United States v. White

40 M.J. 257, 1994 CMA LEXIS 109, 1994 WL 508184
CourtUnited States Court of Military Appeals
DecidedSeptember 16, 1994
DocketNo. 93-0493; CMR No. 29496
StatusPublished
Cited by4 cases

This text of 40 M.J. 257 (United States v. White) 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. White, 40 M.J. 257, 1994 CMA LEXIS 109, 1994 WL 508184 (cma 1994).

Opinions

Opinion of the Court

GIERKE, Judge:

A general court-martial convicted appellant, in accordance with his conditional guilty pleas, of larceny (3 specifications), in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The approved sentence provides for a bad-conduct discharge, confinement for 1 year, forfeiture of $500.00 pay per month for 12 months, and reduction to the lowest enlisted grade. The Court of Military Review affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following specified issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FAILING TO SUPPRESS EVIDENCE SEIZED FROM APPELLANT’S BEDROOM.

Specifications 1 and 2 of the Charge involved thefts of stereo equipment. Prior to [258]*258entry of pleas, appellant moved to suppress evidence seized from the bedroom of his off-base apartment. After the motion to suppress was denied, appellant entered conditional pleas of guilty to all three specifications of the Charge.

Factual Background

Air Force security police investigators received information from an unnamed witness who had overheard a conversation indicating that there was stolen property in appellant’s off-base apartment. The witness did not provide specific descriptions of the stolen property.

Appellant shared the apartment with Airman Titus and Airman Johnson. The investigators attempted to contact appellant and Airman Titus at their unit but were informed that they had been released from duty for the remainder of the day. They then contacted Airman Johnson, who indicated that he had seen items of stereo equipment in the apartment of the type that had been reported stolen. The investigators could not recall how specifically they described the stolen stereo equipment to Johnson. Johnson consented in writing to a search of the apartment. He escorted the investigators to the apartment and unlocked the door with a key. They searched the common areas of the apartment and then Johnson’s bedroom. After searching an upstairs bathroom, they observed an open door to a bedroom. From outside the bedroom they observed components of a stereo system in the bedroom. Johnson informed the investigators that the bedroom was appellant’s.

The investigators contacted Captain Pischnotte, a member of the base judge advocate’s office, and asked him if Johnson had authority to consent to a search of appellant’s bedroom. They informed Captain. Pischnotte that they could see some stereo equipment in appellant’s bedroom, but they told him that they could not determine if it was exactly what they were looking for. Captain Pischnotte told them that he needed more information. He told them to find out who had access to the room, whose names were on the lease, and whether appellant previously had permitted Johnson to enter the room.

The investigators then asked Johnson what agreements had been made among the occupants about access to the apartment. Johnson informed them that there was “no formal agreement” but that the occupants “frequently borrowed personal property from each other, and they went in and out of each other’s rooms without asking permission.” Johnson informed them that “he had gone into the room on several occasions to receive personal property of his and to borrow personal property.” Johnson also told them that all three tenants had signed the lease.

The investigators then contacted Captain Pischnotte again, and, after they had provided him with the additional information he had requested, he advised them that Johnson had authority to consent to a search of appellant’s bedroom. They then entered appellant’s bedroom, identified several items of stereo equipment and electronic equipment which had been reported as stolen, and seized the items.

The military judge “ruled that the Government ha[d] not met its burden of establishing that ... Johnson possessed common authority over [appellant’s] bedroom.” He based his ruling on the facts that appellant and Johnson had shared the apartment for only 2 weeks; there was no stated agreement giving Johnson common authority over White’s bedroom; and that 2 weeks was “insufficient time to allow common authority to be presumed” based on day-to-day interaction. The military judge ruled further, however, that “the investigators reasonably believed that ... Johnson had authority to consent to the search of [appellant’s] bedroom,” so he denied the motion to suppress based on the good-faith exception.

Discussion

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court held that a person with common authority over the premises may consent to a search. The Court explained that “common authority” rests “on mutual use of the property by persons generally having [259]*259joint access or control for most purposes....” Id. at 171 n. 7, 94 S.Ct. at 993 n. 7. In Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990), the Supreme Court held that a search may be “reasonable” even though the person purporting to give consent lacks actual authority to consent, if the facts known to the police when the purported consent is given “would ... Varrant a man of reasonable caution in the belief that the consenting party had authority over the premises[.] Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)[,]” quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

Rodriguez has been interpreted as limited to mistakes of fact, not mistaken legal conclusions regarding actual authority to give consent. See United States v. Salinas-Cano, 959 F.2d 861, 866 (10th Cir.1992) (officer not mistaken about facts; was mistaken in “concluding that the facts authorized” person to give consent to search of closed suitcase on the premises); United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.Cir.1991) (agents did not obtain enough facts to reasonably conclude that mother had authority to consent to search of adult son’s room).

Appellant asserts that the military judge erred in concluding that the security police reasonably believed that Johnson had common authority over appellant’s bedroom. He argues that the security police did not rely on incorrect facts, but instead they incorrectly concluded that the facts gave Johnson authority to give consent to the search.

The Government argues that Johnson had apparent authority to consent, based on the facts that (1) appellant left the bedroom open, exposing the stereo equipment to plain view; (2) Johnson routinely entered appellant’s bedroom without express permission to borrow clothes, compact discs, and video tapes; and (3) Johnson and appellant had both signed the lease.

Johnson’s actual authority over the premises was much less than he represented to the security police.

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

Related

United States v. Gallagher
65 M.J. 601 (Navy-Marine Corps Court of Criminal Appeals, 2007)
United States v. Reister
44 M.J. 409 (Court of Appeals for the Armed Forces, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
40 M.J. 257, 1994 CMA LEXIS 109, 1994 WL 508184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-white-cma-1994.