United States v. Murphy

36 M.J. 732, 1992 CMR LEXIS 840, 1992 WL 394762

• Court: U S Air Force Court of Military Review
• Decided: December 11, 1992
• Docket: ACM 27422 (f rev)
• Status: Published

Opinions

OPINION OF THE COURT UPON FURTHER REVIEW

JOHNSON, Judge:

A general court-martial convicted Staff Sergeant Murphy, contrary to her pleas, of one use of cocaine. The members sentenced her to a bad-conduct discharge, confinement for 2 years, and reduction to E-l. The convening authority approved the adjudged sentence.

We previously reviewed four issues raised by appellant and found them all without merit.¹ However, we found appropriate only so much of the sentence as extended to a bad-conduct discharge, confinement for 15 months, and reduction to E-l. The Court of Military Appeals found appellant’s Article 31, 10 U.S.C. § 831, rights were violated in an interview with her commander, at the conclusion of which appellant consented to a urinalysis that produced the primary evidence of her drug use.² Upon returning the record for further review, the Court of Military Appeals asked us to determine “whether the questioning of appellant without the required statutory warning precluded admissibility of the urinalysis results.” United States v. Murphy, 33 M.J. 323, 329 (C.M.A.1991). We have done so, and we conclude the failure to warn appellant of her Article 31 rights did not make the urinalysis results inadmissible.

FACTS

In August 1987 appellant was a member of the security police squadron at Reese Air Force Base, Texas. Captain Thomas was her squadron commander and the chief of security police. On 17 August 1987, an Air Force Office of Special Investigations (OSI) agent told the security police superintendent, Senior Master Sergeant Spahr, that an informant had reported appellant had used drugs. The agent also suggested specific questions to ask appellant. On 18 August 1987, Sergeant Spahr and appellant’s supervisor, Master Sergeant Holiman, told Captain Thomas of the drug use allegation. They told him the informant stated appellant was at the Fast and Cool Club with a woman named Tonya or Tina on the previous Saturday night, and appellant had used some illicit drug.

Captain Thomas directed that appellant be told to come in to see him. She was off duty at the time, and a message was left on her home answering machine to contact Captain Thomas’ office. She called 19 August 1987 and arranged to meet with Captain Thomas before reporting for duty on the afternoon of 20 August 1987.

Appellant reported to Captain Thomas as scheduled. Her supervisor, Sergeant Holiman, was also present. Captain Thomas told appellant he needed to ask her some questions concerning her whereabouts on the previous Saturday night. He then asked her if she had been at the Fast and Cool Club. She answered, “Yes.”³ He asked her if she was with Tina, or Tonya. She again answered, “yes, Tonya.” He then asked who Tonya was, and she said a civilian female that she had met. These were the questions suggested by OSI. Having confirmed these details of the informant’s story, Captain Thomas told appellant he had received an allegation of drug use by her and asked if she was willing to take a urine test. She agreed. Sergeant Holiman accompanied appellant to the base hospital where she provided a urine sample, which tested positive for cocaine.

Captain Thomas did not advise appellant of her Article 31 rights at any time during this interview. Captain Thomas testified he initially viewed the OSI’s allegation as rumor or speculation and he did not suspect appellant of any wrongdoing.⁴ He said that if she had told him she was on duty the night in question, she was not at the Fast and Cool Club, or she did not know Tonya, he would not have asked her to take a urinalysis. Also, if she had asked to stop the interview and see a lawyer, he would have stopped, advised her of her rights, and given her an opportunity to see a lawyer. He further stated appellant’s answers confirming her presence in the Fast and Cool Club with Tonya on Saturday night did not, in themselves, confirm the allegation of drug use. Because of her apparent lack of concern, he testified his attitude at the time was, “as far as I’m concerned, it’s still not true.”

LAW AND ANALYSIS

Military Rule of Evidence 314(e)(5) requires clear and convincing evidence of voluntariness for the admission of evidence based on a consent to search. A consent to search is valid if the totality of the circumstances show that the consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Frazier, 34 M.J. 135 (C.M.A.1992); United States v. Burns, 33 M.J. 316 (C.M.A.1991); United States v. Goudy, 32 M.J. 88 (C.M.A. 1991); United States v. McClain, 31 M.J. 130 (C.M.A.1990); United States v. Roa, 24 M.J. 297 (C.M.A.1987).

No single factor was identified in these cases as being decisive, but some of the circumstances mentioned have included:

(1) The degree to which the suspect’s liberty was restricted (under escort, under arrest or apprehension, held in the office of law enforcement agents, called to the commander’s office, etc.).

(2) The presence of any coercion, promises, direct orders, threats (including threats that if consent to search is withheld, an authority to search will be obtained or a command-directed urinalysis will be ordered), or other forms of intimidation or pressure.

(3) Awareness by the suspect that he or she had the right to refuse to consent to the search (as established by direct testimony or by oral or written warnings, in the light of inferences drawn from the suspect’s age, experience, education, training, and intelligence).

(4) The suspect’s demeanor and apparent mental state (sober, calm, confident, cooperative, unconcerned; or confused, intimidated, tired, intoxicated, reluctant, anxious, etc.).

(5) Whether the suspect had consulted with counsel.

(6) The coercive effect of any prior violations of the suspect’s constitutional or statutory rights (e.g., rights to legal counsel, or rights against self-incrimination under Article 31 or the Fifth Amendment).

We have examined the record of trial in appellant’s case and weighed all the relevant facts and circumstances. Appellant was called to her commander’s office, and she had a military duty to appear. She testified there were a variety of possible reasons for being called there, including future assignments or matters having to do with her subordinates. She reported formally, by standing at attention in front of his desk and saluting; he returned her salute and told her to be seated. She had drawn her sidearm for performance of her security police duties; she was not disarmed for the interview. The commander was not armed. The commander spoke to her in a normal conversational tone; there was nothing intimidating or coercive in his manner.⁵ No promises, direct orders, threats, or other forms of intimidation or pressure were used.⁶ Captain Thomas did not tell appellant expressly that she had the right to refuse to consent to search, but it was implicit in the phrasing of his request that she had that right. Appellant helped complete the consent to search form, which contains a warning that consent may be refused.⁷

Appellant was 30 years old. She had completed high school and some college courses. She had been in the Air Force for over 10 years. She spent her entire career in the law enforcement career field and progressed well in the career field. She was serving as a law enforcement flight chief and had completed consent for search forms in the course of her duties. She received training on search and seizure and provided such training to her subordinates. We find that appellant was well aware she had the right to refuse her consent for search.

Throughout appellant’s interview with her commander and her completion of the consent form, she asked no questions and showed no hesitancy, uncertainty, or concern. She did not ask to speak with counsel or anyone else. Sergeant Holiman testified he accompanied appellant to the hospital and remained with her for the 1 to 2 hours it took to collect the urine sample. During that time, appellant voiced no concern or doubt about what she was doing. She made no request to call anyone on the telephone or to leave the hospital.

The primary remaining consideration is the effect of Captain Thomas’ failure to give appellant a warning of her rights under Article 31, UCMJ, before questioning her. Her responses were in themselves not incriminating, but they corroborated certain details of the OSI informant’s report. They were part of the chain of events that led to appellant’s urinalysis, since Captain Thomas testified that he would not have asked her to consent to a urine test if she had denied these aspects of the informant’s report.

There is no general requirement that a suspect be informed of his or her Article 31 rights before being asked to consent to search. Frazier, supra. Article 31 warnings become an issue in consent searches only when a law enforcement agent or other person in authority has asked the suspect questions without a proper Article 31 warning during the events preceding the consent to search. In such cases, the unwarned statements must be considered as part of the totality of the circumstances in deciding whether the suspect’s consent to search was voluntary.

Appellant was a suspect, and she received no Article 31 warning before her commander asked her questions. The fact that appellant made these unwarned statements during the events leading up to her consent to search must be weighed for their likely impact on that decision. On their face, the' facts she related were innocent. Captain Thomas did not tell her that her responses matched the informant’s report. Her only complaint is that if she had been told she was suspected of an offense, or had been warned of her Article 31 rights, she would have known she was under suspicion and would not have consented to the search. This position is contradicted by the undisputed fact that Captain Thomas advised appellant before asking for her consent to the search that he had received allegations of drug use by her. There is nothing in the record that indicates appellant’s decision to consent to the search was influenced in any way by the responses she made to her commander’s questions. In the circumstances of this case we find Captain Thomas’ failure to give Article 31 warnings did not affect the voluntariness of appellant’s consent to search. Weighing the totality of the circumstances, we find her consent was voluntary, by clear and convincing evidence.

We are mindful that evidence derived from violations of Article 31 warning requirements is inadmissible. United States v. Churnovic, 22 M.J. 401 (C.M.A.1986). In this case, however, we find that appellant’s consent to search was not “derived” from her responses to unwarned questioning. As just discussed, her responses did not affect the voluntariness of her consent. No information she provided was used to locate any other evidence. There is no evidence as to whether Captain Thomas would have asked appellant for her consent if she had invoked her Article 31 rights (although we infer he would have, since he testified he was prepared to drop the inquiry only if she answered that she was not at the Fast and Cool Club at the time in issue, or did not know Tonya). There is insufficient causal connection, on the specific facts of this case, to conclude that the urine test was tainted by Captain Thomas’ failure to give an Article 31 warning.

In accordance with the mandate of the Court of Military Appeals, the record will be returned directly to that Court.

Judge JAMES concurs.

1 . United States v. Murphy, 29 M.J. 573 (A.F.C.M.R.1989).

2 . The military judge found that Murphy was not a suspect at the time her commander questioned her. The Court of Military Appeals held she was a suspect, triggering the requirement for Article 31 warnings. This Court’s previous decision upheld the military judge’s voluntary consent to search determination without examining the Article 31 issue.

3 . Appellant testified that she was asked about her whereabouts on Monday, 17 August 1987, rather than Saturday, 15 August 1987. This variance between her recollection and that of Captain Thomas and Sergeant Holiman is of no consequence to the issue before us.

4 . A few months earlier Captain Thomas had called appellant into his office to discuss a previous report that she was involved with drugs. The nature and extent of that conversation were not developed in any detail at trial, but the allegation was apparently treated as unfounded. Appellant was continued in her security police law enforcement duties, and just before her urinalysis report was received she was rated "outstanding" on a performance report. Appellant testified that Captain Thomas referred to the prior allegation during the interview in which she gave consent to search. Captain Thomas testified that it was not mentioned. This question was not addressed in Sergeant Holiman’s testimony. In her findings at trial, the military judge addressed the contradictions between appellant’s testimony and that of Captain Thomas and Sergeant Holiman. She found appellant’s testimony on these issues to be "totally self-serving and opportune in hindsight,” and found the testimony of the others to be "totally credible ... forthright and definite.” We agree. We find that no mention of the prior allegation was made.

5 . In Goudy, supra, the Court of Military Appeals rejected an argument that any request for a consent to search made by a commander to a subordinate who has reported formally in the commander's office should be presumed to be involuntary because the circumstances make the request an "implied order.” While the court rejected any such "bright-line rule,” it expressly considered the setting as part of the totality of the circumstances.

6 . Appellant testified Captain Thomas told her that if she did not consent to a urinalysis, he would order a command-directed urinalysis. Both Captain Thomas and Sergeant Holiman denied this was said. In her findings at trial, the military judge addressed the contradictions between appellant's testimony and that of Captain Thomas and Sergeant Holiman. She found appellant's testimony to be “totally self-serving and opportune in hindsight,” and found the testimony of the others to be "totally credible ... forthright and definite.” We agree. We have weighed the evidence carefully, and we find that no mention of a command-directed urinalysis was made.

7 . The Air Force Form 1364 contained the following printed language:

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 or in any other disciplinary or administrative procedure. I also understand that, if I do not consent, a search cannot be made without a warrant or other authorization recognized in law____ Before giving my consent, I carefully considered this matter. I am giving my consent voluntarily and of my own free will, without having been subjected to any coercion, unlawful inducement and without any promise of reward, benefit, or immunity having been made to me.

The first sentence of this form is certainly inartful, but read together this warning makes it clear to anyone of reasonable intelligence that they have a right to refuse their consent.