United States v. Barrientos

17 M.J. 1025

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 30, 1984
• Docket: NMCM 83 5223
• Status: Published

Opinions

SANDERS, Senior Judge:

Appellant was convicted by general court-martial of being disrespectful to and willfully disobeying his superior officer in violation of Articles 89, 10 U.S.C. § 889, 10 U.S.C. § 890, and 90, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 889, 10 U.S.C. § 890, and of willfully and maliciously setting fire to his battalion’s conference room in violation of Article 126, UCMJ, 10 U.S.C. § 926. His sentence to a dishonorable discharge, confinement at hard labor for two years and total forfeitures was approved by the convening authority.

Two errors have been assigned for our consideration:

I

THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS OBTAINED AS A RESULT OF AN ALLEGED CONSENSUAL SEARCH OF APPELLANT’S BARRACKS ROOM. APPELLANT ARGUES THAT HIS CONSENT WAS NOT VOLUNTARY AND WAS THEREFORE INVALID. HE FURTHER ARGUES THAT ALL EVIDENCE AND STATEMENTS OBTAINED FROM THE ILLEGAL SEARCH SHOULD BE SUPPRESSED. MILITARY RULES OF EVIDENCE, RULE 314(e); UNITED STATES V. MIDDLETON, 10 M.J. 123 (C.M.A.1981).

II

THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS EVIDENCE AND STATEMENTS OBTAINED AS A RESULT OF AN ALLEGED CONSENSUAL SEARCH OF APPELLANT’S LIVING QUARTERS. SPECIFICALLY, APPELLANT ARGUES THAT AN INITIAL ILLEGAL SEARCH SO TAINTED THE CONSENSUAL SEARCH, THAT THE EVIDENCE MUST BE SUPPRESSED AS FRUITS OF A POISONOUS TREE, NOTWITHSTANDING THE VALIDITY OF THE LATER ALLEGED CONSENT.

When Special Agent D. of the Naval Investigative Service and Gunnery Sergeant M. of the base Criminal Investigation Division investigated the scene of the fire they found fire accelerant on the floor, matches scattered about and a distinctive -footprint, apparently made by a sneaker, in a chair under the window whose curtains had been burned. Finding similar footprints outside, they followed them to three barracks. In each barracks they conducted permissive searches of the rooms where possible (not many of the occupants were in because this was early on a Saturday morning following a pay day) looking for the sneakers and clothes which smelled of smoke. As they came to appellant’s room in the third barracks they learned that appellant was restricted and that on the night before he had been intoxicated and destructive. After knocking on appellant’s door and getting no response, Special Agent D. left the building to cheek appellant’s restriction papers. While he was gone GySgt M., had himself let into the room and found shoes with treads which seemed to match the prints in the chair. He then left the room, closed the door which locked itself and reported his discovery to Special Agent D. when the latter returned.

In a very few moments appellant appeared from a nearby room. Special Agent D. introduced himself and told appellant that he was conducting an arson investigation and that he would like to search appellant’s room for sneakers and examine the clothing appellant had worn the previous night. Special Agent D. did not advise appellant that he could remain silent, Article 31(b), UCMJ, 10 U.S.C. § 831(b), but did inform appellant that he did not have a warrant and that appellant did not have to consent to the search. Appellant replied, “No problem” and let the party consisting of Special Agent D., GySgt M. Lt H., the OD, and Cpl W., the Duty NCO, into the room.

Special Agent D. immediately located the sneakers on a top bunk bed in such a position that the treads could be seen without moving the shoes. They were seized. Special Agent D. then asked appellant if he could continue the search by looking into appellant’s locker, drawers and laundry bag and appellant denied consent, whereupon he was apprehended and handcuffed.

The search continued after appellant’s acting commanding officer had been briefed and had given his authorization. Nothing of significance was found in the locker but a matchbook which could have been the source of the matches found at the scene of the fire was found in appellant’s trousers hanging on a bedpost.

Appellant was taken to the Provost Marshall’s Office where, after lunch and again being advised of his Article 31(b), UCMJ, rights, he confessed to setting the fire.

In our opinion the totality of the circumstances set forth above establishes clearly and convincingly that appellant freely and voluntarily gave his consent to the search of his room. United States v. Wallace, 11 M.J. 445 (C.M.A.1981); United States v. Middleton, 10 M.J. 123 (C.M.A. 1981). The fact that he was told that he did not have to give his consent, coupled with his affirmative reply of “No problem” and his later withdrawal of consent, are evidence that appellant was aware of his options and intelligently exercised them. United States v. Noreen, 23 U.S.C.M.A. 212, 49 C.M.R. 1 (1974).

Nor is there any evidence that appellant was coerced into giving his consent by the earlier unjustified search. United States v. Mota Aros, 8 M.J. 121 (C.M.A. 1979). He was neither aware that the search had taken place nor that the shoes had been found.

Finally, we note that appellant would have been asked to consent to the search of his room in the normal course of Special Agent D.’s thorough police work even had the shoes not previously been discovered. The consensual search, therefore, was not solely the result of the earlier improper police action. United States v. Kilby, 3 M.J. 938 (N.C.M.R.1977).

Consequently, we find that appellant’s voluntary consent to the second search wiped the slate clean of the taint created by GySgt M.’s precipitate entry. It follows that the shoes seized were admissible in evidence, that their seizure gave the commanding officer probable cause to authorize the search that led to the discovery of the matchbook (without resort to the possible applicability of the “plain view” doctrine) which was likewise admissible, and that appellant’s statement, given after appropriate warnings, was admissible.

Appellant’s assignments of error are without merit.

Accordingly, the findings of guilty and the sentence, as approved on review below, are affirmed.

We have considered defense counsel’s response to the staff judge advocate’s review in reaching this decision. Appellant, however, must be given administrative credit for the pretrial confinement served from 16 July until 31 August 1983. United States v. Allen, 17 M.J. 126 (C.M.A.1984).

Judge CASSEL concurs.