United States v. Owens

51 M.J. 204, 1999 CAAF LEXIS 1226, 1999 WL 595297
CourtCourt of Appeals for the Armed Forces
DecidedAugust 9, 1999
Docket98-0133/A
StatusPublished
Cited by67 cases

This text of 51 M.J. 204 (United States v. Owens) 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. Owens, 51 M.J. 204, 1999 CAAF LEXIS 1226, 1999 WL 595297 (Ark. 1999).

Opinions

Judge GIERKE

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of four specifications of damaging private property, and five specifications of larceny, in violation of Articles 109 and 121, Uniform Code of Military Justice, 10 USC §§ 909 and 921, respectively. The adjudged and approved sentence provides for a bad-conduct discharge, total forfeitures, and confinement for 2 years and 9 months. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review1 of the following issue:

WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN HE DENIED APPELLANT’S MOTION TO SUPPRESS EVIDENCE.

For the reasons set out below, we hold that the military judge did not abuse his discretion.

Factual Background

On May 1, 1996, the Security Police at Altus Air Force Base, Oklahoma, received a report that property had been stolen from five vehicles in a dormitory parking lot. In the late afternoon of May 1, appellant called a Ford dealership in Altus, Oklahoma, and requested emergency roadside services. The ignition switch in appellant’s Ford Escort was stuck, so it could not be turned on or off. Kenneth Aungst, a repair technician and tow truck operator, towed appellant’s vehicle to the dealership.

Mr. Aungst became suspicious because he saw a large quantity of stereo components in appellant’s automobile with the wires cut off instead of being disconnected. He called the Altus Police Department. Eventually, stolen stereo equipment was seized from appellant’s automobile and dormitory room, giving rise to the charges of larceny and damaging private property.

[206]*206At trial, defense counsel made a timely motion to suppress the seized property. After a lengthy hearing on the motion, the military judge made extensive findings of fact and conclusions of law and denied the motion to suppress. The parties do not dispute the military judge’s findings concerning historical facts, which are supported by the record. Accordingly, we resolve the granted issue on the basis of the facts found by the military judge. He made the following findings of fact:

First, the accused called for a tow truck when his car had problems on 1 May 1996. Mr. Aungst towed the car to the local Ford dealer where it was decided that the ignition would be replaced, as well as both door locks and the hatch lock. The work could not be done that day, as it was near closing, and the parts would not be available until the next day. The accused was provided a loaner vehicle to use. He was asked if he wanted to remove anything from his car overnight; he said no, and left.
Second, the following morning, Mr. Aungst was working next to the accused’s car which had both doors and the hatch open as it was being worked on. Mr. Aungst noticed a far above normal amount of stereo components in the car; it appeared to be expensive equipment and had obviously cut wiring. The car itself had an installed after-market radio. Mr. Aungst, as an experienced tow truck driver, had seen a lot of vehicles which had been vandalized and impounded, and this equipment in the car, with cut wires, raised concerns to him. Mr. Aungst told his supervisor and suggested the police be called. Mr. Aungst did not enter the vehicle to look at the equipment, nor did he touch it.
Third, Officer Dwayne D. Mills of the Altas Police Department was the officer who responded to the call from the Ford dealer. He responded at about 1030 hours on 2 May 1996. After meeting with Mr. Aungst, he went over, to the open car and observed a large speaker and several pieces of stereo equipment in the trunk or hatch area of the car, on the back seat, and on the rear floorboards on both sides of the car. He observed that wires on the equipment had been cut very close to the back of the units. Officer Mills was aware that there had been some car burglaries around town just a few days earlier. He got a notepad, picked up six or eight different pieces of equipment, and wrote down brand names and serial numbers. Officer Mills returned to the Altas Police and was later advised that the Security Police at Altas Air Force Base had information about some car burglaries on base. He called SSgt [Staff Sergeant] Bovara or SrA [Senior Airman] Hill and discussed the matter. He was told that the items he had seen could be the items from the base.
Fourth, the two Security Policemen, Bovara and Hill, went to the Altas Police Department and met Officer Mills. They all went to the Ford dealer where they looked into the accused’s car. What they saw was enough to convince them that the accused was involved in the base car burglaries. The brand name Fosgate was visible on at least one piece of equipment, and it was an unusual enough name to convince the Security Police that the accused was involved.
Fifth, the accused’s First Sergeant was briefed and asked to bring the accused to the Security Police Building, where he was met by the two SP Investigators and Officer Mills. The accused was told by SSgt Bovara that they were investigating the larceny of stereo equipment from the base; that they had information that some of the staff was in his car at the Ford dealer; that they had gone down and identified some of the stuff as being from the base thefts, and that the accused was a suspect. The accused was told he would not then be asked any questions; that the police wanted to look at the stuff in his car; and that they would like his consent to a search of the car in order to positively identify the staff. The accused said he was willing to do that. An Air Force Form 1364 was completed (Appellate Exhibit IX); SSgt Bovara filled in the handwritten portion; he provided the completed form to the accused and read from a blank form while [207]*207the accused read along on the completed form. At the end of reading the form, the accused was asked if he understood and he said yes. He was asked if he knew he could limit the search and he said yes. He was asked if he knew he could terminate the search and he said yes. The accused signed Appellate Exhibit IX; actually, he signed it twice, as he missed the signature block the first time; and this was pointed out by SSgt Bovara. The consent form covered the accused’s car and his dormitory room. There being no evidence to the contrary, I infer the accused is a high school graduate and can read and understand the consent form.
Sixth, the two Security Policemen, Officer Mills, the accused, the First Sergeant, and another Master Sergeant, went to the Ford dealer’s impound lot. The car had been moved from inside the garage to the outdoor secured lot and locked. The two SPs began to inventory the contents of the ear with Officer Mills observing. Twelve minutes and about ten items into the search, SSgt Bovara said words to the effect of, “you know, you can terminate this at any time.” SSgt Bovara claims it was just an off-the-cuff remark, made on a hot day, basically joking around. He never expected the accused to say he wanted to terminate the search. The accused did say he wanted to terminate the search. The Security Policeman [sic] stopped immediately when he said that.
Seventh, SSgt Bovara told Officer Mills that he had to give the case back to him because they were downtown and the accused had withdrawn his consent to their search.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. CASTRO
Navy-Marine Corps Court of Criminal Appeals, 2025
United States v. Taylor
Navy-Marine Corps Court of Criminal Appeals, 2022
United States v. Beck
Air Force Court of Criminal Appeals, 2021
United States v. Specialist CHRISTOPHER B. HUKILL
Army Court of Criminal Appeals, 2020
United States v. Wetuski
Air Force Court of Criminal Appeals, 2019
United States v. Cox
Navy-Marine Corps Court of Criminal Appeals, 2018
United States v. Perkins
Navy-Marine Corps Court of Criminal Appeals, 2018
United States v. Eppes
Court of Appeals for the Armed Forces, 2018
United States v. Dias
Navy-Marine Corps Court of Criminal Appeals, 2017
United States v. Daniels
Navy-Marine Corps Court of Criminal Appeals, 2017
United States v. Wright
Navy-Marine Corps Court of Criminal Appeals, 2017
United States v. Mancini
Air Force Court of Criminal Appeals, 2016
United States v. Master Sergeant TIMOTHY B. HENNIS
75 M.J. 796 (Army Court of Criminal Appeals, 2016)
United States v. Richards
Air Force Court of Criminal Appeals, 2016
United States v. Carpenter
Air Force Court of Criminal Appeals, 2016
United States v. Beaumont
Navy-Marine Corps Court of Criminal Appeals, 2016
United States v. Weiss
Air Force Court of Criminal Appeals, 2015
United States v. Lister
Air Force Court of Criminal Appeals, 2015
United States v. Mayo
Navy-Marine Corps Court of Criminal Appeals, 2015
United States v. Hoffmann
74 M.J. 542 (Navy-Marine Corps Court of Criminal Appeals, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
51 M.J. 204, 1999 CAAF LEXIS 1226, 1999 WL 595297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-owens-armfor-1999.