*1 STATES, Appellee, UNITED
Jerry Basic, OWENS, W. Airman Force, Appellant. Air
No. 98-0133.
Crim.App. No. 32468. Appeals Court of
the Armed Forces.
Argued Nov. 1998. Aug.
Decided *2 opinion delivered the of
Judge GIERKE the Court. composed of offi- general
A сourt-martial appel- and enlisted members convicted cer specifica- lant, contrary pleas, his of four five damaging private property, and of tions larceny, of Arti- in violation specifications of Military and Uniform Code cles Justice, respectively. §§ 909 and USC pro- adjudged approved sentence and discharge, total for- vides for bad-conduct feitures, years and 9 and confinement for Appeals of Criminal af- months. Court findings and an un- firmed sentence published opinion. granted
This Court review1 of follow- ing issue: THE MILITARY JUDGE WHETHER ERRED A MATTER OF LAW AS HE DENIED APPELLANT’S WHEN MOTION TO SUPPRESS EVIDENCE. below, we For the reasоns set out hold that did not abuse discre- tion. Background
Factual Police at On GIERKE, J., opinion delivered the Base, Oklahoma, Altus Air Force received COX, Court, C.J., CRAWFORD, in which report property stolen from had been JJ., J., EFFRON, joined. SULLIVAN, and dormitory In parking five vehicles in a lot. opinion concurring part filed and May 1, appellant the late afternoon called dissenting part. result Altus, Oklahoma, dealership in a Ford Appellant: Captain Apol For Michael J. requested emergency services. The roadside (on H. (argued); Douglas Kohrt Colonel ignition switch in Ford Escort brief); L. Lieutenant Colonel Kim Sheffield stuck, off. so it could be turned Barrett, Major C. USAFR. Michael repair Aungst, a technician and tow Kenneth operator, Major truck towed vehicle Appellee: For J. Robert Cantrall dealership. (argued); Anthony P. Dattillo and Colonel (on J. Lieutenant Colonel Michael Breslin suspicious Mr. became brief); Brenda Hollis and Lieu Colonel J. large components quantity saw a stereo Rodgers. tenant Ronald A Colonel the wires cut off appellant’s automobile with urging being Amicus reversal: disconnected. He called Curiae Marisa instead (Law Student) Eventually, Dersey (argued); Department. David N. Altus Police stolen (Law IV, Student), Sherry equipment from Patton was seized Boston (Law Student) (on room, Halpem giving rise and Keith automobile and brief) larceny pri- Emory University charges damaging School of —For property. Law. vate argument Emory objection parties We involved. See 38 MJ 1. heard oral in this case at Law, Atlanta, University Georgia, School of n. Outreach, part Project without the Court’s trial, timely At defense counsel made the car. He observed wires suppress motion to property. the seized Af- very had been cut close motion, a lengthy hearing ter on the back of the units. Officer Mills was aware findings made extensive that there had been fact and conclusions of law and denied the *3 just days around town a few earlier. He suppress. parties motion to do not dis- got picked a notepad, up six eight differ- pute military judge’s findings concerning the pieces equipment, ent and wrote down facts, historical supported by which are the brand and names serial numbers. Officer Accordingly, granted record. we the resolve Mills returned to the Altas Police and was issue on basis the of the facts found the Security later advised that the Police at military judge. following He made the find- Altas Air had Force Base information ings of fact: about some car on base. He First, the accused called tow for a truck Sergeant] called [Staff Bovara problems May when his car had on 1 [Senior Airman] Hill and discussed the Aungst Mr. towed the car to local Ford matter. He was told that the he had dealer it where was decided that the igni- seen could be the items from the base. tion be replaced, would as as well both Fourth, Seсurity Policemen, the two Bo- door locks and hatch lock. The work Hill, vara and went to the Altas Police could not be done that itas was near Department They and met Officer Mills. closing, parts and the would not be avail- they went to the Ford dealer where day. able until next The accused was looked into the they accused’s car. What provided a loaner vehicle to use. He was enough saw was to convince them that the asked if he anything wanted to remove accused was in the involved base car bur- no, from his car overnight; he said and glaries. Fosgate The brand name was vi- left. on at piece equipment, sible least one Second, following morning, Aungst Mr. it enough and was an unusual name to working was next to the accused’s car Security convince the Police that the ac- which had both open doors and the hatch cused was involved. it being as was Aungst worked on. Mr. Fifth, Sergeant accused’s First noticed a far normal above amount of ster- bring briefed and asked to the accused to car; components appeared eo in the Security Building, Police he where was expеnsive equipment and obviously had Investigators met the two SP and Offi-
cut wiring. The car itself had an installed by SSgt cer Mills. The accused told Aungst, after-market radio. Mr. as an they experienced driver, investigating Bovara that tow were truck had seen a larceny base; lot equipment of vehicles which had from the been vandalized impounded, they equipment this information car, wires, dealer; with cut raised concerns to him. staff was in his car Ford Aungst supervisor Mr. gone told his and sug- down and identified gested police be called. Mr. being some of the stuff as from the base did not enter thefts, the vehicle to look at the suspect. and that the was a accused equipment, nor did touch he it. The accused told he would not then be any questions; police asked want- Third, Dwayne D. Mills of the Al- car; ed to look at the stuff in his and that Department tas Police was the officer who they would like his consent to search of responded to the call from the Ford dealer. positively identify the car in order responded He at about 1030 hours on 2 willing staff. The accused said he was meeting 1996. After with Mr. over, do that. An Air Form Force 1364 was Aungst, went open he car and IX); completed (Appellate Exhibit large speaker observed a and several pieces portion; Bovara filled in the handwritten of stereo in the trunk or car, seat, provided completed hatch he form to the area the back on the rear floorboards on sides accused and from a blank form while both read evidence. The recovery ensure along completed the accused read form, and then verbally consented reading the accused end of form. At the VIII, the signed Appellate he Exhibit consent if he undеrstood and accused was asked prepared by if he he Mills. Officer yes. asked knew form said He was inventory yes. completed and he said He could limit the search custody. he could terminate into his if he knew in the car and took them was asked yes. The placed he said accused Altus the search and These items were later IX; actually, signed Appellate Department Exhibit locker and twice, signature he missed the signed it subsequently over to the OSI. turned time; pointed block the first upon completion of the seizure of Eighth, by SSgt The consent form out Bovаra. car, Police, property from the *4 car and his covered the accused’s dormito- Mills, the accused returned Officer and ry being no to the room. There evidence Building Security the on Altus to contrary, high accused is a I infer the apprised Hill Air Force Base. SrA graduate can read under- school and and legal of the case and office of the status stand the consent form. opinion asked for an as to cause Sixth, Policemen, Security the two Officer dorm room. to search the accused’s Given Mills, accused, Sergeant, the First аnd by legal, he reading a favorable contacted Sergeant, another went to the Master a received Colonel Dickensheets and ver- impound lot. The Ford dealer’s car bal authorization to search the accused’s garage to the been moved from inside provided room. Hill dorm SrA infor- outdoor lot and locked. The two secured page Appellate mation 1 of Exhib- found began inventory the SPs to contents of the provided XIII. to it That affidavit observing. ear with Mills Twelve Officer May Colonel Dickensheets minutes about ten items into the the colonel confirmed his verbal authoriza- search, SSgt Bovara said to the words XII signing Appellate tion Exhibit on 3 know, of, you can “you effect terminate May 1996. seized from Property was Bovara any time.” claims it to the search pursuant accused’s room au- remark, just an off-the-cuff made on a thorization. day, basically joking hot around. He nev- Ninth, roommate, Airman accused’s say expected er accused to he wanted Sandefur, to report was contacted and told The terminate the search. accused did a to his room. He сonsented to search of say he to terminate wanted the search. portion property, his and his room Security stopped [sic] The Policeman im- had a and he volunteered that he radar mediately when he said that. he had detector his car which received Seventh, SSgt Bovara told Officer Mills trying accused. He was it out give that he had to the case back to him buy and was to it from the accused were downtown and the ac- if Airman he wanted it. Sandefur $20.00 cused had withdrawn his consent to their gave Security to the radar detector immediately sеarch. Officer Mills advised Police. ease; that it was his that he accused Tenth, May during the course try get would the car and a search seize room, portable search the accused’s warrant in order to recover rest of the player CD was observed the room. It Although items from the car. Officer Mills report there was no seized because recall, SSgt Bovara does not both and SrA stolen. player that a CD had been The Hill ac- related that Officer told the May next the victims of the one of something cused the effect car burglaries reported 1996 car that she had felony; had been in a used could portable player had a stolen. Armed CD possibly forfeited. accused The information, prepared Hill with this SrA options asked were. what his Officer Mills XIII, consented, (Appellate Page an affidavit Exhibit explained that if the accused 3,) and a search authorization there would be no need to seize the vehicle obtained Dickensheets, Appellate Aungst’s from Colonel Ex- ruled that Mr. hibit player XI. The was found in observation of the in appellant’s CD private car was a actiоn not an accused’s room and thus was and seized. illegal search. He ruled that Mr. Eleventh, dealership the Ford called on authority to allow Mills to examine May concerning the return of their “inventory the contents of He the car.” car, loaner which the accused had. The ruled that Mills had cause key gave accused to the loaner to warrant, search the car without under the Officer Mills. A tow truck get arrived to exception” “automobile re- warrant the loaner. It could be loaded from quirement under Fourth Amendment. where it parked, so Offiсer Mills drove further ruled that it over to the truck. tow He observed Hill did not conduct car, bag helmet as well as some illegal by looking into au- tapes. Believing cassette that these were tomobile. ruled that He there was clear and items, rather things accused’s than convincing appellant consented car, which belonged with Officer Mills Accordingly, the search looked in bag receipt and discovered a ruled that items seized the name of one appellant Police before terminated his con- *5 burglary bag victims. He took the out of sent were admissible. gave the loaner car it to investiga- SSgt military judge tors. The getting purport- Bovara believed he ruled that the was by ed consent obtained property, accused’s which had Officer Mills been left situation, acquiescence “mere rather by the loaner. accused The then had However, than a voluntary consent.” processed been entry pretrial into for con- military judge that ruled the evidence would SSgt finement. suspect Bovara did not inevitably discovered, have been because Of- any regard accused of offensе with ficer Mills had cause and “would tapes bag; and the helmet his intent have obtained a warrant” and seized the inventory put was to items and them in property. Accordingly, he that ruled keeping safe for the accused. When he by Officer Mills were admissi- inside, receipt discovered the the items ble. became evidence. military judge The au- ruled that the two military document referred to in the appellant’s dormitory thorizations to search judge’s eighth finding fact recited that room “properly sought granted.” were property theft of five automobiles had Hе likewise ruled “that the radar detector reported been 1996. The docu- appellant’s by” surrendered roommate Security ment recited that the Police viewed admissible. in plain the items view in auto- Finally, ruled “possible mobile and found matches” with tapes, bag, receipt helmet were cassette property reported that had been as stolen. car, lawfully taken from the loaner The document also recited that the search of they “in acquired inventory were an situa- property “revealed automobile tion,” go where аccused was “about reported many that matched as stolen pretrial into confinement” and the “loaner May 96,” on 01 but the document did not by being retrieved the Ford dealer- specify “property” whether was the ship.” by items discovered Hill or “property” by discovered Discussion property Mills. Because more had been re- ported stolen than ap- was recovered from ini- Appellant that contends Officer Mills’ automobile, pellant’s Police re- tial examination quested command search; authorization to search his illegal his аutomobile was that dormitory assigned room and his locker at did not the search of automo- consent to his bile; place discovery duty. his that of inevitable the doctrine
209
White,
(1976);
Texas v.
applied
judge;
incorrectly
by the
also
see
46 L.Ed.2d
room S.Ct.
the search of
States,
132, 45
by
of his
v.
the unlawful searches
Carroll
United
was tainted
these
Drafters’
We resolve
issues
69 L.Ed.
Manual,
315(g)(3),
su-
appellant.
Analysis
against
of Mil.R.Evid.
pra at A22-30.
military judge’s evi
We review a
for the
There
two constitutional bases
are
ruling
dentiary
for abuse of discretion.
(2)
(1) mobility, and
exception:
automobile
will
military judge’s “[findings of fact
not be
privacy.
expectation of
reduced
Califor
clearly
unless
are
erroneous
overturned
386, 391, 105 S.Ct.
Carney,
v.
nia
We review
unsupported
the record.”
federal
Some
United,
v.
of law novo.
States
conclusions
de
exception
circuits
the automobile
hold
Reister,
As
said
MJ
we
opera
applies even if the automobile is
Sullivan,
42 MJ
States v.
ble,
expectation
pri
because the reduced
for an abuse of
“We will reverse
require
vacy is
to eliminate the
sufficient
military judge’s findings
if
discretion
See United States
ment
a warrant.
clearly
if his
fact are
erroneous or
decision
Cir.1994).
(7th
Matthews,
294, 299
32 F.3d
influenced
an erroneous view the law.”
law
circuits have held that
Other federal
Although
argues
the Government
need
determine
enforcement officials
authority
Mr.
to consent to
capability
a vehicle”
“the actual functional
appel
Mills’ initial examination
immobility
apparent.
alleged
when the
is not
car, we do
the issue
lant’s
not resolve
Hatley,
15 F.3d
See United States
It is not
for Officer Mills to
basis.
(9th Cir.1994);
Hepperle,
United States
through a
into
automobile
look
(8th Cir.),
denied,
F.2d
cert.
*6
Brоwn,
open
Texas v.
window or
door. See
3274,
1025,
97 L.Ed.2d
U.S.
107 S.Ct.
740,
1535,
730,
U.S.
103 S.Ct.
L.Ed.2d
view,
Under either
the automobile
However,
(1983)(plurality opinion).
case,
exception
applicable to
because
this
when Officer Mills reached into
automo
showing
in the
nothing
there is
record
of
to examine the serial numbers
some of
bile
appellant’s
knew that
automo
Officer Mills
items,
arguably
was a
action
search.
not
inoperable, and Officer Mills was
bile was
cause,
probable
war
If Officer
no
required
functional
to ascertain
actual
required
rant was
“automobile
Accordingly, we
capability
the vehicle.
of
Hampshire,
exception,” Coolidge v. New
military judge correctly ruled
hold that the
S.Ct.
L.Ed.2d 564
U.S.
did not need a warrant
Officer Mills
requirement
appli
to the warrant
lawfully
into
auto
appellant’s
order to
reach
315(g)(3), Manual
cable. Mil.R.Evid.
numbers of
mobile
examine
serial
(1995 ed.)2
Courts-Martial, United States
of
the items.
that a
or
provides
search warrant
cause,
of
we hold
question
On
required
op
is
when “[a]n
authorization
not
military judge correctly
concluded
searched, except
is to
erable vehicle
be
cause,
based
that Officer Mills
warrant
circumstances where a search
recent
knowledge
on his
of
by the
required
authorization is
Constitution
presence
large quantity
a
of stereo
Manual,
of
States,
these
with the
appellant’s
automobile
rules....”
This rule is based
the Su
Ac-
cut
instead of disconnected.
wires
short
preme
recognition of
“automobile
Court’s
cordingly,
military judge
did
Chadwick,
we hold
exception” in United
States
Mills’
1, 12,
not err
he concluded that Officer
when
To
review
given
consent must be
volun-
only
question
tarily.
question
is a
whether the search con-
Voluntariness
to be
ducted
probable-
determined from
Officer Mills tainted the
сircumstances.
Although person’s knowledge
right
subsequent
cause determination for
give
refuse to
consent is a
appellant’s dormitory
factor to be
search of
room.
voluntariness,
determining
considered in
ruled that the remain-
prosecution
required
is not
to demon-
ing
in appellant’s
automobile would
knowledge
prerequisite
strate such
as a
inevitably
have been
discovered
re-
after he
establishing
voluntary
consent. Mere
concept
voked his
consent.
of “inevit-
color
authority
submission to the
discovery”
recognized
able
is
Mil.R.Evid.
persоnnel performing law enforcement
311(b)(2), which
based on
Supreme
acquiescence
duties or
in an announced or
recognition
Court’s
the “inevitable discov-
purpose
indicated
to search is not a volun-
ery exception”
exclusionary
rule in
tary consent.
Williams,
Nix v.
104 S.Ct.
314(e)(5),
Under
prosecu-
Mil.R.Evid.
211 not err that the did prior or hold ery even in the absence a We applies probable- commander’s by upholding investigation. parallel See United States (6th of SrA Cir.1995), affidavit cert. cause determination. F.3d Kennedy, 61 there had been larcenies Hill recited that denied, 1119, 116 S.Ct. dormitory parked in Seals, five vehicles from States v. United L.Ed.2d lot, had to (5th parking appellant that consented denied, Cir.), cert. 987 F.2d vehicle, appellant that of his before search property was seized his consent withdrew Perea, F.2d 633 States v. stolen, and reported matched as (2d Cir.1993). United States Ow But cf. property reported had been that more (10th Cir.1986); ens, F.2d 152-53 appel- from than recovered stolen been Satterfield, 743 F.2d United States Reasoning that stolen lant’s automobile. (11th denied, Cir.1984), cert. in the automobile was property stored L.Ed.2d 262 105 S.Ct. room, dormitory in the likely to be stored did not We hold requested Hill authoriza- received SrA by concluding that the his discretion abuse Figueroa, was the case in tion search. As inevitably would have been discov evidence correctly con- supra at the commander Thus, we need not decide whether ered. logical for place[s] “most cluded two lawfully Mills could have searched quar- appellant to store” contraband were his exception or vehicle under automobile Any proper- ters and stolen remaining vehicle seized the ty likely to be automobile impounding Opper it. preparation dormitory. man, (recog S.Ct. 3092 police nizing power inventory property room, appellant’s dormitory inWhile vehicle). (CD) impounded Because the items Security compact disc observed Hill, Bovara, by SSgt and Officer player, not seize it because no but did admissible, we players yet reported Mills were hold that as stolen. CD been appellant’s reported searches of automobile did not The next one of the victims player her that a CD had been stolen from taint commander’s authorization requested a autho- vehicle. SrA Hill second appellant’s dormitory search room. rization search room based question granted, turn wheth additional information. It was We next player and the CD was seized. As with er the commander had cause to authorization, we first search hold authorize the search of con- 315(f)(2) commander had a substantial basis for provides: “Prob room. Mil.R.Evid. cluding cause to there was cause to search when there is a able exists play- for a room stolen CD person, property, belief that the reasonable er. sought place is located person search[ed].” When a Finally, respect to the detector with radar *8 search, commander is asked to authorize voluntarily by room- surrendered “whether, question given the is all the cir mate, we that Fourth hold in cumstances set forth the affidavit before rights Amendment were violated. him, probability” ... a fair exists that the voluntarily radar surrendered the roommate suspected place evidence be found in the will Appellant had no ex- detector. reasonable Gates, to v. 462 be searched. Illinois U.S. privacy por- of in his pectation roommate’s 213, 238, 2317, 76 527 103 S.Ct. L.Ed.2d property. the tion of rоom or his roommate’s (1983). court the appellate When reviews 311(a)(2); v. States See Mil.R.Evid. United search, question to authorize a is decision (CMA 1983). Foust, 85, 17 MJ “ had a whether the commander ‘substantial conclud[ing]’ probable ... basis for that Decision Figueroa, cause existed.” United States v. (CMA 1992), Gates, 54, Air quoting MJ The decision of the United States 238-39, 103
supra
Appeals
of
affirmed.
at
Force Court Criminal
is
S.Ct.
SULLIVAN,
(1982);
part
Judge (concurring in