United States v. Long, 64 M.J. 57 (2006)
Appellee was charged with unlawful drug use violating Unif. Code Mil. Justice art. 112a, 10 U.S.C.S. Â§ 912a. Defense motions to suppress incriminating e-mails seized from appellee’s account on a government computer on a claim that the search was unauthorized were denied, and appellee was convicted.
The court held that appellee had a subjective expectation of privacy that was objectively reasonable and that the error in admitting the challenged e-mails was not harmless beyond a reasonable doubt. It thereupon entered an order setting aside the findings and sentence, and it authorized a rehearing.
The court distinguishes workplace searches by employers from searches of and by military personnel due to the greater threat of criminal sanction for workplace misconduct, and thus a greater need for 4th Amendment protections. The dissent, on the other hand, equates workplaces with the military thinks she had no expectation of privacy. The dissent cites United States v. Ziegler, 456 F.3d 1138, 1146 (9th Cir. 2006) saying, “‘Employer monitoring is largely an assumed practice, and thus we think a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.’ Every time Appellee turned on her computer, she was aware of the computer-use policy of her service and could not have a reasonable expectation of privacy.”