Sunday, March 30, 2008
It's Inevitably Inevitable: Air Force Case Indicates That Military Rules Of Evidence Codified Inevitable Discovery Doctrine
The United State Air Force Court of Criminal Appeals' recent opinion in United States v. Sanders, 2008 WL 818344 (A.F.Ct.Crim.App. 2008), reveals that, unlike the Federal Rules of Evidence, the Military Rules of Evidence contain a codification of the "inevitable discovery" doctrine. In Sanders, Edwin K. Sanders lived in government quarters at Fort Meade after being stationed in England. Several months after Sanders' arrival, the local Air Force Office of Special Investigations (AFOSI) was told that suspected child pornography had been found by workers cleaning Sanders' former government quarters in England. AFOSI investigators thereafter attempted to obtain authorization to search Sanders' Fort Meade government quarters, but their request was denied for lack of probable cause
The investigators then questioned Sanders, and he admitted that if the investigators were to search his home computer they would “probably” find child pornography. Subsequently, the investigators asked Sanders whether he would consent to a search of his home and computer, and he unequivocally refused. The investigators then contacted Sanders' First Sergeant and told him to keep Sanders with him until he received further instructions and the First Sergeant kept Sanders in his care for approximately one to two hours.
During Sanders' detention, the investigators then drove to the Sanders' home and told his wife about the child pornography allegations. They didn't lie to her, but they didn't tell her that her husband had refused to give his consent to search. Mrs. Sanders thereafter told the investigators that she had common access to the computer and signed a consent form which allowed them to seize and search the computer. The investigators then took the computer, received oral authorization from a military magistrate to search the computer, and eventually, after receiving written authorization to search the computer, retrieved 13 movie files and over 550 image files containing child pornography from the hard drive. After his motion to suppress this evidence based upon the computer being seized without a warrant was denied, Sanders was convicted of knowingly possessing a computer hard drive that contained images of child pornography.
On appeal, Sanders renewed his argument, noting that pursuant to Georgia v. Randolph, 547 U.S. 103 (2006), "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." The government, however, argued for a "narrow interpretation" of the Randolph decision. According to the government, because Sanders was not literally "physically present" at the time of the warrantless seizure of the computer, Randolph did not apply. Sanders countered that the court should give a "broad interpretation" to the Randolph decision. According to Sanders, because the government took steps to keep him from returning to his home and failed to inform his wife of his objection to the search/seizure, Randolph applied and made the evidence inadmissible.
The court noted that this was an interesting and difficult issue, but rather than deciding the issue, it chose to rely upon the inevitable discovery doctrine. The inevitable discovery doctrine creates an exception to the exclusionary rule allowing admission of evidence that, although obtained improperly, would eventually have been obtained through lawful means. The court found that once Sanders admitted that child pornography would likely be found on his computer, the investigators could have gotten a search warrant and seized the computer; instead, they jumped the gun, but it was inevitable that they would eventually discover the child pornography.
As I noted, though, the military court system, unlike the traditional court system, doesn't merely have this doctrine in its case law; instead, it is codified in Military Rule of Evidence 311(b)(2), which indicates that "[e]vidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made." This strikes me as a good move made by my former Evidence professor Fred Lederer, the principal author of the Military Rules of Evidence, and I wonder why we don't have a similar Rule in the Federal Rules of Evidence, even if the same effect is achieved through precedent.