CAAF decided the interlocutory Air Force case of United States v. Buford, __ M.J. __, No. 14-6010/AF (CAAFlog case page) (link to slip op.), on Monday, March 24, 2015. A divided court finds that the military judge was wrong when she concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case. CAAF therefore summarily reverses the military judge’s ruling that suppressed the evidence, and the decision of the Air Force CCA that partially affirmed that ruling.
Judge Ohlson writes for the court, joined by Chief Judge Baker and Judge Ryan. Judge Erdmann dissents, joined by Judge Stucky.
Appellee is pending trial by general court-martial on charges that he committed an indecent act with a minor in violation of Article 120, and six specifications relating to child pornography, in violation of Article 134. On October 5, 2013, the military judge granted a Defense motion to suppress evidence discovered on three electronic devices. The Government appealed, and the AFCCA partially affirmed. The Judge Advocate General of the Air Force then certified one issue to CAAF, and the court granted review of a second issue:
Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.
Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.
These devices were discovered after Appellee’s wife learned of sexually explicit communications between Appellee and other females, and the wife shared this information with a male friend of hers, Airman First Class (A1C) Marlow. A1C Marlow was an active duty Air Force Security Forces member, and he searched Facebook and email accounts connected to Appellee, preserving screenshots of sexually explicit matters. He also encouraged Appellee’s wife to make a formal report to law enforcement. Eventually, Appellee’s wife briefly cooperated with investigators.
The Defense moved to suppress a broad range of evidence and derivative evidence, and the military judge granted the motion after concluding that A1C Marlow was acting in an official capacity when he conducted the initial search of the Facebook and email accounts. In a dense decision, the CCA affirmed that ruling in part. But Judge Ohlson’s majority opinion for CAAF reverses the ruling with a relatively-simple holding:
[T]he fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case.
Slip op. at 7.
Judge Ohlson’s analysis begins by highlighting the fact that the Fourth Amendment does not apply to private searches:
As the Supreme Court held in United States v. Jacobsen, 466 U.S. 109 (1984), the protections provided by the Fourth Amendment do not apply to “‘a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” Id. at 113-14 (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Thus, the threshold question in the instant case is whether A1C Marlow was acting as “an agent of the Government” at the time he viewed and collected evidence in this case.
Slip op. at 7. Answering this threshold question requires consideration of “all the facts and circumstances in a case when determining an individual’s authority as an agent of the Government.” Slip op. at 8 (marks and citation omitted) (emphasis in original). Judge Ohlson gives “some weight to the fact that Marlow served as a member of the Security Forces” but the “analysis does not stop there.” Slip op. at 8. Rather, Judge Ohlson notes that there is “abundant additional evidence in the record that demonstrates that Marlow was not acting on behalf of the Security Forces,” slip op. at 8 (emphasis added), and he highlights eight points:
1. A1C Marlow was off duty fixing a lawnmower at a friend’s house at the time of the search. Slip op. at 8.
2. A1C Marlow was not a military criminal investigator, but rather was primarily a gate guard. Slip op. at 8.
3. The Government had no prior knowledge of, nor did it endorse or participate in, A1C Marlow’s search. Slip op at 8-9.
4. A1C Marlow’s search could “be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend in an effort to assist her.” Slip op. at 9
5. After the search A1C Marlow left it to Appellee’s wife to deliver the discovered materials to law enforcement. Slip op. at 9.
6. Once actual investigators became involved, A1C Marlow was prohibited from further involvement in the investigation. Slip op. at 9-10.
7. The majority sees “no other clear indices of the Government’s encouragement, endorsement, and participation’ in the challenged search.” Slip op. at 10 (quoting United States v. Daniels, 60 M.J. 69, 71 (C.A.A.F. 2004)).
8. Finally, because “the question of whether a private actor performed as a government agent does not hinge on motivation . . . the military judge erred when she applied a subjective test and relied on Marlow’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether Marlow was acting as a government agent.” Slip op. at 10 (marks and citations omitted).
Judge Ohlson’s analysis ends with a comment that while CAAF holds that A1C Marlow was not a Government actor, “the military judge may now consider other evidentiary principles and jurisprudence, such as this Court’s recent decision in United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) [CAAFlog case page], in deciding whether to admit at trial the Dell laptop, the HP laptop, and the flash drive, as well as all derivative evidence.” Slip op. at 11.
Judge Ohlson’s majority opinion seems to be a rather unsurprising application of facts to law, and his straightforward analysis makes it a little hard to imagine how the issue got this far. But Judge Erdmann’s dissenting opinion provides some additional procedural context:
The OSI told RM [A1C Marlow -zds] that if he received additional evidence, he should turn it over to them. He was not told that if anyone approached him with additional evidence he should direct that individual to the OSI. The OSI’s investigation in Buford’s activities was an ongoing effort when RM received the Centon flash drive and turned it over to them, as the drive was the basis for one of the charges against Buford. The purpose of the OSI’s seizure -– to obtain incriminating evidence against Buford — had not yet been completely accomplished. Where the government had accepted the initial evidence seized by RM, their later direction to him to turn over any further evidence he might obtain, which he did, reflects sufficient government involvement to render the search a governmental search.
Given the initial burden of proof on the government, reviewing the evidence in the light most favorable to Buford, and applying our abuse of discretion standard to this mixed question of law and fact, I conclude that the military judge did not abuse her discretion in finding that RM was acting as a government agent. I would therefore affirm the military judge’s ruling to suppress the evidence.
Diss. op. at 8 (emphasis added). Judge Erdmann’s focus on the Government’s burden of proof (to show that the evidence was not obtained illegally) also leads him to address a second matter:
The military judge held that the Centon flash drive should be suppressed as RM was acting as a government agent and the government had not otherwise established that it would be admissible. The CCA reversed this determination. The CCA found that the Centon flash drive was given to RM by AB and although the drive was used exclusively by Buford, it was not password protected and was found in a common area of the house. The CCA held that AB therefore had common control over the drive. However, the CCA’s factual finding that the flash drive was given to RM by AB is in conflict with a factual finding made by the military judge that it was impossible to determine whether the drive was given to RM by AB (who may have had common control) or by her friend (who had no claim to common control).
Diss. op. at 9. It may well be impossible to determine how the Government came to possess the flash drive, and Judge Erdmann rightly highlights that such impossibility cuts against the Government.
CAAF’s decision in Buford is the opposite of something considered in my argument preview of the case, where I wrote:
CAAF may well give new life to the reasoning of [United States v. Volante, 16 C.M.R. 263 (C.M.A. 1954)] with its decision in Buford by holding that service members in law enforcement billets are presumed to be acting under the authority of the United States when they conduct searches and seizures of evidence.
The court clearly holds otherwise, and Volante seems destined for the scrap heap.
Case Links:
• AFCCA oral argument audio
• AFCCA opinion
• Blog post: AFCCA partially denies a Government appeal of a suppression ruling
• Blog post: The Air Force certifies Buford
• Blog post: Hernandez appeals and CAAF grants in Buford
• Appellant’s (Government) brief on the certified issue
• Appellee’s brief on the certified issue
• Cross-Appellant’s supplement to the petition for grant of review
• Cross-Appellee’s (Government) answer to the petition for grant of review
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis
