United States v. Murphy

39 M.J. 486, 1994 CMA LEXIS 49, 1994 WL 377070
CourtUnited States Court of Military Appeals
DecidedJuly 20, 1994
DocketNo. 63,837; CMR No. 27422
StatusPublished
Cited by16 cases

This text of 39 M.J. 486 (United States v. Murphy) 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. Murphy, 39 M.J. 486, 1994 CMA LEXIS 49, 1994 WL 377070 (cma 1994).

Opinion

Opinion of the Court

CRAWFORD, Judge:

Contrary to her pleas, appellant was convicted of wrongful use of cocaine, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. The convening authority approved the sentence of a bad-conduct discharge, 2 years’ confinement, and reduction to the lowest enlisted grade. After the case was heard twice by the Court of Military Review [29 MJ 573 (1989) and 36 MJ 732 (1992) ] and once by this Court [33 MJ 323 (1991)], the findings and sentence were affirmed. We specified the following issue for review:

WHETHER THE [UNLAWFUL] QUESTIONING OF APPELLANT WITHOUT THE REQUIRED [ARTICLE 31] WARNING PRECLUDED ADMISSIBILITY OF THE [CONSENSUAL] URINALYSIS RESULTS.

For the reasons stated herein, we hold that the results of appellant’s urinalysis were properly admitted into evidence.

FACTS

At the time of trial, appellant was a 30-year-old staff sergeant, on active duty for [487]*487over 10 years, and ail of which was in the security police field, including search and seizure. She was a senior security police supervisor performing duties as a flight chief with responsibilities for training other security police officers. A high school graduate, appellant also took college level courses in law enforcement procedures.

On August 17, 1987, an Air Force Office of Special Investigations (OSI) agent told the security police superintendent, Senior Master Sergeant Spahr, that an informant had seen appellant at the Fast and Cool Club on the previous Saturday night using illegal drugs and in the company of a civilian woman named Tonya or Tina.

The OSI requested that appellant’s commander, Captain Thomas, ask her three questions about the incident reported by the informant. Captain Thomas called appellant. at home and left a message on her answering machine requesting her to call his office. She returned his call on August 19, 1987, and arranged to meet with Captain Thomas after drawing her weapon and before reporting for duty on the afternoon of August 20, 1987.

That afternoon she reported to Captain Thomas. Her supervisor, Sergeant Holiman, was also present. Without warning appellant pursuant to Article 31(b), UCMJ, 10 USC § 831, Captain Thomas informed her that he was going to ask her some questions regarding her whereabouts on the previous Saturday night. Captain Thomas first asked appellant where she was on Saturday night, and she said at the Fast and Cool Club. He then asked who she was with, and she said Tonya or Tina. Third, he asked who Tonya or Tina was, and she said a civilian female whom she had met.

After she answered the three questions, Captain Thomas told her there was an allegation she had used drugs, and he asked if she was “willing” to give a urine sample. She replied, “Yes.” Because she was familiar with the consent-to-search form, she did not hesitate filling that out. Appellant completed and signed a consent to search form that contained the following:

I know that I have an absolute right to give my consent to a search. I understand that, if I do consent to a search, anything found in the search can be used against me in a criminal trial____ I also understand that, if I do not consent, a search cannot be made without a warrant or other authorization recognized in law.

Captain Thomas testified that there were “several [similar] allegations made daily” in this “particular field,” thus he did not warn her until he found “some validity” to the allegations. Captain Thomas denied telling appellant, “If you do not consent to it, you will be given a command-directed urinalysis test.” Captain Thomas also testified that she “was free” to “leave” the office.

We previously held that Captain Thomas was required to give Article 31 warnings prior to asking the three questions. 33 MJ at 329. The question we must now address is whether the consent to search was a fruit of the poisonous tree.

DISCUSSION

The term “fruit of the poisonous tree” doctrine was first used in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). In Nardone, the Court indicated that it is not enough to show “a causal connection” between the original evidence and the derivative evidence because “[a]s a matter of good sense ... such connection may have become so attenuated as to dissipate the taint.” Id. at 341, 60 S.Ct. at 268. See also Mil.R.Evid. 304(e)(3), 311(a) and (e)(3), Manual for Courts-Martial, United States, 1984. The doctrine was further refined in Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963), where the Supreme Court stated:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by [488]*488means sufficiently distinguishable to be purged of the primary taint.”

(Emphasis added.)

In Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1291-92, 84 L.Ed.2d 222 (1985), the Court stated: “The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession.” Since the standard as to consent is whether it was voluntary, we shall examine the analysis of Elstad. Cf. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1047-49 (9th Cir. 1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1515-19 (6th Cir.1988). In Elstad the Supreme Court declined to exclude an otherwise voluntary statement following an inadmissible statement obtained by the police. As the Court stated:

We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

470 U.S. at 314, 105 S.Ct. 1296.

As in Elstad, the crucial issue here is not whether the consent was a fruit of the inadmissible statement but rather, in Elstad’s terms, whether the “later confession” was voluntary. The Court rejected the state court view “that the unwarned remark compromised the voluntariness of [Elstad’s] later confession.” Id. at 309, 105 S.Ct. at 1293.

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Bluebook (online)
39 M.J. 486, 1994 CMA LEXIS 49, 1994 WL 377070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-murphy-cma-1994.