United States v. Evans

35 M.J. 306, 1992 CMA LEXIS 195, 1992 WL 233304
CourtUnited States Court of Military Appeals
DecidedSeptember 24, 1992
DocketNo. 67,209; NMCM 89 2681
StatusPublished
Cited by2 cases

This text of 35 M.J. 306 (United States v. Evans) is published on Counsel Stack Legal Research, covering United States Court of Military 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. Evans, 35 M.J. 306, 1992 CMA LEXIS 195, 1992 WL 233304 (cma 1992).

Opinions

Opinion of the Court

WISS, Judge:

A general court-martial with members convicted appellant, despite his pleas, of conspiracy to possess, manufacture, and distribute crack cocaine; violation of a lawful general order by possessing explosives; wrongful distribution of crack (two specifications); and wrongful possession and manufacture of crack with intent to distribute. See Arts. 81, 92, and 112a, Uniform Code of Military Justice, 10 USC §§ 881, 892, and 912a, respectively. The members sentenced appellant to a dishonorable discharge, confinement for 20 years, total forfeitures, and reduction to the lowest enlisted grade.

After a motion for mistrial as to sentence had been granted, the new members sentenced appellant to a dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review affirmed. 32 MJ 1016 (1991).

On appellant’s petition, we granted review to determine whether the military judge erred by denying Evans’ motion to suppress cocaine found in and taken from his automobile. We hold that the judge did not err.

[307]*307I

After a “cooperating witness” (CW) had made a “controlled purchase of two zip-lock bags of ‘crack’ cocaine from a black male while inside the identified residence ...,” an agent of the Naval Investigative Service (NIS) requested a search authorization from the commanding general, through the general’s chief of staff. The request was for “authorization ... to search ‘the residence of a Willie K. Jones located at [address], Midway Park, MCB, Camp Lejeune NC.’ ” Id. at 1018.

Supporting the request, the agent submitted an affidavit that described the particulars of the earlier “controlled purchase” inside the house, including the events immediately leading up to that purchase. In part pertinent to this appeal, the affidavit indicated:

Then the CW was surveilled as he walked in an eastward direction along North Butler Drive until he contacted an unidentified black male outside the residence of ... North Butler Drive. The unidentified black male was exiting a small hatched backed vehicle believed to be an Isuzu Impulse. The CW and the unidentified black male were observed entering residence at ... North Butler Drive at 0021.

Id. at 1019. As the Court of Military Review recognized, “The unidentified black male [who had exited the automobile and had accompanied the CW into the residence] was never specifically identified as having anything to do with any of the drug-related activities the cooperating witness observed going on in the residence.” Id. at 1021.

With the NIS agent waiting outside, the chief of staff gave the general the authorization request and the supporting affidavit, along with his own recommendation. No additional information was available to the general. Based upon these facts, the general signed a search authorization that included not only the requested search target—the residence at North Butler Drive— “but also ‘a small hatched backed vehicle associated with the residence or its occupants believed to be a gold in color Isuzu Impulse or other subcompact.’ ” Id. at 1019.

Subsequently, NIS agents went to the residence, entered it, and searched the house while appellant, Jones, and a third person named Carrie Trapp were seated in the living room. Evidence of crack manufacture and distribution were found. Then, the agents moved to search the Isuzu Impulse parked outside. In the car, they found appellant’s wallet and, in it, discovered cocaine.

In a timely motion to suppress, appellant sought to exclude from his court-martial evidence of the cocaine found in his wallet in the car. After litigating the motion, the military judge denied it, finding a “nexus” between the car and the house and its occupants who were engaged in illicit drug activity therein.

On appeal, the Court of Military Review upheld the ruling, giving three grounds: The commanding general had probable cause from the information presented to him that the automobile was “connected” with illicit narcotics, id. at 1020; even if there was no probable cause, the evidence would have inevitably been discovered pursuant to a “probable” impoundment and inventory of the car incident to the search of the residence and the apprehension of those present, id. at 1021-22; and, in any event, the NIS agents acted in reasonable, good-faith reliance on the search authorization that included the automobile, id. at 1022.

II

Responding to appellant’s challenge to that decision in this Court, the Government urges a number of commonly recited bases of support for it, including the commander’s probable cause, the automobile exception to the warrant/authorization requirement, inevitable discovery, and the good-faith exception. Because we believe that the automobile exception to the authorization requirement controls this appeal, [308]*308infra, we need not address the remainder of the Government’s arguments.

The h.allmark case of the Supreme Court of the United States setting forth the so-called “automobile exception” to the Fourth Amendment’s warrant requirement is Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). After an intensive review of the Fourth Amendment’s historical evolution, the Court there observed that

the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made____ [Tjhose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise____
The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.

Id. at 153-56, 45 S.Ct. at 285-86.

The predicate step, then, for invoking the automobile exception to the warrant requirement is that the searching officers must have had probable cause to search the vehicle. “Under the vehicle exception to the warrant requirement, ‘[o]nly the prior approval of the magistrate is waived; the search otherwise [must be such] as the magistrate could authorize.’ [United States v.] Ross, [456 U.S. 798] at 823 [102 S.Ct. 2157, at 2172, 72 L.Ed.2d 572 (1982)].”

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Bluebook (online)
35 M.J. 306, 1992 CMA LEXIS 195, 1992 WL 233304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-cma-1992.