Court of Appeals for the Armed Forces

CAAF declines to apply the "common authority" doctrine in favor of the Government in Black.

The military judge granted Appellant’s motion, and the Government filed an interlocutory appeal with the United States Army Court of Criminal Appeals (ACCA) which reversed. Appellant appealed the ACCA’s decision to this Court, and we reverse again. The military judge did not abuse his discretion in holding: (1) PFC Avery lacked common authority to consent to the search of Appellant’s phone; (2) the Government failed to prove that the evidence was subject to the inevitable discovery doctrine; and (3) Appellant’s later voluntary consent to search the phone was not sufficiently attenuated from the unlawful search to cure that error.

ACCA decision.

Black appealed ACCA's reversal of the trial court’s decision to suppress photographic evidence of child pornography found on appellant’s cell phone. In suppressing the evidence, the trial judge reasoned that PFC A. – who discovered the photos – did not have common authority to consent to a search of PFC Black’s phone. ACCA disagreed.
 
Black appealed and CAAF granted review to answer the following question:

“Whether the Army Court erred in its abuse of discretion analysis by (1) creating a novel test for common authority, (2) failing to give deference to the military judge’s findings, (3) comparing a modern cell phone to a traditional “container,” and (4) finding error based on a difference of opinion.”

In deciding the issue of common authority, CAAF concluded that the Military Judge did not abuse his discretion in deciding that PFC A. did not have common authority over the phone when he consented to a search. The CAAF reasoned:

Because we are aware of no binding precedent that equates physical access with common authority or that requires express or actual restrictions on use, we disagree that the military judge misapplied the law.
 
Neither the Supreme Court nor this Court has ever held that the scope of a person’s common authority over property is coextensive with that person’s access to the property. If that were true, determining whether common authority existed would be trivial. The only question would be whether the person who consented to the search had access to the searched property. Under the Government’s theory, a property owner would “assume the risk” that another person might provide consent to an unlimited search by law enforcement simply by giving that person limited, temporary possession over their property. Yet that is not how the analysis in common authority cases proceeds.
 
In Rader, this Court expressly rejected the idea that the owner of a computer that was also used by a third party could not limit the scope of the third party’s access to certain applications or files. 65 M.J. at 34. And although the Court recognized that one way of restricting access was through the use of technological restraints such as passwords or encryption, we also acknowledged that courts should consider “whether the defendant otherwise manifested an intention to restrict third-party access.” Id. (internal quotation marks omitted) (citation omitted). Accordingly, even though Appellant had not password protected or encrypted the photo galleries containing the child pornography, that does not mean that Appellant could not have excluded those galleries from the scope of PFC Avery’s common authority.
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[…] Although we might have reached a different conclusion than the military judge in the first instance, we are mindful that there must be more than a mere difference of opinion to establish an abuse of discretion. The military judge’s decision was not based on clearly erroneous facts, and it was not “arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Solomon, 72. M.J. at 179 (internal quotation marks omitted) (citation omitted). The military judge did not exhibit an erroneous view of the law, and he did not abuse his discretion in suppressing the evidence obtained from Appellant’s phone.”

In addition, there are two new grants.

No. 22-0211/AF. U.S. v. Liam C. Lattin. CCA 39859. 
 
I.   WHETHER THE LOWER COURT ERRED WHEN IT DID NOT APPLY THE EXCLUSIONARY RULE.
 
II.  WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO ADDRESS A SEARCH AUTHORIZATION'S STATED EXPIRATION DATE.
 
No. 22-0230/AR. U.S. v. Tristen D. Willey. CCA 20210631.
 
I.   WHETHER TRIAL DEFENSE COUNSEL'S WITHDRAWAL OF A MOTION FOR APPROPRIATE RELIEF ON THE GROUNDS OF MULTIPLICITY AND UNREASONABLE MULTIPLICATION OF CHARGES WAIVED APPELLATE REVIEW OF THE MILITARY JUDGE'S ALLEGED ERROR OF ACCEPTING APPELLANT'S GUILTY PLEAS TO FACIALLY DUPLICATIVE OFFENSES.
 
II.  WHETHER ANY OF THE OFFENSES IN THIS CASE WERE FACIALLY DUPLICATIVE, AND IF SO, WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS TO THOSE OFFENSES.

Jake Dianno

Jake is a 2L at Villanova Law who is externing with NIMJ.