United States v. Fogg

52 M.J. 144, 1999 CAAF LEXIS 1265
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 30, 1999
Docket98-0910/MC
StatusPublished
Cited by14 cases

This text of 52 M.J. 144 (United States v. Fogg) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fogg, 52 M.J. 144, 1999 CAAF LEXIS 1265 (Ark. 1999).

Opinions

Judge CRAWFORD

delivered the opinion of the Court, in which COX, Chief Judge, and SULLIVAN and EFFRON, Judges, joined in part.

Pursuant to his pleas, appellant was convicted of conspiracy to distribute cocaine;1 distribution of cocaine (3 specifications); and possession of marijuana with intent to distribute, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§ 881 and 912a, respectively. Contrary to his pleas, he was convicted by officer members of distributing marijuana and cocaine; rape; indecent assault; and committing indecent acts, in violation of Articles 112a, 120, and 134, UCMJ, 10 USC §§ 912a, 920, and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, confinement for life, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence except for confinement in excess of 30 years. We granted review of the following issue:

WHETHER THE. MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS VIDEOTAPES WHICH WERE VIEWED AND SEIZED DURING A SEARCH OF APPELLANT’S RESIDENCE, WHEN THE WARRANT FOR THE SEARCH, ITS APPLICATION, AND ACCOMPANYING AFFIDAVIT MADE NO MENTION OF VIDEO CAMERAS OR VIDEOTAPES.

We hold that seizure of the videotapes was reasonable for the reasons set forth below.2

FACTS

An informant identified appellant as trafficking in drugs, and he was targeted by the civilian police for controlled drug buys. The informant introduced appellant to an undercover police officer, Detective Sergeant Ralph Hines, who subsequently made three purchases of cocaine. A fourth buy was scheduled, at which the police intended to arrest appellant, but appellant failed to show up.

For the first buy, the informant paged appellant to set up the meeting in a Burger King parking lot and then used a pre-ar-ranged signal to indicate to him that they were ready to buy drugs. The informant asked for $50 worth of crack cocaine, which appellant produced and she bought. Detective Hines said to appellant, “ Well, that looks pretty good,’ and asked him if [he] could get another $50.” Appellant hesitated, then walked away for about 5 minutes, and, when he returned, told Detective Hines that he only had $30 worth. Appellant told the detective to contact him “through the infor[146]*146mant” for future purchases because his phone was “rigged” to detect whether incoming calls were using recording devices.

The second buy, also at Burger King, was interrupted when appellant and his look-out, who was later identified as appellant’s son, became suspicious because an unmarked police car drove by the parking lot. When the buy resumed, Detective Hines talked with appellant about appellant’s “operational techniques.” Appellant “pointed to the Burger King camera, [and] said that he had somebody in there monitoring that.” The informant also told Detective Hines that appellant was taking pictures of those purchasing drugs from him so that he could “check them out.” Detective Hines, the informant, and others described appellant as “high tech” and an “upper class” dealer who “kept records and a gun sometimes____”

By the time of the third buy, the police department had identified appellant as a Marine and was cooperating with the Naval Criminal Investigative Service, which assisted with surveillance, including videotaping the Burger King parking lot. Detective Hines testified that surveillance is sometimes used in drug enforcement work. In addition to the police using video and other surveillance equipment, it was common knowledge in the law enforcement community that drug dealers also often used such equipment.

While waiting at the Burger King for the third buy, appellant called Detective Hines and the informant at a pay phone and said that the police were in the area. As a result, appellant wanted to meet them elsewhere. As they pulled out of the parking lot, Detective Hines saw appellant’s van and thought that appellant was probably engaged in surveillance of them. Detective Hines radioed his back-up “not to follow” them as that would tip off appellant to his true identity. Eventually, they met for the third buy and appellant quickly gave Detective Hines some cocaine. Testing appellant’s underworld acumen, the detective remarked that a car across the street belonged to the Jacksonville Police Department, when in fact it did not. Appellant replied, no, and then described in detail how he identified their unmarked ears.

At the third buy, appellant promised to trade “two blocks of crack cocaine for a pound of marijuana,” in which Detective Hines had previously indicated he trafficked. Detective Hines was not wearing a body wire to record this conversation because he knew that appellant sometimes used an RF detector, which could detect a wire, and thought that he could be using it then. Appellant failed to show up for this fourth buy because the informant told appellant that Detective Hines was an undercover police officer.

Because appellant had been tipped off, the police thought it was important to move quickly to obtain a search warrant before he destroyed any evidence and the value of this operation was lost entirely. Detective Hines indicated that there were a number of items that they were looking for, such as counter-surveillance equipment, which were mentioned in his affidavit attached to the search-warrant application but not on the application itself. This difference was simply the product of their being “rushed.” Detective Hines testified that counter-surveillance equipment includes “RF detectors, photos, cameras, binoculars, anything that can be used for surveillance, video.”

The warrant authorized seizure of “crack cocaine, packaging and repackaging equipment, papers proving occupancy, records, weapons, pagers, RF detectors, photos, cellular phone[s], police scanners, scales/paraphernalia.” During the search of appellant’s bedroom, Detective Hines picked up a video camera and noticed a tape inserted in it. He decided to view the tape to see if he had been caught on film in appellant’s surveillance operations.

Detective Hines also testified:

Q. When you were viewing these things, what gave you the authorization to search a cam corder? Is cam corder specifically listed on your search warrant?

A. No, sir.

Q. Why did you think you had authorization to search for a cam corder?

A. For the counter-surveillance equipment.
Q. Is there any other reason?
A. (No response.)

[147]*147Q. Did the fact that photos was listed—

A. Photos also, yes, sir.

Q. When you were looking at the cam corder, did you believe that that was something you had authority to look for?

A. Yes, sir.
Q. You stated that you took that first tape out. What did you do after that?

A I put in the other tape.

Q. What were you going to do with that first tape?
A. Hold it for evidence.
Q. Why? What did you believe it was evidence of?

A. The marijuana growing in the — see, I am looking through an eyepiece that’s the size of a quarter.

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Bluebook (online)
52 M.J. 144, 1999 CAAF LEXIS 1265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fogg-armfor-1999.