The Court of Appeals for the Armed Forces (CAAF) granted review of issues posed by United States v. Richards. CAAF will consider how the particularity requirement presented in the Fourth Amendment applies to computer searches. As technology has become increasingly integrated into our daily lives, the court’s decision is poised to have a significant impact on future cases.
In April 2011, the Air Force Office of Special Investigations (AFOSI) began investigating James W. Richards after one of his former “little brothers” from the Big Brothers Big Sisters program accused him of child sexual abuse. Their investigation led to further allegations of abuse, including that of a 17-year-old boy, referred to as AP.
When AP was interviewed by AFOSI, he claimed that he and Richards had met online and were involved in a sexual relationship. AP’s statement that he “communicated online” with Richards prompted the request and authorization to search Richards’ residence and seize “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.”
In the end, “computer hard drives, phones, thumb drives, floppy diskettes, and camera memory cards” were taken from Richards’ property to be searched for evidence of communication with AP. When Richards’ hard drive was searched, investigators found thousands of pornographic images involving adult males engaging in sexual acts with boys, as well as photographs of Richards sexually molesting the younger sibling of a former “little brother.” The CAAF case is centered on the constitutionality of this search.
PRIOR RULING BY THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA)
In the original appeal heard by AFCCA, Richards claimed that “the search authorization was unconstitutional because it was overbroad in defining what could be seized” and that “[i]nstead of using vague terms such as ‘electronic media,’ . . . the search authorization should have more particularly described types of electronics that could be used for such communications.”
The question of constitutionality comes from how the particularity requirement of the Fourth Amendment is applied to computer searches. The particularity requirement ensures that warrants specify the place to be searched and the persons or things to be seized. In the end, AFCCA decided that the search was, in fact, constitutional because it specified the address to be searched and the things to be seized: “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.”
THE PARTICULARITY REQUIREMENT & COMPUTER SEARCHES
This case poses interesting questions regarding the future of computer searches. As it currently stands, AFCCA’s decision seems to allow law enforcement a wide scope when it comes to seizing electronic devices in the name of criminal investigation. But perhaps the scope will be set on a case-by-case basis.
When AP was questioned by AFOSI, he spoke imprecisely. He claimed that he and Richards had “communicated online” but failed to describe the particular mode of communication. Because AFOSI had established probable cause, it seems that their broad search was within reason. AFCCA concludes that “when AFOSI sought the search authorization, it was looking for evidence that [Richards] used any device capable of electronic data storage or transmission in order to seduce, solicit, lure, or entice AP to engage in an illegal sexual act with him. AFOSI was not necessarily looking for evidence that [Richards] possessed any child pornography.”
If AP had been more specific as to the form his communication with Richards had taken, perhaps the scope of the search would have been more limited, and perhaps Richards would not have faced additional charges for the possession of child pornography and for child molestation. But given the general information AFOSI had about AP & Richards’ communication, they were faced with a difficult task: finding a virtual needle in a virtual haystack. And as AFCAA concluded, “Because computers . . . have the capacity to store tremendous amounts of intermingled data, there may not be a practical substitute for briefly examining many, if not all, of the contents.”
Whatever the outcome may be, the decision made by CAAF regarding the particularity requirement for computer searches will have a significant impact on future electronic investigations.
If you are an armed service member facing a criminal allegation, Joseph L. Jordan can help. Call (866) 971-4355 today to discuss your case.