United States v. Keeve

2 M.J. 290, 1976 CMR LEXIS 730
CourtU S Air Force Court of Military Review
DecidedSeptember 22, 1976
DocketACM S24373
StatusPublished
Cited by6 cases

This text of 2 M.J. 290 (United States v. Keeve) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Keeve, 2 M.J. 290, 1976 CMR LEXIS 730 (usafctmilrev 1976).

Opinion

DECISION

ORSER, Judge:

Tried by a special court-martial with members, the accused stands convicted, despite his not guilty plea, of a single specification of indecent assault, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The approved sentence is a bad conduct discharge and confinement at hard labor for six months.

On appeal, appellate defense counsel have assigned several errors and invite our attention to errors submitted by the accused in his request for appellate representation. In our judgment, only two of the errors asserted warrant our attention. All others are either without merit or were fully discussed by the staff judge advocate in his review and properly resolved adversely to the accused.

In the initial error we address, counsel contend the military judge erred in admitting the accused’s pretrial statement into evidence. In support of this contention appellate defense counsel argue, as the defense counsel unsuccessfully did at trial, that there were insufficient grounds for the accused’s apprehension. On that basis, say counsel, the inculpatory statement the accused made while in unlawful detention fol[292]*292lowing his apprehension, although preceded by Miranda/Tempia1 warnings, was inadmissible.

As counsel correctly assert, in a situation involving a baseless arrest or apprehension, the Government has a heavy burden to show that an ensuing confession or admission was “an act of the accused’s free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Though counsel are accurate in their assertion that Miranda/Tempia warnings of themselves will not suffice to purge the primary taint of an unlawful invasion of Fourth Amendment rights in the form of an illegal arrest and detention, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), we nevertheless find such rule inapplicable in these circumstances, for we are convinced the accused was lawfully apprehended and the resultant statement admissible.

In the military, an apprehension may lawfully be made “upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Article 7(b), Code, supra; United States v. Herberg, 15 U.S.C.M.A. 247, 35 C.M.R. 219 (1965). Here, the accused was apprehended by an agent of the Air Force Office of Special Investigations (OSI), who was unquestionably authorized to do so. Id; Manual for Courts-Martial, 1969 (Rev.), paragraph 19 a. We need only examine the circumstances surrounding the apprehension for the existence of a “reasonable belief,” that is, whether the accused was apprehended on the basis of probable cause to believe a crime had been committed and the accused committed it. United States v. Stackhouse, 23 U.S.C.M.A. 118, 48 C.M.R. 679 (1974); United States v. Llano, 23 U.S. C.M.A. 129, 48 C.M.R. 690 (1974); United States v. Herberg, supra.

The accused’s apprehension followed a complaint of rape made by a Miss Pamela S, a 17 year old high school student. The alleged victim, who appeared upset and had small abrasions on her knees, related to agents of the OSI that after attending a football game earlier in the evening, she had been forced into an automobile by two black male individuals, taken to a wooded area about a mile from the stadium, and raped. Though she was unable to identify or fully describe her assailants, she did remember that one of them was referred to as “Tony,” and they were both tall, thin and had short hair. She also recalled their car was black.

Upon subsequent medical examination, a preliminary report of specimens taken from Miss S showed negative for the presence of sperm. The doctor indicated, however, that her vagina had been penetrated by some object. He could not determine whether the penetration had been made by a penis.

The OSI agents continued their investigation by interviewing Pamela’s sister who had also attended the football game. She knew nothing of the circumstances but did identify other teenagers she had seen in the area. Those individuals were duly questioned and the agents learned that Pamela had been seen in the company of three black males after the football game and had left with them. Though no one had seen Miss S enter an automobile with the three, she was observed to be walking in the direction of a parked vehicle.

One of those interviewed, a witness named Wright, told the agents that though he had seen Pamela talking with three individuals, he could not identify any of them. The agents subsequently had reason to believe Wright was untruthful in his asserted inability to recognize the possible assailants. For one thing, during their session with him they gained the impression he was withholding information. More concretely, three or four other witnesses informed them they had seen Wright conversing with the three black males while they were with Pamela. Wright was reinterviewed, and when confronted with the information furnished by the others, admitted his earlier [293]*293statement was untrue, that he did know the individuals in question, and had indeed conversed with them as reported. He identified the three as the accused, and individuals named Súber and Leggett. According to one of the agents, Wright further related he had approached the group and asked Leggett what was going on. Leggett is said to have replied something to the effect that the accused “thinks he’s going to get some.” On the witness stand during trial, one of the agents admitted that since he had talked with several witnesses he was not certain that Wright was the one who had mentioned Leggett’s comment.

Armed with all this information, and after ascertaining from the accused’s first sergeant that the accused, Leggett, and Súber were known to be associates, the investigators decided they had probable cause to apprehend the accused and his companions for suspected rape and to interrogate them. After coordinating the matter with the local office of the staff judge advocate, the OSI agents apprehended the accused at his duty section the morning after the incident, handcuffed him, and transported him to their office. There, he was fully warned of his rights, voluntarily waived them, and submitted to questioning. During the interrogation, the accused authored the inculpatory statement which was subsequently admitted in evidence, over objection, during his trial for indecent assault.

The cornerstone of the defense position, that the recited circumstances furnished insufficient cause for the accused’s arrest, is their charge that the Government failed to establish the reliability of witness Wright, whom they label as a Government informer. They point out that Wright’s reliability was untested before the incident and, moreover, he was shown to have lied when initially asked about the individuals seen with Pamela.

Without dispute, the significant basis for the accused’s apprehension was the information supplied by Wright. Absent his eyewitness identification, the authorities had no basis to connect the accused with the crime under investigation.

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Bluebook (online)
2 M.J. 290, 1976 CMR LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-keeve-usafctmilrev-1976.