second, 'bypassed the normal safeguards on the Michaelson 's systems?'
'That's right.'
'And one of the terminals upon which you installed this tap was that normally used by Lieutenant Pullman?'
'Objection.' David Sinclair was on his feet again. 'Your Honor, I know this point was brought up in pre-trial arguments, but I must again protest against the use of evidence acquired from a terminal belonging to Lieutenant Pullman without benefit of a search warrant.'
Commander Carr shook her head. 'I must remind defense counsel that the terminal did not 'belong' to Lieutenant Pullman. It was, as I stated, normally used by Lieutenant Pullman.'
'Using semantics to avoid requirements for legally obtaining evidence-'
'It is not a matter of semantics,' Carr broke in.
Judge Campbell rapped her bench with her gavel. 'I'll remind Trial Counsel and Defense Counsel that they are to maintain polite and civil exchanges in my court-room. Now, Commander Carr, did the terminal in question belong to Lieutenant Pullman?'
'No, Your Honor. The terminal was assigned to the desk used by Lieutenant Pullman, but it was and is the property of the U.S. government. Further, the terminal was and is located within a stateroom onboard the USS Michaelson, which location is also on government property. Since the terminal was not the private property of Lieutenant Pullman, and since it was located in a working space on a ship owned by the government, Lieutenant Pullman had no expectation of privacy on either that terminal or within that stateroom.'
'Your Honor,' David Sinclair protested, 'an expectation of privacy is perfectly reasonable if a piece of government equipment is so assigned to individual use, within that individual's living area, that it becomes de facto private property.'
Commander Carr let apparent exasperation show. ' De facto private property? Can counsel for the defense provide case law supporting the supposition that government property can by assigned use become the private property of the user? Especially in the case of military equipment?'
Campbell held up her hand to halt the debate. 'Defense Counsel, I must overrule this objection. Legal precedent is clear that both the terminal and living area in question were public property and that therefore no expectation of privacy existed for Lieutenant Pullman. That being the case, no warrant was required for U. S government personnel to access that terminal or that area.'
David Sinclair grimaced and sat down again.
Commander Carr inclined her head toward Judge Campbell. 'Thank you, Your Honor. Special Agent Connally, I'll repeat the question. Was one of the terminals upon which you installed this tap that normally used by Lieutenant Pullman?'
Connally nodded. 'That's correct.'
'There was no doubt it was the proper terminal?'
'None. It was positively ID'd to me and the ID was confirmed.'
Paul tried not to look like he'd played a role in that. It had to be done. At least I'm not up there testifying and giving away my role in things.
Carr began walking slowly back and forth in front of Connally. 'You installed the tap on the evening on 17 August on a terminal positively identified as that being normally used by Lieutenant Pullman. What happened after that?'
'We waited for any signal from the tap that illegal software had been used to carry out an unauthorized download of classified information. Late on the afternoon of 20 August, we received a signal from the tap notifying us of a large unauthorized download on that terminal.'
David Sinclair stood again. 'Objection, Your Honor. It has not been established that the download on 20 August was unauthorized.'
Without waiting for Campbell to rule, Carr nodded. 'I will ask the witness to use the term improper rather than unauthorized. Will that address Defense Counsel's objection?'
David Sinclair smiled politely. 'Yes, it will.'
Judge Campbell pointed her gavel again. 'Then the objection is sustained and the witness is directed to use the term 'improper' to describe the downloading of classified information to that terminal on 20 August until such time as it is proven to have been unauthorized.'
Connally didn't seem entirely happy with the instruction, but nodded. 'Yes, Your Honor.'
Commander Carr gave a brief, encouraging smile. 'What did you do after receiving the signal from the tap on the terminal normally used by Lieutenant Pullman?'
'We positioned ourselves — '
'We?' Carr gently prodded.
'I'm sorry. There were four of us standing by, all NCIS special agents. We positioned ourselves discreetly near the USS Michaelson and waited. After a period of approximately fifty minutes, Lieutenant Pullman was sighted on the quarterdeck, dressed as if he intended to go on liberty. We waited until he left the ship, then closed in on him. Lieutenant Pullman appeared surprised by our appearance, but offered no objection when Special Agent Gonzalez asked for permission to do a scan for contraband.'
Carr held up a hand to stop Connally's testimony. 'Did Lieutenant Pullman offer no objection, or did he consent to the scan?'
'He consented. We obtained a record of the consent.'
'If the court wishes,' Commander Carr announced, holding up her data pad, 'a copy of the recorded consent can be entered into the record.'
Judge Campbell looked toward the defense table. 'Well?'
David Sinclair stood, then shook his head. 'I do not think that is necessary, Your Honor.'
'Ah, but I do,' Campbell responded. 'Trial Counsel is directed to enter a copy of Lieutenant Pullman's consent to scan for contraband into the record.'
Commander Carr rubbed her lower face for a moment. Paul was fairly sure she was concealing a smile, but couldn't be certain. 'Please continue, Special Agent Connally,' Carr urged.
'After receiving the consent from Lieutenant Pullman, Special Agent Gonzalez conducted a scan of Lieutenant Pullman. The scan detected two data coins, one located inside the seam of Lieutenant Pullman's upper garment and one located inside his sock. Based upon what Special Gonzalez determined of the content of both coins, he directed us to place Lieutenant Pullman under arrest. Lieutenant Pullman was read his rights, placed in restraints, and escorted to the brig, where he was turned over to the custody of brig personnel. We returned to the NCIS offices to file our reports on the matter.'
Carr nodded, not saying anything for a moment, while the members watched her and Special Agent Connally. 'Thank you, no further questions.'
David Sinclair approached Connally with what Paul thought was a wary look in his eyes, but nothing in his face or bearing betrayed concern. 'Special Agent Connally. You testified you're absolutely certain that you placed this tap on the terminal normally used by Lieutenant Pullman.'
Connally calmly gazed back at David Sinclair. 'That's correct.'
'Did you ever see Lieutenant Pullman using that terminal?'
'No.'
'Did you see him using that terminal on the twentieth of August?'
'No.'
'Do you in fact have any direct personal knowledge that Lieutenant Pullman routinely used that terminal, and that he used it on the twentieth of August?'
Connally gave David Sinclair a long look. Before she could answer, Commander Carr was standing again. 'Your Honor, Trial Counsel has access to numerous witnesses who will swear to having seen Lieutenant Pullman routinely use the exact terminal on which the tap was placed. Trial Counsel also has available the system logs for the USS Michaelson on the afternoon of 20 August which show that Lieutenant Pullman was logged onto that terminal.'
David Sinclair spread his hands. 'Your Honor, I would still like the witness to answer my question.'
Campbell shrugged. 'If it will make Defense Counsel happy, then by all means. The witness is directed to answer the question posed by Defense Counsel.'
