UNITED STATES, Appellee
v.
Jason A. RADER, Airman
U.S. Air Force, Appellant
No. 06-0860
Crim. App. No. 36133
United States Court of Appeals for the Armed Forces
Argued March 12, 2007
Decided May 4, 2007
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Lieutenant Colonel Frank R. Levi (argued);
Lieutenant Colonel Mark R. Strickland and Captain Anthony D.
Ortiz (on brief).
For Appellee: Colonel Gerald R. Bruce (argued); Major Matthew
S. Ward and Captain Jamie L. Mendelson (on brief).
Military Judge: W. Thomas Cumbie
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rader, No. 06-0860/AF
Judge RYAN delivered the opinion of the Court.
A law enforcement officer does not violate the Fourth
Amendment’s proscription against “unreasonable searches and
seizures” where a third party who possesses common authority
over the premises or effects consents to the search. United
States v. Matlock, 415 U.S. 164, 170-71, (1974); Frazier v.
Cupp, 394 U.S. 737, 740 (1969); United States v. Clow, 26 M.J.
176, 183 (1988); Military Rule of Evidence (M.R.E.) 314(e)(2).
The question before us is whether Appellant’s roommate had
sufficient access and control of Appellant’s computer to consent
to the search and seizure of certain unencrypted files in
Appellant’s non-password-protected computer. The record
supports the military judge’s conclusion that the roommate had
common authority over Appellant’s computer for most purposes,
and we affirm the decision of the court below.
A general court-martial composed of a military judge sitting
alone convicted Appellant, pursuant to his pleas, of three
specifications related to the use of his computer and an
interactive computer service to receive child pornography, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2000). Prior to his pleas, Appellant
moved to suppress the images of child pornography retrieved from
his personal computer on the ground that his roommate did not
have authority to consent to the search and seizure of his
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computer. That motion was denied. Appellant pled guilty, but
reserved his right to litigate the military judge’s adverse
ruling on his motion to suppress by entering a conditional plea
pursuant to Rule for Courts-Martial (R.C.M.) 910(a)(2).
The sentence adjudged by the court-martial and approved by
the convening authority included a bad-conduct discharge,
confinement for nine months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. The
United States Air Force Court of Criminal Appeals affirmed.
United States v. Rader, No. ACM 36133, 2006 CCA LEXIS 164, 2006
WL 1976603 (A.F. Ct. Crim. App. June 20, 2006).
We granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE
AT TRIAL THAT WAS OBTAINED AS A DIRECT RESULT OF AN
ILLEGAL SEARCH OF APPELLANT’S PERSONAL COMPUTER.
United States v. Rader, 64 M.J. 368 (C.A.A.F. 2006).
I. FACTS
A.
Between May and October of 2003, Appellant and two other
servicemembers, Airman Thacker and Airman First Class (A1C)
Davis, rented an apartment in an off-base apartment complex in
Layton, Utah. In May or June, the Appellant agreed to purchase
A1C Davis’ computer. The computer was originally kept in
Appellant’s bedroom, but was relocated to A1C Davis’ bedroom
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United States v. Rader, No. 06-0860/AF
after August 2003 due to ventilation problems in Appellant’s
room.
Both A1C Davis and Airman Thacker used Appellant’s computer
to play computer games. This access and use was with the
knowledge and consent of Appellant. A1C Davis also accessed
Appellant’s computer approximately every two weeks to perform
routine maintenance. Computers owned by A1C Davis, Airman
Thacker, and Appellant were joined together by a local access
network (LAN), for the purpose of playing games and sharing
files.
When recovering from surgery on September 26, 2003, A1C
Davis used Appellant’s computer, which was located in Davis’
bedroom, to perform maintenance, pursuant to Appellant’s
request. While performing maintenance, A1C Davis opened a
folder entitled “My Music.” In this folder, A1C Davis noticed
thumbnails1 that appeared to be images of children engaging in
sexual acts. Neither the computer nor Appellant’s “My Music”
folder was password protected. Further, the Appellant never
prohibited A1C Davis from accessing the computer or any files
within it. Although A1C Davis had never used the LAN to access
the Appellant’s “My Music” folder, A1C Davis believed that each
of the roommates could access all of the files on the other
roommates’ computers via the LAN.
1
Thumbnails are smaller screen size version of graphic images.
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A1C Davis contacted his first sergeant to disclose what he
had seen on Appellant’s computer. The Air Force Office of
Special Investigations (AFOSI) contacted A1C Davis later that
afternoon. A1C Davis told the agents that the computer was in
his bedroom; that there was a LAN file sharing system; that
Appellant was in the process of purchasing the computer from him
but had not yet paid for it completely; and that he did not need
permission to use Appellant’s computer. A1C Davis repeated all
this information to Captain Brock, a judge advocate from the
Hill Air Force Base legal office.
Captain Brock and the AFOSI agents accompanied A1C Davis to
his apartment, where he gave voluntary consent for the agents to
enter and search the apartment and to search the computer.
AFOSI agents accessed the computer’s files and obtained the
child pornography images from the hard drive that formed the
basis of the charged offenses against Appellant.
B.
At his court-martial, Appellant moved to suppress the
images. At the suppression hearing, the Government presented
testimony by A1C Davis, Airman Thacker, Captain Brock, and the
special agents that interviewed A1C Davis and monitored a phone
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United States v. Rader, No. 06-0860/AF
call from A1C Davis to Appellant.2 Appellant testified for the
purposes of the motion only. See M.R.E. 311(f).
The military judge issued findings of fact, from which the
factual background detailed above is drawn. See United States
v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996) (stating that in
reviewing a ruling on a motion to suppress, we consider the
evidence in the light most favorable to the prevailing party).
As relevant to the granted issue, the military judge’s
conclusion of law was that the Government had established by
clear and convincing evidence that A1C Davis had sufficient
access over the computer to give valid consent to its search.
II. DISCUSSION
We review the denial of a motion to suppress for an abuse of
discretion. United States v. Khamsouk, 57 M.J. 282, 286
(C.A.A.F. 2002). Findings of fact are affirmed unless they are
clearly erroneous; conclusions of law are reviewed de novo.
United States v. Flores, __ M.J. __ (8) (C.A.A.F. 2007) (citing
Khamsouk, 57 M.J. at 286).
Ordinarily the search of a home, to include a search of
items within the home, such as a computer, is prohibited in the
2
The parties entered into stipulations of expected testimony for
one of the special agents and Airman Thacker. Airman Thacker’s
stipulation included the facts that he used Appellant’s computer
to play video games, that Appellant never restricted his access
to the computer, and that the computer was never password
protected or secured.
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absence of a warrant. U.S. Const. amend. IV; Georgia v.
Randolph, 126 S. Ct. 1515, 1520 (2006); United States v.
Conklin, 63 M.J. 333, 337 (C.A.A.F. 2006) (reaffirming
expectation of privacy in the contents of a personal computer).
“The prohibition does not apply, however, to situations in which
voluntary consent has been obtained.” Illinois v. Rodriguez,
497 U.S. 177, 181 (1990). Valid consent to search can be
provided, under some circumstances, by a third party. Matlock,
415 U.S. at 170-71; Frazier, 394 U.S. at 740; Clow, 26 M.J. at
183; Reister, 44 M.J. at 414; M.R.E. 314(e)(2).
The validity of the third party consent does not hinge “on
niceties of property law or on legal technicalities.” Clow, 26
M.J. at 183. Rather, a third party has authority to consent to
a search when he possesses “common authority over or other
sufficient relationship to the premises or effects sought to be
inspected.” Matlock, 415 U.S. at 171. That consent “is valid
as against the absent, nonconsenting person with whom that
authority is shared.” Id. at 170; see also Randolph, 126 S. Ct.
at 1527 (reaffirming the constitutional sufficiency of third
party consent absent the objection of a present, nonconsenting
person with whom the authority is shared).
Common authority is “mutual use of the property by persons
generally having joint access or control for most purposes, so
that it is reasonable to recognize that any of the co-
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inhabitants has the right to permit the inspection in his own
right and that the others have assumed the risk that one of
their number might permit” the search. Matlock, 415 U.S. at 171
n.7. M.R.E. 314(e)(2) recognizes this same concept: a third
party “may grant consent to search property when the person
exercises control over that property.”
“When reviewing a decision of a Court of Criminal Appeals on
a military judge’s ruling, ‘we typically have pierced through
that intermediate level’ and examined the military judge’s
ruling, then decided whether the Court of Criminal Appeals was
right or wrong in its examination of the military judge’s
ruling.” United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F.
2006) (quoting United States v. Siroky, 44 M.J. 394, 399
(C.A.A.F. 1996)). We agree with the United States Air Force
Court of Criminal Appeals that the military judge understood and
applied the correct law in determining whether A1C Davis’
consent was valid, for purposes of M.R.E. 314(e) and the Fourth
Amendment. Rader, 2006 CCA LEXIS 164, at *4, 2006 WL 1976603,
at *2.
The military judge correctly stated the Government’s burden
of proof, focused his factual inquiry specifically on whether
A1C Davis had joint access or control over Appellant’s computer,
and understood the relevant test for determining the validity of
a third party’s consent.
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Appellant nonetheless contends that A1C Davis could not
consent to the search of Appellant’s computer because he had
only limited use and access to it. Consequently, his argument
goes, the search was illegal, the images derived from it
inadmissible, and the findings and sentence should be set aside.
See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963);
M.R.E. 311(a).
The control a third party exercises over property or effects
is a question of fact. See, e.g., Rodriguez, 497 U.S. at 180
(detailing record facts evidencing control over the premises,
and lack thereof). We will not disturb the military judge’s
findings of fact unless they are clearly erroneous or
unsupported by the record. Reister, 44 M.J. at 413.
In this case, the findings of fact include the following:
(1) Appellant’s computer was physically “located in [A1C] Davis’
bedroom”; (2) “[N]either the accused’s computer nor the My Music
folder on the accused’s computer was protected by a password”;
(3) “[T]he accused never told Davis not to access his computer
or any files within the computer”; (4) A1C Davis and Airman
Thacker “used the accused’s computer to play computer games”
with Appellant’s “knowledge and consent”; (5) A1C Davis
“accessed the accused’s computer approximately every two week[s]
to perform routine maintenance on that computer”; and (6)
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Appellant “never told Davis not to access his computer or any
files within the computer.”3
We agree with the lower court that the military judge’s
findings of fact “were well-grounded in the facts developed on
the record,” Rader, 2006 CCA LEXIS 164, at *4, 2006 WL 1976603,
at *2, and Appellant has not demonstrated that they are clearly
erroneous. See United States v. Springer, 58 M.J. 164, 167
(C.A.A.F. 2003) (“If the military judge makes findings of fact,
we review the findings under a clearly erroneous standard of
review.”); United States v. Owens, 51 M.J. 204, 209 (C.A.A.F.
1999) (“We review a military judge’s evidentiary ruling for
abuse of discretion.”).
Whether these facts rise to the level of “‘joint access or
control for most purposes,’” is a question of law. Reister, 44
M.J. at 415 (citation omitted). In this case, the military
judge concluded that A1C Davis’ consent was valid; that it would
be “difficult to imagine how there could have been a greater
degree of joint access, mutual use, or control.” We agree.
We reject Appellant’s argument that A1C Davis did not have
control over or authority to consent to a search of the “My
Music” files within the computer because he only had permission
3
It is unclear from the record whether Appellant restricted
access to his “My Music” folder via the LAN; even if he had, he
placed no restriction on his roommates’ access to the “My Music”
folder while at his computer.
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to use the computer to play games or conduct maintenance.
First, the military judge’s finding that Appellant did nothing
to communicate a restriction regarding access to his computer
files to anyone is amply supported by the record. Second, to
the extent there was an understanding regarding restricted
access to Appellant’s computer it was tacit and unclear, as
evidenced by A1C Davis and Airman Thacker’s use of the computer.
This is further illustrated by Appellant’s response to A1C
Davis’ phone call to him.
In that call, A1C Davis told Appellant that he had been
looking at Appellant’s files and seen “porn.” The record
demonstrates that Appellant expressed neither surprise that his
roommate was looking at the files nor dismay that his roommate
disregarded the purported restriction on access to them. We
agree with the court below that the evidence supports the
conclusion that “the restriction testified to by the appellant
never existed.” Rader, 2006 CCA LEXIS 164, at *4, 2006 WL
1976603, at *2.
This is not to say that consent to use a computer cannot be
limited in scope by its owner to certain applications or files.
“In the personal computer context, courts examine whether the
relevant files were password-protected or whether the defendant
otherwise manifested an intention to restrict third-party
access.” United States v. Aaron, 33 F. App’x 180, 184 (6th Cir.
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2002) (per curiam)(unpublished opinion); see also United States
v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007) (using a password
showed that defendant affirmatively intended to exclude others
from his password-protected files); Trulock v. Freeh, 275 F.3d
391, 403 (4th Cir. 2001) (distinguishing joint access to the
computer and its hard drive, for which co-user had authority to
consent to search, from password-protected files; with respect
to those files, co-user had no common authority where there was
no access to the passwords); see also Conklin, 63 M.J. at 337
(holding that, where there is no evidence of shared use or
common authority, an individual “has a reasonable expectation of
privacy in the files kept on a personally owned computer”).
But in this case, neither the computer nor any of its files
were password protected, encrypted, or subject to any other
technological impediment to review by a person at Appellant’s
computer. And Appellant never told his roommates not to access
his computer or any of its files outside of his presence. The
record supports the conclusion that A1C Davis had unrestricted
access to Appellant’s computer, and that Appellant ceded joint
access or control over his computer to A1C Davis “‘for most
purposes.’” Reister, 44 M.J. at 415 (citation omitted). We
agree with the military judge and the Court of Criminal Appeals
that A1C Davis had sufficient access to and control over the
computer to give valid consent to its search, and that Appellant
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assumed the risk he might do so. Matlock, 415 U.S. at 171 n.7;
Frazier, 394 U.S. at 740.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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