankee, she was living elsewhere, told them she had Appellee’s electronic devices and media, and a few days later gave them 12 items of electronic media that she said belonged to Appellee. The agents then held those items without taking any further action for nearly six months, never seeking a Command Authorization for Search and Seizure or a search warrant, and never asking Appellee for consent to search them.
. . .
In November 2018, after NCIS had had custody of the 12 items of media for several months, and after an Article 32 hearing had been held in Appellee’s case, agents asked Ms. Yankee to consent to a search of the items he said belonged to Appellee. Ms. Yankee agreed and signed a permissive authorization for search and seizure [PASS] granting her consent to search a specific list of items.

The Government found evidence on three of the devices, which it believes corroborates the alleged victim’s allegations. The Defense moved to suppress all 12 items and the results of the search of those items. The military judge granted the Defense motion, issuing findings of fact and conclusions of law in a written ruling. The Government appeals the military judge’s ruling pursuant to Article 62, UCMJ.

There is an interesting discussion on whether the NMCCA even has jurisdiction to consider the government appeal here. The defense argued that the suppressed evidence was unlikely to be admitted as evidence for other reasons so no jurisdiction. But that’s not the point.

Although the evidence may ultimately never be admitted at trial on other grounds, such as Military Rule of Evidence 403, the military judge’s ruling nonetheless excluded this entire class of evidence from consideration and shrank the potential pool of evidence available to the Government. Notwithstanding the likelihood that the military judge will not admit this evidence at trial, we find we have jurisdiction to hear the appeal as it relates to the three items of media from which the Government intends to offer evidence.

The military judge found that

Appellee had a reasonable expectation of privacy in the 12 devices and that he did not abandon them. Rather, he left the devices in his home with the expectation of reclaiming his property later. Ms. Yankee repeatedly prevented his agents from retrieving his property, then she took most of his personal property when she left, leaving him “maggots, rotted and decaying food, multiple trash bags, dozens of cigarette butts . . . , seemingly sliced or vandalized furniture,” but little else.38 Because Appellee did not abandon the property, the Government had to prove Ms. Yankee could consent to the search. The military judge then held that Ms. Yankee could not provide valid consent to search Appellee’s electronic media.

There is an excellent discussion of why the facts supported a conclusion that

[E]xclusion of the evidence would result in appreciable deterrence of future unlawful searches and seizures and the benefits of such deterrence outweigh the costs to the justice system. In weighing these interests, he noted that NCIS agents had been investigating the case for three-and-a-half years and that they made no effort to search the items of digital media for 165 days, never attempting to obtain a warrant or command authorization for search and seizure. He wrote, “There is a very strong implication in the failure to seek a [command authorization for search and seizure] that NCIS knew they did not have probable cause to search the 12 devices.”47 He next noted a “willful blindness wherein NCIS ‘deliberately shield[ed] themselves from clear evidence of critical facts that are strongly suggested by the circumstances’ ” when it ignored facts that should have made it apparent that Ms. Yankee could not consent to the search. Balancing these facts against the “questionable” admissibility of the evidence, which is not the “main evidence” of guilt, and NCIS’s delay in reviewing the evidence, the military judge found the MRE 311(a) test weighed in favor of exclusion.

The NMCCA disposed of the third party consent assertion by analysis of  “the nature of her interest in them through ownership, joint use, common authority, or another sufficient relationship[.]”