United States v. Hall

STATES, Appellee, UNITED HALL, Private,

Timothy R. Army, Appellant.

U.S.

No. 97-0731.

Crim.App. No. 9500449.

U.S. Court Forces.

the Armed

Argued Dec. 5,May

Decided

Effron, J., opinion concurring filed result. and

CRAWFORD, J., opinion of delivered the C.J., Court, COX, and SULLI- in which GIERKE, JJ., EFFRON, joined. VAN and concurring in J., opinion part and filed an the result. Jay Bar- Captain Thomas Appellant:

For II, Phelps, T. (argued); John rett Colonel (on brief); Lieu- Major Nepper A. Leslie Cap- Michael L. Walters tenant Colonel M. Head. tain John Kelly Bailey R. Appellee: For Estey, Lieuten- (argued); Russell S. Colonel Milhizer, Cap- R. Eugene Colonel ant (on brief); E. Mary tain Braisted Colonel TARY JUDGE ERRED IN RULING Ross, Joseph E. THAT THE APPEL- Lieutenant Colonel Frederic SEARCH OF Borch, Porras, L. N. Elizabeth LANT’S BARRACKS ROOM WAS ILLE- F. Captain Robert Resnick. GAL. specified following

We also issue: Judge opinion delivered CRAWFORD THE WHETHER MILITARY JUDGE of the Court. ERRED BY REFUSING TO GRANT

Based APPELLANT’S MOTION TO SUP- pleas, appellant on mixed PRESS HIS speci- victed a CONFESSION FOR LACK alone ADEQUATE OF wrongful marijuana, fications of CORROBORATION AS use of REQUIRED 112a, 304(g). BY MIL.R.EVID. violation of Article Uniform Code of DUVALL, Justice, SEE UNITED Military § STATES V. 10 USC 912a. The con- (1997). vening authority MJ 189 approved the sentence days’ confinement, discharge, 45 bad-conduct appellant ruleWe as to all grade. and reduction to the lowest enlisted issues. The Court Criminal affirmed the findings and sentence. 45 MJ 546 FACTS granted following We review of the issues: July duty On while the staff I. WHETHER THE ARMY OF COURT officer, Sergeant noncommissioned Staff CRIMINAL APPEALS EXCEEDED ITS (SSG) Miller, Roy checking C. the bar- JURISDICTION UNDER ARTICLE racks, UCMJ, he smelled what he “knew” WHEN IT AMD CONSIDERED marijuana coming appellant’s room. THE REVERSED MILITARY JUDGE’S He knocked on door. When RULING THE SUPPRESSING EVI- door, pellant opened the mari- smell of DENCE SEIZED FROM APPEL- juana “stronger.” became much SSG Miller LANT’S ROOM. appellant get told out of the II. WHETHER THE GOVERNMENT replied, Appellant “Roger, barracks. Ser- WAIVED THE CONSIDERATION OF geant.” PROPRIETY THE OF MILITARY RULING JUDGE’S SUPPRESSING office, Upon returning SSG Miller THE SEIZED AP- EVIDENCE FROM (1LT) called Fust Lieutenant Terence L. PELLANT’S ROOM BY FAILING TO Murrill, acting the executive officer and the 62, UCMJ, MAKE A TIMELY ARTICLE commander, company who told him to call APPEAL. military police and wait him. Based Murrill, report, along III. THE SSG Miller’s WHETHER ARMY COURT (MP) military policeman with a OF CRIMINAL APPEALS ERRED BY Miller, went to FAILING TO THE “LAW OF room confirm FOLLOW THE IT the smell of After 1LT Murrill WHEN RE- CASE” DOCTRINE room, MP, and MP THE entered the based VERSED MILITARY JUDGE’S prior experience, on his THE verified odor RULING SUPPRESSING EVI- them, burning marijuana. Then two of DENCE SEIZED FROM APPEL- signal, on a left room. set LANT’S ROOM. THE IV. WHETHER EN- CONGRESS’ SSG Miller waited outside to “freeze 62, UCMJ, ACTMENT OF ARTICLE room” and detain who tried to leave. DE- OVERRULES UNITED STATES V. return, waiting for 1LT Murrill While

LEON, 5 USCMA CMR Miller “heard a noise the room” which NARGI, AND UNITED STATES V. being opened. He sounded like a locker door (CMA 1977), AND THEIR PROGENY. appellant green backpack “with saw hands, THE moving V. WHETHER ARMY COURT Miller across the room.” SSG put back- appellant stop” OF CRIMINAL APPEALS ERRED told “to and to pack ground. IT HELD THAT THE MILI- on the WHEN that the initial search Cap- and held Meanwhile, telephoned 1LT Murrill any subsequent (CPT) company legal and that it did not taint tain David S. The court stated: commander, in the area. confession. who was on leave 1LT Murrill to CPT Johnson “authorized” judge, find, military that a did as searched. Based have au- command resume his commander authorization, relayed to the which was discretion, for a short thority at even his Miller, all three reentered MP and SSG resumed period Captain Johnson of time. back- pellant’s The MP searched the room. to brief 1LT Murrill called command when containing bag a what pack and found coffee supporting him about the circumstances to be was later determined appellant the had his belief that in his barracks and CPT Johnson search, appellant Subsequent to the record reveals the search. The authorized Investigation Com- to the Criminal escorted im- that Johnson lacked no evidence CPT rights waived his and Office where he mand the partiality authorized search. when he in March 1994. confessed to use imputing the actions We find no basis for 1LT Murrill judge The found that when compromised 1LT Mur- may have which verify into the room to what SSG Miller went impartiality to CPT Johnson. rill’s smelled, 1LT Murrill “lost” had said he impartially exer- find that Johnson “objectivity stepped and into the middle authority authorizing proper cised Thus, investigation.” according to the of the and seizure and the search search military judge, 1LT lost neutrali- Murrill legal. Military Rule of Evidence 813. were ty. judge obtaining The then found that atMJ Captain “did authorization from Johnson by the taint caused Lieutenant Murrill’s

cure investigatory The initial action.” DISCUSSION tinued: Issues thru IV have been overtaken com- Captain was the same level Johnson Morris, by on events based Acting and of mander as Commander Morris, In this Court company. He authori- the same based his proper the court below to held it by zation on information which tainted underlying and examine the issue determine Acting of the Commander. the actions testimony co- charges of a and Therefore, the is unable find the court conspirator not tainted. were to cure the actions Lieutenant basis The Fourth Amendment United objec- truly seeking Murrill than a other provides: States Constitution magistrate. and tive neutral Based

relationship Captain right people Johnson between and secure houses, effects, papers, persons, Lieutenant Murrill and the fact that at the and their taint, Murrill sei- time of the initial Lieutenant unreasonable searches and Commander, zures, violated, Company Acting shall not be and no War- was the issue, actions, upon probable later even if Johnson’s rants shall but affirmation, par- supported by an the com- or deemed to be authorization as Oath mander, ticularly place carry describing must also with them the to be searched, persons things to be original taint. and the seized. military judge suppressed the evi- re- specifications a warrant relating to two of The Fourth Amendment has dence seized require- original charge, quirement a as well as reasonableness However, confession. ment. portion that the confes-

found cause to search exists when “Probable marijuana in past as to use of March sion the ... there is reasonable belief was not tainted the search. place sought is in the located person search[ed].” to be The Court of Criminal examined Martial, 315(f)(2), underlying illegality of Manual for Courts United issue of the (1995 ed.).* ap impoundment “Probable cause to a lawful external prehend,” parlance, Supreme precedent. with arrest civilian consistent Court “exists grounds when there are reasonable to believe Segura U.S. being offense has been or is commit 82 L.Ed.2d 599 five apprehended.” ted” “the to be following language Justices used the broad 302(c), Manual, supra.* RCM explicitly approving external premises: key probable There is a difference between police Had apartment, never entered the appre- cause to search and cause but perimeter instead conducted a stake- giv- hend that concerns the timeliness entering out prevent en information. cause to Probable apartment destroying timely must be based on information with challenged contraband now would have searched; place nexus to the to be whereas precisely been discovered and seized as it probable apprehend grow cause to not does was here. time, subsequent stale with dis- absent 814, at Id. 104 S.Ct. Justice Stevens covery exculpatory of information would acknowledged: prior existing probable undermine the cause. premises Since impounded these were 35, v. Lopez, United States 35 MJ 38-39 inside,” “from the I assume (CMA 1992). permissible exigent would be even absent apply determining The standard to in circumstances when it occurs “from the probable in- whether there is in both cause merely outside” —when the authorities seal totality-of-the-circumstances stances is a test. premises pending off the issuance of a Hester, 461, v. 47 MJ 463 warrant do enter. but not 15, (dissenting). Id. at 824 n. S.Ct. 104 3380 Segura, five-justice in coming Miller Likewise the same smelled majority approved impoundment. of internal appellant’s day entry. room on the [Wjhere officers, marijua- cause, having probable His familiarization with the of smell na, premises, enter probable as well as the non- and with fact he was a occupants legitimate arrest have upon who commissioned officer whom the com- possessory in contents and interests its rely, mander could were sufficient to estab- and, custody take them into for no more probable Layne, lish cause. period than here (CMA 1989). [nineteen involved 48, Additionally, 29 MJ 50 hours], premises secure the from within to statement, “Roger, inference from others, preserve quo in status while Sergeant,” get when told to rid of the mari- faith, good process obtaining are in the of juana, is a second factor that satisfies the warrant, they do violate the Fourth (47 463) knowledge” “basis of atMJ test. ]____ Amendment! See United 209 States v. MJ (CMA 798, 104 1987). Id. at S.Ct. totality The of these circum- stances, Gates, Illinois 462 U.S. Chief Burger Justice and Justice O’Connor S.Ct. 76 L.Ed.2d established agreed probable that “when have officers grounds reasonable to believe that offense of cause to believe that evidence criminal being in committed activity premises, temporary is on the occupants. Consequently, the room’s SSG securing prevent a dwelling of the removal apprehend Miller cause to or destruction of is evidence” reasonable. occupants. detain the room’s 468 U.S. at also 3380. See Doubet, 341, United States v. 969 F.2d Quo. (7th Maintaining Cir.1992) (preserving quo Status status 344-45 reasonable). Similarly, Murrill told SSG Miller not to let we here hours 248; preserving leave the at thus was hold that cir- there room these provision unchanged *This same is in the 1998 edition of the Manual for Courts-Martial. corroboration, constitutes ad- What Fourth without violate the did not cumstances provides: Rule That equate corroboration? Amendment. (1) The Quantum evidence needed. holding After Search. Warranted necessary to estab- evidence independent the MP quo, 1LT Murrill and room status sufficient need not be lish corroboration proceeded based on to search returned and beyond reasonable itself to establish authorization. the commander’s ad- facts stated the truth of doubt to authorize the permits a commander independent The or confession. mission subject to his place search of a only need raise an inference her control. facts admitted. essential truth military judge nor the court Neither type of intro- amount first entries into found that below factor to be is a as corroboration duced appellant’s reason- appellant’s room violated of fact in determin- the trier considered fact, expectation privacy. able any, given ing weight, if Miller based on initial or confession. admission entry was to second probable cause. The (2) alone Procedure. verify and did not smell of adequate evidence privacy shall determine when expectation of be- violate jus- received. Corrobo- corroboration has been independent information cause there usually is rating evidence to be introduced tifying of the room. the search is intro- or confession before the admission Further, are that 1LT Murrill we satisfied may military judge the admit duced but neutrality upon entry. this did not his lose subject later corroboration. evidence double-checking individual is When an type of this is not the foul 304(g) Mil.R.Evid. is rationale behind see, Ezell, motivation, e.g., v. 6 United States this is true. As to ensure the confession vindictiveness, (CMA 1979), see MJ 307 or Maio, MJ in States v. 34 Court stated United 111, 113, 23 Staggs, USCMA United (CMA 1992), line the “bottom is 218 (1974), disquali- 674 that would 48 CMR only must raise corroborating the evidence at fy Lopez, See 35 MJ 41. an officer. also truth____” of an inference reentering 1LT Murrill’s the to corrob- Duvall, 47 information he received orate the (1997), held the issue of this Court reasonable, prudent. indeed Miller was adequate corrobora- whether there has been This the room last into by the court mem- tion must be determined Johnson. Murrill was authorized CPT judice, the issue the issue sub bers. Unlike agree Ap- with the of We Court Criminal sufficiency of evi- in the Duvall not peals that CPT Johnson could resume dence as to corroboration. required Unless command at discretion. only argues judge con- Appellant that the by regulation, no for written there is need during sup- heard sidered the evidence acting appointment of the revocation of hearing. notes that this pression-motion He commander, pre- regulation has and no been introducing evidence equivalent is not requiring. Johnson’s autho- sented so However, Brief at 17. the merits. Final upon based rization was observations prosecutor, well defense and the as both the Müler, MP, All and 1LT MurrM. (R. 246), objection, judge without as the them had in smelled as as the evidence on the motion well sidered subsequently autho- and CPT Johnson As on the merits. the evidence introduced room for rized Government, Private Jonathan noted hold that this was a 45 MJ at friend, Gadow, appellant’s testified that lawful search. pellant three had used July times between June SPECIFIED ISSUE Additionally, had intro- the Government 304(g) requires that a appellant test- evidence that in evidence duced additional confession not be admitted positive marijuana, ed in any corroborating October 1994 for absence other evidence independently showing thus a continuous merits, introduced on the would constitute course of conduct between at least June and 304(g), error under Mil.R.Evid. Manual for October with numerous incidents of (1998 Courts-Martial, possession and use. His confessed use in ed.). Duvall, See United States v. supra. only March 1994 occurred prior months to Duvall, however, involved a trial before a pattern. this shown This is unlike United panel, court-martial in which the members Holmes, (1994), States v. 176MJ where deprived been opportunity of the 18-year-old marijua Court held that an weigh corroborating deter- na use was appellant. inadmissible mining weight, any, given if Likewise, it is unlike United States v. Walk confession. See 47 MJ at 192. Because the er, 67MJ where a unanimous trial, present judge-alone case was a Court that a held sinus condition in 1989 was same relevant to show cocaine use in 1991. —the —heard allegation There is not even an responsible this case evidence on motion and was that the confession is affir untrue that an deciding guilt the issue or innocence on applied. Thus, mative defense based on the result, judge the merits. As a heard all adequate we hold that there is corroborating during corroboration. hearing suppression on the motion. When Army decision of the United States rendering guilty verdict at the conclusion Court of Criminal is affirmed. trial, portion of the merits

incorporated by reference the evidence re- EFFRON, Judge (concurring during hearing suppression ceived on the result): in the circumstances, motion. Under these I con- separately majori- any write beyond to address the clude that error was harmless ty’s respect views with to corroboration of reasonable doubt. confession and the respect granted With to the issues con- pellant’s barracks room. cerning the search of barracks issue, specified which concerns corrob- agree requires I do not case this appellant’s confession, presents oration of reach approve practice us to of “exter- questions. First, adequate

three was there impoundment.” nal Under the facts of this corroborating support evidence to the admis- case, impoundment there was no external Second, sion of confession? premises. External in- it finding error for the enter a securing unoccupied premises by volves pre- guilty where Government failed to intro- venting anyone entering destroying from corroborating during duce the its removing Third, usually waiting while case-in-chief? if there an was such error, materially prejudice See, did it the substan- e.g., Segura for authorization to search. rights appellant? tial v. United 468 U.S. (1984) 3380, 82 (police L.Ed.2d 599 secured Duvall, In supra, United States v. held we premises prevented persons from enter- corroborating in de- evidence considered occupants

termining admissibility ing taking custody after of a into confession must be admitted on merits so removing case, premises). them this corroborating members consider the evi- occupants remained in the room while deciding weight give dence what military police prevented from leaving; them confession. 47 MJ In the pursuant prob- was a lawful detention case, present government introduced cor- cause. able roborating during proceedings on a agree appel- that the initial into As confession, suppress defense motion lant’s was based cause and during but did offer the same evidence omission, neutrality trial on merits. did Such Murrill not lose his in the result I concur additionally that entry, and because majority V. on Issue by the reached was authorized entry into the room last

Case Details

Case Name: United States v. Hall

Court Name: Court of Appeals for the Armed Forces

Date Published: May 5, 1999

Citation: 1999 WL 280275

Docket Number: 97-0731/AR

Court Abbreviation: C.A.A.F.