2008 (Transition)
United
States v. Michael, 66 M.J. 78 (the Fourth Amendment
does not protect against all searches; rather, it proscribes only
unreasonable
searches; the
ultimate standard set forth in the
Fourth Amendment is reasonableness; for the purposes of military
law, a
Fourth Amendment search is a
government
intrusion into an individual’s reasonable expectation of privacy).
United
States v. Stevenson, 66 M.J. 15 (while military
service
necessitates a reduced expectation of privacy in bodily fluids with
respect to
drug testing, servicemembers otherwise generally retain their Fourth
Amendment
right against unreasonable search and seizure).
(while the degree of an
intrusion
may inform whether an objectively reasonable expectation of privacy
exists, the
Supreme Court has not adopted a de minimis exception to the Fourth
Amendment’s
warrant requirement; to the contrary, the Supreme Court has held that
the need
for a warrant is not relieved by the use of advanced search methods
that are
imperceptible to the subject of the search; thus, to the extent that US
v. Fitten
, 42 MJ 179 (CAAF 1995) and US v. Stevenson, 53 MJ 257 (CAAF
2000), stand
for the proposition that there is a de minimis exception to the Fourth
Amendment or to MRE 312, they are overruled).
(in this case, the Fourth
Amendment
problem was that the second vial of blood taken from appellant and
provided to law
enforcement authorities represented a distinct search and seizure from
that
undertaken incident to appellant’s treatment for diabetes with respect
to the
first vial of blood; whatever might be said of appellant’s expectation
of
privacy with regard to the blood draw itself, a search for
United
States v. Gallagher, 66 M.J. 250 (ordinarily the
search of a home,
to include a search of items, such as a briefcase within the home, is
prohibited in the absence of a warrant; the prohibition does not apply,
however, to situations in which voluntary consent has been obtained).
(under the apparent authority
doctrine, a search may be reasonable under the Fourth Amendment even
though the
person purporting to give consent lacks actual authority to consent,
if, viewed
objectively, the facts available to the law enforcement officer at the
moment
would warrant a man of reasonable caution to believe that the
consenting party
had authority over the premises or effects).
(while the scope of consent to
search a premises may be delimited by the consenter, if the consent
would
reasonably be understood to extend to a particular container, the
Fourth
Amendment provides no grounds for requiring a more explicit
authorization).
United
States v. Wallace, 66 M.J. 5 (Fourth Amendment
rights are personal rights
which, like some other constitutional rights, may not be vicariously
asserted).
2007
2006
United
States v. Long, 64 M.J. 57 (the Fourth
Amendment of the Constitution
protects individuals, including servicemembers, against unreasonable
searches
and seizures).
2004
United
States v. Daniels, 60 MJ 69 (the Fourth Amendment by
its
express terms protects individuals against unreasonable searches and
seizures;
under the Military Rules of Evidence, which implement the Fourth
Amendment,
evidence illegally seized by government agents from a protected place
is
inadmissible).
(where
appellant
was not aware of police presence, his claim that police formed a moving
roadblock while surveilling him on highway did not rise to a Fourth
Amendment
seizure).
(after accused’s brief detention for traffic stop
concluded,
encounter between accused and state trooper was consensual in nature
and not a
seizure subject to Fourth Amendment scrutiny, notwithstanding accused’s
contention that trooper’s request for consent to search his vehicle
initiated a
subsequent detention; accused did not show that after issuing a
citation,
trooper prevented him from leaving, by physically blocking his vehicle,
engaging in questioning, or otherwise signaling to accused that he was
not free
to leave).
(accused’s initial consensual encounter with
state trooper
during traffic stop evolved into a Fourth Amendment seizure, where
shortly
after accused gave his consent to trooper for a routine search of his
vehicle,
and trooper began his search, between 10 to 12 ATF agents arrived on
the scene
to conduct an intensive search of vehicle, and began questioning him;
under the
circumstances a reasonable person would not have felt free to decline
the
agents’ requests and terminate the encounter).
(Fourth Amendment seizure was an investigatory
detention
rather than an arrest, where there was no evidence that the ATF agents
brandished their weapons or handcuffed accused, or that accused was
prevented
from speaking to his passengers).
(investigatory detention was supported by
reasonable
suspicion that accused was transporting one or more handguns for
unlawful
resale where surveillance indicated a pattern of apparent straw
purchases of
handguns by accused and co-actor during days preceding the stop, and
ATF had
received a tip from a confidential informant that accused would be
traveling to
New York, suggesting to agents the possibility of interstate transport
and sale
of the guns).
2003
United
States v. McMahon, 58 MJ 362 (the Fourth Amendment
protects the security of one’s privacy against arbitrary intrusion by
the
police; a search of a residence conducted without a warrant based on
probable
cause is per se unreasonable subject only to a few
specifically
established and well-delineated exceptions, one of which is a search
conducted
with the resident’s consent).
1999
United
States v. Hall, 50 MJ 247 (direction to maintain the status
quo and not let anyone leave a given room did not violate the
Fourth
Amendment where there was probable cause to believe that evidence of
criminal
activity was on the premises; temporary securing of a dwelling to
prevent the
removal or destruction of evidence is reasonable).
(there is a key difference
between
probable cause to search and probable cause to apprehend that concerns
the
timeliness of the given information: probable cause to search
must be
based on timely information with a nexus to the place searched; whereas
probable cause to apprehend does not grow stale with time, absent the
subsequent
discovery of exculpatory information that would undermine the prior
existing
probable cause).
(officer did not loose
neutrality by
re-entering room to corroborate information supporting probable cause;
such
conduct is not reflective of a foul motivation or vindictiveness).
(in the absence of regulations
to the
contrary, commander may resume command during a temporary term of
absence at
his discretion).
United
States v. Owens, 51 MJ 204 (it is not a search for law
enforcement officials to look into an automobile through a window or
open
door).
(officer
had probable cause
to search
automobile based on knowledge of recent car burglaries and presence of
large
quantity of stereo equipment in automobile with wires cut short rather
than
disconnected).
(where there was reason to believe that appellant stole numerous
items from
several vehicles in the dormitory parking lot, commander had probable
cause to
authorize search of appellant’s dormitory room where he correctly
concluded
that the most logical places for appellant to store items were his
automobile
and dormitory room, and some items were not found in search of
appellant’s
automobile; MRE 315(f)(2)).
(when
reviewing a commander’s
decision to authorize a search, an appellate court determines whether
the
commander had a substantial basis for concluding that probable cause
existed).
(there are two constitutional
bases
for the automobile exception to the warrant requirement: (1)
mobility,
and (2) reduced expectation of privacy; without deciding whether an
automobile
must be operable at time of a search under the automobile exception,
Court
holds search lawful where officer did not know vehicle was inoperable
and had
no duty to ascertain functional capability of vehicle; MRE 315(g)(3)).
(prosecution bears burden of
showing
consent by clear and convincing evidence as determined by the totality
of the
circumstances; MRE 314(e)(5)).
United
States v. Richter, 51 MJ 213 (observation of several
items in
truck during lawful investigative stop provided probable cause to
believe that
appellant had stolen government property in his truck, which provided
legal
basis for search of truck under automobile exception and MRE
315(g)(3)).
(consent
is a question of
fact to
be determined from all the circumstances; the prosecution has the
burden of
proving consent by clear and convincing evidence; on appeal, the
evidence will
be reviewed in the light most favorable to the government and a
military
judge’s finding of voluntary consent will not be overturned unless it
is
unsupported by the evidence or clearly erroneous).
(law enforcement officials may properly use sting operations and
informants
in order to gain valid consent; however, where a third party is used by
law
enforcement to tell a person that law enforcement authorities have a
warrant,
the prosecution cannot establish voluntary consent merely by showing
the
absence of direct communication between law enforcement authorities and
the
person giving consent).
(search cannot be justified as based on consent where that consent
was given
only after the official conducting the search has asserted that he has
a
warrant; such purported consent is mere acquiescence to authority).
(where appellant was informed during pretext phone conversation that
law
enforcement officials had a warrant to search his home, the mere
mention of a
warrant or command authorization did not vitiate a subsequent consent
where
that consent was shown, under the totality of the circumstances, to be
truly
voluntary).
(reasonable
suspicion
justifying an
investigative stop under MRE 314(f)(1) existed where: (1) agents
received
information that appellant had taken a government-owned bicycle for
personal
use; (2) appellant had been observed loading tents into a privately
owned
vehicle; (3) a medical cabinet surrendered to law enforcement
reportedly came
from appellant; and (4) after a pretext phone call appellant was
observed
loading a large box into his truck and driving toward the gate).
United
States v. Vassar, 52 MJ 9 (military judge’s ruling on a
motion
to suppress is reviewed for an abuse of discretion, and the judge will
be
reversed if the military judge’s findings of fact are clearly erroneous
or if
the decision was influenced by an erroneous view of the law; consent to
search
is a factual determination that will not be disturbed on appeal unless
that
determination is unsupported by the evidence or clearly erroneous).
(military judge erred in evaluating issue of consent to search if
that judge
applied the appellate standard of evaluating conflicts in the evidence
in the
light most favorable to the government).
(any incorrect view of the law on consent to search held by the
military
judge was harmless where the Court found there was no evidence
suggesting a
lack of consent).
(assuming that any error in the military judge’s evaluation of
evidence on
issue of consent to search implicates the Fourth Amendment, the error
was
harmless beyond a reasonable doubt where: (1) appellant’s consent
was
given immediately; (2) appellant was aware of his surroundings; (3) the
atmosphere was non-coercive and even light-hearted; (4) first consent
form
advised appellant of right to refuse; (5) second consent form was
signed with
knowledge that urine sample would not be sent to lab without consent;
(6)
appellant’s statements reflect an awareness of the right to refuse
consent; (7)
appellant did not go so far in his testimony as to claim his consent
was not
voluntary; and (8) there was no conflicting evidence to resolve).
United
States v. Wright, 52 MJ 136 (responding to a suspect
that one
would seek a warrant or authorization to search if consent is not given
does
not foreclose a finding of voluntary consent; this is significantly
different
than telling a suspect falsely that one has a warrant).
(appellant’s consent was not rendered involuntary by statement that,
if
appellant did not consent, law enforcement agent would get a search
warrant
where appellant was fully advised that he had the right to refuse to
give
consent and he waived that right).
United
States v. Marine, 51 MJ 425 (a “stop and frisk” is a
limited
exception to the Fourth Amendment requirement for probable cause for
government
searches and seizures requiring, first, that the police officer’s stop
must be
justified at its inception by a reasonable suspicion that criminal
activity is
afoot and, second, that the stop be reasonably related in scope to the
circumstances giving rise to the stop).
(race alone does not amount to reasonable suspicion to justify an
investigative detention).
(the length of an investigative detention may be so long as to
render the
stop, even temporarily, of a person unreasonable under the Fourth
Amendment
where law enforcement did not diligently pursue a means of
investigation that
was likely to confirm or dispel the suspicions quickly).
(in
determining whether
evidence has
been derived from illegal police activity and, therefore, is the fruit
of the
poisonous tree, the pertinent inquiry is whether the seizure of the
evidence
has been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint
considering
factors such as temporal proximity between the illegality and the
seizure of
the evidence, the presence of intervening circumstances, and the
flagrancy of
the official misconduct).
(a lawful arrest of a person who was initially illegally detained or
seized
is an intervening circumstance sufficient to dissipate any taint caused
by an
earlier illegal stop).
(any taint derived from an initial improper investigative stop of
appellant
did not bar admission of evidence seized during a subsequent search
incident to
apprehension where: (1) there was an intervening lawful
apprehension of
appellant for disrespect which was sufficient to dissipate any taint
caused by
an earlier illegal stop; and (2) any misconduct by guards was not so
flagrant
as to warrant application of the exclusionary rule).
United
States v. Fogg, 52 MJ 144 (reviewing a motion to
suppress
videotape seized under a warrant which authorized seizure of “crack
cocaine,
packaging and repackaging equipment, papers proving occupancy, records,
weapons, papers, RF detectors, photos, cellular phone[s], police
scanners,
scales/paraphernalia”, court holds that there was a valid warranted
seizure of
the videotape which was covered by the scope of the search warrant
because: (1) officers executing warrants are often required to
exercise
realistic, common-sense judgment, and they are not obliged to interpret
a
warrant narrowly; and, (2) videotape fell within the scope of the
warrant which
authorized the seizure of “photographs”).