United States v. Flores , 64 M.J. 451 ( 2007 )

UNITED STATES, Appellee
v.
Rodolfo FLORES, Private First Class
U.S. Marine Corps, Appellant
No. 06-0675
Crim. App. No. 200400701
United States Court of Appeals for the Armed Forces
Argued February 12, 2007
Decided April 23, 2007
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued);
Lieutenant Aimee M. Cooper, JAGC, USNR.
For Appellee: Major Brian K. Keller, USMC (argued); Major Kevin
C. Harris, USMC (on brief); Commander C. N. Purnell, JAGC, USN.
Amicus Curiae for Appellant: Jaymeski Pullins-Gorham (law
student) (argued); Donald W. North, Esq. (supervising attorney),
Brandon Brown (law student), Karen Hayes (law student), and
Katherine Pellegran (law student) (on brief) – for the Southern
University Clinical Education Program, Southern University Law
Center.
Military Judge: R. S. Chester
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Flores, No. 06-0675/MC
Chief Judge EFFRON delivered the opinion of the Court.1
At a general court-martial composed of a military judge
sitting alone, Appellant faced charges of conspiracy to commit
larceny and six specifications of larceny. See Articles 81 and
121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881,
921 (2000). Prior to entering pleas, Appellant filed a motion
challenging the legality of a search that had produced
significant evidence on the charged offenses. The military
judge denied Appellant’s motion, ruling that Appellant lacked
standing to challenge the legality of the search. Following
denial of the motion, Appellant entered conditional guilty
pleas, preserving his right to appeal the military judge’s
ruling on the search.
After receiving Appellant’s pleas, the military judge found
Appellant guilty of the charged offenses and adjudged a sentence
that included a dishonorable discharge, confinement for six
years, forfeiture of all pay and allowances, and reduction to
the lowest enlisted grade. The convening authority approved the
sentence, but suspended execution of that portion of the
sentence adjudging confinement in excess of sixty months, for a
1
We heard oral argument in this case at the Southern University
Law Center in Baton Rouge, Louisiana, as part of the
Court’s “Project Outreach.” See United States v. Mahoney, 58
M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed
as part of a public awareness program to demonstrate the
operation of a federal court of appeals and the military justice
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period of twelve months from the date of the convening
authority’s action. The convening authority approved
forfeitures of all pay and allowances only until such time as
the approved confinement was lawfully terminated, and
thereafter, approved forfeitures of two-thirds pay per month
while Appellant remained in a pay status. The United States
Navy-Marine Corps Court of Criminal Appeals affirmed. United
States v. Flores, 63 M.J. 557 (N-M. Ct. Crim. App. 2006).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE LOWER COURT ERRED WHEN IT
HELD THAT APPELLANT DID NOT HAVE STANDING IN
ORDER TO CHALLENGE THE GOVERNMENT’S SEARCH.
II. WHETHER THE MILITARY JUDGE ERRED WHEN HE
CONCLUDED THAT THE GOVERNMENT WOULD HAVE
“INEVITABLY DISCOVERED” APPELLANT’S
CONFESSION.
We hold that Appellant lacked standing to challenge the
legality of the Government’s search. In light of our conclusion
on standing under Issue I, we need not resolve Issue II.
I. STANDING TO CHALLENGE THE LEGALITY OF A SEARCH
Evidence obtained as a result of an unlawful search is
inadmissible against an accused who makes a timely motion or
objection establishing “a reasonable expectation of privacy in
system.
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the person, place or property searched.” Military Rule of
Evidence (M.R.E.) 311(a)(2); see United States v. Daniels, 60
M.J. 69, 70 (C.A.A.F. 2004). An accused bears the burden of
demonstrating “a subjective expectation of privacy which is
objectively reasonable.” United States v. Monroe, 52 M.J. 326,
330 (C.A.A.F. 2000); see United States v. Miller, 13 M.J. 75, 77
(C.M.A. 1982) (the accused “bears the burden of proving . . .
that he had a legitimate expectation of privacy in the area
being searched”) (citing Rawlings v. Kentucky, 448 U.S. 98(1980); Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978)); see
also United States v. Freitas, 716 F.2d 1216, 1220 n.2 (9th Cir.
1983) (concluding that when “a defendant fails to meet this
burden in the suppression hearing, he cannot prevail on appeal
even though the Government also did not establish the contrary,
unless, of course, the record on appeal independently
demonstrates the requisite standing”).
An accused has no privacy interest in voluntarily abandoned
property, and lacks standing to complain of the search or
seizure of such property. See, e.g., California v. Hodari, 499
U.S. 621, 629 (1991) (judge properly denied motion to suppress
evidence of cocaine abandoned by defendant while fleeing from
police); Miller, 13 M.J. at 78. If, however, a person
“discard[s] articles in reaction to illegal police conduct,”
such action does not deprive the individual “of the right to
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object to the illegitimacy of the police action” in searching or
seizing those articles. United States v. Robinson, 6 M.J. 109,
110 (C.M.A. 1979).
II. EVIDENCE PRESENTED AT THE SUPPRESSION HEARING
The challenged search took place on the date that
Appellant’s platoon graduated from recruit training at the
Marine Corps Recruit Depot at San Diego, California.
On the evening before graduation, the commanding officer of
Appellant’s platoon reported to his battalion commander that
several recruits had discovered unauthorized automatic teller
machine (ATM) withdrawals from their credit union accounts
amounting to approximately $3,700. Appellant was one of the
recruits reporting lost funds.
Agents from the Criminal Investigation Division (CID)
immediately launched an investigation into the apparent thefts,
questioning each of the platoon’s approximately sixty recruits
into the night in an attempt to identify a suspect. By the
morning of graduation day, the investigation had not yet yielded
a suspect, but had focused suspicion on the members of
Appellant’s platoon.
The schedule for graduation day called for the recruits to
participate in a graduation ceremony. They would then depart
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immediately after the ceremony for ten days of leave before
reporting for further training at the School of Infantry.
On the morning of graduation day, the recruits placed their
bags, already packed in anticipation of their expected
departure, in a staging area. They then left the barracks to
prepare for graduation. While the recruits were on the parade
deck forming up for graduation, the CID and a credit union
representative briefed the battalion commander on the status of
the ongoing investigation. Taking note of the lack of suspects
and imminent departure of the graduates, the battalion commander
became concerned that any evidence would disappear once the
recruits departed. He ordered a guard and a drill instructor to
stand guard over the recruits’ bags, and ordered a search to be
conducted after graduation. Although the recruits had been
interviewed by the CID and were aware that an investigation was
ongoing, the record is silent as to when they learned that their
belongings would be searched.
After graduation, the recruits collected their bags from
the staging area and marched back to the squad bay. In the bay,
they were ordered to line up with their bags. One by one, each
recruit was ordered to empty his bags. After a drill instructor
searched the contents of each bag, its owner was directed to
repack it.
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The bags carried by Appellant were searched and repacked
without incident. As he was walking out the door, a drill
instructor alerted the CID to the discovery of a substantial
amount of cash in a bag that had been unpacked by Recruit S.
When viewing the contents, Recruit S denied ownership of the
bag, and expressed a belief that the bag had been switched when
the newly graduated Marines had been escorted to their bags just
before returning to the barracks for the search.
The CID agents inspected the contents of the clothing bag
unpacked by Recruit S and found a substantial amount of material
pointing to Appellant as the owner of the bag, including
photographs of Appellant, mail addressed to Appellant, and
uniforms bearing Appellant’s name. At the same time, the
clothing bag carried by Appellant was determined to be Recruit
S’s bag, and was returned to Recruit S. Appellant was placed
under arrest, and soon thereafter, he confessed to the conduct
that subsequently resulted in his court-martial. After
Appellant’s arrest, other members of the platoon discovered
unauthorized withdrawals from their accounts.
At trial, Appellant moved to suppress evidence obtained as
a result of the search of his clothing bag, including his
confession. At the hearing on the motion to suppress, the
military judge heard testimony from the commanding officer who
ordered the search, a CID agent who participated in the
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investigation, and the drill instructor who conducted the search
that revealed the incriminating evidence in Appellant’s bag.
In the course of ruling on the issue, the military judge
entered findings of fact and conclusions of law. The military
judge found that Appellant voluntarily abandoned his bag by
switching bags with another recruit before the search was
ordered. As matter of law, the military judge held that
Appellant lacked standing to challenge the legality of the
search of that bag, and denied the motion to suppress.
III. DISCUSSION
We review the military judge’s denial of the motion to
suppress for abuse of discretion. United States v. Khamsouk, 57
M.J. 282, 286 (C.A.A.F. 2002). Findings of fact are reviewed
for clear error, while conclusions of law are reviewed de novo.
Id. We view the evidence in the light most favorable to the
prevailing party. United States v. Reister, 44 M.J. 409, 413
(C.A.A.F. 1996).
Appellant contends that the military judge’s finding that
the bags were switched before the search was ordered is
unsupported by the record and therefore erroneous. According to
Appellant, the evidence suggests that the bags were switched at
the last minute in a hasty attempt to avoid detection during the
search. Under Appellant’s theory, the bags were switched after
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he learned of an imminent, illegal search. In that context,
according to Appellant, he did not voluntarily abandon his bag,
and therefore did not lose standing to challenge the search.
The motion hearing provided the military judge with scant
evidence on the question of whether Appellant abandoned his
clothing bag voluntarily or in response to the knowledge of the
imminent search. The testimony established that on October 3,
2002, Appellant reported that there had been unauthorized
withdrawals from his credit union account. The military judge
found that Appellant reported the withdrawals in an effort to
shift suspicion away from himself. The military judge also
found that no one was allowed access to the recruits’ bags from
the time they were placed under guard until they were searched.
He concluded as a matter of fact that Appellant intentionally
switched clothing bags with Recruit S before the commanding
officer posted guards over the bags and ordered a search.
The testimony at the hearing established that Appellant,
when asked to unpack his bag, presented Recruit S’s clothing bag
to be searched, passed it off as his own, and repacked the
contents of the bag after it had been searched. He then took
Recruit S’s bag with him and walked out the door, without
telling anyone that the bag was not his. The military judge
found that the bags carried by Appellant were searched before
Recruit S’s bags were searched, and that Appellant was walking
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out the door after having had his bags searched when money was
found in Recruit S’s bag.
The only direct evidence concerning when the bags were
switched is the drill instructor’s testimony that Recruit S said
he thought the bags were switched when the Marines returned to
their gear after graduation. The defense did not object to the
drill instructor’s hearsay testimony. Appellant could have
testified regarding the circumstances of the search, including
the issue of voluntary abandonment, without incriminating
himself on the charged offenses. See M.R.E. 311(f). He did not
testify, however.
On appeal, Appellant bears the burden of showing a
reasonable expectation of privacy in his clothing bag after it
was switched with Recruit S’s bag. We view the evidence in the
light most favorable to the Government, including Appellant’s
steps to divert suspicion from himself before the search by
reporting that he had been victimized by unauthorized
withdrawals, the platoon’s limited access to the guarded bags
immediately prior to the search, and the drill instructor’s
hearsay testimony suggesting that Appellant may not have
switched the bags until after the search was ordered. In that
context, the military judge did not make a clearly erroneous
finding of fact in concluding that the bags were switched before
the commanding officer ordered the search. Because the military
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judge properly determined that Appellant abandoned his bag
voluntarily and not in response to the allegedly illegal police
conduct, we conclude that Appellant did not carry his burden at
the motion hearing, and has not carried his burden on appeal, of
demonstrating that he had a reasonable expectation of privacy in
the bag. Accordingly, Appellant lacked standing to challenge
the validity of the search or the admission of derivative
evidence, including his confession.
IV. CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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