United States v. Weston

66 M.J. 544, 2008 CCA LEXIS 130, 2008 WL 835266
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 31, 2008
DocketNMCCA 200600985
StatusPublished
Cited by6 cases

This text of 66 M.J. 544 (United States v. Weston) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Weston, 66 M.J. 544, 2008 CCA LEXIS 130, 2008 WL 835266 (N.M. 2008).

Opinion

PUBLISHED OPINION OF THE COURT

GEISER, Senior Judge:

A general court-martial with officer members convicted the appellant, contrary to his pleas, of housebreaking and two specifications of service discrediting conduct by invading the privacy of another, in violation of Articles 130 and 134, Uniform Code of Mili[546]*546tary Justice, 10 U.S.C. §§ 930 and 934. The appellant was sentenced to a dishonorable discharge, reduction to pay grade E-l, total forfeiture of pay and allowances, and confinement for seven months. The convening authority approved the sentence as adjudged.

On 12 September 2006, the appellant filed a brief with six assignments of error.1 The Government answered on 23 October 2006 and the appellant filed a reply on 30 October 2006. On 17 April 2007, a panel of this court specified four additional issues.2 On 25 September 2007, a panel of this court found merit in the appellant’s first assignment of error challenging the legality of the Government’s consent search of his residence in light of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).3 The panel held that “the search of the appellant’s residence was unreasonable ... and that the exclusionary rule’s remedial objectives outweigh ‘its substantial social costs’ in this case.”4 The court set aside the findings and sentence and authorized a rehearing.5

On 25 October 2007, the Government filed a motion for en banc reconsideration of the panel decision, which the appellant opposed. On 10 December 2007, this court granted the Government’s motion for en banc reconsideration and directed oral argument on the following issues:

a. Whether the search of the appellant’s residence, with the consent of the appellant’s wife, was reasonable under the Fourth Amendment to the United States Constitution when the appellant had previously objected to such a search; and
b. Whether the “inevitable discovery” exception to the exclusionary rule applies to the evidence seized from the appellant’s home, rendering that evidence admissible at trial.

On 13 February 2007, oral argument was conducted at Georgetown University Law Center as part of this court’s outreach program.6

We have considered the various pleadings and the very detailed and helpful oral argument. We conclude that the search of the appellant’s residence, with the consent of the [547]*547appellant’s wife, was reasonable under the Fourth Amendment to the United States Constitution notwithstanding the appellant’s prior objection to such a search. We further find that even if law enforcement’s reliance on the wife’s consent to search was unreasonable, that the evidence obtained from the search of the appellant’s residence would be admissible under the doctrine of inevitable discovery. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(c), 10 U.S.C. §§ 859(a) and 866(e).

Background7

The appellant was the head court reporter at the Marine Corps Base, Kaneohe Bay, Hawaii, Law Center. The victim, Sergeant (Sgt) E, was the appellant’s subordinate in the court reporting shop. The appellant’s family served as Sgt E’s sponsor and provided lodging for the victim and her son pending her assignment to housing. While residing with the appellant’s family, Sgt E became aware that the appellant used small discreet surveillance equipment to watch the family dog. Moreover, Sgt E was aware of the appellant’s high degree of technical electronic expertise. Over time, the appellant developed and expressed more than a professional interest in the victim, but that interest was not reciprocated.

The appellant placed a micro-surveillance camera in a hollowed-out electric razor and placed the razor in the work-place bathroom shared by the appellant, the victim, and a military judge. The camera was powered by batteries and transmitted a live video signal to a receiver attached to a video cassette recorder (VCR) located on the appellant’s desk, a few feet from the shared bathroom. The transmitted images were recorded onto a VHS-format video tape in the VCR and later transferred to a computer hard drive in the appellant’s home.8

On 18 May 2004, the victim noticed an electric razor with no power plug sitting in the shared bathroom. She picked it up and discovered it was very light and did not work. Suspicious, she believed it might contain a covert video camera. She believed she had seen the same razor on other occasions and that the empty power plug hole was always oriented toward the toilet. The victim opened the razor and discovered a micro-surveillance camera pointing out where the power plug should have been.

The victim immediately suspected the appellant. She called the appellant’s wife to report her discovery and to recommend that Mrs. Weston not let her husband “lock himself in the computer room.” Immediately following this phone call, Sgt E called the Criminal Investigations Division (CID) and reported the incident. She gave an oral statement of the circumstances of her discovery. Over the next several minutes, the victim received several telephone calls or text messages from the appellant’s wife. At one point, the appellant’s wife stated that the receiver for the camera was in their home and that everything was “alright.” In addition, the appellant left several messages on her home telephone-recording device saying that he needed to speak to her and “will you just give me one minute? Please, just one minute.”

Based on the information provided by the victim, CID Agent Grimes contacted his civilian supervisor, Agent Stevenson. CID sent a military policeman (MP) to the appellant’s on-base residence where the MP informed the appellant’s wife that CID would like the appellant to come in for an interview. The appellant and his wife drove to CID together and voluntarily presented a functional electric razor, a receiver, and recording equipment to Agent Stevenson. This equipment was not requested by CID. The appellant and his wife stated that the presence of the “fake electric razor” in the bathroom was [548]*548“pure accident” and that the appellant had “mistakenly taken the wrong razor to work that day.” The appellant and his wife were then separated and placed in different interview rooms.

At one point during the separate interviews, Agent Stevenson asked the appellant for consent to search his residence. The appellant refused. Shortly thereafter, Agent Stevenson went to the appellant’s wife, and read and explained to her a Permissive Authorization for Search and Seizure (PASS). The appellant’s wife made 14 separate initials on the form including a correction to the color of one of the family cars.

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Related

United States v. Nelson
Navy-Marine Corps Court of Criminal Appeals, 2021
United States v. Hoffmann
74 M.J. 542 (Navy-Marine Corps Court of Criminal Appeals, 2014)
State v. Lucero
220 P.3d 249 (Court of Appeals of Arizona, 2009)
United States v. Weston
67 M.J. 390 (Court of Appeals for the Armed Forces, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
66 M.J. 544, 2008 CCA LEXIS 130, 2008 WL 835266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-weston-nmcca-2008.