UNITED STATES, Appellee
Joshua S. DANIELS, Seaman Apprentice
Crim. App. No. 200001604
For Appellant: Major Charles R. Zelnis, USMC (argued); Captain Bruce H. Bokony, JAGC, USNR, Lieutenant Colonel Eric B. Stone, USMC, and Lieutenant Commander Eric J. McDonald, JAGC, USN.
For Appellee: Captain Glen R. Hines, Jr., USMC (argued); Commander Robert P. Taishoff, JAGC, USN (on brief); Colonel M. E. Finnie, USMC.
Amicus Curiae for Appellant: William J. Brown (law student) (argued); Steven H. Goldblatt, Esq. (director), Elizabeth B. Wydra, Esq. (supervising attorney), and Amy Wilkinson-Hagen (law student) (on brief) – for the Georgetown University Law Center Appellate Litigation Program.
Military Judge: L. T. Booker, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Appellant was charged with a single specification of wrongful cocaine possession, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2000). Prior to trial, Appellant moved to suppress the sole piece of Government evidence – a vial of cocaine retrieved by his roommate (Seaman Apprentice (SA) Voitlein)) from a nightstand drawer used by Appellant, at the direction of the Military Training Instructor Leading Chief Petty Officer, Chief Wilt, on the ground that the retrieval of the evidence violated Appellant’s Fourth Amendment reasonable expectation of privacy. The military judge denied the motion, finding that although Appellant had a Fourth Amendment expectation of privacy in the nightstand drawer, the retrieval of the evidence was not a “government search” for Fourth Amendment purposes.
Appellant thereafter entered a conditional
guilty plea to the charge, and was sentenced to confinement for a
period of 45
days, reduction to E-1, and a bad-conduct discharge.
The United States Navy-Marine Corps Court of
Criminal Appeals (CCA) affirmed the findings and sentence as approved
II. WHETHER THE LOWER COURT ERRED AS A MATTER OF LAW WHEN IT CONCLUDED THAT ELECTRONICS TECHNICIAN SEAMAN APPRENTICE VOITLEIN WAS NOT ACTING AS AN AGENT FOR THE GOVERNMENT WHEN, PURSUANT TO THE DIRECTION OF CHIEF ELECTRONICS TECHNICIAN (SS) WILT “THE KEY GOVERNMENT ACTOR,” HE SEIZED THE INCRIMINATING EVIDENCE.
Answering both issues affirmatively, we reverse the decision of the lower court.
the evening of
Fourth Amendment by its express terms protects individuals against
searches and seizures. “Under
the Military Rules of Evidence, which implement the Fourth Amendment,
illegally seized by government agents from a protected place is
inadmissible.” United States v. Hester,
47 M.J. 461,
463 (C.A.A.F. 1997)(citing Military Rules of Evidence
M.R.E.]; see also
Appellant’s claim, the CCA considered whether there was a “search”
meaning of the Fourth Amendment and whether SA Voitlein functioned as a
government agent when he seized the vial from Appellant’s drawer. It focused on the motivation behind Chief
Wilt’s request for SA Voitlein to retrieve the vial, as well as on SA
Voitlein’s private motivation, and concluded that the vial’s retrieval
a Fourth Amendment search conducted by a government agent.
In the words of the CCA:
[W]e find that Chief Wilt was simply not engaged in a quest for evidence of a crime. . . .
. . . .
Given Chief Wilt’s honest belief that ETSA Voitlein’s expressed concerns about Appellant actually having illegal drugs in their barracks room were unreasonable, we conclude that Chief Wilt’s directions did not make ETSA Voitlein a Government agent on a quest for incriminating evidence. That being the case, there was no “search” [for Fourth Amendment purposes]. . . .
Moreover, we find that when ETSA Voitlein actually seized the incriminating evidence, he was doing so out of a “private motivation” to protect his “own personal interests[,]” . . . [and therefore] insulated his action from the protections of the Fourth Amendment . . . .
Daniels, 58 M.J. at 604-06. We hold that the CCA erred on both accounts.
contrary to the CCA’s motivational approach, the Supreme Court defines
Amendment “search” as a government intrusion into an individual’s
expectation of privacy. See Soldal
v. Cook County, 506
this end, the military judge found that Appellant had a reasonable
of privacy in the nightstand drawer he used.
The Government expressly conceded this point before the CCA. Therefore, we need not and do not address
whether the military judge’s determination was correct as a matter of
whether his factual conclusions were clearly erroneous.
The military judge’s ruling regarding
Appellant’s expectation of privacy is classic “law of the case.”
the question of whether a private actor performed as a government agent
not hinge on motivation, but rather “on the degree of the Government’s
participation in the private party’s activities, a question that can
resolved ‘in light of all the circumstances.’”
Skinner v. Railway Labor Executives’ Ass’n, 489
In the instant case, rather than retrieve the vial on his own initiative and then bring it to Chief Wilt for consultation, SA Voitlein instead first consulted Chief Wilt about the issue, and then, only after he received the order from Chief Wilt to do so, retrieved the vial. In other words, Chief Wilt’s specific order as a government official triggered SA Voitlein’s actual seizure of the vial. In light of these facts, we hold that Chief Wilt clearly encouraged, endorsed, and participated in SA Voitlein’s seizure of the vial and, accordingly, that SA Voitlein acted as Chief Wilt’s agent when he seized the vial.
reaching this conclusion, we note that it is possible that an
functioning as a government agent might at the same time own or
adequate control over the property searched that he or she could
consent to the search. See
SA Voitlein’s role as a government agent, the warrantless search of the
nightstand drawer used by Appellant to seize the vial of cocaine was
unlawful. See Camara v.
Municipal Court of San Francisco, 387
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, the findings and sentence are set aside, and the record of trial is returned to the Judge Advocate General of the Navy. A rehearing is authorized.
* We heard oral argument in this case
at the Georgetown University Law Center, Washington, D.C., on