United States v. Agosto

43 M.J. 745, 1995 CCA LEXIS 353, 1995 WL 789018
CourtUnited States Air Force Court of Criminal Appeals
DecidedDecember 21, 1995
DocketACM 30803
StatusPublished
Cited by7 cases

This text of 43 M.J. 745 (United States v. Agosto) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Agosto, 43 M.J. 745, 1995 CCA LEXIS 353, 1995 WL 789018 (afcca 1995).

Opinion

OPINION OP THE COURT

PEARSON, Senior Judge:

Court members convicted appellant of carnal knowledge for having sexual intercourse with 14-year-old Geraldine, committing indecent acts by putting his penis in her mouth, providing alcohol to her and two other minor females, and obstructing justice by asking two witnesses to lie to investigators. Articles 120, 134, UCMJ, 10 U.S.C. §§ 920, 934. The members sentenced him to a bad-conduct discharge, 18 months confinement, forfeiture of $615 pay per month for 18 months, and reduction to E-l, which the convening authority approved.

Appellant contends we must reverse some of his convictions because they were based on illegally seized evidence, the military judge erred by taking judicial notice that jurisdiction existed over the alcohol offenses, the evidence is factually insufficient to prove intercourse with Geraldine, and he was prejudiced by an instructional error. We conclude otherwise and affirm.

FACTS

Appellant, a 28-year-old single airman first class, met Geraldine and her 14-year-old friend Cynthia at the Dyess Air Force Base gym. Enticed by appellant’s sporty car, the two girls agreed to go riding around base with him. When appellant asked their ages, both lied, with Geraldine replying “15” and Cynthia replying “16.” Apparently concerned that he might appear too old for the girls, appellant told them that he was only “21.”

After riding around a bit, appellant detoured by his dormitory room where he picked-up a bottle of rum which he shared with the two girls. Ultimately, the trio returned to appellant’s room where appellant focused his attention on Geraldine. He escorted her to his bathroom where, according to Geraldine, he asked her if she wanted to “have sex with him.” She declined, but agreed to perform fellatio upon him. Shortly thereafter, Cynthia opened the closed bathroom door and saw appellant “with his pants down and his underwear down” and Geraldine on her knees.

Appellant and the two girls left and went to the base recreation center where appellant introduced them to another airman, Tony Moore, with the idea that Moore would pair-up with Cynthia. The four returned to appellant’s dormitory room, and the couples paired-off as planned.

[746]*746Once more, appellant escorted Geraldine to the bathroom where she disrobed. Geraldine testified she once again performed fellatio upon appellant, after which, he picked her up and, while resting her against the wall, inserted his penis briefly into her vagina. The interlude ended when Airman Moore knocked on the door. Airman Moore testified appellant told him “he was doing it” with Geraldine when Moore interrupted them.

Several months later, the two girls reported their activities with appellant to agents of the Air Force Office of Special Investigations (AFOSI). The girls added that while in the dormitory room, appellant had taken their photograph and shown them photos of girls “depicted nude and in skimpy clothing.” According to Geraldine, appellant bragged about being with “a lot of girls.” The girls also said they exchanged telephone numbers with appellant, and that appellant had called Cynthia several times.

On May 10, 1993, the agents interviewed appellant about the girls’ allegations and asked him to consent to a search of his dormitory room, which had changed since the incident due to a move. Appellant admitted calling Cynthia once but otherwise denied the allegations and refused to consent to a search. The agents obtained an oral search authorization for appellant’s room from the installation’s military magistrate to look for photographs of young girls and evidence of the telephone numbers.

During the search, the agents found photographs consistent with those the girls had described and discovered a small notebook containing names and telephone numbers. The agents did not seize the book, but wrote down female sounding names with accompanying telephone numbers. Later, the agents called the list of females and discovered that two, Wendy and Elizabeth, had information relevant to the case. Wendy and Elizabeth stated appellant provided alcohol to them while they were underage (only the offense with Wendy was charged) and had tried’to persuade them to make false statements to investigators concerning their relationship with appellant (both charged).

LAWFULNESS OF DORMITORY SEARCH

Appellant contends, as he did at trial, that the search of his dormitory room was not supported by probable cause as the information was stale, was overbroad to the extent the agents seized information from the notebook, and was not authorized by competent authority. Appellant also argues the search was not saved by the good faith exception outlined in Military Rule of Evidence 311(e)(1). The military judge made extensive findings of fact resolving these issues against appellant.

Standard of Review

We review a military judge’s ruling denying a motion to suppress evidence under an abuse of discretion standard. United States v. Maxwell, 42 M.J. 568, 575 (A.F.Ct. Crim.App.1995). Usually, we accept a military judge’s findings of fact on search related issues unless they are unsupported by the evidence of record or are clearly erroneous. Where the military judge’s findings are silent or clearly erroneous, we may exercise our statutory discretion under 10 United States Code Section 866(c) and find the facts ourselves. United States v. Neal, 41 M.J. 855 (A.F.Ct.Crim.App.1994).

Probable Cause Ruling

The judge’s finding that probable cause existed for the search of appellant’s room for both photographs and telephone numbers is not clearly erroneous. Probable cause exists when there is a reasonable belief that the property sought is located in the place to be searched. Mil.R.Evid. 315(f)(2). In determining whether probable cause exists, the authorizing official must look at the “totality of the circumstances.” United States v. Lopez, 35 M.J. 35, 38 (C.M.A.1992) (citations omitted).

The timeliness of the information supporting the search is one factor in the totality of circumstances equation. At some point, probable cause evaporates due to the passage of time between the events on which the probable cause is based and the search. In effect, the information becomes too stale because there is no longer a reasonable belief [747]*747that the property is still present in the location to be searched. Whether the information supporting probable cause is stale depends on at least four factors: (1) the nature of the article sought; (2) the location involved; (3) the type of crime; and (4) the length of time the crime has continued. Id. at 38-39.

Here, almost 3 1/2 months (judge erroneously calculated 4 1/2 months) elapsed between the events Geraldine and Cynthia described and the search of appellant’s dormitory room, a significant length of time. However, the information was not stale when analyzed in light of the above factors.

First the articles sought, photographs and telephone numbers, were not necessarily incriminating in themselves; were not consumable over time, like drugs; and were of a nature that they would be kept indefinitely.

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Cite This Page — Counsel Stack

Bluebook (online)
43 M.J. 745, 1995 CCA LEXIS 353, 1995 WL 789018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-agosto-afcca-1995.