United States v. Curry

46 M.J. 733, 1997 CCA LEXIS 132, 1997 WL 214804
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 8, 1997
DocketNMCM 9500016
StatusPublished
Cited by2 cases

This text of 46 M.J. 733 (United States v. Curry) is published on Counsel Stack Legal Research, covering Navy-Marine Corps 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. Curry, 46 M.J. 733, 1997 CCA LEXIS 132, 1997 WL 214804 (N.M. 1997).

Opinions

KEATING, Senior Judge:

The appellant was convicted, contrary to his pleas, of conspiracy to commit premeditated murder, premeditated murder, robbery, and kidnapping. All of the offenses arose out of the shooting death of Lance Corporal Rodney L. Page, U.S. Marine Corps, with a shotgun. The appellant, one of six individuals involved in the incident, was sentenced to a dishonorable discharge, confinement for life, forfeiture of all pay and allowances and reduction to pay grade E-l. The convening authority approved the sentence, but suspended confinement in excess of 30 years for the period of confinement actually served. The appellant raises several assignments of error,1 two of which merit discussion.

[736]*736The Suppression Motion

The Camp Lejeune military police went to a barracks room after they received a phone call that they believed said something about murders taking place in 15 minutes. They knocked on the door, and received no answer. The police then lifted one of the military policemen up so that he could look into the room through a gap in the top of the curtains. From this position, he saw a man lying motionless on the bed. The police knocked again, but the man did not respond.

They entered the room with a pass key and found the appellant laying face up with his wrists slashed and bleeding. They also found a razor blade on the floor. They applied first aid to the appellant and called for an ambulance. One of the military police noticed several sheets of paper folded and inserted in a bracket of the nearby desk. He opened them and found two notes handwritten by the appellant that incriminated him in the murder of Lance Corporal Page, that had occurred one week earlier.

The defense moved to suppress the two letters, but the military judge ruled that looking into the room from a public sidewalk was not a search, and that the police entry into the room was lawful as an emergency search to save a life and admitted the notes into evidence. The appellant now argues that the military judge’s findings of fact and law were clearly erroneous in several respects, and require reversal of the findings and sentence. The appellant alleges first that the military judge erred when he ruled that it was not a search when the military police looked through the window into the appellant’s room.

Standing To Contest The Search

Fourth Amendment rights are personal. To be entitled to object to the admissibility of evidence obtained from a search, an accused must have a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Mil. R. Evid. 311(a)(2). The accused has the burden of establishing that he had a reasonable expectation of privacy in the area being searched. Rawlings v. Kentucky, 448 U.S. 98,104,100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Rakas, 439 U.S. at 131 n. 1, 99 S.Ct. at 424 n. 1; United States v. Miller, 13 M.J. 75, 77 (C.M.A.1982). Once an accused who has a reasonable expectation of privacy makes a timely motion to suppress or otherwise objects to introduction of the evidence, the burden shifts to the prosecution to prove that the evidence was not obtained as the result of an unlawful search or seizure. Mil. R. Evid. 311(e)(1).

In framing the issued of expectation of privacy, military courts have generally followed civilian case-law precedent. David L. SCHLUETER, MILITARY CRIMINAL JUSTICE: Practice and Procedure § 5-3(A) (4th ed. 1996). The Supreme Court has held that for an inspection to be a search subject to the Fourth Amendment, two conditions must be met: (1) the occupant must have a subjective expectation of privacy; and, (2) the expectation of privacy must be one “that society is prepared to honor.” California v. Ciraolo, 476 U.S. 207, 211, 214, 106 S.Ct. 1809, 1811, 1813, 90 L.Ed.2d 210 (1986); see also Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring); United States v. Portt, 21 M.J. 333, 334-35 (C.M.A.1986).

If either component is missing, there is no reasonable expectation of privacy and the accused has no standing to contest the legality of the search or seizure. See Schleuter § 5-3(A). In this case, the appellant made a suppression motion and the military judge entered essential findings of fact. Unknown to him at the time, however, was the fact that the accused himself was the person who made the phone call to the military police. This information was disclosed by the accused when he testified on the merits as part of the defense case in chief. Had this information been known, the military judge would have been presented with the preliminary issue of whether the accused had exhibited an actual (subjective) expectation of privacy.2

[737]*737Scope of Review

An equally problematic question is whether an appellate court can consider trial evidence in resolving a Fourth Amendment suppression motion that the appellant claims was erroneously decided against him. The Supreme Court has held that an appellate court may consider trial evidence in resolving a claim that a motion to suppress based on the Fourth Amendment was erroneously denied, at least when the “record does not make it clear what evidence was produced in support of or against the motion.” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).3 The Supreme Court has also held that if the evidence results from the appellant’s testimony at trial following the erroneous denial of a motion to suppress, the Government must show that the use of the wrongfully introduced evidence did not induce the testimony. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).

Therefore, we are of the view that even if an appellate military court may consider trial evidence in determining whether the military judge erroneously denied a Fourth Amendment suppression motion, it may not do so when it is clear from the record what evidence the military judge relied on in determining the factual issues, and unless the government shows that the erroneous denial of the motion to suppress did not induce the testimony of the accused that the government intends to rely upon. See Mil. R. Evid. 311(d)(4); R.C.M. 905(d). “We do not subscribe to the bootstrap argument that the defendant’s apparent attempt to mitigate the effect of the already improperly admitted evidence may be used to render the evidence admissible.” Commonwealth v. Benoit, 382 Mass. 210, 415 N.E.2d 818 (1981).

Finally, the Court of Appeals for the Armed Forces appears to have adopted the view that an appellant is not estopped on appeal from complaining about the erroneous admission of evidence on Fourth Amendment grounds, assuming a timely objection at or before trial, even if he later gave testimony at trial admitting to some of that evidence.

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Bluebook (online)
46 M.J. 733, 1997 CCA LEXIS 132, 1997 WL 214804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-curry-nmcca-1997.