United States v. Fish

25 M.J. 732, 1987 WL 32838

• Court: U S Air Force Court of Military Review
• Decided: December 11, 1987
• Docket: ACM 26088
• Status: Published

Opinions

DECISION

MICHALSKI, Judge:

A military judge convicted the appellant of wrongful use and possession of methamphetamines in accordance with her conditional pleas of guilty. Although the appellant has assigned two errors for our consideration and has submitted an invited issue, we shall only discuss the first of the two assigned errors which asks

WHETHER THE MILITARY JUDGE ERRED WHEN SHE FAILED TO SUPPRESS THE CONTAINER OF ILLEGAL DRUGS FOUND IN APPELLANT’S HOUSE AFTER HER HUSBAND GRANTED THE OSI CONSENT TO SEARCH APPELLANT’S ON-BASE QUARTERS.

Given the factual context of the case before us we answer the above issue in the negative and affirm.

The appellant’s marriage experienced episodes of separations and reconciliations with her civilian dependent husband. About two weeks after her wedding in 1980 she told her husband that she wanted a divorce. This subject was discussed repeatedly throughout the course of their stormy marriage. The appellant would occasionally tell her husband to leave and he would comply by staying away for various periods of time, sometimes days, weeks or months. Eventually they would get back together again. During some of these pri- or reunifications she would not give him the house key, but he would otherwise have complete access to the house. In October 1985 she filed for divorce. The decree was to become final in April 1986. During the latter part of February 1986 and for two or more days per week in March of the same year and on the 27th and 28th days of that same month he was again living with appellant as man and wife in her quarters without any restrictions concerning the use of her home. The only known qualification to this arrangement was that he did not have a key to the house and that he was not to drink while he was staying there. On the morning of 28 March 1986 her husband telephoned the Air Force Office of Special Investigations (OSI) from his wife’s quarters and said that he saw his wife use some type of drug earlier that morning and that the drug was on the premises. He invited the OSI to the house to investigate. Later that day two OSI agents accepted the invitation. They asked the husband for identification and were shown his military dependent’s ID card. They then advised him of his rights under the Fifth Amendment to the Constitution, he acknowledged his rights and declined counsel. He signed an Air Force Form 1364, Consent for Search and Seizure in which he authorized a search of the residence. He told the agents that he had witnessed his wife inhale a brownish powder and that this substance could be found in a plastic container located in a hall closet. He then led them to the closet where the container was located. A field test of the powder found in this container indicated a positive result for the presence of methamphetamine.

MihR.Evid. 314, “Searches not Requiring Probable Cause,” provides that, “Evidence obtained from reasonable searches not requiring probable cause conducted pursuant to this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.” Mil.R.Evid. 314(e), “Consent Searches”, states in part that searches may be conducted of any property with lawful consent and that, “A person may grant consent to search property when the person exercises control over the property." M.C.M., app. 22, Rule 314(e)(2) (1984) advises that the question of whether an individual may grant consent to a search of property not his own is a matter to be determined on a case by case basis.

The precise question that must be asked is whether the person who consented to the search has sufficient control over the premises. See S. Saltzburg, L. Schinasi & D. Schlueter, Military Rules of Evidence Manual 254 (2nd ed. 1986), which provides that, “where property to be searched is controlled by a third party, that party may grant the requisite consent.”

Except for the two exceptions we noted above, the record establishes that the appellant’s spouse had unrestricted access to his wife’s quarters. The case sub judice is devoid of any evidence that would have reasonably led the OSI to suspect appellant’s husband was not a lawful occupant of the premises with sufficient authority and control to allow them entry for the specific purpose of searching a hall closet. This was a lawful consent search. United States v. Matlock, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 993, n. 7, 39 L.Ed.2d 242 states that co-inhabitants have the right to permit an inspection in their own right and that others assume the risk that one of their number might permit the common area to be searched; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); United States v. Harrison, 679 F.2d 942 (D.C.Cir.1982); United States v. Thompson, 421 F.2d 373 (5th Cir.1970); People v. Howard, 166 Cal.App.2d 638, 334 P.2d 105 (1958); United States v. Curry, 15 M.J. 701 (A.C.M.R.1983), reversed in part on other grounds/affirmed in part, 18 M.J. 103 (C.M.A.1984).

However, it is not necessary that we focus unduly on whether the husband’s consent was premised on his status as a cohabitant or as a mere guest. Regardless of how one views his relationship to the premises, it is undisputed that he was present in the quarters with the appellant’s acquiescence and that she had not imposed restrictions on his access to any portion of the quarters. Most importantly, she unwisely committed a criminal act in the presence of an individual whom she should have suspected might well have a variety of motives to report it to authorities. She compounded this problem of her own making by leaving incriminating physical evidence on the premises where it could be readily seized if her spouse should report her activity. In so doing she forfeited a rational claim to a reasonable expectation of privacy over the area from which the contraband was subsequently seized. She clearly “assumed the risk” that her estranged mate would allow others access to the methamphetamine powder. Frazier v. Cupp, supra, 394 U.S. at 740, 89 S.Ct. at 1425.

We have examined the record of trial, the assignment of errors, and the government’s reply thereto and have concluded that the findings and sentence are correct in law and fact and that no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

AFFIRMED.