2022 (October Term)
United States v. Shields, 83 M.J. 226 (the Fourth Amendment protects against unreasonable searches and seizures; these constitutional protections fully apply to cell phone searches).
(merely inspecting items that come into view while conducting a lawful search for other items produces no additional invasion of an individual’s privacy interests protected by the Fourth Amendment).
(taking action, unrelated to the objectives of an authorized search, which expose to view concealed items invades privacy protected by the Fourth Amendment).
(as always under the Fourth Amendment, the standard is reasonableness; and when it comes to cell phones and computers, although one search method may be objectively better than another, a search method is not unreasonable simply because it is not optimal).
2021 (October Term)
United States v. Black, 82 M.J. 447 (the Fourth Amendment protects against unreasonable searches and seizures such that ordinarily searches are prohibited absent a search warrant except for a few specifically established and well-delineated exceptions; one of those exceptions is when the government obtains voluntary consent, which can be provided either from the individual whose property is searched, or from a third party who possesses common authority over that property).
(the key consideration in assessing Fourth Amendment consent cases is reasonableness, rather than technical property interests; widely shared social expectations carry great significance in determining reasonableness in Fourth Amendment consent cases).
2020 (October Term)
United States v. Hernandez, 81 M.J. 432 (the Fourth Amendment guarantees servicemembers’ right to be secure in their persons, houses, papers, and effects; it protects against unreasonable searches and seizures and requires warrants to be issued only if based upon probable cause; the Fourth Amendment’s protections apply when a person has a reasonable expectation of privacy, and servicemembers have such an expectation in the contents of their urine -- both as to the initial seizure of the urine and the results of a urinalysis test.; the President has incorporated the protections of the Fourth Amendment directly into the Military Rules of Evidence in MRE 311 through MRE 317).
United States v. Garcia, 80 M.J. 379 (it is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to knowingly and intentionally, or with reckless disregard for the truth include in an affidavit false information that is material to a search authorization request, or to make material omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate).
2019 (October Term)
United States v. Blackburn, 80 M.J. 205 (the Fourth Amendment safeguards the right of the people to be secure in their persons, houses, papers, and effects; this protects against unreasonable searches and seizures and requires warrants to be supported by probable cause; absent probable cause, a court typically applies the exclusionary rule).
United States v. Carter, 79 M.J. 478 (in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible).
2017 (October Term)
United States v. Eppes, 77 M.J. 339 (the Fourth Amendment provides that 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; a search conducted pursuant to a warrant or search authorization is presumptively reasonable; when evidence is unlawfully obtained, however, an accused may timely move to suppress it and, pursuant to the exclusionary rule, a military judge may exclude it).
(the Fourth Amendment requires all warrants particularly describe the place to be searched, and the person or things to be seized; this requirement is conventionally explained as being intended to protect against general, exploratory rummaging in a person’s belongings; but it also serves to prevent circumvention of the requirement of probable cause by limiting the discretion of officers executing a warrant to determine the permissible scope of their search).
2016 (October Term)
United States v. Gurczynski, 76 M.J. 381 (the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; the ultimate touchstone of the Fourth Amendment is reasonableness).
(to assess whether a search is reasonable, courts must assess, on the one hand, the degree to which the search intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests).
(although neither the Fourth Amendment nor the Federal Rules of Criminal Procedure impose deadlines for the digital examination of seized devices, the constitutional principle of reasonableness necessarily bears some relation to the scope of the warrant, the execution of the search warrant, and the timing of the search; even in the absence of a time limit, the government nevertheless remains bound by the Fourth Amendment to the extent that all seizures must be reasonable in duration).
United States v. Richards, 76 M.J. 365 (a search authorization, whether for a physical location or for an electronic device, must adhere to the standards of the Fourth Amendment of the Constitution; the Fourth Amendment states that 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; this insistence on particularity is a defining aspect of search and seizure law).
(the Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person’s belongings; the proper metric of sufficient specificity is whether it was reasonable to provide a more specific description of the items at that juncture of the investigation).
(in charting how to apply the Fourth Amendment to searches of electronic devices, courts glean a zone in which such searches are expansive enough to allow investigators access to places where incriminating materials may be hidden, yet not so broad that they become the sort of free-for-all general searches the Fourth Amendment was designed to prevent).
2015 (September Term)
United States v. Hoffmann, 75 M.J. 120 (the Fourth Amendment protects the people against unreasonable searches and seizures and provides that warrants shall not be issued absent probable cause; the military has implemented the Fourth Amendment through MREs 311–17).
(in this case, where government investigators collected electronic media during a consent search of appellant’s room, appellant withdrew his consent while the media were still sitting in his room; although the agents may have moved the media to a central location in the room, they did not meaningfully interfere with it until they removed it; as the seizure of the media occurred after appellant had withdrawn his consent, the seizure violated the Fourth Amendment).
(the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved).
2014 (September Term)
United States v. Keefauver, 74 M.J. 230 (an exception to the Fourth Amendment warrant requirement was created in Maryland v. Buie, 494 US 325 (1990), for a protective sweep, which is a quick and limited search of premises, incident to arrest and conducted to protect the safety of police officers or others; there are two types of protective sweeps; in the first type of sweep, which may be conducted as a precautionary matter and without probable cause or reasonable suspicion, agents may search only closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched during or after an arrest; the second, more extensive exception permits agents to make a protective sweep of areas beyond those immediately adjoining the place of arrest where articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found; the reasoning behind Buie is that in-home arrests create special dangers by placing agents on an adversary’s turf and exposing them to the unique threat of an ambush in a confined setting of unknown configuration; a protective sweep occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him).
(agents entering a home lawfully for an objective other than arrest may make a protective sweep so long as the Maryland v. Buie, 494 US 325 (1990), criteria are met; the same concerns underlying officer safety in the context of an in-home arrest may pertain in equal measure when agents lawfully enter a home for some other purpose; as with an arrest, executing a search warrant in a home can present the dangers upon which the rationale of Buie was based, as it, too, places agents on the occupant’s turf, at a disadvantage, and is an adjunct to a serious step, because probable cause to conduct a search for evidence has been established and may result in arrest and prosecution).
(under Maryland v. Buie, 494 US 325 (1990), agents entering a home lawfully may be entitled to make the second, more extensive type of protective sweep to ensure their safety; this extension of Buie to non-arrest situations should not be mistaken for a liberalization of the criteria required before such a sweep is constitutionally permissible; agents may conduct a protective sweep incident to a lawful entry under Buie so long as the sweep does not last longer than is necessary to dispel the reasonable suspicion of danger).
(the circumstances under which facts warrant an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), are specific; Buie notes that this broader protective sweep exception applies only if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others; this belief is tested against an objective standard, requiring also that articulable facts taken together with the rational inferences from those facts would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene; it is eminently clear both that a protective sweep of a home is decidedly not automatic; a protective sweep of a home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others).
(while an officer’s mistake of law may sometimes bear on a potential Fourth Amendment violation, the Fourth Amendment tolerates only reasonable mistakes, and those mistakes must be objectively reasonable).
(in this case, the military judge and CCA erred in upholding a protective sweep of a home under Maryland v. Buie, 494 US 325 (1990), where agents entered a home lawfully pursuant to a search authorization to make a controlled delivery; the agents were not entitled to make the second, more extensive type of protective sweep to ensure their safety where neither of the two criteria that Buie established were satisfied by the facts of this case; a protective sweep of the home requires specific, articulable facts and rational inferences from those facts supporting two beliefs: (1) that the areas to be swept harbor one or more individuals and (2) that the individual or individuals pose a danger to the agents or others; in this case, the government did not attempt to prove that the searching officer held either such belief, nor did it present facts and inferences that would objectively support either such belief).
(the presence or suspected presence of drugs without more does not justify an extensive protective sweep under Maryland v. Buie, 494 US 325 (1990), nor does the bare conjecture and bald assertion that guns follow drugs, without additional facts; to suggest that the mere presence of drugs justifies a protective sweep of the entire home would effectively eviscerate the exception to the Fourth Amendment contemplated by Buie, which was based entirely on the danger to agents).
United States v. Olson, 74 M.J. 132 (the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent).
United States v. Buford, 74 M.J. 98 (the protections provided by the Fourth Amendment do not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official).
(in determining whether a private individual was acting as an agent of the government during a search and seizure for purposes of invoking Fourth Amendment protections, the fact that an individual is affiliated with a law enforcement organization is not, standing alone, determinative of the issue of whether that individual was acting as an agent of the government in any particular case; rather, it is necessary to examine all the facts and circumstances in a case when determining an individual’s authority as an agent of the government).
(in this case, although the individual involved in the search and seizure of appellee’s fake Facebook page and email account served as a member of the security forces, he was not acting as an agent of the government to invoke the protections of the Fourth Amendment where (1) he was off duty, (2) he was not a criminal investigator, (3) the government had no prior knowledge of his activities, (4) his actions could be characterized as little more than the type of steps that a curious, tech-savvy individual might take at the behest of a distraught friend, (5) he told his friend that it was up to her to decide what to do with the information that was discovered and that it was up to her to report the matter to appropriate authorities, (6) once investigators learned of the matter, they took steps to exclude him from further involvement in the case, (7) the record did not reveal any other clear indices of government encouragement, endorsement, or participation in the challenged search, and (8) the military judge erred when she applied a subjective test and relied on the individual’s expectations and motivations when making her determination, rather than applying an objective test and weighing the totality of the circumstances in determining whether he was acting as a government agent).
2013 (September Term)
United States v. Wicks, 73 M.J. 93 (the Fourth Amendment of the US Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable).
(the Fourth Amendment provides that 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; a search that is conducted pursuant to a warrant is presumptively reasonable whereas warrantless searches are presumptively unreasonable unless they fall within a few specifically established and well-delineated exceptions; where the government obtains evidence in a search conducted pursuant to one of these exceptions, it bears the burden of establishing that the exception applies).
(the Fourth Amendment and its antecedent case law-derived search and seizure rules do not apply to searches conducted by private parties; as such, once a private party has conducted a search, any objectively reasonable expectation of privacy a person may have had in the material searched is frustrated with respect to a subsequent government search of the same material; however, there are two essential limits to the private search doctrine; first, the government cannot conduct or participate in the predicate private search; specifically, to implicate the Fourth Amendment in this respect, there must be clear indices of the government’s encouragement, endorsement, and participation in the challenged search; there is no bright line test as to when the government involvement goes too far; rather, courts have relied on the particular facts of particular searches to make this determination; the second limitation on the private search doctrine pertains to the scope of any subsequent government search; the government may not exceed the scope of the search by the private party, including expansion of the search into a general search; this rule is based on the theory behind the private search doctrine; once the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information unless the government uses information for which the expectation of privacy has not already been frustrated; thus, the additional invasions of a person’s privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search; the scope of the private search can be measured by what the private actor actually viewed as opposed to what the private actor had access to view).
(the exclusionary rule is a judicially created remedy for violations of the Fourth Amendment; the rule applies to evidence directly obtained through violation of the Fourth Amendment as well as evidence that is the indirect product or fruit of unlawful police activity; suppression is not an automatic consequence of a Fourth Amendment violation, but turns on the applicability of specific exceptions as well as the gravity of government overreach and the deterrent effect of applying the rule; evidence that would otherwise be suppressed is admissible if it meets a limited number of exceptions to the exclusionary rule, such as (1) evidence can be derived from an independent source; (2) it has an attenuated link to the illegally secured evidence; or (3) it inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence).
(the exclusionary rule applies only where it results in appreciable deterrence for future Fourth Amendment violations and where the benefits of deterrence must outweigh the costs).
2012 (September Term)
United States v. Hutchins, 72 M.J. 294 (a request for consent to search does not infringe upon Article 31 or Fifth Amendment safeguards against self-incrimination because such requests are not interrogations and the consent given is ordinarily not a statement; as such, an NCIS request to a servicemember for his consent to search his personal belongings after the servicemember had invoked his right to an attorney was not an interrogation for Article 31 and Fifth Amendment purposes).
United States v. Kelly, 72 M.J. 237 (the Fourth Amendment of the Constitution protects individuals, including servicemembers, against unreasonable searches and seizures).
(official intrusions into areas where there is a reasonable expectation of privacy require search authorization supported by probable cause, unless they are otherwise lawful under the Military Rules of Evidence or the Constitution of the United States as applied to members of the armed forces).
(the Fourth Amendment provides in relevant part that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; however, 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).
United States v. Irizarry, 72 M.J. 100 (a Fourth Amendment “search” only occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable).
(the Fourth Amendment does not prohibit all warrantless searches, only those that are unreasonable; whether a search is unreasonable is evaluated on a case-by-case basis, depending on the facts and circumstances of each situation; with few exceptions, the warrantless search of a home is unreasonable).
2009 (September Term)
United
States v. Cowgill, 68 M.J. 388 (the Fourth
Amendment requires that no
warrants shall issue, but upon probable cause).
United
States v. Weston, 67 M.J. 390 (the Fourth
Amendment provides that 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).
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”).