United States v. Khamsouk , 57 M.J. 282 ( 2002 )

UNITED STATES, Appellee
V.
Toro KHAMSOUK, Ship’s Serviceman Seaman Apprentice
U.S. Navy, Appellant
No. 01-0387
Crim. App. No. 9900711
United States Court of Appeals for the Armed Forces
Argued November 27, 2001
Decided September 20, 2002
BAKER, J., delivered the judgment of the Court. CRAWFORD,
C.J., GIERKE and EFFRON, J.J., and SULLIVAN, S.J., each
filed an opinion concurring in and dissenting in part.
Counsel
For Appellant: Lieutenant Hardy Vieux, JAGC, USNR (argued).
For Appellee: Major Robert M. Fuhrer, USMC (argued);
Colonel Rose M. Favors, USMC (on brief); Colonel M. W.
Fisher, USMC, Major Edward C. Durant, USMC.
Military Judge: Mark S. Utecht
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Khamsouk, No. 01-0387
Judge BAKER delivered the judgment of the Court:
Appellant was tried by a military judge sitting as a
general court-martial. Contrary to his pleas, he was
convicted of fraudulent enlistment, five specifications of
larceny, forgery, and sixteen specifications of the
unauthorized use of another’s credit card in violation of
Articles 83, 121, 123, and 134, Uniform Code of Military
Justice (UCMJ), 10 USC §§ 883, 921, 923, and 934,
respectively. The adjudged and approved sentence provided
for a bad-conduct discharge, confinement for five years, a
fine of $2,500, forfeiture of all pay and allowances, and
reduction to pay grade E-1. The Court of Criminal Appeals
affirmed the findings and sentence. 54 M.J. 742 (2001). We
granted review of the following issues:
I
WHETHER THE MILITARY JUDGE ERRONEOUSLY DENIED
APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED
FROM AN UNLAWFUL ENTRY IN A THIRD PARTY’S HOME BY
MILITARY LAW ENFORCEMENT AGENTS WHO, BELIEVING HE
WAS INSIDE, ENTERED THE RESIDENCE WITHOUT A SEARCH
WARRANT IN VIOLATION OF THE FOURTH AMENDMENT.
II
WHETHER THE APPREHENSION OF APPELLANT BY MILITARY
LAW ENFORCEMENT AGENTS, AFTER THEIR ENTRY INTO A
PRIVATE THIRD PARTY RESIDENCE, WAS IN VIOLATION OF
RCM 302(e)(2) AND HIS CONSTITUTIONAL PROCEDURAL
DUE PROCESS RIGHTS.
III
WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED THAT
THE INORDINATE AND UNEXPLAINED POST-TRIAL DELAY
2
United States v. Khamsouk, No. 01-0387
CAUSED BY THE MILITARY JUDGE DID NOT PREJUDICE
APPELLANT.
We conclude that the entry into a civilian third
party’s residence violated the Fourth Amendment, U.S. Const.
amend. IV.1 Nonetheless, for the reasons set forth below,
we hold that the evidence obtained subsequent to this
illegality was not subject to suppression at trial.
However, regarding Issue III, we find it necessary to order
a remand to the Court of Criminal Appeals for that court’s
analysis of appellant’s claim in light of this Court’s
decision in United States v. Tardif, __ MJ ___ (2002).
Background
On December 18, 1996, the Naval Criminal Investigative
Service (NCIS) initiated an investigation into several
checks fraudulently passed through the Atlantic Fleet Credit
Union. Appellant soon became the focus of this
investigation. When Special Agent (SA) Edward M. Coyle, the
lead investigator on the case, contacted appellant’s
command, he learned that appellant had been an unauthorized
absentee since December 12, 1996. On January 6, 1997,
appellant’s commanding officer issued a Department of
Defense (DD) Form 553 (Deserter/Absentee Wanted by the Armed
Forces). On February 5, 1997, an informant advised SA Coyle
1
Our resolution of Granted Issue I obviates any need to reach Granted
Issue II.
3
United States v. Khamsouk, No. 01-0387
that appellant was staying at the private off-base residence
of Hospital Corpsman Second Class (HM2) Tom Guest. The
informant also indicated that appellant might be leaving the
residence around 2:00 p.m. for an appointment. Other
individuals contacted during the investigation informed SA
Coyle that appellant often carried around a black knapsack
thought to contain stolen or fraudulent credit cards and
credit card receipts. Further, two young women interviewed
by NCIS indicated that they had seen appellant in possession
of credit card receipts that were not in his name. Based on
this information, SA Coyle and three other NCIS agents went
to HM2 Guest’s residence to set up surveillance and await
appellant’s departure for his appointment. Although SA
Coyle had a copy of the DD Form 553 in his possession, he
did not have either a search warrant or an arrest warrant
issued by a civilian magistrate. Because SA Coyle was not
sure whether the knapsack was in the residence and because
he knew the residence belonged to HM2 Guest, he believed
that he needed a search warrant to search the residence.
Since he did not have a search warrant, he made the decision
to wait and attempt to apprehend appellant outside the
residence.
At approximately 1:15 p.m., the NCIS agents saw two men
leave the home, one of whom they thought fit appellant’s
description. They stopped the two men and discovered they
4
United States v. Khamsouk, No. 01-0387
were in fact HM2 Guest and a friend, Bobby Salazar. SA
Coyle then informed HM2 Guest that he had a warrant for
appellant’s arrest. HM2 Guest replied that appellant was
still inside the residence. When asked whether NCIS agents
could enter his residence to apprehend appellant, HM2 Guest
replied, “I would prefer if [you] would wait and allow me to
bring him out.” SA Coyle followed HM2 Guest, stopping at
the entrance to the front door while HM2 Guest entered.
The front door of the house opened into a foyer with an
entrance on the left that led to a living room where
appellant had been staying for two or three days, sleeping
on a sofa. According to HM2 Guest, who was standing in the
foyer, appellant was in the living room on the sofa when he
entered the residence. However, neither the living room nor
the sofa were visible from the front door. HM2 Guest called
to appellant from the foyer and told him that there were
people at the door to see him.
SA Coyle and HM2 Guest testified slightly differently
about what transpired next. According to SA Coyle, when
appellant stepped out of the living room to see who was at
the door, he first asked appellant for his name. When
appellant responded, SA Coyle informed him that he was under
apprehension and entered the residence to take him into
custody. As noted earlier, SA Coyle realized he needed a
search warrant before entering HM2 Guest’s residence to
5
United States v. Khamsouk, No. 01-0387
search for appellant, which is why he and the other NCIS
agents initially waited outside. However, when appellant
appeared after being beckoned by HM2 Guest, SA Coyle
reasoned that because appellant was “in my sight, in plain
view,” he was authorized to enter the residence. He also
indicated that his concern for “officer safety” prompted his
entrance because he did not know if there were other people
or weapons in the room from where appellant had just
emerged. In SA Coyle’s view, the DD Form 553 authorized his
entry to apprehend appellant. SA Coyle testified that
appellant was approximately three feet inside the house when
he told appellant he was under apprehension.
According to HM2 Guest, he entered his residence,
stopped at the entrance to the living room, and called
appellant. He stated that SA Coyle came past him as soon as
appellant tried to look to see who was at the door.
According to HM2 Guest, at this point SA Coyle entered the
house, went to the entrance to the living room and told
appellant, “’[D]on’t move. I’ve got you,’ or something to
that effect.” The military judge resolved this factual
issue by finding that “[SA] Coyle, upon seeing [appellant]
peek around the corner into the foyer, went inside the
residence and placed [appellant] under military apprehension
in the foyer.”
6
United States v. Khamsouk, No. 01-0387
Appellant was immediately given his Article 31, UCMJ,
10 USC § 831, rights upon apprehension and was guided back
into the living room to the sofa. However, he was not
questioned beyond being asked his name and, whether a
knapsack adjacent to the couch belonged to him.2 SA Coyle
then asked appellant to sign a one-page consent form
authorizing the search of his knapsack. According to SA
Coyle, he apprehended appellant at 1:25 p.m. and appellant
signed the form at some time between 1:25 p.m. and 1:45 p.m.
The permissive search authorization form indicated
appellant’s consent to the search of his “personal bags,
knapsack(s) and other luggage.” It further stated that he
was advised of, and understood, his “constitutional right to
refuse to permit this search in the absence of a search
warrant.” Only after appellant’s consent was given did SA
Coyle seize the knapsack.
HM2 Guest subsequently consented to a search of his
home for appellant’s additional belongings. During this
search, appellant’s duffel bag was seized from a second
floor room. The NCIS agents checked the bags for weapons
and loaded them in their car for transport back to the NCIS
field office in Norfolk, Virginia.3
2
The military judge found that the knapsack was not “within the
‘wingspan’ of [appellant] at the time of his apprehension.”
3
The military judge specifically found that this was not a search of
the bags.
7
United States v. Khamsouk, No. 01-0387
The NCIS agents then took appellant and his bags to the
field office. There, appellant acknowledged his Article 31
rights again and executed a written waiver of those rights.
However, the agents did not seek additional consent to
search his bags, at the field office. Special Agents Coyle
and James Campbell then searched appellant’s bags and
questioned him about individual items as they discovered
them. These items included credit card receipts and credit
card numbers. The NCIS agents asked appellant if he had
used the credit card numbers or signed the receipts.
Appellant confessed that he had obtained the credit card
numbers from a Mr. Ratsamy Phanivong, that he knew that they
did not belong to Mr. Phanivong, that he did not have
permission to use the credit card numbers, and that he used
them fraudulently.
At trial, defense counsel made a timely objection to
the admission of the contents of the bags and to the
confession. The thrust of his argument was that the entry
into HM2 Guest’s residence violated R.C.M. 302, Manual for
Courts-Martial, United States (2000 ed.),4 and the Fourth
Amendment. Therefore, he asserted, the evidence from the
bags and the confession, derived from the illegal entry,
were inadmissible. The military judge found the DD Form 553
4
All Manual provisions cited are identical to those in effect at the
time of appellant’s court-martial.
8
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to be the “functional equivalent of an arrest warrant,” that
appellant was not a “resident” of HM2 Guest’s residence, and
that appellant’s consent was valid.
In this Court, appellant contends that he had a
reasonable expectation of privacy in HM2 Guest’s residence
because he was an overnight guest and, therefore, has
standing to challenge the search. He claims that the
warrantless entry by the NCIS agents into HM2 Guest’s
residence violated the Fourth Amendment, and therefore, that
the evidence and confession must be suppressed as fruits of
the illegal entry.
The Government first argues that SA Coyle’s
apprehension of appellant satisfies the Fourth Amendment
because a DD Form 553 is the equivalent of a civilian arrest
warrant. In the alternative, the Government argues both
that HM2 Guest consented to SA Coyle’s entry into the
residence, and that exigent circumstances independently
justified the entry.5
For the reasons set forth in Part I of the discussion
below, we reject the military judge’s conclusion, and that
of the court below, that the entry was lawful. However, in
Part II, under the rationale of Brown v. Illinois, 422 U.S.
590 (1975), and Wong Sun v. United States, 371 U.S. 471
5
We find it necessary to address only the first of these contentions.
Furthermore, it is questionable whether the record supports the
Government’s latter two arguments.
9
United States v. Khamsouk, No. 01-0387
(1963), we further conclude that appellant’s subsequent
consent to the search of his bags was not the exploited
product of the prior illegal entry and thus, was
sufficiently attenuated from that illegality. Therefore,
under the principles enunciated in New York v. Harris, 495
U.S. 14 (1990), the confession obtained at the field office
was also sufficiently attenuated from the prior illegality
and properly admitted at trial.
I
A military judge’s denial of a motion to suppress is
reviewed for an abuse of discretion. United States v.
Monroe, 52 M.J. 326, 330 (2000). A military judge’s fact-
finding is reviewed under a clearly erroneous standard, and
his conclusions of law are reviewed de novo. Id.
Granted Issue I requires us to consider the entry by
military law enforcement officials into a civilian
residence, without a civilian warrant, to apprehend a
military member whom military officials have designated an
unauthorized absentee or deserter.
The Fourth Amendment provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched and the persons or things to be seized.
U.S. Const. amend. IV.
10
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The history of the protections secured by this
amendment is both long and familiar. At its core stands
“the right of a man to retreat into his own home and there
be free from unreasonable governmental intrusion.”
Silverman v. United States, 365 U.S. 505, 511
(1961)(citations omitted). The principles of the Fourth
Amendment “apply to all invasions on the part of the
government and its employees of the sanctity of a man’s home
and the privacies of life.” Boyd v. United States, 116 U.S.
616, 630 (1886). Indeed, “physical entry of the home is the
chief evil against which the wording of the Fourth Amendment
is directed . . . .” United States v. United States
District Court For the Eastern District of Michigan, 407
U.S. 297, 313 (1972). “The right of officers to thrust
themselves into a home is . . . a grave concern, not only to
the individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance.” Johnson
v. United States, 333 U.S. 10, 14 (1948). “Were federal
officers free to search without a warrant merely upon
probable cause to believe that certain articles were within
a home, the provisions to the Fourth Amendment would become
empty phrases, and the protection it affords largely
nullified.” Jones v. United States, 357 U.S. 493, 498
(1958). See Kirk v. Louisiana, 536 U.S. __, __, 122 S. Ct.
2458, 2459 (2002)(per curiam)(“[B]ecause ‘the Fourth
11
United States v. Khamsouk, No. 01-0387
Amendment has drawn a firm line at the entrance to the house
. . .[, a]bsent exigent circumstances, that threshold may
not reasonably be crossed without a warrant’”)(quoting
Payton, 445 U.S. at 590).
Application of the Fourth Amendment to these facts
requires a review of several Supreme Court cases dealing
with seizures within the home and the warrant requirement:
Wong Sun, Brown, Payton, and Minnesota v. Olson, 495 U.S. 91
(1990).
A.
Standing
The first question is whether appellant has standing to
challenge his arrest in the residence of HM2 Guest, a third
party. The Government conceded at oral argument that
appellant has standing as a resident of HM2 Guest’s house to
press his Fourth Amendment claim that the entry into the
residence was unlawful. Notwithstanding this concession, we
conclude independently that appellant has such standing.
Mil.R.Evid. 311, Manual, supra, states:
(a) General rule. Evidence obtained as a result
of an unlawful search or seizure made by a person
acting in a governmental capacity is inadmissible
against the accused if: . . .
(2) [T]he accused had a reasonable expectation of
privacy in the person, place or property searched;
the accused had a legitimate interest in the
property or evidence seized when challenging a
seizure; or the accused would otherwise have
grounds to object to the search or seizure under
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United States v. Khamsouk, No. 01-0387
the Constitution of the United States as applied
to members of the armed forces.
An arrest6 is a seizure of the body covered by the
Fourth Amendment, and warrantless seizures inside a home are
presumptively unreasonable, absent exigent circumstances.
Payton, 445 U.S. at 585-86. However, the arrest of a person
inside his own home made with a valid arrest warrant does
not violate the Fourth Amendment, and does not require a
search warrant. Id. at 602-03. In Payton, the Supreme
Court explained that an arrest warrant is sufficient to
protect a citizen’s privacy interest in his own home when he
is arrested there.
It is true that an arrest warrant requirement may
afford less protection than a search warrant
requirement, but it will suffice to interpose the
magistrate's determination of probable cause between
the zealous officer and the citizen . . . . Thus, for
Fourth Amendment purposes, an arrest warrant founded
on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the
suspect is within.
Id.
Noting the distinct interests at issue between an arrest
warrant and a search warrant, the Court stated:
6
As a matter of terminology, under R.C.M. 302(a)(1), Manual for
Courts-Martial, United States (2000 ed.), “the taking of a person
into custody” is referred to as “apprehension” and not arrest.
“Apprehension is the equivalent of ‘arrest’ in civilian terminology.
(In military terminology, ‘arrest’ is a form of restraint. See
Article 9; R.C.M. 304.)” R.C.M. 302(a)(1), Discussion, Manual,
supra. However, apprehensions by military personnel are unlawful if
they violate the Fourth Amendment as applied to the armed forces.
See id.; Mil.R.Evid. 311(c)(1), Manual, supra.
13
United States v. Khamsouk, No. 01-0387
An arrest warrant is issued by a magistrate upon a
showing that probable cause exists to believe that the
subject of the warrant has committed an offense and
thus the warrant primarily serves to protect an
individual from an unreasonable seizure. A search
warrant, in contrast, is issued upon a showing of
probable cause to believe that the legitimate object
of a search is located in a particular place, and
therefore safeguards an individual's interest in the
privacy of his home and possessions against the
unjustified intrusion of the police.
Steagald v. United States, 451 U.S. 204, 213 (1981).
In Olson, the Supreme Court extended the Fourth
Amendment’s protections to overnight guests. The Court
concluded that “Olson's status as an overnight guest is
alone enough to show that he had an expectation of
privacy in the home that society is prepared to recognize
as reasonable.” Olson, 495 U.S. at 96-97. Defendant
Olson was implicated in a robbery and feared being
arrested if he returned home. State v. Olson, 436 N.W.2d
92, 96 (Minn. 1989). Instead, that night he stayed at an
acquaintance’s home. Id. The following day, police were
informed of Olson’s whereabouts and proceeded to that
location. Olson, 495 U.S. at 93. With guns drawn, they
entered into the acquaintance’s home without either
permission or a warrant. Id. at 94. The Court held that
Olson’s subsequent arrest was unlawful. Id. at 100-01.
Similarly, appellant had been staying with HM2 Guest
for two or three days, sleeping on a sofa. Like Olson,
appellant was an overnight guest with a sufficient
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United States v. Khamsouk, No. 01-0387
interest in HM2 Guest’s home and therefore, was protected
from a warrantless arrest in the home under the Fourth
Amendment as interpreted by Olson. Accordingly,
appellant has standing to challenge the lack of an arrest
warrant.7 Id. at 98-99.
B.
Legality of the Apprehension.
As noted earlier, the Government contends that the DD
Form 553, combined with the authority in Article 8, UCMJ, is
the equivalent of a civilian arrest warrant. This form
differs, however, from a civilian arrest warrant in several
respects. First, it is issued by a military commander and
gives authority to apprehend based on Article 8, UCMJ. The
DD Form 553 in this case indicated on its face that the
person named was a “Deserter/Absentee Wanted by the Armed
Forces.” On the fill-in-the-blank form, appellant’s
commanding officer8 certified that appellant had been absent
for 10 days, and that he had investigated appellant’s
absence. No authorization beyond the commander’s signature
was noted on the form. The reverse side of the DD Form 553
noted that the form itself, combined with an oral
notification from military or federal officials “that the
7
While we deem it unnecessary to reach Granted Issue II, we assume,
without deciding, that the use of the term “resident” in R.C.M.
302(e)(2)(D), Manual, supra, is coterminous with the term “householder”
as used by the Supreme Court in Olson. See Olson, 495 U.S. at 95.
8
Commander Daniel Holloway, USN, USS Gonzalez (DDG-66).
15
United States v. Khamsouk, No. 01-0387
person has been declared a deserter and that his/her return
to military control is desired,” gives a civil officer
authority to apprehend. However, the DD Form 553 is
applicable only to the military offense of desertion.
A federal arrest warrant, by contrast, is issued by a
federal magistrate judge, derives its authority from the
Federal Rules of Criminal Procedure and can be issued for
any federal offense. A federal arrest warrant may be issued
after a finding of probable cause by a magistrate judge
based upon a written complaint made under oath. Fed. R.
Crim. P. 3 & 4. If the magistrate judge finds “probable
cause to believe that an offense has been committed and that
the person named in the complaint has committed it, a
warrant for the arrest of that person shall issue to any
officer authorized by law to execute it.” Fed. R. Crim. P.
4(a). The warrant must be signed by the magistrate judge
and contain the name or description of the person. Fed. R.
Crim. P. 4(c)(1). Most significantly, however, a federal
warrant may be executed “at any place within the
jurisdiction of the United States.” Fed. R. Crim. P.
4(d)(2)(emphasis added).
We agree that, on a superficial level, a DD Form 553
resembles an arrest warrant issued by a federal magistrate
judge. However, in our view that is where the similarities
end. Because the source of authority of the two issuing
16
United States v. Khamsouk, No. 01-0387
officials is different, so too is the legal effect of the
two documents when the issue is entry into a civilian home.
The Supreme Court permits a non-lawyer to act as a
magistrate judge as long as he is “neutral and detached,”
and “capable of determining whether probable cause exists
for the requested arrest or search.” Shadwick v. City of
Tampa, 407 U.S. 345, 350 (1972). However, the Court also
made clear that a magistrate judge must be a public civil
officer with jurisdiction. Id. at 349 (emphasis added).9
We conclude that the Constitution does not permit military
investigators greater power to conduct warrantless entries
into the civilian home than their civilian counterparts.
See Posse Comitatus Act, 18 USC § 1385 (2000).10 While a
9
In limited instances, commanders can authorize searches for
individuals on property not within military control, in foreign
countries. Mil.R.Evid. 315, Manual, supra; see United States v.
Chapple, 36 M.J. 410 (CMA 1993)(applying the good faith exception to an
invalid search authorization for an off-base apartment in foreign
country not within military control).
10
Congressional caution regarding military law enforcement in civilian
settings is long-standing and is reflected in the Posse Comitatus Act
(PCA), which provides, inter alia:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or Air Force as a posse
comitatus or otherwise to execute the laws shall be fined
under this title or imprisoned not more than two years, or
both.
18 USC § 1385 (2000).
Although the Navy and Marine Corps are not included in the plain
language of the PCA, Congress directed the Secretary of Defense to
promulgate regulations prohibiting all branches of the military from
participating in civilian law enforcement activities as well. See 10
USC 375. In response, the Secretary of Defense promulgated Department
of Defense (DOD) Directive 5525.5 (Jan. 15, 1986)(as amended Dec. 20,
1989), regulating the cooperation of military personnel with civilian
17
United States v. Khamsouk, No. 01-0387
commander has powers similar to a federal magistrate judge,
those powers are constrained in scope to persons and places
under military control. See Mil.R.Evid. 315(c), Manual,
supra.
In this case, SA Coyle correctly believed that he
lacked the authority to initially enter and search a
civilian residence possessing only a DD Form 553. The DD
Form 553, or its predecessor, has long been used to
authorize civilian law enforcement to apprehend the named
individual as a deserter under Article 8, UCMJ. United
States v. Holder, 10 USCMA 448, 451, 28 CMR 14, 17 (1959);
United States v. Garner, 7 USCMA 578, 581, 23 CMR 42, 45
(1957). In Garner, this Court noted that the genesis of
Article 8, UCMJ, was the separation of civil and military
jurisdiction that previously prevented civil authorities
from apprehending deserters for a purely military crime.
Garner, 7 USCMA at 581, 23 CMR at 45 (citing Kurtz v.
Moffitt, 115 U.S. 487 (1885)). However, none of these
authorities stands for the proposition that either military
or civilian officials acting pursuant to a request to
law enforcement officials. The Secretary of the Navy issued SECNAV
Instruction 5820.7B (Mar. 28, 1988), implementing the DoD Directive.
Although the PCA was passed in the context of Civil War reconstruction,
Congress has had occasion to reconsider its reach in creating a
patchwork framework of express exceptions to it, such as those covering
certain training for civilian law enforcement personnel, and the use of
military personnel to combat weapons of mass destruction when human life
is at risk, and when civilian law enforcement is incapable of addressing
the threat. 50 USC §§ 2301-02 (2000).
18
United States v. Khamsouk, No. 01-0387
apprehend a military absentee, may do so by entering a
civilian residence without a civilian warrant. Moreover,
this Court has also held that “a military commander — no
matter how neutral and impartial he strives to be — cannot
pass muster constitutionally as a ‘magistrate’ in the strict
sense.” United States v. Stuckey, 10 M.J. 347, 361 (CMA
1981). Among other things, a military commander is not a
civilian. In short, the Fourth Amendment mandates that,
absent exigent circumstances, law enforcement officials of
all types possess a proper warrant or obtain consent prior
to entry in off-base civilian homes.
Therefore, we hold that the DD Form 553 is not the
functional equivalent of a civilian arrest warrant in the
context of entering a civilian home.11 Thus, SA Coyle’s
entry into HM2 Guest’s residence was a warrantless entry in
contravention of the Fourth Amendment.12
11
We leave undisturbed present law allowing civilian and military
officials to apprehend in a public place military members sought
pursuant to a DD Form 553.
12
The military judge at trial, and the Government in this Court, relied
on United States v. James, 464 F.2d 1228 (9th Cir. 1972), and Martin v.
Commonwealth, 592 S.W.2d 134 (Ky. 1979), for the proposition that
warrantless entry into the home may be effected by a civil officer with
probable cause to believe that a person is a deserter. Since these
cases were decided prior to the Supreme Court’s pronouncement in Payton,
they do not reflect applicable Fourth Amendment jurisprudence. Whatever
value these authorities may have as precedent in their respective
jurisdictions, we find them unpersuasive and not binding on military
courts.
19
United States v. Khamsouk, No. 01-0387
II
Having determined that the entry into HM2 Guest’s
residence to apprehend appellant was illegal, we turn now to
the pivotal issue in this case, namely, appellant’s consent
to the search of his knapsack while still in the residence.
Did the illegal entry vitiate appellant’s consent? If so,
the contents of the knapsack must be excluded. Given the
military judge’s finding regarding the relation between the
contents of the knapsack and appellant’s later statements,
so too must appellant’s confession be excluded, unless the
military judge’s finding in this respect is clearly
erroneous. We conclude this particular finding is not
clearly erroneous.13
The critical inquiry is whether appellant’s consent to
search was “sufficiently an act of free will to purge the
primary taint of the unlawful invasion.” Wong Sun, 371 U.S.
at 486. Thus, Wong Sun requires not merely that statements
taken following an illegality meet the Fifth Amendment, U.S.
Const. amend. V, standard of voluntariness, but that they
also be sufficiently voluntary to attenuate the taint.
Brown, 422 U.S. at 602. After all, it is not whether the
evidence would have come to light “but for” the warrantless
apprehension, but “whether, granting establishment of the
13
The military judge found that “[t]he questioning of [appellant] . . .
at NCIS was based solely on the evidence seized at 1248 Jackson Avenue.”
20
United States v. Khamsouk, No. 01-0387
primary illegality, the evidence to which instant objection
is made has been come at by exploitation of that illegality
or instead by means sufficiently distinguishable to be
purged of the primary taint.” Id. at 599 (citations
omitted). In the instant case, if appellant’s consent,
albeit voluntary, is determined to have been obtained
through exploitation of the illegal entry, it can not be
said to be sufficiently attenuated from the taint of that
entry.
In Brown, the Court established a framework for
analyzing whether statements made following an unlawful
arrest are sufficiently attenuated, or removed, from the
taint of the unlawful act. There, police officers
investigating a homicide broke into Brown’s apartment
without probable cause and without a search warrant while
Brown was away. 422 U.S. at 592. During the course of the
unlawful search, Brown returned. Id. The officers, still
in the apartment, watched Brown through a window as he
approached his door. Id. With guns drawn, they then
surprised Brown and arrested him. Id. He was subsequently
handcuffed and transported to the police station. Id. at
593. A little less than two hours after his arrest, and
after being read his Miranda warnings, Brown made a
statement implicating himself in the homicide. Id. at 594-
95. After several more hours spent assisting the police in
21
United States v. Khamsouk, No. 01-0387
finding his accomplice, Brown made a second statement to an
Assistant State’s Attorney. Id. at 595. This statement was
made some seven hours after his initial arrest and was also
preceded by Miranda warnings. Id. The statements were
subsequently used to convict Brown at trial.
Holding that the statements should have been
suppressed, the Court, relying on Wong Sun, noted that “the
question of whether a confession is the product of free will
[following an illegal arrest] must be answered on the facts
of each case. No single fact is dispositive.” Brown, 422
U.S. at 603. The Court went on to explain that Miranda
warnings, while an important factor, were not dispositive in
determining whether the statements were obtained by
exploitation of the illegal arrest. “The voluntariness of
the statement is a threshold requirement. And the burden of
showing admissibility rests, of course, on the prosecution.”
Id. at 603-04 (citations omitted). The Court set out three
factors also relevant to the inquiry: “[t]he temporal
proximity of the arrest and the confession, the presence of
intervening circumstances, and, particularly, the purpose
and flagrancy of the official misconduct . . . .” Id. at
604 (emphasis added). So, while the voluntariness of the
statement is a threshold requirement to vindicate the Fifth
Amendment interest, the Fourth Amendment interest arising
22
United States v. Khamsouk, No. 01-0387
from the illegal seizure of the person is vindicated through
a consideration of the three factors mentioned above.
Applying these principles to Brown’s situation, the
Court concluded that the time period between Brown’s arrest
and his first statement along with the lack of any
intervening circumstance were insufficient to purge the
taint of the illegal arrest. Brown, 422 U.S. at 604-05. In
what appears to be its analysis under the third factor, the
Court characterized the police officers’ conduct as having
“a quality of purposefulness.” Id. at 605. “The arrest,
both in design and in execution, was investigatory, [and
had] the appearance of having been calculated to cause
surprise, fright, and confusion” in the hope that some
evidence might be discovered. Id.
While Brown involved a confession, this framework has
been adopted to address issues of attenuation in the context
of consent as well. Florida v. Royer, 460 U.S. 491, 501
(1983)(consent at issue, “statements given during a period
of illegal detention are inadmissible even though
voluntarily given if they are the product of the illegal
detention and not the result of an independent act of free
will”)(citing Wong Sun, 371 U.S. at 471; Brown, 422 U.S. at
601-02; Dunaway, 442 U.S. at 218-19); see United States v.
Santa, 236 F.3d 662, 677-78 (11th Cir. 2000)(Brown factors
used to determine whether voluntary consent was obtained
23
United States v. Khamsouk, No. 01-0387
through exploitation of illegal seizure); United States v.
Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994)(factors
enunciated in Brown are “especially relevant to determining
whether a consent is tainted by a preceding illegal search
or seizure”); United States v. Chavez-Villarreal, 3 F.3d
124, 128 (5th Cir. 1993)(Brown factors used to determine
whether causal chain between consent and prior illegality
broken); United States v. McCraw, 920 F.2d 224, 230 (4th
Cir. 1990)(even if consent to search was voluntary by Fifth
Amendment standard, application of Brown factors required
suppression); United States v. Taheri, 648 F.2d 598, 601
(9th Cir. 1981)(even assuming consent voluntary, it was
necessary to apply Brown attenuation analysis).
A. The Brown Factors
The first two factors enunciated in Brown are more
related to classic notions of attenuation. See generally,
57A Am. Jur. 2D Negligence §§ 465, 491 (1989 & Supp.
2000)(discussing how temporal factor and an intervening
circumstance affect remoteness and causation analysis).
However, more so than the first two, the third factor is
directed at police misconduct and whether such conduct has
been employed to exploit the illegality. The Supreme Court
has identified this third factor as “particularly”
important, presumably because it comes closest to satisfying
the deterrence rationale for applying the exclusionary rule.
24
United States v. Khamsouk, No. 01-0387
New York v. Harris, 495 U.S. 14, 23 (1990); see also United
States v. George, 883 F.2d 1407, 1416 (9th Cir. 1989). In
fact, given the exclusionary rule’s purpose of deterring
police misconduct, this factor may be “the most important
factor.” Dunaway v. New York, 442 U.S. 200, 226
(1979)(Rehnquist, J., dissenting).
“The primary justification for the exclusionary rule .
. . is the deterrence of police conduct that violates Fourth
Amendment rights.” Stone v. Powell, 428 U.S. 465, 486
(1976). When police intentionally violate what they know to
be a constitutional command, “exclusion is essential to
conform police behavior to the law.” Harris, 495 U.S. at 23
(Marshall, J., dissenting). However, despite its broad
purpose, “the rule does not ‘proscribe the introduction of
illegally seized evidence in all proceedings or against all
persons,’. . . but applies only in contexts ‘where its
remedial objectives are thought most efficaciously served.’”
Penn. Board of Probation and Parole v. Scott, 524 U.S. 357,
363 (1998)(quoting Stone v. Powell, 428 U.S. at 486; United
States v. Calandra, 414 U.S. 338, 348 (1974)). The Court
has heralded the need for caution when employing the rule
because it “deflects the truthfinding process” by depriving
the factfinder of otherwise relevant and probative evidence.
Stone, 428 U.S. at 490. Unwarranted application of the rule
can result in a disparity between the error committed by the
25
United States v. Khamsouk, No. 01-0387
police and the windfall afforded the accused that is
“contrary to the idea of proportionality that is essential
to the concept of justice.” Id. “[A]lthough the rule is
thought to deter unlawful police activity . . . if applied
indiscriminately it may well have the opposite effect of
generating disrespect for the law and administration of
justice.” Id. at 491 (footnote omitted). Moreover, even
the dissenters in Harris suggested that excluding evidence
that is the “product of a good-faith misunderstanding of the
relevant constitutional requirements . . . may result in
deterrence of legitimate law enforcement efforts.” Harris,
495 U.S. at 24 (Marshall, J., dissenting). Thus, in
determining whether invocation of the rule is warranted, the
Court insists that lower courts strike a balance between
“the public interest in determination of truth at trial” and
the “incremental contribution that might [be] made to the
protection of Fourth Amendment values. . . .” Stone, 428
U.S. at 488.
With these principles in mind, we turn to the
circumstances relating to SA Coyle’s conduct in obtaining
appellant’s consent to search his bags. The first two Brown
factors arguably tip in appellant’s favor. SA Coyle’s
testimony indicates that the consent was given within 20
minutes after appellant’s apprehension. Similarly, the only
“intervening circumstances” between the apprehension and the
26
United States v. Khamsouk, No. 01-0387
consent to search were (1) the administration of appellant’s
Article 31 rights, and (2) appellant’s subsequent signed
acknowledgement of the right to refuse consent. Taken
together, these facts allow a conclusion that the consent
given was voluntary. However, as Brown instructs, this is
not dispositive of the issue of whether appellant’s consent
is sufficiently attenuated from the taint of the unlawful
entry.
As for the third factor, there are several facts
suggesting the absence of purposeful or flagrant conduct on
the part of the NCIS agents in this case. First, after
apprehending appellant in the residence, SA Coyle obtained
written consent to search appellant’s bags before touching
them. As noted earlier, this one-page form advised
appellant that he had the right to refuse the search in the
absence of a search warrant.14 We are aware of no legal
requirement for tendering such advice to a suspect. Thus,
the fact the NCIS agents provided the form with its warning
mitigates against a conclusion that the police engaged in
flagrant or purposeful conduct to exploit the illegal entry.
See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir.
14
Specifically, the form (NISFORM 003/03-80) states: “I have been
informed of my constitutional right to refuse to permit this search in
the absence of a search warrant. In full understanding of this right, I
have nevertheless decided to permit this search to be made.” Unlike
many forms, this one is short and clear. It lists the date, items to be
searched, start and ending times of the search and the searching officer
[SA Coyle].
27
United States v. Khamsouk, No. 01-0387
1994)(defendant’s signing of consent form after unlawful
traffic stop was "sufficiently an act of free will to purge
the primary taint").
Second, SA Coyle stated that part of his basis for
entering the premises to apprehend appellant was his concern
for officer safety.15 We agree with the military judge’s
conclusion that the situation encountered by the NCIS agents
did not rise to the level of exigent circumstances, as that
term is understood in Fourth Amendment jurisprudence.
However, SA Coyle’s perception of the situation at the time
of appellant’s apprehension is relevant to the application
of the third Brown factor. In the real world of law
enforcement, officers are often required to make split-
second decisions resulting in choices, which, later subject
to the frame by frame magnification of appellate review, do
not meet Fourth Amendment muster. Nonetheless, decisions
taken in good faith, as that term is used in common
vernacular, warrant our careful and measured consideration
when we assess the purposefulness and flagrancy of police
conduct. While not rising to the level of “exigent
circumstances”, we do not find Coyle’s concern for safety
misplaced, nor evidence of flagrant conduct for the purpose
of assessing the third Brown factor.
15
Specifically, he testified at the Article 39(a), UCMJ, 10 USC
839(a), session that appellant “was near a room to his right that I
didn’t know what was present in the room, so for officer safety issues,
28
United States v. Khamsouk, No. 01-0387
Finally, because SA Coyle erroneously viewed appellant
as a nonresident of the home, he and the other NCIS agents
waited outside because they understood they needed a search
warrant before entering HM2 Guest’s residence to search for
appellant. However, SA Coyle’s testimony strongly suggests
he believed the DD Form 553 was the functional equivalent of
an arrest warrant. Indeed, the military judge concluded as
much, as did the court below. The fact that we now hold
that the DD Form 553 is not the equivalent of a civilian
arrest warrant for the purpose of entering a civilian home
does not suggest SA Coyle acted flagrantly or purposefully
in relying on the form.
Unlike the officers in Brown and Dunaway, supra, there
is no evidence in the record that SA Coyle knew he was
committing a constitutional violation and notwithstanding
that knowledge, intentionally entered unlawfully in order to
pursue a quest for evidence “in the hope that something
might turn up.” Brown, 422 U.S. at 605. Further, SA Coyle’s
three-foot intrusion across the threshold under the genuine,
albeit erroneous, belief in the authority of the DD Form
553, does not suggest flagrant or purposeful conduct of the
sort the Court in Brown was attempting to address. In
Brown, “[t]he impropriety of the arrest was obvious. . . .”
not knowing what was around that corner, I immediately took him into
custody. I didn’t know if there were any weapons present or not. . . .”
29
United States v. Khamsouk, No. 01-0387
Id. We can not say the same for the circumstances
surrounding appellant’s apprehension.
While the first two factors are relevent to the
analysis, ultimately, in this case a decision to exclude the
evidence derived from appellant’s consent comes down to a
resolution of the issue on the third Brown factor. Such a
decision must be based on a determination whether SA Coyle’s
conduct is the type that the policy underlying the
exclusionary rule was intended to deter. It is not evident
to us that the SA Coyle’s intrusion across the threshold to
apprehend appellant was designed to achieve any
investigatory advantage he would not have otherwise achieved
by simply waiting for appellant to exit the doorway onto the
step outside. The NCIS agent’s conduct here is dramatically
unlike the officers’ conduct in Brown and Dunaway. Here, SA
Coyle had probable cause and the inherent authority to
apprehend appellant had appellant traversed the three feet
between himself and SA Coyle. In short, appellant’s
apprehension did not have “a ‘quality of purposefulness’ in
that it was an ‘expedition for evidence’ admittedly
undertaken in the hope that something might turn up.”
Dunaway, 442 U.S. at 218 (quoting Brown, 422 U.S. at 605).
Nor, was their conduct designed to cause “surprise, fright
and confusion.”
30
United States v. Khamsouk, No. 01-0387
Therefore, we hold that appellant’s consent to the
search of his knapsack was a voluntary act of free will.
Further, we hold that his consent was not the exploited
product of the unlawful entry into HM2 Guest’s civilian
residence, and thus, it was sufficiently attenuated from the
taint of the prior illegality.
Thus, it follows that since we hold that appellant’s
consent to the search of his bags was valid, the subsequent
seizure of them was valid as well because, in this instance,
one can not search without first seizing. Similarly, since
the seizure of the bags at the residence was valid, the
later search of those bags at the field office was valid.
B. Appellant’s Statement at the Field Office
The manner in which the contents of the bags may have
been used to obtain appellant’s confession does not alter
the admissibility of the confession. That determination
rests solely on the relationship between the inculpatory
statements and the earlier unlawful entry by the NCIS
agents. Against this backdrop, the rationale of Harris,
supra, compels our conclusion that appellant’s statement
obtained at the field office was properly admitted.
In Harris, police officers developed probable cause
that the defendant had committed a murder, yet they failed
to seek either a search or arrest warrant. 495 U.S. at 15.
Nonetheless, they proceeded to the defendant’s home and
31
United States v. Khamsouk, No. 01-0387
presented their guns and badges. Id. The defendant allowed
the officers in, and subsequently confessed to the murder.
Id. at 15-16. The officers then transported Harris to the
station house where he was administered his Miranda rights.
Id. at 16. There he made a second statement confessing his
responsibility for the murder. Id. The issue before the
Court was the admissibility of the second statement taken at
the station house. Id. After reviewing its rationale in
Payton, supra, the Court refused to exclude the confession
reasoning that the rule in Payton “was not intended to grant
criminal suspects, like Harris, protection for statements
made outside their premises where the police have probable
cause to arrest the suspect for committing a crime.”
Harris, 495 U.S. at 17. The crux of the Court’s holding is
that a warrantless arrest of a suspect in his home does not
render unlawful continued custody of the suspect once he is
removed from the house. Id. at 17-18. Similar analysis
applies in this case because appellant was a resident of HM2
Guest’s residence. As in Harris, because the agents in this
case had probable cause to apprehend appellant, he was not
in unlawful custody when he was removed to the field office,
given his Article 31 rights and allowed to speak. Thus, the
statement was properly admitted.
III
Post-Trial Delay
32
United States v. Khamsouk, No. 01-0387
Appellant’s trial concluded on August 22, 1997. The
trial counsel examined the 668-page record of trial on
September 26, 1997. However, the military judge did not
authenticate the record until October 31, 1998, over 13
months later. The convening authority took action in the
case on April 15, 1999, over four months later, and nearly
20 months after the court-martial.
The Court of Criminal Appeals, relying on our precedent
in this area, found the military judge’s delay in
authenticating the record unexplained. 54 M.J. at 748.
However, it expressly rejected as speculative appellant’s
claim that this delay prejudiced his chances of receiving
clemency and parole. Appellant makes the identical
complaint in his appeal to this Court.
For the reasons set forth in our recent decision of
United States v. Tardif, __ MJ __ (2002), we conclude that
remand is appropriate in this case.
DECISION
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is set aside. The record of trial
is returned to the Judge Advocate General of the Navy for
remand to that court for reconsideration in light of this
opinion. Thereafter, Article 67, UCMJ, 10 USC § 867 will
apply.
33
United States v. Khamsouk, No. 01-0387/NA
CRAWFORD, Chief Judge (concurring in part and dissenting in
part):
For the following reasons, I concur in the result as to the
motion to suppress:
(1) The police needed only a Department of Defense (DD)
Form 553 on which the commanding officer certified under oath
probable cause to believe that appellant was a deserter because
they already had reasonable cause to believe that appellant was
“liv[ing]” at Guest’s apartment. Payton v. New York, 445 U.S.
573, 602-03 (1980); see also Steagald v. United States, 451 U.S.
204, 214 (1981).
(2) Assuming the DD Form 553 does not satisfy the
requirement for an arrest warrant, and that a search warrant was
required, exigent circumstances would excuse the lack of either
warrant.
(3) The rights warning severed any illegality.
FACTS
On December 18, 1996, Special Agent (SA) Edward M. Coyle,
of the Naval Criminal Investigative Service (NCIS), Norfolk,
Virginia, field office, initiated a credit card theft and fraud
investigation against appellant, who was then known as “SHSA
Anthony Khamsouk.” SA Coyle soon learned that appellant was
absent without leave from the Navy. On January 6, 1997, the
commanding officer executed a DD Form 553, which declared
United States v. Khamsouk, No. 01-0387/NA
appellant a “Deserter/Absentee Wanted by the Armed Forces.” The
DD Form 553 indicated that appellant had, in violation of
Article 85, UCMJ, 10 USC § 885, “without authority and with
intent to remain away therefrom permanently,” absented himself
on December 13, 1996. The DD Form 553 was executed by the
commanding officer based on personal knowledge and under the
penalty of perjury that appellant was a deserter.
During January 1997, the fraud investigation into
appellant’s criminal schemes expanded into other financial
dealings.1 At some point prior to February 5, 1997, SA Coyle
learned that appellant had attempted to use an automated teller
machine card in St. Louis, Missouri, and therefore, he contacted
appellant’s command to obtain a copy of the DD Form 553. In
early February 1997, SA Coyle interviewed two citizens who
indicated that appellant was involved in a credit card fraud
scheme. One of these citizens told SA Coyle that appellant was
staying at the home of Hospital Corpsman Second Class (HM2) Tom
Guest on Jackson Avenue. The citizen also told SA Coyle that
appellant always traveled with a knapsack, and that this
1
Subsequent investigation, in the spring and summer of 1997, revealed that
appellant’s fraudulent schemes had cut a wide swathe across the United
States, Japan, and Germany. NCIS agents learned in March, 1997, that
appellant’s true identity was Toro Khamsouk, and that he was suspected of
having been a member of an Asian gang in the Portland, Oregon, area.
Investigative leads concerning appellant’s fraudulent use of stolen credit
cards were followed throughout the country, to inclue California, Maine,
Oregon, and Missouri. Secret Service agents tracked down and interviewed
the real Anthony Khamsouk. In all, more than 20 law enforcement agents were
involved in the investigation and the collection of far-flung evidence.
2
United States v. Khamsouk, No. 01-0387/NA
knapsack might contain evidence of credit card fraud. In
addition, the citizen stated that appellant was likely moving to
Los Angeles in the near future. As set forth below, these facts
were later corroborated by HM2 Guest.
Based on this information, SA Coyle, accompanied by three
other NCIS agents, established surveillance of HM2 Guest’s home
on February 5, 1997. HM2 Guest owned the home on Jackson
Avenue, which was a private, off-base residence. SA Coyle and
his colleagues did not plan to enter HM2 Guest’s home to
apprehend appellant; rather, they were waiting for appellant to
leave the home because they had received information that he had
an appointment at about 2:00 p.m. The investigators suspected
appellant was involved in a fraudulent scheme using numerous
credit cards with someone else’s identity. Presenting one of
these cards, appellant would call a restaurant and reserve a
dinner for a group of about ten people. However, just before
the appointment, he would call the restaurant and tell them that
he could not attend but would treat his friends. He would then
ask the restaurant to charge the dinner to his credit card and
add a healthy tip, sometimes in excess of 25 percent. Because
the fraudulent use of the credit cards happened numerous times
in the Norfolk area, the agents knew others were involved. Even
so, SA Coyle at this point testified that he believed he could
3
United States v. Khamsouk, No. 01-0387/NA
not enter HM2 Guest’s residence to apprehend appellant without a
search warrant.
At approximately 1:20 p.m., SA Coyle observed two men leave
HM2 Guest’s house. He could not determine whether either man
was appellant, so he stopped them both and asked for their
identification. Neither man was appellant. One of the men, HM2
Guest, identified himself as the owner of the house. HM2 Guest
testified that the NCIS agents arrived in “two or three cars”
and told them to “freeze.” He testified further that the NCIS
agents apparently believed the other man was appellant, and
therefore, they placed him up against HM2 Guest’s car. SA Coyle
identified himself and asked HM2 Guest if he knew appellant’s
whereabouts. SA Coyle explained that he had an arrest warrant
for appellant, and HM2 Guest told him that appellant was inside
his home. SA Coyle asked HM2 Guest for permission to enter the
house to arrest appellant, but HM2 Guest demurred, saying that
he “would prefer” to bring appellant out himself.
At that point, SA Coyle followed HM2 Guest to the front
door and waited on the front porch, just outside the doorway.
The door remained open, and HM2 Guest stepped into the foyer.
While standing in the passageway between the foyer and the
living room, HM2 Guest called out to appellant in the living
room, telling him to “come to the door” because someone wanted
to speak with him. In response to HM2 Guest’s summons,
4
United States v. Khamsouk, No. 01-0387/NA
appellant came toward the door. SA Coyle saw appellant as he
peeked around from the living room, approximately three feet
away from the front door. At this point, he was concerned
about his safety and the safety of the other officers based on
appellant’s criminal conduct and use of multiple accomplices in
the local area. When appellant peered around the counter, SA
Coyle had no knowledge who was present or what weapons were in
the residence and might be used. SA Coyle asked appellant if he
was “Anthony Khamsouk,” and then told him he was under arrest.
During this exchange, or immediately afterwards, SA Coyle
stepped into the foyer and took appellant into custody. SA
Coyle had the DD Form 553 in his possession when he apprehended
appellant. The apprehension alleviated the agent’s concern for
his safety and the safety of the other officers, as well as for
the destruction of items he saw in the room.
SA Coyle then moved appellant into the living room and sat
him down on the sofa. After advising him of his rights under
Article 31, Uniform Code of Military Justice (UCMJ), 10 USC §
831, SA Coyle asked appellant if a knapsack sitting near the
sofa was his, and appellant said it was. Appellant was asked if
the knapsack was the only belonging he had in the house, and he
replied affirmatively. HM2 Guest then stated that appellant was
not being truthful, and that he had another bag upstairs. HM2
Guest volunteered to go get the bag for the NCIS agents. He
5
United States v. Khamsouk, No. 01-0387/NA
also executed a “Permissive Authorization for Search and
Seizure” form, which states that the signatory has been informed
of his “constitutional right to refuse to permit the search in
the absence of a search warrant. . . .” HM2 Guest led another
NCIS agent to the duffel bag, which was located on the second
floor.
In the meantime, SA Coyle asked appellant to execute a
consent form identical to the one HM2 Guest signed. Appellant
executed the form while he sat in the living room. Although the
bags were subsequently subjected to a cursory examination for
weapons at the scene, neither the knapsack nor the duffel bag
were searched at HM2 Guest’s home.
Appellant was taken to the NCIS field office and re-advised
of his Article 31 rights using the standard NCIS rights
advisement and waiver form. Appellant indicated that he
understood his rights, initialing each one, and thereafter
signed and dated the waiver. Appellant was not similarly re-
advised of his search and seizure rights.
Appellant falsely identified himself as “Anthony Khamsouk”
and provided a military identification card bearing his picture
and that name. A search of appellant yielded an American
Express card in the name of Eric Johnson, and a Mastercard from
his shirt pocket in the name of Virginia Green. A date book was
taken from appellant which contained several credit card
6
United States v. Khamsouk, No. 01-0387/NA
receipts. SA Coyle then interviewed appellant about items taken
from the knapsack and duffel bag. Appellant admitted that he
had obtained a list of credit card numbers from a purported
member of an Asian gang in Portland, Oregon, and that he had
used these credit card numbers to make credit purchases at
restaurants and clothing stores, and to purchase airline
tickets. It took NCIS agents more than a day to inventory
nearly one hundred items of evidentiary value taken from the
knapsack and duffel bag.
HM2 Guest testified at the hearing pursuant to Article
39(a), UCMJ, 10 USC § 839(a), that appellant was staying with him
for a few days. He stated that he was not aware of appellant
having any other residence, and that appellant was using his
house as his “home base.” When asked if he had been willing to
assist SA Coyle in apprehending appellant, HM2 Guest explained
that if appellant had done something “wrong[,] and they had a
warrant for his arrest,” then he was willing to bring him out of
the house so that appellant could deal with them personally. HM2
Guest also described appellant as appearing “scared” when he
peeked around the living room doorway in response to HM2 Guest’s
summons.
SA Coyle testified that he “frequently apprehended deserters
based on information provided by computer read out that there was
a warrant issued for the arrest of a subject through NCIC,” but,
7
United States v. Khamsouk, No. 01-0387/NA
in this particular case, he had only a copy of the DD Form 553
with him at the time of apprehension. SA Coyle also stated that
he was concerned about safety because he did not know whether
there were any weapons in the house, or whether appellant was
carrying a weapon; therefore, when he saw appellant peek around
the corner of the living room, he decided to immediately take
custody of him.
DISCUSSION
This Court accepts the findings of the military judge
unless clearly erroneous. See, e.g., United States v. Hollis,
57 M.J. 74 (2002); however, the issues in this case -- the right
to privacy, the warrant requirement, the exigent circumstances
exception, and the fruit of the poisonous tree doctrine -- are
all reviewed under a de novo standard of review. Cf. Ornelas v.
United States, 517 U.S. 690 (1996).
Appellant’s rights in this case, like a defendant in a
federal or state court case, stem from the Constitution,
statutes, rules of procedure (in the military, called Rules for
Courts-Martial), and the common law. See, e.g., United States
v. Lopez, 35 M.J. 35 (CMA 1992). While the Supreme Court has
assumed the Bill of Rights applies to the military, see, e.g.,
Davis v. United States, 512 U.S. 452, 457 n.* (1994), this Court
has held that they apply absent military necessity or
8
United States v. Khamsouk, No. 01-0387/NA
operational needs. United States v. Jacoby, 11 USCMA 428, 430-
31, 29 CMR 244, 246-47 (1960).
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.
It contains two clauses: the Warrant Clause and the
Reasonableness Clause. Over the years, the Supreme Court has
recognized the “cardinal principle that ‘searches conducted
outside the judicial process, without prior approval by [a]
judge or [a] magistrate, are per se unreasonable under the
Fourth Amendment - subject only to a few specifically
established and well-delineated exceptions.’” Mincey v.
Arizona, 437 U.S. 385, 390 (1978)(quoted in California v.
Acevedo, 500 U.S. 565, 580 (1991)); see also Horton v.
California, 496 U.S. 128, 133 n.4 (1990). One of these
exceptions is a search incident to a lawful arrest. To prevent
any abuse of this exception, the Supreme Court reinforced the
Warrant Clause in Payton.
Payton/Steagald
In Payton, the Court held that absent exigent
circumstances, “the Fourth Amendment ... prohibits the police
9
United States v. Khamsouk, No. 01-0387/NA
from making a warrantless and nonconsensual entry into a
suspect’s home in order to make a routine felony arrest.” 445
U.S. at 576. The Court recognized “an arrest warrant founded on
probable cause implicitly carries with it the limited authority
to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.” Id. at 603. This was
a recognition of the special privacy interest in one’s home.
While the Court permits the use of an arrest warrant for
nonconsensual entry when an individual lives at the house,
Steagald requires a search warrant, rather than merely an arrest
warrant, for a nonconsensual entry into a third party’s
residence when the individual sought by law enforcement
authorities is living there. 451 U.S. at 213-14.
In 1984, R.C.M. 302(e)(2) was added to the Manual for
Courts-Martial to adopt “the warrant requirement of Payton ...
conforming the procedure to military practice.” Drafters’
Analysis of R.C.M. 302(e), Manual for Courts-Martial, United
States, 1984, at A21-13. This provision remains unchanged
today. R.C.M. 302(e)(2), Manual for Courts-Martial, United
States (2000 ed.). R.C.M. 302 does not define “resident,” the
language used in both Payton and Steagald, in terms of where a
suspect lives.
What constitutes “living at the house?” Does it equate to
the requirements for standing? Must the individual be the
10
United States v. Khamsouk, No. 01-0387/NA
lessee or the owner, or something in between? Lines must be
drawn. It may be that the line should be drawn between a guest
in a household and someone who is staying for an agreed-upon
duration and could consent to a search of the premises, but that
has not been decided to date. The dissenters in Steagald
suggested a fairly short time-line: “If a suspect has been
living in a particular dwelling for any significant period, say
a few days, it can certainly be considered his ‘home’ for
Fourth Amendment purposes....” 451 U.S. at 230-31 (Rehnquist,
J., dissenting).
In this case, appellant was more than an overnight guest.
Even if he was an overnight guest, the police had probable cause
to believe that he was living at the house. Appellant had been
living in HM2 Guest’s house for a number of days and planned to
leave three or four days after the search. Thus, Payton, rather
than Steagald, would apply. Because appellant was living at the
house, a warrant to search was not needed for the entry in this
case. See, e.g., Watts v. County of Sacramento, 256 F.3d 886,
889-90 (9th Cir. 2001); see also Werbicki v. County of Los
Angeles, 2002 U.S. App. LEXIS 3428 (9th Cir. 2002).
The DD Form 553 was sufficient.
Exigent Circumstances
An exigent circumstance is an exception to both Payton and
Steagald. See Kirk v. Louisiana, ___ U.S. ___, 122 S. Ct. 2458
11
United States v. Khamsouk, No. 01-0387/NA
(2002)(state court reversed because the officer had neither an
arrest warrant nor a search warrant, and the state court
“declined to decide whether exigent circumstances had been
present”); cf. Maryland v. Buie, 494 U.S. 325, 327 (1990). A
warrantless entry2 will be sustained when the circumstances were
such as to lead a person of reasonable caution to conclude that
evidence of a crime would be found on the premises, and that
such evidence would probably be destroyed within the time
necessary to obtain a search warrant. See Roaden v. Kentucky,
413 U.S. 496, 505 (1973); United States v. Mitchell, 12 M.J. 265
(CMA 1982); United States v. Elkins, 732 F.2d 1280 (6th Cir.
1984). Moreover, Mil.R.Evid. 315, Manual, supra, entitled
“Probable cause searches,” provides specific guidance with
respect to exigent circumstances. Mil.R.Evid. 315(g) states, in
pertinent part:
A search warrant or search authorization is not required
under this rule for a search based on probable cause
when:
(1) Insufficient time. There is a reasonable belief
that the delay necessary to obtain a search warrant or
search authorization would result in the removal,
destruction, or concealment of the property or evidence
sought. . . .
2
I will use the term “warrantless entry,” for purposes of this section of my
opinion, because SA Coyle did not have a search warrant for HM2 Guest’s home.
As set forth above, under the facts of this case, I do not believe that he
needed both an arrest and a search warrant to make a reasonable entry into
HM2 Guest’s home.
12
United States v. Khamsouk, No. 01-0387/NA
In addition, Mil.R.Evid. 316(d)(4)(B), Manual, supra, explicitly
allows the seizure of evidence in the case of exigent
circumstances, as defined in Mil.R.Evid. 315(g). Mil.R.Evid.
316(f), the “catch-all” provision, provides that “[a] seizure of
a type not otherwise included in this rule may be made when
permissible under the Constitution of the United States as
applied to members of the armed forces.”
Exigent circumstances may arise when law enforcement
officers “tip their hand” and reveal the existence of an
investigation, or those officers reasonably believe that the
“possessors of the contraband” are aware that the police are “on
their trail.” See, e.g., United States v. Rubin, 474 F.2d 262,
268 (3d Cir. 1973), cert. denied, 414 U.S. 833 (1973); United
States v. Parra, 2 F.3d 1058 (10th Cir. 1993)(exigent
circumstances arose when agents believed that other suspects may
have observed them from a partially open door arresting a
confederate and, as a result, might begin destroying evidence);
United States v. Almonte, 952 F.2d 20 (1st Cir. 1991)(commotion
resulting from convergence of agents following undercover drug
purchase justified warrantless initial sweep of defendant’s
apartment where apartment was located across the street from
drug transaction); United States v. Socey, 846 F.2d 1439 (D.C.
Cir. 1988)(exigent circumstances justified entry when agents had
a reasonable belief that third persons inside a private dwelling
13
United States v. Khamsouk, No. 01-0387/NA
were aware of an investigatory stop or arrest of a confederate
outside the premises and might see a need to destroy evidence);
United States v. Wulferdinger, 782 F.2d 1473 (9th Cir.
1986)(exigent circumstances justified warrantless entry where
confederate’s failure to return to premises, due to arrest,
might cause those inside to dispose of evidence); United States
v. Gardner, 553 F.2d 946 (5th Cir. 1977) (narcotics-related
arrest outside home, involving agents in five cars with guns
drawn, coupled with knowledge that drugs were inside the home
and a female suspect remained inside, provided agents with
reasonable belief that an immediate entry was necessary to
prevent disposal of drugs inside home).
For example, in United States v. Elkins, the Sixth Circuit
held that a warrantless entry was justified once a surveillance
team had revealed their presence and a reasonably cautious
person would have concluded that Elkins had seen the officers
and, therefore, would “prudently proceed to dispatch all
possible evidence.” 732 F.2d 1280, 1285 (6th Cir. 1984). In
that case, officers had probable cause to believe that Elkins
was involved in narcotics trafficking, had recently participated
in a controlled delivery of cocaine, and that he was currently
in his residence. Id. at 1284. Agents established surveillance
around Elkins’s home and began the process of obtaining a search
warrant. Id. at 1283-84. Two cars then drove down Elkins’s
14
United States v. Khamsouk, No. 01-0387/NA
driveway, including a vehicle associated with Elkins, and the
“entire surveillance team of four or five cars” converged on the
driveway to halt the departing vehicles. Id. at 1283. After
determining that Elkins was not in either car, the agent in
charge determined that the occupants of the house had probably
seen the commotion and were in the process of destroying
evidence. Id. Agents then entered the house, made a protective
sweep, and took several individuals into custody. Id. at 1283-
84. The Court found that after causing the commotion in the
driveway and discovering that neither person arrested was
Elkins, “a reasonably cautious person would quickly conclude
that Elkins, who was still in the house, had seen the hubbub,
realized the situation, and would prudently proceed to dispatch
all possible evidence.” Id. at 1285. Moreover, the court
concluded, that evidence would reasonably be expected to include
additional cocaine, books and records of the enterprise, and
drug paraphernalia. Id. The court further explained that once
the agents entered the premises, they were required to sweep for
weapons and the safety of all concerned, and that this was done
with minimal intrusion. Id.
In United States v. Mitchell, this Court arrived at the
same conclusion in a case with similar facts. 12 M.J. 265 (CMA
1982). In that case, an informant provided the Army Criminal
Investigation Command (CID) with information indicating that
15
United States v. Khamsouk, No. 01-0387/NA
Mitchell had heroin in his off-post apartment in Germany and he
would have it until he left for work the next morning. Id. at
266. A CID agent sent the informant, with marked money, to make
a controlled purchase of heroin from Mitchell. Id. The
informant completed the transaction inside the apartment and
reported back to the agent. Id. The agent then repeatedly
attempted to coordinate with the German police and have them
conduct a search of the premises. Id. at 267. The German
police did not respond promptly, so the agent went to Mitchell’s
apartment to secure it until the German Police could perform a
search. Id. The agent feared that Mitchell would be leaving
for work because it was almost 7:00 a.m. The agent asked the
informant to ring Mitchell’s doorbell in order to gain entry
through the front door of the apartment building. Id. When the
informant subsequently entered Mitchell’s apartment, having been
invited by Mitchell, the informant left the front door open.
Id. While the agent waited in the hallway outside Mitchell’s
front door, his walkie-talkie began to sound. Id. At that
point, “Mitchell stuck his head back out the door” and the agent
told him he was under apprehension. Id. Mitchell pulled back
into the apartment and the agent told him to have a seat until
the German police arrived. Id. Mitchell subsequently tried to
throw evidence out the window. Id.
16
United States v. Khamsouk, No. 01-0387/NA
While the military judge declined to uphold the arrest of
Mitchell in the apartment based on a theory of hot pursuit, the
judge concluded that “exigent circumstances existed which
justified apprehending Mitchell inside his private dwelling.”
Id. at 268. The judge observed that “if the agent had taken
the time to get the proper authorization from an appropriate
commander, ... the lapse of time required to do so would have,
in this case, jeopardized the possibility of recovering the
recorded money.” Id. The military judge explained further that
it is not required under those circumstances for the agent
to ... speculate on when or even if the accused would exit
his dwelling so that the apprehension could be made outside
in a public place. Even though the agent had some reason to
believe that he might come out[,] it was by no means
certain that he would within any reasonable time. And
that[,] coupled with the uncertainty as to what might be
happening to evidence in the apartment in the meantime, I
think, justifies the warrantless entry to make the
apprehension.
Id.
This Court explicitly held in Mitchell that the phrase
“exigent circumstances,” as used in Payton, was intended to
encompass the danger of destruction of evidence. Id. at 270.
Thus, the Court affirmed the trial judge’s conclusion that the
warrantless entry into the apartment was fully justified by
“exigent circumstances.” This Court surmised that if Mitchell
had not been promptly apprehended, and the agent had continued
his surveillance, “there was the risk that [the] appellant might
17
United States v. Khamsouk, No. 01-0387/NA
notice that he was being watched or might see the German police
arriving” and be alerted to destroy the contraband before it
could be discovered. Id.
Likewise, in this case, exigent circumstances arose once SA
Coyle and his colleagues, “in two or three cars,” approached HM2
Guest and his friend outside the Jackson Avenue house. Once the
NCIS agents had “tipped their hand,” SA Coyle could have
reasonably believed that appellant would have noticed what was
happening out front and would destroy evidence of his credit
card schemes. SA Coyle knew before he went to Jackson Avenue
that appellant was suspected of being involved in an extensive
fraud scheme, and that he always carried a knapsack that might
contain evidence of the fraud. It is reasonable to assume that
SA Coyle would have deduced that the evidence contained in the
knapsack might include items that are easily destroyed, such as
documents, credit card receipts, or credit card number
information. SA Coyle knew that appellant was a deserter, and
that appellant likely understood that the Navy would be looking
for him.3 Moreover, once appellant tentatively peeked his head
3
In United States v. Ayala, 26 M.J. 190, 193 (CMA 1988), this Court held, inter
alia, that the appellant’s “actions in putting in for retirement and
clearing his quarters were strong indications of an intention on his part to
flee.” This was one of two factors considered in determining that exigent
circumstances existed to justify appellant’s immediate apprehension without
authorization of his commander. Likewise, because appellant was a deserter,
and had deliberately absconded from the Navy, SA Coyle could reasonably have
believed that appellant might flee the area before he could obtain a search
warrant.
18
United States v. Khamsouk, No. 01-0387/NA
around the corner of the living room, with a scared look on his
face, SA Coyle had even more reason to believe that, if allowed
to, appellant would attempt to destroy evidence of his crimes.
This also is not a case where law enforcement officers
“manufactured” exigent circumstances to obtain entry into HM2
Guest’s home. See United States v. Tarazon, 989 F.2d 1045, 1050
(9th Cir. 1993)(officers did not create exigent circumstances as
means of obviating need for obtaining warrant when they believed
they had probable cause to enter only after they went to
establishment and circumstances arose indicating that suspects
inside might suspect presence of law enforcement and destroy
evidence). To the contrary, SA Coyle did not know whether
appellant was at the Jackson Avenue house until HM2 Guest told
him so. At that point, the “cat was out of the bag, and exigent
circumstances arose justifying the entry into the house.
It is worth noting that the intrusion here was minimal and
tailored to the circumstances as they developed. The NCIS
agents did not conduct a search of HM2 Guest’s house; rather
they merely seized appellant’s knapsack, which was found near
appellant, and his duffel bag, which HM2 Guest located for the
NCIS agents. To the extent that HM2 Guest’s privacy interests
were invaded that day, the intrusion was remarkably
circumscribed and reasonable in the face of rapid developments.
Indeed, if NCIS agents had pursued an alternate course of action
19
United States v. Khamsouk, No. 01-0387/NA
and secured the Jackson Avenue house while they sought a search
warrant, HM2 Guest’s privacy interests as a resident and
homeowner would have been invaded in a much more onerous
fashion. At a minimum, he would have been prevented from
enjoying the interior of his house for a much longer period of
time. It is also reasonable to assume that, had the NCIS agents
obtained a search warrant, the search for evidence would have
taken much longer and would have involved a larger area of the
house. See Chambers v. Maroney, 399 U.S. 42, 51 (1970)(Court
unwilling to characterize an immediate search as a greater
intrusion than a seizure and an indefinite immobilization while
securing warrant); United States v. Johnson, 862 F.2d 1135, 1139
(5th Cir. 1988)(detaining suspects while obtaining search
warrant more intrusive than immediate search).
Because the NCIS agents acted reasonably in the face of
exigent circumstances, the evidence seized as a result of that
apprehension was properly admitted by the military judge.
Exclusionary Rule
The exclusionary rule has been applied by federal, state,
and military courts to violations of the Fourth Amendment right
to privacy, violations of the Fifth Amendment, U.S. Const.
amend. V, due process and self-incrimination clauses, and Sixth
Amendment, U.S. Const. amend. VI, right to counsel. In
describing the application of the exclusionary rule, the courts
20
United States v. Khamsouk, No. 01-0387/NA
have, over the years, declined to apply the exclusionary rule
where there is attenuation, an independent source, or inevitable
discovery. Regardless of the violation, courts have applied the
Brown v. Illinois, 422 U.S. 590 (1975), factors. Thus, I agree
with the majority in applying the Brown factors to this case.
On Issue III, I dissent for the reasons set forth in my
separate opinion in United States v. Tardif, ___ MJ ___ (2002).
21
United States v. Khamsouk, 01-0387/NA
GIERKE, Judge (concurring in part and dissenting in part):
I agree with the lead opinion’s disposition of Issue III.
With respect to Issues I and II, I agree with the lead opinion’s
conclusion that appellant’s apprehension was unlawful, because a
DD Form 553 is not the equivalent of a civilian arrest warrant.
However, I disagree with the lead opinion’s resolution of Issues
I and II. Finally, I agree with Judge Effron’s conclusion that
all three prongs of the attenuation analysis set out in Brown v.
Illinois, 422 U.S. 590 (1972), would weigh in appellant’s favor if
it were applicable to this case.
The lead opinion’s attenuation analysis rests on the premise
that the Government met its burden of proving that appellant’s
consent was voluntary. ___ MJ at (23, 29-30). I disagree with
that premise. Thus, in my view, the Brown attenuation analysis
is not applicable to this case.
The predicate question is whether appellant voluntarily
consented to the search. The lead opinion recognizes that “if
appellant’s consent, albeit voluntary, is determined to have been
obtained through exploitation of the illegal entry, it can not be
said to be sufficiently attenuated from the taint of that entry.”
___ MJ (22). However, if appellant’s consent was not truly
voluntary, the search was illegal, and we do not reach the issue
of attenuation.
In my view, the military judge’s finding that appellant
voluntarily consented was clearly erroneous. See United States
United States v. Khamsouk, 01-0387/NA
v. Radvansky, 45 M.J. 226, 229 (1996). A major factor undermining
the military judge’s finding is the short time between the
unlawful apprehension and appellant’s execution of the consent
form. Appellant was caught by surprise when Special Agent Edward
M. Coyle burst into Hospital Corpsman Second Class (HM2) Tom
Guest’s home, followed by three other Naval Criminal
Investigative Service (NCIS) agents. While surrounded by four
NCIS agents, appellant signed the preprinted consent form within
15-20 minutes of his apprehension. Although the record reflects
that appellant was orally advised of his Article 31, Uniform Code
of Military Justice, 10 USC § 831, rights, there is no evidence
that he was orally advised of his right to refuse to consent to
the search. The only evidence that appellant was aware of his
right to refuse to consent is the small print on the consent
form. In contrast to the Article 31 rights advisement form,
where appellant indicated his understanding of his rights by
placing his initials beside the listing of each right, appellant
did not similarly initial the statement on the consent form
acknowledging his awareness of his right to refuse to consent to
the search.
The Government had the burden of proving by clear and
convincing evidence that appellant voluntarily consented. Mil.
R. Evid. 314(e), Manual for Courts-Martial, United States (2000
ed.). Because I believe that the Government failed to meet its
burden of proving voluntary consent, I do not reach the
attenuation issue.
2
United States v. Khamsouk, 01-0387/NA
Finally, I believe that the illegal apprehension and searches
made appellant’s subsequent confession inadmissible. Although
appellant was warned of his Article 31 rights, he was not given a
cleansing warning. Once the incriminating evidence was seized
during the searches of the knapsack and the duffel bag, the
Government had a heavy burden to show that appellant’s subsequent
waiver not only met the standard of voluntariness under the Fifth
Amendment, U.S. Const. amend. V, and Article 31, UCMJ, but that
it was “sufficiently an act of free will to purge the primary
taint” of the previous unlawful apprehension and search. Brown,
422 U.S. at 602, (quoting Wong Sun v. United States, 371 U.S.
471, 486 (1963)). In my view, the Government failed to carry its
burden, and the military judge erred by admitting the confession
into evidence.
I would set aside the affected findings and sentence and
authorize a rehearing.
3
United States v. Khamsouk, No. 01-0387/NA
EFFRON, Judge (concurring in part and dissenting in part):
I agree with the lead opinion’s conclusion that, at a
minimum, a remand is necessary to address the violation of
appellant’s right to reasonably prompt post-trial processing. I
also agree with the lead opinion’s conclusion that under the
Fourth Amendment, U.S. Const. amend. IV, and RCM 302, Manual for
Courts-Martial, United States (2000 ed.), a Department of
Defense (DD) Form 553 is not the equivalent of a civilian arrest
warrant. For the reasons set forth below, I respectfully
disagree with the lead opinion’s conclusion that no relief is
warranted with respect to the violation of appellant’s rights
under the Fourth Amendment and R.C.M. 302.
The Naval Criminal Investigative Service (NCIS) agents
entered a private home without a valid warrant to apprehend
appellant for unauthorized absence. ___ MJ at (19-20).
According to the military judge, their subsequent search of
appellant’s belongings was not justified by exigent
circumstances, such as protection of the safety of the NCIS
agents, and did not otherwise constitute a valid search incident
to apprehension. In light of these considerations, the critical
issue in this case is whether the Fourth Amendment violation
impermissibly tainted appellant’s subsequent consent to the
search of his belongings.
1
United States v. Khamsouk, No. 01-0387/NA
The lead opinion relies on Brown v. Illinois, 422 U.S. 590
(1975), for the analytical framework. Brown involved the
admissibility of a confession obtained after an illegal arrest.
As noted in the lead opinion, the Supreme Court identified the
critical issue as whether the statement was “the product of free
will,” which it viewed as an issue to be “answered on the facts
of each case” in which “[n]o single fact is dispositive.” ___
MJ at (22)-(23)(quoting Brown, 422 U.S. at 603). The Court
emphasized the importance of considering admissibility “in light
of the distinct policies and interests of the Fourth Amendment,”
and identified three relevant factors: (1) “[t]he temporal
proximity of the arrest and the confession”; (2) “the presence
of intervening circumstances”; and (3) “particularly, the
purpose and flagrancy of the official misconduct.” Brown, 422
U.S. at 604. In Brown, despite the fact that appellant’s
statements were preceded by rights warnings under Miranda v.
Arizona, 384 U.S. 436 (1966), the Court concluded that under the
particular circumstances of the case, the government had failed
to meet its burden of showing that the evidence should have been
admitted. 422 U.S. at 604-05.
In the present case, the lead opinion applies the Brown
factors by analogy to assess whether appellant’s consent to the
seizure and search of his knapsack and duffel bag, and the
confession obtained as a result of that search, were the product
2
United States v. Khamsouk, No. 01-0387/NA
of circumstances sufficiently attenuated from the Fourth
Amendment violations. It proceeds on the assumption that the
first two factors -- temporal proximity and intervening
circumstances -- favor appellant. See ___ MJ at (26). Assuming
that Brown is applicable to the present case,1 the validity of
the consent under the lead opinion’s analytical framework turns
on Brown’s third factor -- the purpose and flagrancy of the
official misconduct.
The Government bears the burden of demonstrating
attenuation of appellant’s consent from the preceding
illegalities by clear and convincing evidence. Mil.R.Evid.
314(e)(5), Manual, supra; see also Florida v. Royer, 460 U.S.
491, 507-08 (1983). For the reasons set forth below, the
Government did not carry its burden in the present case.
DISCUSSION
The draft opinion concludes that the consent was
sufficiently attenuated under Brown’s third factor, relying on
Special Agent (SA) Edward M. Coyle’s belief that he had a valid
warrant to apprehend appellant for unauthorized absence, his
concern for safety during the apprehension, and his use of a
1
But cf. People v. Robbins, 369 N.E.2d 577, 581 (1977)(holding that the Brown
analysis ordinarily is not necessary when an illegal search constitutes the
“poisonous tree” that produces a confession because “[c]onfronting a suspect
with illegally seized evidence tends to induce a confession by demonstrating
the futility of remaining silent.”)
3
United States v. Khamsouk, No. 01-0387/NA
form that advised appellant of his right to refuse permission
for the search. ___ MJ at (30-35). SA Coyle’s actions,
however, went far beyond these considerations, providing
substantial evidence of purposeful and flagrant conduct in
disregard of applicable restrictions on search and seizure.
1. Purpose
The record indicates that although SA Coyle believed he had
a valid warrant to apprehend appellant for desertion, the
primary purpose of the law enforcement activity at issue was to
search and seize appellant’s knapsack in furtherance of the
ongoing fraud investigation. SA Coyle had been advised that
“whenever [appellant] went out, he carried . . . a black
knapsack, which was known to carry . . . fraudulent credit cards
or stolen credit cards and credit card receipts.” When SA Coyle
went to the private residence to apprehend appellant, he knew
that he lacked probable cause to obtain a warrant to search for
evidence of the aforementioned financial crimes, and that he
could not seize appellant inside a third party’s home without a
search warrant. His plan was to set up surveillance on the
private residence, wait for appellant to depart, apprehend him
outside, and seize the knapsack incident to the apprehension.
See Payton v. New York, 445 U.S. 573 (1980); Wilson v. Layne,
526 U.S. 603, 611 (1999). Despite his stated belief that he
4
United States v. Khamsouk, No. 01-0387/NA
could not enter the premises without a search warrant, SA Coyle
entered anyway, in the absence of either exigent circumstances
or the homeowner’s consent.
Even if SA Coyle had a reasonable belief that the DD Form
553 was a substitute for a civilian arrest warrant, his actions
exceeded the scope of authority that would have inhered in an
arrest warrant, including the limited authority to take
protective actions. See Discussion, infra part 2. Once SA
Coyle apprehended appellant three feet inside the home of
Hospital Corpsman Second Class (HM2) Tom Guest, the arrest was
complete and further entry was not authorized. See Payton,
supra; United States v. Albrektsen, 151 F.3d 951, 954-55 (9th
Cir. 1998); see also Dunaway v. New York, 442 U.S. 200, 218
(1979)(quoting Brown, 422 U.S. at 605).2 The disregard of well-
established principles of law by an experienced law enforcement
officer underscores the purposeful and flagrant nature of the
Fourth Amendment violations.
2
It is noteworthy that the military judge expressly found that, at the time
of the officers’ entry:
No exigent circumstances existed requiring immediate apprehension of
[Appellant]. [Appellant] made no effort to escape and engaged in no
peculiar actions. NCIS knew of no evidence that could be destroyed or
secreted away, and [SA] Coyle had with him enough back up agents to
secure the premises and obtain a separate warrant had he chosen to do
so.
5
United States v. Khamsouk, No. 01-0387/NA
2. Safety
When executing an arrest warrant in a home, law enforcement
officials may conduct a protective sweep incident to the arrest
if they have “a reasonable belief based on specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant[s] the officer
in believing that the area swept harbor[s] an individual posing
a danger to the officer or others.” Maryland v. Buie, 494 U.S.
325, 327 (1990)(quoting Michigan v. Long, 463 U.S. 1032, 1049-50
(1983); Terry v. Ohio, 392 U.S. 1, 21 (1968)). The search must
be “narrowly confined to a cursory visual inspection of those
places in which a person might be hiding,” and, consistent with
Payton, may last “no longer than is necessary to dispel the
reasonable suspicion of danger and in any event no longer than
it takes to complete the arrest and depart the premises." Id.
at 335-36. Likewise, if lawfully within the premises to make an
arrest, the police may search the premises in order to locate
the individual to be arrested. Id. at 330.
In this case, even if SA Coyle had possessed a valid arrest
warrant, his conduct far exceeded the authority that would have
been provided by such a document. Under Payton and Buie,
requirements which would have been well-known to an experienced
law enforcement official such as SA Coyle, with a decade of
field experience, an arrest warrant would have conferred the
6
United States v. Khamsouk, No. 01-0387/NA
limited authority to: (1) enter the home, which according to SA
Coyle involved a distance of only three feet; (2) locate and
apprehend appellant in the foyer; and (3) remove appellant from
the premises. See Albrektsen, 151 F.3d at 955 (“[T]he mere
existence of an arrest warrant does not authorize entry into a
defendant’s home, where there is no necessity to enter because
the defendant can be arrested at the threshold”); Horton v.
California, 496 U.S. 128, 140 (1990)(“If the scope of the search
exceeds that permitted by the terms of a validly issued warrant
. . . the subsequent seizure is unconstitutional without more”).
Once the law enforcement officials entered the dwelling and
apprehended appellant in the foyer, appellant’s seizure for
unauthorized absence -- “the objective of the authorized
intrusion” -- was complete. See Wilson, 526 U.S. at 611.
Nevertheless, the NCIS agents did not remove appellant from the
premises, but instead, continued the intrusion into the home to
further the aims of a separate matter -- the fraud
investigation. They moved appellant into the living room,
searched the couch for weapons, placed him on the couch,
retrieved a consent to search form from their automobile,
procured appellant’s signature on the consent form, obtained HM2
Guest’s consent to search the home for appellant's belongings,
seized the knapsack and a duffel bag, and then departed.
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Although it was well within his authority to take actions
necessary to protect his safety and the safety of his fellow law
enforcement officers, SA Coyle’s actions reflect that his
concern over the contents of the knapsack prevailed over
concerns about safety. He not only failed to conduct a
protective sweep of the residence upon entry, but he also sent a
lone agent upstairs with the owner of the residence to secure
appellant’s duffel bag. SA Coyle went well beyond the steps
necessary to apprehend appellant and remove him from the
residence -- out of the range of potential weapons and
accomplices. Instead, SA Coyle moved appellant further into the
residence. He moved appellant from the foyer, where the items
were not within appellant’s reach, into the living room, near
the items he wanted to search. Such actions make it
inappropriate to rely on officer safety as a basis for
sustaining the consent under Brown, and underscores the
purposefulness of the Fourth Amendment violations. Cf. United
States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir. 1975) (officers
conducting an arrest may not “lead the accused from place to
place and use his presence in each location to justify a 'search
incident to arrest'”).
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3. The Consent Form
The lead opinion notes that the form used to record
appellant’s consent stated that he could refuse to grant
permission to search. The lead opinion contends that because
there is no legal requirement to provide such advice, provision
of such advice suggests that the NCIS agents were not attempting
to exploit the illegality and, therefore, did not act in a
purposeful or flagrant manner. ___ MJ at (30).
It is noteworthy that the information at issue was
contained in a preprinted form, and was not verbally
communicated to appellant. Appellant was apprehended at 1:25
p.m., and he signed the consent form within 15 to 20 minutes of
his apprehension while surrounded by four NCIS agents. Although
the record reflects that appellant was advised orally of his
rights against self-incrimination under Article 31, Uniform Code
of Military Justice, 10 USC § 831, the record does not reflect
any oral advice of his right to refuse consent to the search.
Instead, the only evidence of advice regarding the search was
the small print on the consent form that was provided to
appellant in the immediate environment of his apprehension.
Under these circumstances, use of a preprinted form does not
satisfy the Government’s burden to show that the officer’s
conduct was neither purposeful nor flagrant. Cf. United States
v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)(use of a consent
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form following a lengthy conversation between the officer and
accused indicated a lack of flagrant officer conduct when the
officer also explained in English and Spanish that appellant had
a right to refuse consent). Furthermore, advisement of rights
alone does not act to sever the taint of the prior illegality.
Brown, 422 U.S. at 603.
4. Conclusion
SA Coyle sought to secure appellant’s knapsack in
furtherance of a financial fraud investigation. He lacked
probable cause to seize this item, so he sought to capitalize on
an unrelated charge of unauthorized absence as a means of
apprehending appellant while carrying the knapsack. His plan
did not work as he had hoped, however, because he confronted
appellant when he was not carrying the knapsack. The scope of
the DD Form 553 relied upon by SA Coyle was limited to
apprehension for unauthorized absence, and the actions of the
NCIS agents in making that apprehension went far beyond the
requirements for an apprehension or protection of officer
safety.
The lead opinion suggests that SA Coyle acted with a
subjective good faith belief that his actions were permissible.
__ MJ at (30-33). We need not reach a judgment, however, as to
his subjective beliefs. The attenuation analysis in Brown
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United States v. Khamsouk, No. 01-0387/NA
cautions against reliance on the subjective good faith of a law
enforcement officer, particularly with regard to assessing the
purposefulness and flagrancy of the law enforcement officer’s
conduct. Brown’s attenuation analysis is designed to ameliorate
the societal costs of employing the exclusionary rule by
precluding its application at the point where it loses its
deterrent effect. As the Supreme Court noted in United States
v. Leon, 468 U.S. 897 (1984), “[i]f subjective good faith alone
were the test, the protections of the Fourth Amendment would
evaporate, and the people would be ‘secure in their persons,
house, papers, and effects’ only in the discretion of the
police.” Id. at 915 n.13 (quoting Beck v. Ohio, 379 U.S. 89, 97
(1964)). We should evaluate an officer’s conduct by considering
whether a reasonably well-trained officer would have acted
similarly under the circumstances. Id. at 923; see also Malley
v. Briggs, 475 U.S. 335, 345 (1986)(“reasonably well-trained
officer” is standard for assessing whether an officer is
entitled to qualified immunity for applying for a warrant that
is subsequently held invalid for lack of probable cause). In
the present case, a reasonably well-trained officer should have
known that the scope of the law enforcement investigation
undertaken after apprehension of appellant was not permissible
under well-established law.
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Under these circumstances, the Government has not met its
burden to demonstrate the validity of the consent under the
third prong of Brown. I also agree with Judge Gierke’s
conclusion that the Government has not met its burden under
applicable voluntariness standards. The evidence obtained as a
result of the search, including appellant’s related confession,
should have been suppressed. Our Court should set aside the
affected findings and the sentence, and authorize a rehearing.
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SULLIVAN, Senior Judge (concurring in part and dissenting in
part):
I would affirm this case, and I see no reason for a remand.
I only agree with the lead opinion that evidence seized from
appellant’s knapsack and duffel bag and his confession at the
Naval Criminal Investigative Service (NCIS) field office were
admissible at his court-martial. I do not agree with the lead
opinion’s conclusion that appellant’s arrest, without civilian
search or arrest warrants, violated the Fourth Amendment.
Moreover, I do not agree with its remand of this case under
United States v. Tardif, __ MJ __ (2002). See id. (Sullivan,
S.J., dissenting).
Appellant was arrested in Hospital Corpsman Second Class
(HM2) Tom Guest’s private off base residence in Chesapeake,
Virginia, by Special Agent (SA) Edward M. Coyle, a civilian
special agent of the NCIS. His arrest was directed by a command
- issued Department of Defense Form 553 (Sep 89) Report of
Deserter/Absentee Wanted By The Armed Forces, and Article 8,
Uniform Code of Military Justice, 10 USC §838. In my view this
arrest order is the equivalent of a civilian arrest warrant for
purposes of Fourth Amendment analysis. See generally, United
States v. Stringer, 37 M.J. 120, 126 (CMA 1993); see also United
States v. Mitchell, 12 M.J. 265, 269 (CMA 1982); cf. United States
v. Thompson, 33 M.J. 218, 219 (CMA 1991)(noting that accused was
arrested in residence in civilian community during undercover
United States v. Khamsouk, No. 01-0387/NA
operation involving Air Force Office of Special Investigations
agents). Whether appellant was a house guest rather than a
resident of HM2 Guest’s house, for purposes of the Fourth
Amendment and R.C.M. 302(e), Manual for Courts-Martial, United
States (1995 ed.), is an interesting question of law which I need
not answer in this case. See Watts v. County of Sacramento, 256
F.3d 886, 889 (9th Cir. 2001); cf. United States v. Gamez-Orduño,
235 F.3d 453, 458-460 (9th Cir. 2000); United States v. Salazar,
44 M.J. 409, 414 (1996).
In this case, the owner of the house, HM2 Guest, tried to
lure appellant out of his house so that the NCIS agents, armed
with a properly authorized arrest document, could make a safe
arrest. When appellant showed himself to SA Coyle at the doorway
of the house during this attempt, SA Coyle acted reasonably to
pursue and seize appellant when he suddenly retreated into the
living room of the house. SA Coyle testified that he was
concerned for “officer safety” since he could not tell whether
anyone else or any weapon was in the living room where appellant
fled.
In my view, this evidence shows that the law enforcement
officers acted reasonably and responsibly in seizing appellant in
the house of HM2 Guest. See United States v. Santana, 427 U.S.
38 (1976). Furthermore, HM2 Guest consented to the search of his
home. The Fourth Amendment requires only that searches and
seizures be reasonable. That is what the record in this case
supports. Accordingly, I see no unreasonable search and seizure
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in violation of the Fourth Amendment in these circumstances. Id.
See generally United States v. Stringer, 37 M.J. at 126, 129 n.4;
United States v. Visser, 40 M.J. 86, 91 (CMA 1994) (both applying
“reasonableness” standard to measure Fourth Amendment
constitutionality of government action in military context).
3