New developments in search & seizure law

"You've got to be very careful if you don't know where you are going because you might not get there." (1)

Introduction

The October 2004 Term of the U.S. Supreme Court and the 2005 Term of the Court of Appeals of the Armed Forces (CAAF) a period marked largely of consolidation and reiteration of the Fourth Amendment's fundamental benchmark measure of probable cause as an objective metric. (2) On the horizon, however, are several cases pending before the Supreme Court and the CAAF that may significantly change the legal landscape of search and seizure law. The potentially most significant case could be handed down by the CAAF, because the Navy Judge Advocate General has requested that the CAAF rule on a servicemember's reasonable expectation of privacy in government electronic mail (email). (3)

This article addresses one of the four search and seizure cases the Supreme Court handed down during its October 2004 Term and provides a preview for two upcoming search and seizure cases for the Supreme Court's October 2005 Term. (4) The article also analyzes several significant cases from the CAAF and the service courts of criminal appeals. The primary focus of the military cases analyzed in this article deal with search and seizure concepts surrounding computers and other electronic media. In the 1967 case of Katz v. United States, (5) the Supreme Court fundamentally changed Fourth Amendment jurisprudence by establishing a threshold expectation of privacy requirement prior to receipt of any protection under the Amendment. In this regard, Part I of this article begins with an examination of three cases from the Navy-Marine Corps Court of Criminal Appeals (NMCCA) that analyze this threshold expectation of privacy requirement within the context of computers and other digital information. Part I further discusses the consent exception to the Fourth Amendment when dealing with computers and digital information. Part II turns to an evaluation of the quantum of evidence needed to establish probable cause and how far law enforcement officials may go in detaining personnel when executing a search. Finally, Part III concludes with a look ahead to two significant cases pending before the Supreme Court that could have a lasting effect on search and seizure.

Part I: Computers and Digital Media

In 2005, the majority of military appellate cases dealing with the Fourth Amendment sought to formulate a reasonable expectation of privacy construct for e-mail and other types of digital information. It has been largely settled that a servicemember does not have a reasonable expectation of privacy in government-issued computer hardware; (6) however, there is little military jurisprudence that addresses a servicemember's privacy expectation in digital information stored on, or accessed through, a computer. This year, the NMCCA led the way in two published cases: one dealt with whether an accused had a reasonable expectation of privacy in non-content subscriber information typically given to an Internet service provider (e.g., name, address, and credit card number); (7) the other case explored whether an accused has a reasonable expectation of privacy in the content of government e-mail. (8)

A. Expectation of Privacy in Non-Content Subscriber Information

The NMCCA broke new ground in military jurisprudence when it considered Fourth Amendment applicability to non-content digital information. In United States v. Ohnesorge, (9) the NMCCA held that a servicemember has no reasonable expectation of privacy in subscriber information that has been provided to a commercial Internet site. (10)

Sergeant (Sgt) Jeffrey S. Ohnesorge, U.S. Marine Corps, was convicted of violating a general order by using his government-issued computer to download pornography, in violation of Article 92, Uniform Code of Military Justice (UCMJ). (11) A drilling reservist had been using Sgt Ohnesorge's government-issued computer to conduct official business during his drill period when he inadvertently discovered both adult and child pornography on the computer hard drive. (12) At the time the pornography was discovered, Sgt Ohnesorge was the unit's Information System Coordinator, responsible for the unit's software and hardware computer support. (13) The images had been stored on the "G drive," a password-protected shared drive that was accessible by other computers on the network. (14) Marine Corps officials conducted a forensic examination of the computer in question and determined that the images had been downloaded from an Internet site named EasyNews.com, which El Dorado Sales, Inc. (El Dorado) owned and operated. (15) The investigation also revealed that all the pornographic images had been downloaded from EasyNews.com through the user name "RuhRowRagy@AOL.com." (16)

Unrelated to Sgt Ohnesorge's case, the U.S. Customs Service had been conducting an investigation into possible distribution of child pornography through EasyNews.com. (17) The staff judge advocate (SJA) for Sgt Ohnesorge's general court-martial convening authority contacted U.S. Customs Service Special Agent (SA) Judith Coulter to inform her of the Naval Criminal Investigative Service (NCIS) investigation into the child pornography images downloaded through EasyNews.com by someone identified as "RuhRowRagy@AOL.com." (18) As part of her larger investigation, SA Coulter visited Mr. Jeff Minor, President of El Dorado, and requested, among other things, any subscriber information for the user name "RuhRowRagy@AOL.com." (19) Special Agent Coulter assured Mr. Minor that she would provide him with the applicable administrative subpoena for the requested subscriber information. (20) Mr. Minor requested she call her office to verify that an administrative subpoena or summons would be forthcoming, and after she complied with the request, Mr. Minor provided her with subscriber information related to "RuhRowRagy@AOL.com." (21) A search of El Dorado's database revealed that a Jeff Ohnesorge had used "RuhRowRagy@AOL.com" to subscribe to EasyNews.com. (22) Mr. Minor also gave SA Coulter the service activation date and credit card number that Sgt Ohnesorge had used to purchase his account with EasyNews.com. (23) Armed with this information, SA Coulter provided the subscriber information to the SJA and to NCIS; (24) however, it was not until two weeks after she received this information that SA Coulter provided Mr. Minor with a U.S. Customs administrative summons requesting the subscriber information "associated with 'RuhRowRagy@AOL.com'" (25)