United States v. Buford
2015 CAAF LEXIS 308
| C.A.A.F. | 2015Background
- In 2012 AB (appellee's wife) discovered a fake Facebook account linked to her husband's e‑mail containing sexually explicit material; she asked off‑duty A1C Ryan Marlow (Security Forces) to look at it.
- Marlow accessed the Facebook page and the husband’s e‑mail (with AB’s password), made screenshots of explicit images/messages, and put screenshots on a flash drive; he encouraged AB to report but said it was her decision.
- AB reported the matter to Security Forces/OSI, consented to a search of her Dell laptop, and investigators later seized the appellee’s HP laptop; a flash drive later found in the house was examined by Marlow and turned over to investigators.
- Forensic analysis found child pornography on the Dell laptop, HP laptop, and flash drive; the military judge suppressed those items and derivative evidence, concluding Marlow acted as a government agent and thus his warrantless search violated the Fourth Amendment.
- The Air Force CCA partially affirmed and partially reversed the military judge; the Judge Advocate General certified the case to this Court under Article 62, UCMJ, and the Court reviewed de novo whether Marlow was a government agent and whether suppression was proper.
Issues
| Issue | Plaintiff's Argument (Buford) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Marlow acted as a government agent when he viewed/collected electronic evidence | Marlow, as a Security Forces member, conducted investigatory acts for the government and thus his search implicated the Fourth Amendment | Marlow acted as a private individual helping a friend; no government direction, participation, or approval before his actions | Marlow was not a government agent under the totality of circumstances; the military judge erred in finding agency |
| Whether suppression was an appropriate remedy for the items Marlow handled | Evidence should be suppressed because it was the product of a government search without authorization | Evidence admissible because search was private and not a government search; suppression not warranted on that Fourth Amendment basis | Suppression based solely on government‑agent theory was an abuse of discretion; reversal of suppression order and CCA decision |
| Proper standard of review and burden on government in Article 62 interlocutory appeal | Military judge found government failed its burden to prove searches lawful; suppression reviewed for abuse of discretion | Court reviews military judge’s factual findings for clear error and legal conclusions de novo, viewing record favorably to appellee | Court applied de novo review to agency conclusion and found legal error; noted military judge may revisit admissibility on other grounds |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private searches not governed by Fourth Amendment)
- Walter v. United States, 447 U.S. 649 (framework for limits of Fourth Amendment vis‑à‑vis private actors)
- United States v. Jones, 73 M.J. 357 (C.A.A.F.) (totality of circumstances test for determining governmental agency)
- United States v. Daniels, 60 M.J. 69 (C.A.A.F.) (look for government encouragement/participation to implicate Fourth Amendment)
- United States v. Wicks, 73 M.J. 93 (C.A.A.F.) (evidentiary principles relevant to digital evidence admissibility)
- Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (government endorsement/participation standard)
- Lustig v. United States, 338 U.S. 74 (government participation during an ongoing private search can render it governmental)
- Knoll v. (2d Cir.), 16 F.3d 1313 (private search can become governmental by tacit approval or later participation)