United States v. Daniels

58 M.J. 599, 2003 CCA LEXIS 78, 2003 WL 1571944

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: March 27, 2003
• Docket: NMCM 200001604
• Status: Published

Opinions

OLIVER, Senior Judge:

A military judge, sitting as a special court-martial, convicted Appellant, consistent with his pleas, of wrongfully possessing cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. On 10 May 2000, the military judge sentenced Appellant to confinement for 45 days, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sentence and, except for the bad-conduct discharge, ordered it executed. The pretrial agreement had no effect on the sentence.

We have carefully reviewed the record of trial, Appellant’s single assignment of error, the Government’s response, and Appellant’s reply. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of Appellant was committed. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).

Issue Presented

At trial, the parties litigated a defense motion to suppress the only evidence of Appellant’s possession of cocaine. After hearing testimony and ruling that the cocaine was admissible as evidence on the merits, the military judge permitted Appellant to enter a conditional plea of guilty to the Charge and Specification under Rule for Courts-Martial 910(a)(2), Manual for Courts-Martial, United States (2000 ed.); see United States v. Monroe, 50 M.J. 550, 553 (A.F.Ct.Crim.App.1999). Appellant thus preserved the evidentiary issue.

On appeal, Appellant contends that the military judge erred by allowing the introduction of the vial containing cocaine into evidence. He argues that it was obtained through an illegal search and seizure in violation of his rights under the Fourth Amendment to the U.S. Constitution and Military Rule of Evidence 311(a), Manual foe Courts-Martial, United States (2000 ed.).

Although we acknowledge that the question is a close one, we find that the military judge was correct when he ruled that there was no violation of Appellant’s rights in how the cocaine came into the possession of the Government. Therefore, Appellant is not entitled to any relief. The applicable facts of the case and our legal analysis follow.

Applicable Facts

While a student at Naval Submarine School, Appellant shared a room in the barracks on Naval Submarine Base New London, Connecticut, with two other students: Electronics Technician Seaman Apprentice (ETSA) Collinge and ETSA Voitlein. Their room consisted of: (1) three racks: a bunk-bed for ETSA Collinge and ETSA Voitlein; and an individual rack for Appellant; (2) three wall lockers and wall units, which were separately assigned to each occupant and bore the name tag of each; (3) four nightstands, which had neither name tags nor locks; and (4) a common-use refrigerator.

Appellant kept his phone book, pictures, manila mailing envelopes, letters, candy, snuff tobacco, and cigarettes in the top drawer of one nightstand located between the beds. Appellant used that particular nightstand on a daily basis. The testimony established that only he stored possessions in its top drawer.

On the evening of 29 March 2000, Appellant entered his barrack’s room holding a brown plastic vial. He displayed this vial to ETSA Collinge and ETSA Voitlein, claiming that it contained cocaine mixed with a tranquilizer. Appellant then placed the vial in a can of snuff tobacco in the top drawer of his nightstand that was between the beds. Neither ETSA Collinge nor ETSA Voitlein talked to Appellant about the vial or its contents.

At 0630 the following morning, 30 March 2000, a chief petty officer and a petty officer conducted the regular weekly inspection of Appellant’s room. Because Appellant and ETSA Collinge were both in class at the time, only ETSA Voitlein was present for the routine inspection. ETSA Voitlein testified that, because he did not know either member of the inspection team, he “was kind of like scared” to tell them about the vial in Appellant’s nightstand. Record at 64. The room inspection uncovered nothing unusual.

Shortly after the room inspection, ETSA Voitlein searched out Electronics Technician Chief Petty Officer (ETC)(SS) Wilt, a Military Training Instructor whom he knew fairly well. ETSA Voitlein told Chief Wilt that he thought Appellant was “doing drugs.” Record at 65, 79. ETSA Voitlein and Chief Wilt then discussed what had transpired the previous evening. Chief Wilt asked whether the vial was still in the room. ETSA Voitlein responded that the vial was in a nightstand dresser drawer. Although Chief Wilt clearly did not believe that illegal drugs were actually in the drawer, he told ETSA Voitlein to go get the vial, because he was busy debriefing the inspection team.

ETSA Voitlein returned to the room and retrieved the vial from inside the snuff tobacco can where Appellant had placed it in the top drawer of the nightstand the previous night. He then delivered the vial to Chief Wilt. Although Chief Wilt directed ETSA Voitlein to retrieve the vial, at the time he did not suspect Appellant to be in possession of any illegal substances. Rather, he surmised that Appellant had been merely joking with his roommates. Subsequent testing, however, revealed that the vial ETSA Voitlein recovered contained some amount of cocaine.

At trial, Appellant made a timely motion pursuant to R.C.M. 905(b)(3), to suppress the cocaine that was found in the vial. In his motion, he argued the cocaine was inadmissible pursuant to Mil. R. Evid. 311(a). Appellant argued that ETSA Voitlein, acting as an agent of the Government on the orders of Chief Wilt, searched the top drawer of his nightstand in which he stored his personal effects, searched his can of snuff tobacco, seized the vial, and then gave it to Chief Wilt, all without his authorization. For his part, Chief Wilt turned the vial over to law enforcement personnel for testing. These tests proved positive for cocaine.

In its response to the motion at trial, the Government argued the cocaine was admissible because: (1) Appellant had no reasonable expectation of privacy in either the nightstand or the can of snuff tobacco; (2) ETSA Voitlein was acting in a private capacity at the time of the seizure and not in any governmental capacity; (3) ETSA Voitlein had the authority to consent to the search of the nightstand and the can of snuff tobacco; and (4) the Government would inevitably have discovered the cocaine anyway. On appeal, the Government is arguing only the second basis, that ETSA Voitlein was a “non-government agent” and there was “no quest for evidence by a person acting under color of authority,” to support the military judge’s decision to admit the evidence. On the unique facts of this case, we find that this is the only appropriate basis for admitting the evidence.

The military judge ruled at trial that, although Appellant did have an expectation of privacy in the nightstand and its contents and that this expectation was reasonable, introduction of the cocaine seized from the vial in the nightstand was proper. The military judge found that ETSA Voitlein was acting in a “purely private capacity” when he found the contraband. Therefore, he ruled that the search of the nightstand and seizure of the cocaine did not have to be excluded from evidence under Mil. R. Evid. 311(a). Appellate Exhibit IV (Findings and Order).

Discussion

The Fourth Amendment to the U.S. Constitution 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.” U.S. Const, amend. IV. Military Rules of Evidence 311 through 317 “express the manner in which the Fourth Amendment to the Constitution of the United States applies to trials by court-martial.” Manual for Courts-Martial, United States (2000 ed.), App. 22-17. Military Rule of - Evidence 311(a) provides:

General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(1) Objection. The accused makes a timely motion to suppress or an objection to the evidence under this rule; and

(2) Adequate interest. The accused had a reasonable expectation of privacy in the person, place, or property searched; the accused had a legitimate interest in the property or evidence seized____

In ruling on the motion, the military judge concluded that, in effecting the search of Appellant’s nightstand top drawer and removing the vial of cocaine from that drawer, ETSA Voitlein acted in a “purely private capacity.” Appellate Exhibit IV at 3. This fact insulated his conduct from the exclusionary provisions of Mil. R. Evid. 311(a). The military judge summarized the issue as follows:

The key to the government’s case is [ETJSA Voitlein’s role. If he was acting as a private party, then his searching for and seizing the can of snuff that contained the vial of cocaine did not violate the Rule of Evidence [311] nor its constitutional underpinnings. See, e.g., United States v. Portt, 21 M.J. 333, 334 (C.M.A.1986). Conversely, if he was acting as an agent of the government, then his actions did violate those standards.

Appellate Exhibit IV at 3.

Standards of Review

This Court is to review a military judge’s denial of a motion to suppress evidence for an abuse of discretion. United States v. Khamsouk, 57 M.J. 282, 286 (2002); United States v. Monroe, 52 M.J. 326, 330 (2000). We apply a “clearly erroneous” standard to the military judge’s essential findings of fact, and conduct a “de novo review” of the military judge’s conclusions of law. See United States v. Bruci, 52 M.J. 750, 753-54 (N.M.Ct.Crim.App.2000). Our superior Court put it as follows:

A military judge’s evidentiary ruling is reviewed for abuse of discretion. Findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record. Conclusions of law are reviewed de novo. In reviewing a ruling on a motion to suppress, we consider the evidence “in the light most favorable to the” prevailing party. “We will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law.”

United States v. Reister, 44 M.J. 409, 413 (1996)(quoting United States v. Sullivan, 42 M.J. 360, 363 (1995); United States v. Kitts, 42 M.J. 23, 28 (1995); United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993)). We agree with our learned colleague that we need to analyze the military judge’s determinations below as mixed questions of law and fact.

Legal Analysis

In analyzing a Fourth Amendment evidentiary issue such as this one, a military judge should consider the following two questions:

(1) Did the accused have a reasonable expectation of privacy in the area searched and in the property seized? and

(2) Was the person who conducted the search and seized the property acting as an agent of the Government in a quest for evidence of a crime at the time?

Only if the answer to each of these two questions is “yes” should the military judge exclude the evidence.

The military judge first found that Appellant had a reasonable expectation of privacy in the contents of the dresser drawer. In this regard, the U.S. Supreme Court has stated that: Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (citations omitted). See also Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring). In United States v. Portt, 21 M.J. 333, 334 (C.M.A. 1986), the opinion the military judge cited in his written ruling, our superior Court opined: “The determination of whether a reasonable expectation of privacy exist[s] is a legal conclusion.” The Portt Court continued: “In considering reasonableness, we must determine 'whether a person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy — that is, precautions customarily taken by those seeking privacy.’ ” Portt, 21 M.J. at 334 (quoting Rakas v. Illinois, 439 U.S. 128, 152, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978))(Powell, J., concurring).

Our Fourth Amendment analysis embraces two questions. First, ... whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.” ... Second, ... whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.”

The Portt opinion continued: “Generally, a warrantless search of a government locker assigned for the personal use of a military member, particularly if the locker were located in living quarters, would be unreasonable, as such lockers are in a class of effects in which there exists a legitimate expectation of privacy.” Id. at 335. In its brief, the Government has conceded that the military judge’s conclusion to this effect was correct. We agree fully with the military judge’s finding that Appellant had a reasonable expectation of privacy in the drawer and its contents.

We now turn to the second question: Was ETSA Voitlein acting as an agent of the Government in a quest for evidence of a crime at the time he conducted the search and made the seizure? This issue requires further analysis.

It is well-settled that the “Fourth Amendment is a restriction only against government action; and the fruits of a search and seizure by a private person are not subject to the exclusionary rule.” United States v. Baker, 30 M.J. 262, 266 (C.M.A.1990). In United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the U.S. Supreme Court observed:

This Court has also consistently construed [the Fourth Amendment] protection as proscribing only governmental action; it is wholly inapplicable “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.” Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)(Blackmun, J. dissenting).

It is equally well-settled that the warrantless search and seizure of the personal effects of an individual by a Government agent is “per se unreasonable” and would normally constitute a violation of the Fourth Amendment. Katz, 389 U.S. at 357, 88 S.Ct. 507. See also Mil. R. Evm 311(a); Reister, 44 M.J. at 415.

The Supreme Court articulated the following guideline to determine if the warrantless search by a private individual violates the Constitution: “The test ... is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state when she produced her husband’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see Reister, 44 M.J. at 415. In Coolidge, the Supreme Court continued: “[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” 403 U.S. at 488, 91 S.Ct. 2022.

Military Rule of Evidence 311(c)(1) provides: “A search or seizure is ‘unlawful’ if it was conducted, instigated, or participated in by ... [m]ilitary personnel or their agents and was in violation of the Constitution of the United States as applied to members of the armed forces.” Our superior Court has observed: “The Fourth Amendment and Mil. R.Evid. 311 are not violated when a military member acts in a purely private capacity.” Sullivan, 42 M.J. at 363-64.

After hearing evidence, reviewing the legal briefs, and considering arguments, the military judge determined that ETSA Voitlein was acting in a “purely private capacity” when he conducted the search and recovered the vial containing cocaine. In reaching his finding, the military judge acknowledged that ETSA Voitlein retrieved the vial of cocaine only after the directive given by Chief Wilt: “It is true that he picked up the vial only after he had been provided guidance by ETC(SS) Wilt____” Appellate Exhibit IV at 3. The military judge ruled that the role of Chief Wilt in the search was irrelevant, a “red herring.” Id. The military judge focused solely on the underlying motivation of ETSA Voitlein. He concluded that ETSA Voitlein was acting based on his private motivations.

Although we agree with the military judge’s ultimate conclusion, we find Chief Wilt’s knowledge and motivation equally, if not more, important. Indeed, the determining factor in whether or not the cocaine seizure was constitutional is what motivated Chief Wilt’s directions to ETSA Voitlein. Were his directions part of a “search” in a “quest” for incriminating evidence? See generally Dow Chemical Co. v. United States, 476 U.S. 227, 230,106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). If so, we would find that Chief Wilt’s statement, “Go and get it,” would have made ETSA Voitlein his agent in such a quest. Under the unique circumstances of this case, however, we find that Chief Wilt was simply not engaged in a quest for evidence of a crime. While his purported “agent” may have been so engaged based on his own motivation, we find that Chief Wilt, as the key governmental actor, was not.

The facts of record establish the genuine pre-search concern and sincerity on the part of ETSA Voitlein. In his testimony, he indicates he did not really want to know what was going on with Appellant that night in their room. However, what he did hear and observe bothered him enough so that it caused him not to sleep well, as he “thought about it all night.” Record at 61, 71. However, he failed to effectively or convincingly communicate this concern to Chief Wilt.

Chief Wilt’s immediate response to ETSA Voitlein was to ask him the basis for his suspicions. ETSA Voitlein responded that Appellant had possessed illegal drugs in their room the previous evening. In his testimony at trial, Chief Wilt stated:

So I sort of snickered when he claimed, you know, because then I said, “Well what do you mean he showed you the drugs?” And he said, “Well he held up a vial or something.” And I said, “Well what did it look like, what was it?” And he said, “Well I really wasn’t paying attention I was laying down trying to get to sleep. I really just didn’t want to have anything to do with it.”

Record at 79-80.

Chief Wilt indicated that while he had not previously suspected Appellant of being associated with illegal drugs, he did know that Appellant “was ADHD” and might be taking medication, such as Ritalin, for that condition.¹ Id. at 81. When asked if he actually suspected Appellant of possessing illegal substances even after ETSA Voitlein’s expressions of concern, Chief Wilt repeatedly stated that he did not. Id. at 81, 82, 92-93. Even ETSA Voitlein perceived that fact after he spoke with Chief Wilt and was directed to return to the room and retrieve the questioned vial. When the military judge questioned ETSA Voitlein about why Chief Wilt did not accompany him to the room, the following exchange took place:

Q: Was it your impression ... that [Chief Wilt] was busy and he couldn’t physically remove himself from where he was or did he seem to indicate that there was some sort of prohibition on his going up there. A: I think it was more disbelief.

Record at 70.

Chief Wilt explained that he knew Appellant, based on prior “encounters” with him concerning “minor infractions” involving his failure to maintain proper room and uniform standards. Id. at 81-82. Chief Wilt stated that he expected when ETSA Voitlein returned from getting the questioned item from the barracks room as directed, “he was going to bring back a syringe of like flour, sugar, or something to that effect. Something-a joke in other words.” Id. at 82. Chief Wilt’s testimony clearly established his belief that Appellant had merely been playing a “joke” on his roommates. Id.

In response to subsequent questioning by the military judge, Chief Wilt indicated that prior to the day in question, ETSA Voitlein had expressed displeasure with some things Appellant had been doing. When asked if that prior knowledge of the apparently strained relationship between the two was a factor in his initial disbelief of ETSA Voitlein’s statement about Appellant having drugs in the barracks, Chief Wilt responded that he believed that Appellant was merely “irritating his roommate.” Id. at 91.

If Chief Wilt had believed illegal drugs were in Appellant’s room, we are fully confident that he would have responded to ETSA Voitlein’s concern in a much different manner. As experienced military officers, there is no doubt in our collective minds that no chief petty officer in the U.S. Navy would give priority to a discussion about dust and gear adrift over the seizure of illegal drugs from the barracks. Had Chief Wilt believed that there could have been illegal drugs in the barracks, we are confident that he would have postponed his participation in the post-inspection debriefing until the matter of the illegal drugs had been properly addressed.

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 which the Government is legally responsible such that it falls under the penumbra of the exclusionary remedy of Mil. R. Evid. 301(a). A “search” that would have such implications is defined as: “An examination of a person’s body, property, or other area that the person would reasonably expect to consider as private, conducted by a law enforcement officer for the purpose of finding evidence of a crime.” Black’s Law Dictionary 1351 (7th ed.1999). In United States v. Hillan, 26 C.M.R. 771, 791, 1958 WL 3481 (N.B.R.1958), the Navy Board of Review defined such a “search” as “a ‘quest’ or a ‘looking for’ evidenee of guilt to be used in a prosecution of a criminal action.”

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.” Among other things, including his desire to get the illegal drugs out of his room and thus insulate himself from possible criminal liability, ETSA Voitlein wanted to prove himself correct with respect to his representations to Chief Wilt. These private motivations insulated his action from the protections of the Fourth Amendment and the exclusionary effect of Mil. R. Evid. 301(a). See United States v. Jacobs, 31 M.J. 138, 143 (C.M.A.1990), and United States v. Volante, 4 C.M.A. 689, 691, 16 C.M.R. 263, 267, 1954 WL 2451 (1954); see also United States v. Faucett, 50 C.M.R. 894, 896, 1975 WL 15779 (A.F.C.M.R.1975).

The results of a “private” search do not implicate one’s Fourth Amendment protections and the exclusionary rules of evidence. See Jacobsen, 466 U.S. at 115,104 S.Ct. 1652; Reister, 44 M.J. at 415-16; Portt, 21 M.J. at 334; Bruci, 52 M.J. at 753-54. We hold that the military judge was correct when he concluded that “the facts do not support a finding that there was a search by a government official of the drawer.” Appellate Exhibit IV at 3.

In Portt, the opinion the military judge cited in his written findings of fact and conclusions of law, our superior Court held that even the actions of a military policeman, when acting in a non-law enforcement capacity, do not fall within the parameters of the Fourth Amendment’s protections. Portt, 21 M.J. at 334. Thus, even if one concludes that ETSA Voitlein received a derivative official-capacity/law-enforcement cloak of authority, which under the appropriate circumstances might bind the Government to the consequences of his actions, at the point when Chief Wilt sent him back to retrieve the questioned vial, we find that ETSA Voitlein, like the military policeman in Portt, seized the vial as “a private individual not acting as an agent of the Government.” Id.

For the reasons discussed above, we hold that the military judge ruled correctly that the questioned search and seizure did not violate the protections of the Fourth Amendment and the protections of Mil. R. Evid. 301(a). Therefore, Appellant is entitled to no relief.

Conclusion

Accordingly, we affirm the findings and sentence, as approved on review below.

Judge HARRIS concurs.

1 . Although not further defined in the record of trial, based on the context in which it was used and its association with the drug Ritalin, we presume that "ADHD,” as used in Chief Wilt’s testimony, stands for Attention Deficit/Hyperactivity Disorder. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 78-85 (4th ed.1994).