Let’s say you are accused of a crime and investigators come to your house to conduct a search. If you are not there to consent to the search, your spouse may have the authority to authorize a search of your house even in your absence. In order for his or her consent to be legitimate under the 4th Amendment, he or she must have “actual and apparent authority” to consent to a search of that property. This means that it must appear to the investigators that the spouse has authority over the premises and facts must exist to create legally sufficient authority in the spouse. For example, if the spouse appears to live at the house and his or her clothes are hanging in the closet, this will most likely be sufficient to show actual and apparent authority. What about a computer and/or a Facebook/e-mail account? Can the investigators search those based on a spouse’s consent? Again, it depends on “actual and apparent authority.” Recently, a spouse authorized a search of an Airman’s computer, thumb drive, Facebook page and an e-mail account. The Facebook page and e-mail account were both password protected. The Airman was later charged with offenses involving evidence found in all four places. At the court-martial, the military judge suppressed the evidence determining that the Airman’s 4th amendment rights were violated when his computer, thumbdrive, and internet accounts were searched. The government in this court-martial appealed the military judge’s decision to suppress the evidence to the Air Force Court of Criminal Appeals (AFCCA) under Article 62, UCMJ. The AFCCA, in United States v. Buford, determined that the evidence found on the files contained on the computer itself and a non-password protected thumb drive should not have been suppressed because the spouse had actual and apparent authority over those items. However, the AFCCA agreed with the military judge that the evidence found on the Facebook and e-mail accounts should be suppressed. The facts showed that the Facebook and e-mail account were not internal to the computer because they had to be accessed through the internet and they were password protected. Even though the spouse knew the passwords, this did not give her “actual and apparent authority” over the Airman’s personal accounts. This case will now face review by the Court of Appeals of the Armed Forces (CAAF). If you or your loved one is facing criminal charges, a court-martial or a court-martial appeal, you need an advocate who understands the rules of evidence and when to object to the admission of certain pieces of evidence. I have that experience. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.
By William Cassara | September 3, 2020
By Beth Harvey | August 20, 2020