Court-Martial Trial Practice Blog
We have all been there.
The unsophisticated suspect consents to the taking a search of their cell phone or computers.
Or, the MCIO get a search authorization.
Then investigators basically go on a fishing expedition for evidence of the current allegations, and anything else they can find–justifying anything else found on the “plain view” doctrine.
Voila–more charges.
So, we are about to find out from CAAF whether there are limitations on a search authorization of a cell phone or computer.
No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
(Issue II) WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.
The opinion of the Air Force Court of Criminal Appeals (AFFCA) is here.
The actions of AFOSI were not perfect. Ideally, AFOSI should have: (1) more specifically listed in the search authorization application what aspects of Appellant’s electronic devices it wanted to search and what types of evidence it expected to find on these devices; (2) specified in the affidavit accompanying the search authorization that it was seeking evidence of videos and images, not just text-based communications, and why it believed this evidence was present; (3) better defined what types of evidence the forensics laboratory was expected to provide on the FDEs; (4) outlined a clear search methodology for searching the FDEs, starting in folders where evidence of the crime being investigated was most likely to be found; and (5) informed the military magistrate of AP’s recantations concerning the sexual relationship.
“However, model investigative practice is not the
Fourth Amendment standard. “
Nor for the OSI, but good enough for gubmint work.
No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE PANEL OF AFCCA THAT HEARD APPELLANT’S CASE WAS IMPROPERLY CONSTITUTED.
II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.