Thursday, March 27, 2008

AFCCA published competing consent/inevitable discovery case

The Air Force Court issued a published opinion yesterday. It's not up on its web site yet, so I've posted it on United States v. Sanders, __ M.J. ___, No. ACM 36707 (A.F. Ct. Crim. App. Mar. 26, 2008).

AFOSI agents received information suggesting that SrA Sanders had possessed child pornography in his base quarters during his previous tour. They brought Sanders in for questioning and advised him of his rights. He admitted that if they were to search his home computer, they would "probably" find child pornography. When asked if he would consent to such a search, he refused and asked to speak with counsel. The OSI agents responded to this apparent setback by asking Sanders' First Sergeant to keep him occupied while they tried to obtain a search authorization and consent from Sanders' wife. That little stratagem worked like a charm -- or at least most of it did. Sanders was kept busy, but the agents didn't succeed in reaching the magistrate so they left a message for him. They were more lucky with Mrs. Sanders, who signed a form consenting to the search and seizure of the Sanders family's computer.

As the OSI agents were driving off with the Sanders' computer, they received a call from the military magistrate. After the agents told the magistrate that SrA Sanders had admitted that child pornography would probably be found on his computer, the magistrate verbally authorized the computer's search and seizure. He reduced that authorization to writing the following day. Child pornography was eventually found on the computer and the defense lost a suppression motion at trial.

In its opinion, the Air Force Court strongly suggests, but ultimately doesn't hold, that arranging for SrA Sanders to be tied up while seeking consent from his wife without telling her that her husband had refused to consent violated Georgia v. Randolph, 547 U.S. 103 (2006), characterizing the OSI agents' conduct as "disturbing." Sanders, slip op. at 4.

But the court ultimately punts on the Randolph issue because it concludes that the evidence would inevitably have been discovered via the search authorization.


No Man said...

Good rule for reading blogs, don't read the post from the bottom up. Imagine my horror as I read this line just before reading that AFCCA did not find an improper search, "arranging for SrA Sanders to be tied up."

Christopher Mathews said...

I'm not sure I'd agree with characterizing the AFCCA opinion as "punting." The outcome turns on the inevitable discovery question, and so that's where you find the holding ... but no trial judge (or trial counsel) ought to read the dicta as anything but an unequivocal condemnation of the AFOSI's tactics.

Anonymous said...

I wish there was equivalent latitude on the defense side of the bar as there is on the prosecution's side. The Government gets advantages such as plain error, inevitable discovery, and prejudice that essentially excuse bad acts by the government.

What if the defense got similar breaks? So, for example, what if Sanders were similarly excused for merely possessing child porn on a computer because he did not actually do anything with it? It would be interesting if a court could issue "an unequivacal condemnation" of Sander's acts - without sentencing him to jail. But the breaks only go one way.

Bill C said...

This case is analogous to Gallagher which I just argued at CAAF. The facts here might even be better. Say hello to CAAF, Mr. Sanders.

Phil Cave said...

Bill C.,
We are going to CAAF.
It seems to me that there ought to be an argument that inevitable discovery should be limited to technical defects, whereas in Sanders we had coercive behavior by OSI. Least that's what I'm thinking about. Not sure I'll find much support -- ah well. As Anon points out, the government can act as bad as they like. . .

John O'Connor said...


Isn't the exclusionary rule the ultimate free pass "that essentially excuse[s] bad acts"? So are you really complaining that the government gets a free pass through the inevitable discovery doctrine, or that the accused's free pass should be bigger than it is?

Anonymous said...

JO'C, good point. My post was a bit of a thought experiment in game theory applied to criminal law. Of course, I realize the criminal and real world stakes make big differences.

But, to your point, it is easier for a rope to go through the thread of a needle than to thread the exceptions to evidentiary exclusion.

(BTW: "rope" is the same word for "camel / camel hair" in Aramaic explaining the centuries-old biblical mistranslation. But I still love thinking about generations of parishioners secretly (blasphemously!) wondering why God would mix His metaphors and how in the world camels walk through needle-threads.)