IN THE
CASE OF
UNITED
STATES, Appellee
v.
Patrick L.
SIMMONS, First Lieutenant
No.
03-0369
Crim. App.
No.
20000153
Argued
Decided
ERDMANN,
J., delivered the opinion of the Court, in which GIERKE and EFFRON,
JJ.,
joined. BAKER, J., filed a separate
opinion concurring in part and dissenting in part.
CRAWFORD, C.J., filed a separate dissenting
opinion.
Counsel
For Appellant:
Captain
Robert E. Desmond (argued); Colonel Robert D. Teetsel,
Lieutenant Colonel Mark Tellitocci,
Major
Allyson G. Lambert, and Captain Gregory M. Kelch
(on brief); Lieutenant Colonel E. Allen Chandler, Jr., Major
Imogene
M. Jamison and Captain Mary E. Card.
For Appellee: Captain Ryan R. McKinstry
(argued); Colonel Lauren B. Leeker,
Lieutenant
Colonel Margaret B. Baines, and Major Theresa A. Gallagher
(on
brief).
Military Judge:
John P. Galligan and Stephen R.
Henley
This
opinion is subject to editorial correction before final publication.
Judge
ERDMANN delivered the opinion of the Court.
First
Lieutenant Patrick L. Simmons was tried by a general court-martial
composed of
officer members and was convicted of assault consummated by a battery
and
conduct unbecoming an officer and gentleman in violation of Articles
128 and
133, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 928 and 933
(2000),
respectively. The adjudged and approved
sentence included dismissal, confinement for nine months, and total
forfeiture
of all pay and allowances.
Prior
to trial, Simmons filed a motion to suppress a handwritten letter
discussing a
homosexual relationship and a portion of a videotaped interrogation
conducted
by civilian law enforcement officials concerning the letter. Simmons argued that the letter had been
discovered and seized in violation of his Fourth Amendment rights and
that the
challenged portions of the videotaped statement were derivative of the
illegally seized letter. The military
judge denied the motion to suppress and both the letter and the
videotaped
statement were admitted into evidence.
The
Army Court of Criminal Appeals held that the search leading to the
discovery of
the letter violated the Fourth Amendment and that the military judge
had erred
in allowing the admission of the letter and the derivative videotaped
statement
into evidence. It determined, however,
that the military judge's error was “harmless beyond any reasonable
doubt.” United
States v. Simmons, ARMY 20000153, slip op. at 9 (A. Ct. Crim.
App. March 31, 2003). We granted
review of the following issue:
WHETHER
THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT FOUND THAT APPELLANT’S 4TH AMENDMENT RIGHTS WERE VIOLATED
BUT
THEN CONCLUDED THAT THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.
We
hold that the Court of Criminal Appeals correctly assessed the effect
of the
improperly admitted evidence with respect to a portion of Simmons'
finding of
guilt under Article 133, but erred in concluding that the effect of the
improperly admitted evidence on the Article 128 assault conviction was
harmless
beyond a reasonable doubt.
BACKGROUND
Both
convictions flow from Simmons'
relationship with an enlisted subordinate in his unit, Private First
Class
(PFC) W. At some point in early August
1999, Simmons and PFC W entered into an arrangement under which PFC W
occupied,
at times, one of the two bedrooms in the off-post apartment leased by
Simmons
in
On
August 29 Simmons and PFC W had an
argument. PFC W subsequently left the
apartment but returned later in the afternoon with another soldier to
pick up
some personal items. Upon his return,
PFC W and Simmons engaged in an escalating confrontation that
eventually turned
physical.
At
that point, the soldier who had accompanied PFC W to the apartment
contacted
the police. Officer Fox of the Killeen
Police Department arrived on the scene and asked Simmons what had
happened. Simmons advised Officer Fox
that there had been a fight but that PFC W had already left the
apartment. After the other soldier advised
Officer Fox
that PFC W had not in fact left the apartment, Simmons consented to
Officer
Fox's entry into the apartment where he discovered PFC W lying
unresponsive on
the floor in a pool of blood.
Simmons
told Officer Fox that PFC W had barged in and that he [Simmons] "had to
kick his ass." Due to the amount of
blood and the nature of PFC W's injuries, Officer Fox believed that a
weapon
had been used and he ordered Simmons to the floor and frisked him for
weapons,
but found none. After interviewing
several witnesses, Officer Fox arrested Simmons for assaulting PFC W
and
Simmons was transported to the Killeen Police Department for
questioning.
Officer
Fox conducted two brief searches of the apartment looking for a weapon,
but no
weapon was found and no evidence was seized as a result of those
searches. After Officer Fox had concluded
his second
search and 20 minutes after Simmons had been removed from the scene,
Investigator Boone of the Killeen Police Department arrived and Officer
Fox
advised him that he had already searched for a weapon.
Investigator Boone spent the next hour to
hour and a half taking photographs, examining clothing and conducting
his own
search of the apartment. After observing
a bloodstain on the sink and counter in the guest bathroom,
Investigator Boone
entered the bathroom and opened a closed medicine cabinet.
Upon
opening the cabinet door, Investigator Boone observed a manila file
folder with
handwritten text on the outside of the folder.
Without removing the folder, Investigator Boone read the text. According to Investigator Boone, the text
discussed a homosexual relationship and, based on his assessment that
the
handwriting appeared similar to other visible items in the apartment
bearing
Simmons' name, Boone seized the letter as evidence of possible motive
for the
assault. Officer Fox testified that
Investigator
Boone's comment to him upon finding the letter was something to the
effect of
"This is going to be good."
The
next morning Investigator Boone
interrogated Simmons for over an hour concerning the circumstances
surrounding
the fight with PFC W and videotaped that interrogation.
Simmons initially denied anything more than a
platonic relationship with PFC W, but when Investigator Boone informed
him that
he had seized the handwritten letter, Simmons admitted to a sexual
relationship
with PFC W. This admission occurred
during the last three minutes of the interrogation.
Simmons
sought to suppress both the
handwritten letter and his videotaped statement on the grounds that the
search
by which the letter had been discovered and its subsequent seizure had
occurred
in violation of his Fourth Amendment rights.
The military judge denied that motion and Simmons ultimately
testified
in his own defense at trial concerning his relationship with PFC W,
including
the circumstances surrounding the seized letter and the homosexual
nature of
their relationship. Simmons indicated
that PFC W had at first blackmailed him regarding his homosexuality,
but that they subsequently became friends and that the relationship
became
sexual. He further testified to having
taken PFC W to his family reunion and to having lent him money that PFC
W had
failed to repay.
With
respect to the assault charge, Simmons
raised the defense of self-defense. He
testified that PFC W continuously came at him and that he struck back
simply to
keep him away. Simmons also testified
that PFC W had injured him on prior occasions by punching him, pushing
him into
a bathtub and cracking a rib, kicking him in the stomach, biting his
finger,
hitting him in the face, grabbing his testicles and stabbing him in the
back
with a knife. Simmons stated that due to
these prior beatings, at the time of the fight with PFC W, he was in
fear for
his life.
The
soldier who had accompanied PFC W to the apartment was the only other
witness
to the fight. He testified that he never saw Simmons
strike PFC W and that the only physical act he observed was PFC W
having
Simmons pinned against a glass window with his forearm against Simmons'
throat. The soldier separated the two
because of his concern that Simmons could have gone through the window
and been
severely cut by the glass. According to
the soldier, he complied with Simmons’ request to leave the apartment
at that
point and then asked a neighbor to call 911.
PFC
W testified under a grant of immunity
and, although he denied any homosexual relationship with Simmons, he
acknowledged that Simmons had confided his homosexuality to him. He testified that Simmons had taken him to a
homosexual club on two separate occasions, had attempted to kiss him
twice and
had grabbed his buttocks on a few occasions.
In
regard to the assault charge, PFC W testified that he had returned to
the
apartment to retrieve his clothing and effects.
He testified, however, that he had no specific recollection of
the
assault apart from being grabbed from behind, exchanging words with
Simmons
concerning telephone calls made to PFC W's girlfriend and hitting the
ground
with blood coming out of his nose and mouth.
The injuries PFC W sustained as a result of the assault included
a fracture of the bones right
below the
right eye, a fracture through the thin part of the skull just above and
in
front of the right ear, and a small amount of bleeding just over the
surface of
the brain.
The
members found Simmons not guilty of the
charged assault in which grievous bodily injury is inflicted, but
guilty of the
lesser-included offense of assault consummated by battery.
The members also found him guilty of conduct
unbecoming an officer and a gentleman, with the language of the guilty
finding
modified through exceptions and substitutions as follows:
[O]n or
between 01 September 1998
and 29 August 1999, at or near Camp Dobol,
Bosnia and
Fort Hood, Texas, wrongfully enter into an unprofessional relationship
with
[PFC W], a subordinate, to wit: a close personal friendship, a rent-paying
roommate regular over-night [sic] guest relationship, an
intimate relationship involving sexual contact, and the pursuit of a
continued
romantic relationship by means of writing and delivering to [PFC W] a
letter in
which the said 1LT Simmons solicited a continued romantic relationship,
in
violation of the customs of the United States Army that officers shall
not
fraternize with enlisted persons on terms of military equality.
DISCUSSION
A. Introduction
The
Government has not certified any challenge to the Court of Criminal
Appeals'
determination that the evidence at issue here was the product of a
search and
seizure that violated Simmons' rights under the Fourth Amendment. See Article 67(a)(2),
UCMJ, 10 U.S.C. § 867(a)(2) (2000). Although
we are not precluded from examining the legal ruling of a service court
in a
case where the Judge Advocate General has not certified the issue for
review,
we are reluctant to exercise that power and, as a rule, reserve it only
for
those cases where the lower court's decision is "clearly erroneous and
would work a manifest injustice" if the parties were bound by it. United States v. Doss, 57 M.J. 182,
185 (C.A.A.F. 2002)(citing Christian v.
Colt
Industries Operating Corp., 486
We
therefore turn to the question presented by the granted issue, which is
whether
the Army Court of Criminal Appeals properly assessed the impact of the
military
judge's erroneous denial of Simmons' motion to suppress certain
evidence.
B. Standard
of Review
The
Court of Criminal Appeals properly identified the applicable legal
standard. After finding that the
military judge erroneously admitted into evidence material that the
Government
had obtained in violation of Simmons' rights under the Fourth
Amendment, that
error was subject to a "harmless error" review under Chapman v.
California, 386 U.S. 18, 24 (1967).
Under Chapman, a reviewing court must declare the impact
of the
error to be "harmless beyond a reasonable doubt" in order to affirm
the resultant conviction. See e.g., United States v. Hall, 58 M.J.
90, 94
(C.A.A.F. 2003).
The
Government bears the burden of establishing that any constitutional
error is
harmless beyond a reasonable doubt.
The
question before this Court, therefore,
is whether the effect of the improperly admitted evidence on Simmons'
convictions was harmless beyond a reasonable doubt.
The inquiry under the Chapman analysis
is whether "it appears 'beyond a reasonable doubt that the error
complained of did not contribute to the verdict[s] obtained.'" Mitchell v. Esparza, ___
C. The
Article 133 Conviction
The
finding of guilt in regard to the
Article 133 conviction reflects a determination by the members that
Simmons
engaged in the following with PFC W:
a
close personal friendship;
a
regular overnight guest relationship;
an
intimate relationship involving sexual contact; and
the
pursuit of a continued romantic relationship by means of writing and
delivering
to PFC W a letter in which Appellant solicited a continued romantic
relationship.
In
regard to the “pursuit of a continued romantic relationship” portion of
the
finding, in order for us to deem the erroneous admission of the
illegally
seized letter "harmless beyond a reasonable doubt," we would have to
conclude that it "did not contribute to" a guilty finding that makes
specific reference to the letter itself. Neder, 527
We
also cannot conclude, beyond a reasonable doubt, that the admission of
the
letter and the derivative videotaped statement by Simmons concerning
the sexual
nature of his relationship with PFC W "did not contribute to" that
portion of the guilty finding regarding "an intimate relationship
involving sexual contact." The letter indicates that "sex w/ [PFC
W] was incredible" and that Simmons knows he will never have sex with
PFC
W "until [PFC W] is ready again or never." The
videotaped statement contains Simmons'
acknowledgement that he and PFC W had sexual relations.
As
the Court of
Criminal Appeals noted, however, PFC W denied having any sexual
relationship
with Simmons. Thus, the only evidence in
that regard apart from the improperly admitted letter and derivative
videotaped
statement was Simmons' trial testimony.
Although there was testimony from other witnesses concerning the
friendship between Simmons and PFC W in
Under the circumstances of this case, we are not convinced that
the defense strategy of having Simmons testify at trial concerning the
sexual
nature of the relationship would have been the same in the absence of
the
improperly admitted evidence. See
e.g., United States v. Grooters,
39 M.J.
269, 273 (C.A.A.F. 1994) (accused may not have been compelled to
testify to
explain improperly admitted statements); United States v. Bearchild, 17 C.M.A. 598, 602, 38 C.M.R.
396, 400 (1968)(in-court testimony tainted
if given to overcome
inadmissible confession). Although we
need not determine whether their improper admission was the exclusive
motivation, Simmons' trial testimony on this aspect of the charged
offense was
clearly responsive to the letter and derivative videotaped statement. In the absence of those items of evidence
(which should not have been admitted) or supporting testimony from PFC
W (which
did not exist), the record does not reflect any other evidence
available to
demonstrate the existence of "an intimate relationship involving sexual
contact." Under those
circumstances, we cannot view Simmons' trial testimony as an
"independent" basis for concluding that the improperly admitted
evidence "did not contribute to" that portion of the finding
regarding sexual contact.
We
can conclude, however, that the
admission of the improper evidence did not contribute to the remaining
portions
of the finding, that Simmons engaged in "a close personal friendship"
and "regular over-night [sic] guest" relationship with PFC W. As noted by the Court of Criminal Appeals,
there was testimony and evidence unrelated to the improperly admitted
letter
and derivative statement that demonstrated the unprofessional character
of
Simmons' relationship with PFC W:
In
addition to PFC W's testimony, a
staff sergeant in appellant's platoon testified that the
noncommissioned
officers expressed concerns about appellant's relationship with PFC W;
that he
saw PFC W driving appellant's car; and that personnel commented that if
someone
wanted to find appellant when in the field, he or she would likely find
him at
PFC W's medic track. Appellant's platoon
sergeant also testified that appellant spent a lot of time at the medic
track;
that PFC W and appellant called each other by their first names; that
appellant
pulled PFC W off of guard duty when they were deployed to
Simmons,
slip op. at 7-8. The quantum and
character of the evidence specifically referred to by the Court of
Criminal
Appeals above is not related to or otherwise a product of the illegally
seized
letter or the derivative videotaped statement.
Moreover, Simmons did not seriously contest the friendship and
roommate
aspects of the charge. In light of those
circumstances, we conclude beyond a reasonable doubt that the
constitutional
error did not contribute to that portion of the guilty finding that
refers to
"engaging in a close personal friendship" and a "regular
over-night [sic] guest" relationship with PFC W. See
Neder,
527
Accordingly,
while we conclude that the
military judge’s error was not harmless beyond a reasonable doubt with
respect
to the members' guilty finding of conduct unbecoming an officer and a
gentleman
in regard to the sexual contact and the improperly admitted letter, we
conclude
that the military judge's error was harmless beyond a reasonable doubt
with
respect to that portion of the members' guilty finding that Simmons
violated
Article 133 by engaging in "a close personal friendship" and
"regular over-night [sic] guest" relationship with PFC W.
D. The
Article 128 Conviction
The
Court of Criminal Appeals focused
exclusively on Simmons' conviction under Article 133 and did not assess
the
impact of the erroneously admitted evidence on Simmons' conviction for
assault
consummated by a battery. While they are
distinct criminal offenses our inquiry remains the same -- can the
Government
demonstrate beyond a reasonable doubt that the admission of the
illegally
seized letter and the derivative videotaped statement did not
contribute to the
finding of guilt under the assault charge?
See Neder, 527
The
Government has not met its burden
here. Under the Government's theory of
the case, the assault was the direct product of Simmons' alleged
unrequited
homosexual "obsession" with PFC W.
In fact, trial counsel referred to the illegally seized letter
in the
beginning, middle and end of his closing argument.
The illegally seized letter and derivative
videotaped statement were the obvious centerpieces of the Government's
theory
and, as discussed above, were the only evidence apart from Simmons’
derivative
trial testimony that concerned a homosexual relationship.
Simmons, on the other hand, vigorously
contested that theory of the assault and raised evidence under a
self-defense
theory. PFC W testified to only a
limited recollection of the events surrounding the fight.
The only other witness testified that he saw
PFC W pinning Simmons to a window with his arm to his throat.
Under those circumstances, the Government
has not met its burden of demonstrating that the error was harmless
beyond a
reasonable doubt under the Chapman analysis.
We cannot say that the improper admission of
the evidence at issue here and the "gay obsession" theory that it was
offered in support of did not contribute to the finding of guilty under
the assault
charge. See Neder,
527
CONCLUSION
The
decision of the United States Army
Court of Criminal Appeals is reversed.
The finding of guilty of Charge II, its specification and the
sentence
are set aside. That portion of the
specification under Charge I referring to "an intimate relationship
involving sexual contact" and "the pursuit of a continued romantic
relationship by means of writing and delivering to [PFC W] a letter in
which
the said 1LT Simmons solicited a continued romantic relationship" is
set
aside, but Charge I and the balance of its specification is affirmed. The case is returned to the Judge Advocate
General of the Army. A rehearing on
Charge II and the sentence may be ordered.
If a rehearing as to Charge II is deemed impracticable, the
dismissal of
Charge II and a rehearing as to sentence alone may be ordered.
BAKER,
Judge (concurring in part and dissenting in part):
I
concur in the majority’s treatment of Appellant’s conviction under
Article 133,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 933
(2000). However, for the reasons stated
below, I respectfully dissent from the majority’s analysis regarding
Appellant’s conviction under Article 128, UCMJ, 10 U.S.C. § 928 (2000).
As
the majority recounts, the Court of Criminal Appeals determined that
the search
of Appellant’s apartment, resulting in the discovery of his letter to
Private
First Class (PFC) W, violated Appellant’s Fourth Amendment rights. As a result, the letter should have been
suppressed
at trial. Since this was a constitutional
error, the question before this Court is whether the admission of the
letter
was harmless beyond a reasonable doubt. Chapman v.
Subsequent
to Chapman, the Supreme Court and our Court have emphasized
different
facets of the Chapman analysis.
In Arizona v. Fulminante,
the Supreme
Court said, “The Court has the power to review the record de novo in
order to
determine an error’s harmlessness. In so
doing, it must be determined whether the State has met its burden of
demonstrating that the admission of the [coerced] confession . . . did
not contribute
to Fulminante’s conviction.” 499
However,
in Neder v. United States,
527 U.S. 1
(1999) the Supreme Court focused not only on the contribution of the
tainted
evidence, but also on the strength of the Government’s case and
therefore the
impact of the tainted evidence: “We
think, therefore, that the harmless-error inquiry must be . . . : Is it clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent the error?”
The
difference in focus between these cases is important, if not
determinative, as
to how harmless error analysis applies in Appellant’s case. Appellant’s letter was integral to the
Government’s theory of the case.
Appellant argued self-defense and the Government countered by
using the
letter to suggest that Appellant had a motive to beat PFC W,
notwithstanding
his claim of self-defense. Thus, if one
focuses on whether the letter “contributed” to Appellant’s conviction,
it would
be impossible to conclude otherwise.
Such
contribution is incalculable. In theory,
all evidence presented at trial “contributes” in some manner to a
panel’s
consideration of the case, including where it is discounted, but
nonetheless
informs a panel’s decision to give greater weight to other evidence. Thus, I have no doubt that the presentation
of Appellant’s letter by the Government contributed to the verdict in
this
case. Portions of the letter were read
aloud to the panel during Appellant’s testimony. The
panel read the letter. There is,
therefore, no way of knowing beyond
a reasonable doubt that it did not “contribute” in some manner to their
verdict.
In
my view, however, Chapman and Neder
require appellate courts to focus on the impact of the tainted evidence
on the
verdict as the measure of the tainted evidence’s potential
“contribution.”3 See Chapman,
386
The
Neder-Hall
impact test leads to a review of other evidence in this case and, in my
view, a
different conclusion than that reached by the majority.
See Neder,
527
First,
SPC Dewit,
intervened to break up the fight between Appellant and PFC W at the
point where
PFC W had Appellant pinned against the window with his forearm. Thus, at this point, Appellant had the
opportunity to walk away from any threat he may have felt from PFC W. SPC Dewit also
indicated that tempers did not seem to be exceedingly flared so it was
easy for
him to break up the fight.
Second,
PFC W’s medical injuries were extensive.
Doctors and police testified they had never seen anyone beaten
this
badly without the use of a weapon.
Moreover, the injuries were a product of repeated blows, not a
singular
traumatic strike. In contrast,
Appellant’s injuries consisted of one broken knuckle.
Third,
Appellant told the police that the individual he had the fight with had
already
left the apartment. Officer Fox
testified that Appellant told his mother over the phone, PFC W “came in
and
started some shit, and I beat his ass down bad.” Appellant
also testified that he “may” have
hit PFC W while PFC W was on the ground.
After
weighing the strength of the Government’s case against the potential
contribution of the tainted evidence, I am convinced beyond a
reasonable doubt
that a rational panel would have found Appellant guilty of assault
consummated
by battery absent the error. See Neder, 527
1
The Supreme Court stated, “We prefer the approach of this Court in
deciding
what was harmless error in our recent case of Fahy
v. Connecticut, 375 U.S. 85 [(1963)].
There we said: ‘The question is
whether there is a reasonable possibility that the evidence complained
of might
have contributed to the conviction.’” Chapman
v. California, 386
2 In Sullivan v.
Louisiana, 508 U.S. 275 (1993), the Supreme Court applied a per se
rule of
prejudice where the jury was provided an unconstitutional reasonable
doubt instruction. There the Court
determined that application
of the Chapman harmless error review was illogical where the
jury’s
verdict was itself a nullity. 508
3
The constitutional error in this case was not of the nature suggested
in Sullivan
where the error went to the underlying validity of the court-martial
itself. In that situation, a harmless
error analysis is illogical and should be precluded.
See 508
CRAWFORD,
Chief Judge (dissenting):
The
majority ignores* the “touchstone of
the Fourth Amendment” -- the reasonableness of police action at the
scene of
the crime. See,
e.g., Florida v. Jimeno, 500
The
Fourth Amendment has two clauses: reasonableness
and probable cause. Most importantly,
the Fourth Amendment requires all government searches and seizures to
be
reasonable. The search in this case
satisfied that requirement and is not precluded by Mincey
v. Arizona, 437 U.S. 385 (1978), or Flippo
v. West Virginia, 528 U.S. 11 (1999).
In addition to the search being reasonable, it also may be
justified as
incident to the lawful arrest of Appellant.
Accordingly, I respectfully dissent from the lead opinion.
FACTS
It
is important to highlight additional facts of this case to understand
the
reasonableness of the police officer’s action.
On
Officer
Fox then asked to enter the apartment.
Appellant was initially reluctant, but eventually allowed him to
enter
the apartment to see if anyone was injured after the fight. Officer Fox made a visual sweep of the
apartment and found PFC W unconscious lying in a pool of blood on the
floor in
the guest bedroom next to the bathroom door.
At first, Appellant complied with Officer Fox’s order to stay on
his
knees, but then became agitated and stood up.
Officer Fox asked what had happened.
Officer Fox stated that Appellant “proclaimed that [PFC W] had
barged in
and he had to kick his ass.” Appellant
then “got up off the ground . . . then again ordered him to the ground,
and
there was a small scuffle. [Officer Fox]
did have to place him in [hand]cuffs.” Appellant continued to insist that PFC W had
barged in, but Officer Fox challenged this assertion by noting that
there was
no damage to the front door. A very
agitated Appellant still insisted that PFC W had barged in. Officer Fox again ordered him to the floor. “Due to his size and me still trying to watch
the victim, [Officer Fox] pull[ed] out [his] pepper spray and advised
that [he]
would have to spray him. He did calm
down again, but then escalated his behavior again.”
Appellant was ordered to his knees a number
of times, causing Officer Fox to pull out the pepper spray. Because of Appellant’s reactions, Officer Fox
quickly ordered back-up and an ambulance, and handcuffed Appellant.
Within
five minutes of the backup request,
additional officers arrived, took control of Appellant, and secured the
apartment. Within 15 or 20 minutes after
the officers had secured the crime scene and left, Investigator Patrick
Boone
arrived. Even though the other officers
had left and Investigator Boone had arrived, the police did not know
who else
might be involved and Appellant was not
cooperative. Accordingly, Investigator
Boone conducted a search of the bedroom and bathroom for a weapon. While looking for weapons, he opened the
medicine cabinet, which is about three feet from where the victim had
been
before he was moved, and noticed a manila folder with writing on the
outside,
admitted at trial as Prosecution Exhibit 6.
Investigator Boone described the folder as being “immediately
visible”
and “in plain view.” “Without removing
the [folder] from the cabinet, Investigator Boone began reading the
front side;
the handwriting appeared similar to other visible items in the
apartment
bearing the accused’s name.”
Investigator Boone, who had prior military
service, thought it “strange that a private would be sharing an
apartment with
an officer.” After reading the note,
“[Investigator] Boone concluded the letter provided a motive for the
accused to
assault [PFC W] and seized it as evidence.”
Investigator Boone stayed at the crime scene for approximately
an hour
and a half, to take crime scene photographs, including photographs of
the blood
splatters and blood swipes.
The
next morning, Investigator Boone
interrogated Appellant, who described the circumstances surrounding the
fight. Appellant, a platoon leader,
denied anything more than a platonic friendship with PFC W. Investigator Boone then asked him about the
handwritten note, and Appellant admitted to a sexual relationship with
PFC
W. After the judge denied the motion to
suppress the note, Appellant entered a guilty plea to fraternization by
exceptions and substitution in the lesser included offense of assault
by
inflicting grievous bodily harm.
In
denying the motion to suppress, the
judge said: “Under the circumstances of
this case, I find the accused forfeited any reasonable expectation of
privacy
he may have had in the letter when he surrendered it to [PFC W]. . . .” The judge held that the seizure of the letter
“from the medicine cabinet was incident to the accused’s
lawful arrest.” The search was
“substantially contemporaneous with the accused’s
arrest and especially limited to the area within the accused’s
immediate control.”
DISCUSSION
The
Bill of Rights grants American citizens
extensive rights. Courts and
commentators have long debated the application of these rights to servicemembers. See,
e.g., United States v. Lopez, 35 M.J. 35, 41 n.2 (C.M.A.
1992);
Fredric I. Lederer & Frederic L. Borch, Does the Fourth Amendment Apply to
the Armed
Forces?, 3 Wm. & Mary Bill Rts J.
219 (1994),
reprinted and expanded in 144 Mil. L. Rev. 110 (1994). This Court in United States v. Jacoby,
11 C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960), stated that “the
protections of the Bill of Rights, except for those which are
expressly, or by
necessary implication inapplicable, are available to members of the
armed
forces.” One of the most important of
these rights is the Fourth Amendment right to privacy:
The
right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and
seizures, shall not be violated; and no Warrants shall issue, but upon
probable
cause, supported by Oath or affirmation, and particularly describing
the place
to be searched, and the persons or things to be seized.
Investigator
Boone’s actions in this case
were reasonable and could be justified under the search
incident-to-arrest
doctrine. Neither Mincey
nor Flippo precludes holding that
Investigator
Boone’s actions were reasonable. Mincey resulted from an undercover drug
bust gone
awry, which entailed a four-day search to obtain evidence.
An undercover police officer, Barry Headricks,
had arranged to purchase drugs from the
appellant Mincey at Mincey’s
house. Mincey
ostensibly left the house to obtain money.
On his return, he was accompanied by nine other plain clothes
policemen
and a deputy county attorney. John Hodgman, one of three of Mincey’s
housemates, opened the door. Upon seeing
the entourage, Hodgman immediately
attempted to slam
the door, but Headricks slipped inside and
moved
quickly to the bedroom. The officers
were able to push Hodgman back, but a
volley of shots
rang out, one of them striking Headricks,
who was
wounded and semiconscious on the floor.
Officer Headricks died a few hours
later. After the victims were removed from
the
scene, a four-day search that included opening dresser drawers ensued. Mincey, 437
The
Supreme Court rejected the
prosecution’s argument that Mincey
forfeited any
reasonable expectation of privacy or “that the police entry to arrest Mincey was so great an invasion of his privacy
that the
additional intrusion caused by the search was constitutionally
irrelevant.”
The
Court also rejected the argument that
there was a lawful search “in light of the extensive nature of this
search.”
Importantly,
the Court in Mincey recognized that
the Fourth Amendment does not
prohibit warrantless entries if a person
is
reasonably believed to be in need of aid.
Nevertheless, such searches must be “strictly circumscribed by
the
exigencies which justify its initiation . . . and simply cannot be
contended
that this search was justified by any emergency threatening life or
limb.”
Flippo
v. West Virginia is also distinguishable.
Flippo and his wife were vacationing
in an
isolated cabin in a state park. The
local authorities received a 911 call from Flippo
stating that he and his wife had been attacked by an intruder wielding
a log
and a knife. When the police arrived on
the scene, they found Mrs. Flippo dead and
her head
covered with blood. After taking Flippo to the hospital, the police returned to
the cabin to
investigate, where they unlocked a brief case and found photographs
that
incriminated Flippo.
These photographs were admitted at trial to convict Flippo.
Addressing
the argument that the
photographs were unlawfully seized in violation of Flippo’s
Fourth Amendment right to privacy, the Supreme Court remanded the case
because
the West Virginia Court “simply found that after the homicide crime
scene was
secured for investigation, a search of ‘anything and everything found
within
the crime scene area’ was ‘within the law,’” and “made no attempt to
distinguish Mincey.”
Flippo, 528
The
facts of the instant case establish the
reasonableness of Investigator Boone’s actions.
Certainly, because the search in this case was a continuation of
the
initial entry, rather than an entirely new entry, Investigator Boone’s
search
of the immediate area was appropriate. See, e.g., Magnano,
528
A.2d at 764; People v. Reynolds, 672 P.2d 529, 531 (
Additionally,
the search incident-to-arrest
doctrine justifies “the opening of containers found within the physical
area
covered by the search.”
In
sum, unlike Mincey,
the search in this case was not a four-day search, but rather a brief
search
following an arrest which required Investigator Boone’s back-up to
control an
unruly suspect, aid the ailing victim, protect the crime scene from
further
disruption, and guarantee the originating officer’s protection. Investigator Boone’s search of the bedroom
and bathroom was certainly reasonable under these circumstances, and
the manila
folder he seized was found within the radius where an officer would
reasonably
check for evidence or a weapon under the search incident-to-arrest
doctrine. For these reasons, I would
validate the search and affirm Appellant’s conviction.
* We are
not bound by the lack of a Government challenge to the Court of
Criminal
Appeals opinion. See