This month, the Court of Appeals for the Armed Forces (CAAF) issued its opinion in United States v. Black. The accused Soldier, PFC Black, lent his cell phone to another Soldier who was about to start a 12-hour duty period. PFC Black told him he could use the phone while he was on duty, to text, call, or watch YouTube videos. At some point during the duty period, a notification popped up that led the fellow Soldier to accidentally open a photo gallery on PFC Black’s phone. The photos in the gallery were of the backside of fully-dressed female Soldiers. The Soldier took PFC Black’s phone to the acting first sergeant and reported finding the photos. The acting first sergeant looked through all of the photos on PFC Black’s phone and, in addition to the photos of female Soldiers, found what appeared to be child pornography. The next day, CID detained PFC Black and seized his phone. As a result of the CID search of PFC Black’s electronic devices, he was charged with one specification of possession of child pornography.
At trial, the defense challenged the search of PFC Black’s phone. The Fourth Amendment to the U.S. Constitution prohibits Government searches without a warrant with a few established exceptions. One of these exceptions is voluntary consent. The defense argued that PFC Black’s loaning of the phone to his fellow Soldier did not give that Soldier permission to turn it over to the acting first sergeant for a search of the phone. The Military Judge agreed, finding that the Soldier borrowing the phone did not have “common authority” over the phone, such that he could legally give voluntary consent to its search. In order to have common authority over an item or place, a third party must have joint access to, and control over, the item or place. Examples of those with common authority to consent to searches are spouses who consent to the search of a house or a car they share. Here, although the fellow Soldier had access to the phone, he did not have full control over it such that he was able to give legal consent to its search. The Military Judge found the search to be illegal and suppressed all evidence found during the acting first sergeant’s search as well as the evidence found by CID in its resulting investigation.
The Government appealed this ruling to the Army Court of Criminal Appeals (ACCA) under Article 62 of the UCMJ. The Government argued that the Military Judge abused his discretion in making his ruling. An abuse of discretion occurs when a military judge applies the law erroneously or clearly errs in making findings of fact. The ACCA agreed that the Military Judge abused his discretion and reversed the decision to suppress the evidence. The ACCA held that the fellow Soldier’s access to the phone did give him common authority over it and did allow him to consent to its search.
The defense appealed this decision to CAAF, which sided with the Military Judge, finding that he did not abuse his discretion in his original ruling. CAAF determined that access was not enough to grant common authority, and that although PFC Black did not explicitly restrict the fellow Soldier’s use of the phone, his listing of ways in which the Soldier could use it–for texting, calling, and watching YouTube, implied that the fellow Soldier did not have full access to the contents of the phone such that he had common authority over it. Additionally, the CAAF noted that even if they would have come to a different conclusion on the question of common authority than the Military Judge, a difference of opinion was not enough to overturn a ruling where the Judge did not abuse his discretion.
The CAAF opinion sends the case back to the Military Judge to proceed with the trial. However, because the ruling appears to suppress the Government’s evidence against PFC Black, the charge will presumably be dismissed.
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