UNITED STATES, Appellee
Robert C. MARINE, Lance Corporal
U.S. Marine Corps, Appellant
Crim. App. No. 96-2491
United States Court of Appeals for the Armed Forces
Argued February 10, 1999
Decided September 10, 1999
SULLIVAN, J., delivered the opinion
of the Court in which COX, C.J., and CRAWFORD, and EFFRON, JJ., joined.
GIERKE, J., filed an opinion concurring in part and dissenting in part.
For Appellant: Lieutenant John D. Holden, JAGC, USNR (argued).
For Appellee: Lieutenant Margaret E. Jolly, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant Kevin S. Rosenberg, JAGC, USNR (on brief).
Military Judges: Robert K. Fricke
and Kenneth B. Martin
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
Judge SULLIVAN delivered the opinion of the Court.
Appellant was tried by a special court-martial composed of a military judge sitting alone at Camp Pendleton, California, during April and May of 1996. He was charged with a single specification of wrongfully possessing .17 grams of marijuana, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Contrary to his pleas, he was found guilty of this offense. He was sentenced to a bad-conduct discharge, confinement for 40 days, and reduction to pay grade E-1. The convening authority approved the sentence on November 15, 1996. The Court of Criminal Appeals on June 17, 1998, affirmed the findings of guilty and the sentence as adjudged and approved.
On November 5, 1998, this Court granted review on the following question of law:
At his court-martial, appellant made a motion to suppress certain evidence seized during a search of his person on December 10, 1995. He argued that he was illegally stopped and detained based on his race for investigation of an offense committed by someone else. He further argued that he was detained beyond the time necessary to investigate that offense. Finally, he contended that a search of his person incident to his arrest for disrespect to the investigating commissioned officer was tainted by his prior unlawful stop and detention. In sum, he argued that he was illegally detained and unlawfully searched, so the fruits of that search should not have been admitted at his court-martial.
The military judge made the following findings of fact and conclusions of law concerning the hand-rolled, half-smoked marijuana cigarette discovered in a search of appellant’s clothing at the enlisted servicemember’s club on December 10, 1995:
2. I find the testimony of 1st Lt. P. Moore to be credible. I base this on his intelligence, ability to observe, relate to the Court only what he could accurately remember, his sincerity and conduct in court, body language and overall demeanor.
3. On the evening of 10 December 1995, Lt Moore was a commissioned officer in the United States Marine Corps who was the 21 Area Guard Officer.
4. That evening an unidentified black male, wearing a striped rugby type shirt (hereinafter called the suspect) assaulted one of the members of the Area Guard in front of the 21 Area Enlisted Club.
5. The suspect ran to the other side of the E Club.
6. This rough description was radioed to a guard member on that side of the E Club.
7. The guard radioed back he had several (5-6) black males that met that description and could they give a better description.
8. The guard was told to bring all those individuals to the front of the E Club so the suspect could be identified.
9. The accused was in this group of individuals. The accused was wearing a green sweater with a leather coat. Some members of the group had striped shirts.
10. The accused is a black male. All other members of the group were black males.
11. The accused was required to walk with the guard officer to [the] front of the E Club, which took a matter of seconds.
12. I find this limited government intrusion to be based on reasonable suspicion.
13. Upon the group’s arrival in the front of the E Club the suspect was immediately identified and apprehended.
14. The accused and other members of the group were not told they were free to go. They were ignored but of course would still be under the impression they were not free to go.
15. The accused should have been told he was free to go when the suspect was identified.
16. The law recognizes "A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might [. . .] in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it." United States v. Sharpe, 470 U.S. 675, [686-] 687 (1985).
17. The accused was detained approximately 5-7 minutes after the suspect was identified.
18. The guard had no evil motive or purpose such as harassment in this detention.
19. This detention was a result of oversight and the concern and focus on the suspect.
20. Ultimately, Lt. Moore came over to address the group of individuals that had been detained.
21. Lt. Moore does not remember what he said.
22. The accused said something to Lt. Moore which, although the Lt. cannot remember what was said, he remembers the tone, content, and absence of the use of the typical military courtesy, of the use of sir or rank, was disrespectful.
23. Before the Lieutenant responded, one of the members of the guard told the accused that he was speaking to a Lieutenant and should do so appropriately.
24. I find this response by the member of the guard to be highly persuasive particularly since the Lieutenant is unable to articulate exactly or the substance of what was said.
25. Lt. Moore was in utilities with his rank insignia. He also had on a guard armband that had his rank.
26. Lt. Moore also looks his age and by that I mean an individual who looks like given a normal career track would be an officer or at least a Sergeant.
27. Lt. Moore identified himself by rank and billet to the accused.
28. Lt. Moore was between 3-6 paces from the accused.
29. The accused leaned over as if to check or confirm the rank of Lt. Moore. Lt. Moore took this to be disrespectful. Under the circumstances Lt. Moore’s conclusion is probably correct.
30. The accused then said something to Lt. Moore ending his comments with yes, sir, emphasizing the word sir in a mocking manner.
31. Lt. Moore’s actions during this encounter with the accused were reasonable and in keeping with his rank.
32. Lt. Moore ordered the accused’s detention which is in fact an apprehension for disrespect to a commissioned officer.
33. Lt. Moore had the authority to order the apprehension by virtue of his rank and billet as guard officer.
34. Lt. Moore had probable cause to apprehend the accused.
35. The immediate search of the accused to include his clothing was lawful as a search incident to apprehension. MRE 314(b)
36. The defense motion to suppress is denied.
Before this Court, appellant again contends that the "half smoked marijuana joint" taken from his pocket on December 10, 1995, was illegally seized by Camp Pendleton guards and was inadmissible evidence at his court-martial. See Mil. R. Evid. 311, Manual for Courts-Martial, United States (1995 edition).1 He asserts that this evidence was seized during his impermissibly long detention by officers of the guard after he was subjected to an unlawful "Terry stop" based on his race. He acknowledges that he was also arrested for disrespect to a commissioned officer before the challenged search and seizure took place. Nevertheless, he argues that this arrest and the subsequent search were tainted by the "Terry stop" and the marijuana cigarette must be suppressed as a direct result of the earlier illegality. We disagree.
As a starting point, we note that in Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court created a limited exception to the Fourth Amendment requirement of probable cause for government search and seizures, i.e., when law enforcement officers conduct a "stop and frisk" (Terry, supra at 12) or "Terry stop" (Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981)). The Court adopted a two-part test to determine when a Terry stop is lawful. It first asks whether the police officer’s stopping action is "justified at its inception" by "reasonable suspicion"2 and then whether the stop "was reasonably related in scope to the circumstances which justified" it. 392 U.S. at 20. We review these questions of law "de novo." Ornelas v. United States, 517 U.S. 690, 699 (1996); see also United States v. Williams, 35 MJ 323, 327-28 (CMA 1992); United States v. Waller, 3 MJ 32, 34-35 (CMA 1977).
We further note that race alone does not amount to "reasonable suspicion" to justify a Terry stop. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975). Moreover, the length of the detention may be so long as to render the seizure, even temporarily, of a person unreasonable under the Fourth Amendment. Sharpe, 470 U.S. at 685. The Supreme Court there said:
We need not decide appellant’s claim that his initial investigative stop was illegal, because we hold that his subsequent arrest was lawful and a sufficient intervening circumstance to remove any taint from a purported illegal Terry stop.
Appellant’s argument for suppression depends upon his claim that the marijuana cigarette admitted as evidence in his case was derived from his purported illegal stop and, therefore, was fruit of the poisonous tree within the meaning of Wong Sun v. United States, 371 U.S. 471 (1963). See generally Williams, 35 MJ at 328, citing United States v. Ceccolini, 435 U.S. 268, 276 (1978) (rejecting "but for" taint rule); see Mil. R. Evid. 311(d)(2)(C) and (e)(2). In this regard, we note that the pertinent question is whether the seizure of the marijuana cigarette from appellant’s pocket "has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." See Waller, supra at 34, quoting Wong Sun, 371 U.S. at 488 (emphasis added). The Supreme Court has generally said that no per se rule applies, but various circumstances should be considered on this question such as the "temporal proximity" between the illegality and the seizure of the evidence, "the presence of intervening circumstances," and the "flagrancy of the official misconduct." See generally Brown v. Illinois, 422 U.S. 590, 603-04 (1975).
Appellant asserts that the challenged search in his case actually occurred during his illegal detention. He also contends that "there were no intervening circumstances" in his case between his unlawful stop and detention and the challenged search of his person. Final Brief at 10. He discounts his subsequent arrest as a sufficient intervening circumstance because "if the alleged disrespect was in and of itself significant enough to be ‘sufficiently distinguishable’ from the initial illegal Terry stop, then it begs the question as to why it was not charged as an independent offense in addition to the possession charge." Final Brief at 10-11 (emphasis omitted). Finally, he contends that the official misconduct in his case was flagrant because it was based solely on his race.
We reject appellant’s non-attenuation arguments for several reasons. First, we note that the challenged search occurred immediately after appellant’s lawful arrest for disrespect to the guard officer and this police conduct was clearly distinguishable from the earlier police investigative action. Five or six Marines were initially stopped and detained by the Marine Guard for investigation but only one was later arrested for disrespect and searched. Second, although appellant was not charged or tried for this disrespect offense, that charging decision did not legally or logically undermine its capacity to attenuate any possible taint from the earlier police action. See generally H. Moyer, Justice and the Military § 2-382 (1972) (discusses prosecutorial considerations and options for a convening authority). Finally, it is widely held in other federal Courts of Appeals that a lawful arrest of a person who was initially illegally seized is an intervening circumstance sufficient to dissipate any taint caused by an earlier illegal stop.
The Seventh Circuit spoke to this body of law recently in Green, 111 F.3d at 521-22, as follows:
3 Similarly, in United States v. Pryor, 32 F.3d 1192, 1196 (7th Cir. 1994), we held that evidence of acts constituting a new crime should not be suppressed even if committed during an illegal detention. While the evidence admitted in Pryor was evidence of the second crime itself, and not evidence obtained during a search incident to a second lawful arrest, the same reasoning applies as in Nooks, Dawdy and Bailey.
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
1 All Manual provisions are cited to the version applicable at trial. The 1998 version is unchanged, unless otherwise indicated.
2 See Almeida-Sanchez
v. United States, 413 U.S. 266, 268(1973).
GIERKE, Judge (concurring in part and dissenting in part):
I agree with the majority’s conclusion that appellant’s apprehension for disrespect was not tainted by an unlawful Terry stop. I write separately to disassociate myself from the suggestion in the majority opinion that appellant’s detention may have been racially motivated. See ___ MJ at (8) ("We further note that race alone does not amount to ‘reasonable suspicion" to justify a Terry stop."); ___ MJ at (12) ("while there may have been some evidence suggesting improper racial consideration . . . .").
In my view, appellant and the others were stopped because the suspect was described as a black male and he was one of several black males who were in the place where the suspects were expected to be found. The brief detention of several potential suspects falls within the rationale of United States v. Miller, 48 MJ 49, 54 (1998), where this Court said it was permissible to detain a potential suspect "for the purpose of ascertaining his identity and briefly questioning him about his whereabouts."
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