Arrest, Search, Seizure, Warrant Military Computer Illegal Search and Seizure

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breezer

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I am about to face a court martial based on the evidance found on a computer. Here are the facts. 8 e-mails between an officer and an enlisted member were placed on the desk of the enlisted members supervisor. There is no explination on where the emails were found or how they were recovered, they simply appeared one day. He took those emails that implicated a relationship between the officer and the enlisted member to his commander. As a result a search warrent was issued and the following investigation has now lead to me, the officer, facing 10 charges from Fraternization, Conspiracy, Disobeing orders, Adultry and indecent language, with a maximum jail time of 30 years!!!
The enlisted member states she never printed the emails and deleted them as soon as she received them. How they ended up on the desk of her supervisor no one knows.
Does this constitue an illegal search or seizure of evidance, and can it or the resulting fruits of the tree be used in court against me?
 
An "illegal search and seizure" would be with regard to searching your property illegally. Here it seems that the emails may have come from another source and that is entirely possible. You'll find out where they originate from and, if there was an illegal procedure or search, you'll be able to challenge it at that time. The prosecution will have to authenticate the documents.

Originally posted by breezer
I am about to face a court martial based on the evidance found on a computer. Here are the facts. 8 e-mails between an officer and an enlisted member were placed on the desk of the enlisted members supervisor. There is no explination on where the emails were found or how they were recovered, they simply appeared one day. He took those emails that implicated a relationship between the officer and the enlisted member to his commander. As a result a search warrent was issued and the following investigation has now lead to me, the officer, facing 10 charges from Fraternization, Conspiracy, Disobeing orders, Adultry and indecent language, with a maximum jail time of 30 years!!!
The enlisted member states she never printed the emails and deleted them as soon as she received them. How they ended up on the desk of her supervisor no one knows.
Does this constitue an illegal search or seizure of evidance, and can it or the resulting fruits of the tree be used in court against me?
 
Here is what has been disclosed at discovery. The emails were found on the desk of the supervisor. He has made a statement that they were on his desk when he reported in for work. He took those e-mails and gave them to his commander.
His commander called my commander and an investigation began using those emails and ones found on my computer.
I was under the impression that information resulting from an illegal search and the fruits from that poisionus tree were not admissable in court. Is this not true?
The supervisor also states that he did not know where the emails came from. They were simply on his desk when he showed up for work.
Should I wait till trial to have the prosecution will have to authenticate the documents? Or should I bring up this issue before trial?
 
Breezer,
Unfortunately, because those emails were presented to the enlisted persons supervisor and then subsequently given to your commander these actions do not violate your rights as afforded by the 4th amendment. First, the commander did not ask anyone for the emails. Furthermore, the government is well within its authority to begin an investigation into any allegations based off third party evidence. However, the government will have to prove that the emails are reliable, authentic, and have not been altered in anyway, which can be difficult. If the emails were sent from a military address they will have complete access to them, and will be admissible in a trial. But, if they were addressed from a private account (i.e. Yahoo etc.) they cannot just access those records without a warrant.
You said you were being charged with Adultery, Frat, Consp, Disobeying a direct order, right? Well for one, adultery is very hard to prove and aside from a confession from either party will almost never hold its weight in a trial by court martial. Really the charges you should concern yourself with are the others, as they can lead to harsher punishments. Just curious as to why this wasn't handled at an Article 15 hearing????
Again, the burden of proof is on the government so I would advise not saying anything unless specifically told to do so by your attorney. From what I gather form your emails and Article 32 investigation is underway, which will give you an opportunity to make a statement only if advised to do so by your attorney. Just hang in there. I wish you luck and hope for the best.
 
Article 32 was completed and the Adultry charges were recommended to be dropped because they could trigger multiplicity charges upon the government, but the Convening Authority referred them anyway. At the A32 the lawyers did not wish to challenge anything and we simply asked a few questions of the witnesses and then let the hearing take its course. I have fully explored the issues and understand about the illegal search of the computer via a third party. That's not where my money is in this case, the real money is the investigation that originally disclosed this case where I was called in and not read my rights twice and was asked many questions that I answered at the time and the result of those answers is what has triggered this. There are many many other issues too numerous to count now, form pretrial punishment to the commanders wife questioning my wife before preferral of charges on the issues in this case. The commanders fired me from my job because I was affecting good order, but could not substaintate the cause of that when he was questioned directly about it.
Currently it's been four months since the A32 and I have submitted my resignation and we are waiting SECAF's word before we proceed to trial, I'm guessing in about 3 months we should find out. The package has been in they system moving its way up for 3 months now and is only at the MAJCOM level.
Thanks for your comments, if you have anymore suggestions please let me know. I also have some due process issues in this case.
 
Breezer,
Interesting that an Article 32 the adultery charges were recommended to be dropped but were still pursued anyway. Again, I think they tacked that charge on because they believe they can prove other charges (more serious) ones against you. I am assuming that they are pursuing the other charges as well?
From what you are saying at face value it seems that they government most likely violated your Article 31 rights by questioning you. Second, did you ask your attorneys about possible "command influence" on the part of your commander, in that his wife questioned your wife before charges were preferred?
Last, given your comments it seems that they have a strong case against you in that you have requested resignation. Aagin , this can also be a tactic advised by your attorneys. Did you request this in lieu of court Martial, and if so did you request for an honorable discharge? Just curious as to where you are going with this. Hope all is well.


Lt116
 
Yes, the resignation is a trial tactic. And I did not request an honorable, in fact the resignation request is the most generic it could be following the MCM example almost word for word. I'm not sure how strong the case is, it will depend on all the pretrial arguements. The lawyers feel most of the evidance will or should be dismissed because of article 31 violations and also the inspector who searched my computer spoiled the evidance by not making a back up the hard drive prior to searching it and addmitted that he knew that he was changing dates and altering the content of the programs, but still didn't make a copy of the hard drive because he didn't know how and did not have the training needed to do so. He is retired now, the two females in the case have seperated from the Air Force, The Colonel in the case has retired, many of the other witnesses have PCS'd and my original commander who arrested me has PCS'd. It's been 16 months since this all started and I was questioned without article 31 rights being read to me then again I was questioned in June of last year without rights, and the IO has ruled that when they questioned me they did have proabable cause to think I had violated the UCMJ, but these issues were only touched on very lightly at the Article 32, durring that proceeding we just took a look at what the JAG was going to do, and only litigated minimally. I assume a trial should happen in NOV or DEC of this year.
 
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