United States v. Wallace , 66 M.J. 5 ( 2008 )

UNITED STATES, Appellee
v.
Jeremy R. WALLACE, Staff Sergeant
U.S. Air Force, Appellant
No. 07-0194
Crim. App. No. 36174
United States Court of Appeals for the Armed Forces
Argued October 17, 2007
Decided February 13, 2008
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER and RYAN, JJ., each filed
a separate opinion concurring in the result.
Counsel
For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major John N. Page III (on
brief).
For Appellee: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).
Military Judge: Anne L. Burman
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wallace, No. 07-0194/AF
Judge STUCKY delivered the opinion of the Court.
We granted Appellant’s petition to determine whether the
military judge erred when he denied a defense motion to suppress
the results of a search of Appellant’s computer. We hold that
the military judge correctly denied the motion and affirm the
decision of the United States Air Force Court of Criminal
Appeals.
I.
A general court-martial composed of officer and enlisted
members convicted Appellant, contrary to his pleas, of one
specification each of carnal knowledge, sodomy with a child, and
possessing child pornography, in violation of Articles 120, 125,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
920, 925, 934 (2000), respectively. The sentence adjudged by
the court-martial, and approved by the convening authority,
consisted of a dishonorable discharge, confinement for six
months, and reduction to the lowest enlisted grade.
II.
Appellant’s conviction stems from the sexual relationship
he pursued with a fifteen-year-old female military dependent,
TND. In the course of pursuing their investigation, two special
agents of the Air Force Office of Special Investigations (AFOSI)
questioned Appellant on April 8, 2003. After being read his
Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights, Appellant
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spoke with the agents, only to ultimately request a lawyer. He
agreed to proceed without a lawyer when investigators could not
make contact with the Area Defense Counsel. According to
Appellant’s testimony, the agents informed him that their
investigation would reveal enough evidence to sentence Appellant
to confinement for life and would require Appellant to register
as a sex offender. Since Appellant admitted that he
communicated with TND via e-mail and instant messenger, the
AFOSI agents explained that they wanted to search Appellant’s
personal computer for evidence. Appellant signed an AF Form
1364, entitled, “Consent for Search and Seizure,” and consented
to the general search of his home and computer.
After questioning Appellant, both AFOSI agents escorted him
back to his house, where the three met another agent (apparently
recruited to help disconnect and transport the computer),
Appellant’s first sergeant, and a chaplain. Appellant’s wife
arrived home shortly thereafter. Though he initially led the
agents to his computer, once Appellant and his wife noticed the
agents removing it, they objected. He testified that he told
the agents the following:
[The computer] has our life on it. It has our photo
albums on it. It’s got our banking on it. All of our
financial stuff is on there. You know, I use it to do
all of our bill paying and everything else. Our
online business is on there. I was like “You can’t
take it.” Then my wife even started going nuts at
that time.
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In making her findings of fact on consent to the computer’s
removal, the military judge apparently relied on the testimony
of the chaplain present at the search. He testified that
Appellant protested when the investigators began removing the
computer and that Appellant ultimately acquiesced –- stating,
“Well, okay” –- after the agents explained “they had to take
it.” That is, after Appellant expressed his displeasure with
the seizure of his computer, one of the investigators explained
that they had to take the computer as a matter of routine. Only
then, and in apparent resignation to the investigators’ actions
(according to the military judge) did Appellant acquiesce to the
seizure.
The investigators then removed the computer and transported
it to the laboratory. The day-long forensic analysis revealed
the e-mail and chat traffic between Appellant and TND, as well
as files containing child pornography. Following standard
practice, AFOSI agents copied the computer’s hard drive. A
judge advocate at the legal office telephoned investigators on
April 10, 2003 to report that Appellant had formally revoked his
consent. In response to this development, the agents obtained a
search authorization from a military magistrate. One of the
agents testified that even if Appellant had never provided
consent, or revoked the previously given consent, he would have
sought search authorization from the magistrate in any event.
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At trial, Appellant’s defense counsel made a motion to
suppress all evidence obtained from the search of Appellant’s
computer on the theory that Appellant involuntarily consented in
the first place or, alternatively, revoked consent when he told
agents not to take the computer. The military judge denied the
motion and concluded that Appellant had freely consented and
only withdrew consent on April 10, 2003 after child pornography
had been discovered on the computer. She also found that even
if Appellant had revoked his consent at the search site, the
Government would have inevitably discovered the images because
there was probable cause to search for e-mails and instant
messages related to Appellant’s relationship with TND. The Air
Force Court of Criminal Appeals affirmed those findings. United
States v. Wallace, 2006 CCA LEXIS 282, 2006 WL 3085641 (A.F. Ct.
Crim. App. Oct. 30, 2006) (unpublished).
III.
Appellant argues that the search of his home should have
been more limited in scope and, in any event, should have
stopped after he revoked his consent and merely acquiesced to
the color of authority. Under Appellant’s theory, the military
judge erred when she admitted the evidence of child pornography
from the computer’s hard drive.
We review that ruling for an abuse of discretion. United
States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). Findings
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of fact and conclusions of law are reviewed under the clearly
erroneous and de novo standards, respectively. Id.We find that even though Appellant initially consented to a
general search of his home and computer, his subsequent
exhortation to the AFOSI agents revoked any consent to seize the
computer. However, while Appellant’s ultimate acquiescence to
the seizure came under pressure from authority, we find no error
in the military judge’s denial of Appellant’s motion to suppress
because AFOSI would have inevitably discovered the child
pornography pursuant to a validly executed search authorization
based on probable cause.
A.
Military Rule of Evidence (M.R.E.) 314(e)(3) states that
consent to search “may be limited in any way by the person
granting consent, including limitations in terms of time, place,
or property and may be withdrawn at any time.” Appellant argues
that because he gave his consent to search while under the
impression that AFOSI agents would merely take copies of certain
e-mails, the agents’ decision to take the computer itself went
beyond the limits that he had imposed on the search in the first
place. M.R.E. 314(e)(3).
That argument does not fit the facts of this case.
Appellant’s signed “Consent for Search and Seizure” form shows
that he explicitly consented to a broad search that allowed
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AFOSI agents to search Appellant’s “residence –- 118-1 Maine St.
TAFB (Travis Air Force Base), CA; [and his] computer.” The form
expressly gives investigators permission to “take any letters,
papers, materials, articles or other property they consider to
be evidence of an offense.” It is the objective reasonableness
of the consent -- not Appellant’s supposed impression -- that
controls.
M.R.E. 314(e)(3) implements the limited scope rule of
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973), which
requires investigators to account for any express or implied
limitations on a consent to search. Those limitations, however,
cannot be determined on the basis of the subjective intentions
of the consenting party. As the Supreme Court concluded in
Florida v. Jimeno, 500 U.S. 248 (1991), the standard is “that of
‘objective’ reasonableness -- what would the typical reasonable
person have understood by the exchange between the officer and
the suspect?” Id. at 251 (rejecting the accused’s attempt to
suppress evidence of cocaine possession by arguing that while he
consented to a general car search at a traffic stop, he believed
that consent did not permit the officer to open a closed bag
that ultimately contained cocaine). Clearly, a reasonable
person could conclude that an authorization permitting the
search and seizure of “my computer” would permit AFOSI
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investigators not only to search, but also to remove the
computer from the premises.
B.
Whatever the scope of his initial consent, Appellant argues
that the military judge erred when she denied Appellant’s motion
to suppress the evidence because Appellant clearly revoked that
consent when he stated “[y]ou can’t take [the computer].”
Appellant, however, conflates two separate concepts: the search
and the seizure. His exhortation may have revoked his consent
to seize the computer, but disapproval of the seizure cannot,
without more, affect the consent to search in the first place.
A seizure of property, for purposes of the Fourth
Amendment, occurs “when there is some meaningful interference
with an individual’s possessory interest in . . . property.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984). As such, a
seizure can occur either with or without an attendant search.
See, e.g., Soldal v. Cook County, 506 U.S. 56, 62 (1992)
(holding that a police tow of tenant’s mobile home to dispossess
that tenant constituted a seizure under the Fourth Amendment
because the “Amendment protects property as well as privacy”).
In either case, the search and the seizure necessitate separate
analyses under the Fourth Amendment. See Skinner v. Railway
Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (noting that
the warrantless seizure of blood from railroad employees and the
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subsequent chemical analysis of that blood constituted separate
invasions of the employees’ privacy interests). If searches and
seizures are separate concepts, consent to one is not, without
more, consent to the other; similarly, revoking consent to one
does not of itself revoke consent to the other.
Appellant signed a “Consent for Search and Seizure” that
clearly gave AFOSI the right to search Appellant’s residence and
computer and to take away anything they considered evidence of
an offense. His objection –- “[y]ou can’t take it” –- clearly
embraced the seizure of the computer, and nothing more. As
such, while Appellant consented to both a search and any
attendant seizures, his pleas to investigators to leave the
computer revoked his consent to this particular seizure, but not
to the search.
C.
Appellant’s attempt, pursuant to Georgia v. Randolph, 547
U.S. 103 (2006), to pin evidence of consent revocation on his
wife’s objection to the computer’s seizure fails because
Randolph is inapplicable to this case. Randolph stands for the
narrow proposition that “a warrantless search of a shared
dwelling for evidence over the express refusal of consent by a
physically present resident cannot be justified as reasonable as
to him on the basis of consent given to the police by another
resident.” Id. at 120. Randolph would not permit a non-accused
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co-resident to supersede the wishes of the accused co-resident
because, after all, Fourth Amendment rights “are personal rights
which, like some other constitutional rights, may not be
vicariously asserted.” Alderman v. United States, 394 U.S. 165,
174 (1969).
D.
As soon as Appellant revoked his consent to the seizure,
AFOSI agents informed him that “they would have to take the
computer” as “a matter of routine.” Appellant acceded, but
argues that this second so-called consent amounted to mere
passive acquiescence to the color of authority in violation of
Schneckloth v. Bustamonte. We agree, and find that under the
totality of the circumstances, Appellant’s acquiescence did not
constitute free and voluntary consent to the computer’s seizure
after revocation of his initial consent to seize.
We determine voluntariness from all the circumstances.
Schneckloth, 412 U.S. at 226-27 (applying a totality-of-the-
circumstances analysis and citing cases in which the Supreme
Court has analyzed the facts for voluntariness on its own).
The Air Force court has laid out the following non-
exhaustive factors with respect to the voluntariness of consent:
(1) the degree to which the suspect’s liberty was restricted;
(2) the presence of coercion or intimidation; (3) the suspect’s
awareness of his right to refuse based on inferences of the
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suspect’s age, intelligence, and other factors; (4) the
suspect’s mental state at the time; (5) the suspect’s
consultation, or lack thereof, with counsel; and (6) the
coercive effects of any prior violations of the suspect’s
rights. United States v. Murphy, 36 M.J. 732, 734 (A.F.C.M.R.
1992); United States v. Baker, 45 M.J. 538, 541 (A.F. Ct. Crim.
App. 1996) (adopting the test from Murphy). Based on this test,
which we adopt, Appellant’s ultimate consent to the computer’s
seizure lacks sufficient indicia of voluntariness.
Appellant clearly faced restrictions on his liberty. The
military judge stated in her findings of fact that three
individuals escorted Appellant from the AFOSI building to his
home –- the two AFOSI agents who conducted the initial
interrogation and Appellant’s first sergeant, Master Sergeant
Kemp. Another AFOSI agent joined, along with a chaplain. That
Appellant was never technically under apprehension is not
dispositive; no court that has analyzed this prong has
considered apprehension determinative. See, e.g., United States
v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988) (noting
that the defendant was not free to leave the inspection area at
a Border Patrol checkpoint even though he was never technically
in custody or under arrest). Authority figures, one of whom was
Appellant’s first sergeant and thus responsible for unit
discipline, not only helped conduct the search, but also
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escorted Appellant from the AFOSI building to his home. If
Appellant faced no restrictions on his liberty, the escort would
have been unnecessary.
The facts of the escort and the presence of several
authority figures also created a coercive and intimidating
atmosphere that stifled Appellant’s inclination to refuse
consent to the computer’s seizure once the AFOSI agents informed
Appellant that they had to take the computer as a matter of
routine.
Furthermore, though Appellant was a twenty-six-year-old
staff sergeant with nearly eight years of service, it is
doubtful that he knew he could withdraw consent once given. The
signed consent form does not explicitly state that the signer
may withdraw consent; Article 31, UCMJ, warnings do not include
an addendum clarifying that consent, once given, can be
withdrawn; and none of the AFOSI agents testified that he
advised Appellant that he could withdraw his consent at any
time. What is more, when Appellant objected to the removal of
the computer, the seizing agent stated that they “would have to
take the computer” as a matter of routine procedure. Regardless
of his prior belief, Appellant likely believed that he could not
refuse consent given the agent’s assurance that seizure was a
routine requirement.
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Finally, Appellant never consulted counsel throughout his
questioning and the subsequent search. As such, since four of
the six Murphy factors weigh against a finding of voluntary
consent, we hold that Appellant’s ultimate consent to the
seizure of the computer was not a valid consent, but rather mere
acquiescence to the color of authority.
E.
Notwithstanding the validity of the seizure, the military
judge did not err when she denied Appellant’s motion to suppress
because, as she found, the evidence would have been inevitably
discovered pursuant to a validly executed warrant.
The doctrine of inevitable discovery creates an exception
to the exclusionary rule allowing admission of evidence that,
although obtained improperly, would have been obtained by
another lawful means. Nix v. Williams, 467 U.S. 431, 444
(1984). M.R.E. 311(b)(2) embodies this exception, stating that
“[e]vidence that was obtained as a result of an unlawful search
or seizure may be used when the evidence would have been
obtained even if such unlawful search or seizure had not been
made.” This Court explained the doctrine in United States v.
Kozak, 12 M.J. 389, 394 (C.M.A. 1982) and, more recently, in
United States v. Owens, 51 M.J. 204 (C.A.A.F. 1999), where this
Court upheld the legality of a warrantless search of the
appellant’s car and seizure of stolen stereo equipment because
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overwhelming probable cause and routine police procedure made
discovery of the evidence inevitable. Id. at 210-11.
In this case, the images of child pornography on
Appellant’s computer hard drive would similarly have inevitably
been discovered. As the military judge correctly concluded, had
Appellant not ultimately consented to the seizure of the
computer, the AFOSI investigators would have sought and obtained
a search authorization based on probable cause. After all,
during his interrogation, Appellant admitted to a sexual
relationship with a young girl with whom he communicated mostly
via e-mail and instant messenger. This alone encouraged
investigators to focus on the computer as a source of evidence
and created sufficient probable cause to allow AFOSI to obtain
an authorization to search for, and seize e-mails and messages
between Appellant and TND. Though the authorization would have
been limited to e-mails and messages, one of the AFOSI
investigators testified that the forensic software employed
would have skimmed the computer’s hard drive, recovering all
saved data. As the military judge concluded, investigators
would have had to sift through all the captured data to find
relevant e-mail traffic. As such, the files containing child
pornography would have been inevitably discovered through this
valid search. It should also be noted that although we have
ultimately concluded that the initial consent to seize had been
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terminated as a matter of law, the fact that the law enforcement
officers proceeded on the belief that they had consent
underscores that this is not a case involving a deliberate
intent to evade the warrant requirement.
IV.
We therefore find no error in the military judge’s denial
of Appellant’s motion to suppress and affirm the decision of the
United States Air Force Court of Criminal Appeals.
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BAKER, Judge (concurring in the result):
I concur with the result reached by the Court today, and
agree that Randolph v. Georgia, 547 U.S. 103 (2006), does not
apply to this case. However, I write separately to distinguish
my views regarding the inevitable discovery doctrine. The
majority’s approach parts from United States Supreme Court
precedent as well as one of the fundamental objectives of the
Fourth Amendment, which is to encourage, and in most cases,
compel the government to obtain a warrant (or in military
context command authorization) before conducting a search or
seizure encompassed within the Amendment’s scope. Further, I
would affirm this case on the ground that Appellant consented to
the subsequent seizure of his computer at his house. In this
respect, the military judge’s findings of fact are not clearly
erroneous.
I. Inevitable Discovery
The Court’s decision regarding the inevitability of the
discovery of the child pornography on Appellant’s computer is
predicated on at least three assumptions: first, the Court
assumes that, because questioning of Appellant and the victim
revealed that the two communicated over the Internet, AFOSI
agents would have used that information to show probable cause
in an application to search Appellant’s computer for e-mails and
instant messages; second, the Court assumes that a detached
United States v. Wallace, No. 07-0194/AF
magistrate would have granted a search warrant based on that
evidence; and third, it is assumed that, having received
authorization to search for e-mails and instant messages, AFOSI
would have inevitably also discovered the images of child
pornography on Appellant’s hard drive. This string of
assertions does not bear the indices of inevitability of
discovery found in cases such as Nix v. Williams, 467 U.S. 431(1984), and the doctrine that evolved from that case. Rather,
the majority adopts in its place a “could have-would have”
approach to the warrant requirement.
First, there is no evidence in the record that AFOSI
actually attempted to obtain a search warrant.1 Instead, the
Court today essentially holds that the unadjudicated strength of
the prosecution’s case was sufficient to permit a violation of
Appellant’s right against unreasonable search and seizure. Such
an interpretation of the inevitable discovery doctrine is too
broad to be constitutionally tenable. As the Fourth Circuit has
held, the inevitable discovery doctrine “cannot rescue evidence
obtained via an unlawful search simply because probable cause
existed to obtain a warrant when the government presents no
evidence that the police would have obtained a warrant. Any
1
Had the AFOSI at least dispatched an agent to obtain a warrant,
the subsequent search could arguably have been admissible under
the inevitable discovery doctrine. See United States v. Lamas,
930 F.2d 1099, 1102 (5th Cir. 1991).
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other rule would emasculate the Fourth Amendment.” United
States v. Allen, 159 F.3d 832, 842 (4th Cir. 1998); see also
United States v. Cherry, 759 F.2d 1196, 1206 (5th Cir. 1985);
United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994);
United States v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995); United
States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). Today’s
holding creates an exception that swallows the rule, against
which Justice Harlan warned when he wrote, “[w]ere federal
officers free to search without a warrant merely upon probable
cause to believe that certain articles were within a home, the
provisions of the Fourth Amendment would become empty phrases,
and the protection it affords largely nullified.” Jones v.
United States, 357 U.S. 493, 498 (1958).
The Court today points to our previous holdings in United
States v. Kozak, 12 M.J. 389 (C.M.A. 1982), and United States v.
Owens, 51 M.J. 204 (C.A.A.F. 1999), for the proposition that the
inevitable discovery doctrine would permit the admission of
evidence obtained in violation of a defendant’s Fourth Amendment
rights. Neither of these cases is applicable here, however,
since in each case the admission of the evidence was justified
on grounds derived from a recognized exception to the warrant
requirement, and independent from the unlawful search. In
Kozak, the Court concluded that Criminal Investigation Division
(CID) agents who illegally opened a briefcase containing stolen
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goods would inevitably have discovered the same as part of a
search incident to the arrest of the suspect who later claimed
the briefcase. 12 M.J. at 393. Moreover, Owens concerned the
search of an automobile, a location that permits warrantless
searches, so long as probable cause can be shown. 51 M.J. at
209; see Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971).
In the present case, no similar exception to the warrant
requirement exists to independently justify the search of
Appellant’s computer. It bears repeating: in order for the
evidence to have been admissible under the inevitable discovery
doctrine, the Government would have to have shown that
investigators “possessed, or were actively pursuing, evidence or
leads” that independently “would have led to the discovery of
the evidence.” Kozak, 12 M.J. at 394. No such active,
independent line of investigation was being pursued in this case
before the issue of Appellant’s consent arose.
Second, assuming that AFOSI could have searched Appellant’s
computer for e-mails and instant message traffic, it does not
follow that discovery of the child pornography would have been
inevitable. That the search software at the time of the
examination of Appellant’s computer was too primitive to permit
a focused search for e-mails and instant messages does not
excuse the resulting violation of Appellant’s Fourth Amendment
rights.
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II. Consent to Seize and Search
Although I disagree with the majority’s application of
inevitable discovery, I would affirm this case. Like the
majority, I find the critical factual point to have occurred in
Appellant’s home. Having revoked his consent to the initial
search and seizure, Appellant either consented anew to the
seizure of his computer or merely acquiesced to that seizure in
the face of the law enforcement presence he encountered. I also
agree with the majority that the six-part factors approach in
United States v. Murphy, 36 M.J. 732, 734 (A.F.C.M.R. 1992), is
an appropriate mechanism with which to evaluate this issue.
However, while there are arguments on both sides, I balance the
factors differently than the majority and conclude that
Appellant did not merely acquiesce to authority in consenting to
the search of his computer.
The first factor is the degree to which the suspect’s
liberty was restricted (e.g., whether the suspect was under
escort, under arrest or apprehension, held in the office of law
enforcement agents, or called to the commander’s office).
Murphy, 36 M.J. at 734. This Court has adopted an objective
test as to whether one is in police custody. United States v.
Catrett, 55 M.J. 400, 409 (C.A.A.F. 2001). Furthermore, the
United States Supreme Court has stated that “[i]n determining
whether an individual was in custody, a court must examine all
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of the circumstances surrounding the interrogation, but the
ultimate inquiry is simply whether there [was] a formal arrest
or restraint on freedom of movement of the degree associated
with a formal arrest.” Stansbury v. California, 511 U.S. 318,
322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983)) (quotation marks omitted).
In this case, the record shows that Appellant was brought
neither to the AFOSI office nor his home under arrest.
Appellant did not feel he was free to leave, but he was neither
handcuffed nor restrained in any way. Thus, even if Appellant
subjectively believed that he was not free to leave, the
military judge objectively found otherwise. This ruling is not
clearly erroneous. United States v. Rader, 65 M.J. 30, 32
(C.A.A.F. 2007). Of course, had the military judge found that
Appellant was not free to leave, that factor alone would not
necessarily negate his consent, since none of the factors
identified in Murphy are necessarily determinative. 36 M.J. at
734.
The second factor concerns the presence of any coercion,
promises, direct orders, threats (including threats that if
consent to search is withheld, an authority to search will be
obtained), or other forms of intimidation or pressure. Id.
Here, the military judge specifically found that “Staff Sergeant
Wallace’s consent was not given under coercion, force or
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threats.” Again, there is nothing in the record that would show
that such a finding was clearly erroneous. The military judge’s
determination is supported in many respects by the presence of
the base chaplain during the search of Appellant’s home. First,
the presence of the chaplain tempers concern that Appellant was
in some manner coerced into consenting to an overbearing or
overwhelming law enforcement presence, because the chaplain was
someone to whom Appellant might have reached out if he was
feeling unduly pressured.
Second, the chaplain served as a neutral witness to the
proceedings. Thus, the military judge was not limited to
considering the statements of witnesses who might have had
biases one way or the other.
Finally, even considering the chaplain’s testimony in a
light most favorable to Appellant, the chaplain did not testify
to a coercive atmosphere. He stated:
I would not use the word “protest.” I would probably use
the word “resisted.” . . . . He initially said “Don’t
take the computer.” But then they said “Well it is just a
matter of routine. We’ve got to do this.” His response
was “Well, okay.” And then he seemed resigned to them
taking it at that particular point.
To me this does not describe consent “quickly and easily
given” as the military judge stated. But it does look more like
acceptance of the inevitable, with some resignation, rather than
“mere acquiescence” to a law enforcement presence. Therefore,
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in light of this testimony, and the military judge’s conclusions
drawn from it, I would conclude that the military judge’s
findings of fact were not clearly erroneous and that her
conclusions of law were correct.
Alternatively, if one discounts the effect of the presence
of the chaplain, the question of whether Appellant was coerced
into consenting would ultimately come down to Appellant’s word
against those of the AFOSI agents, and this is insufficient to
find clear factual error on the part of the military judge. As
the United States Supreme Court noted in Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985), “[w]here there are two
permissible views of the evidence, the fact finder’s choice
between them cannot be clearly erroneous.”
The third Murphy factor considers Appellant’s awareness of
his right to refuse consent. 36 M.J. at 732. The record
reflects that the consent form Appellant initially signed
included the acknowledgment, “I also understand that if I do not
consent, a search cannot be made without a warrant or other
authorization recognized in law.” However, Appellant was not
expressly advised he could refuse consent during the subsequent
search and seizure at this home. Neither does the record
reflect facts sufficient to infer such knowledge based on
Appellant’s age, intelligence, training and experience.
Arguably, the record favors a finding that Appellant was not
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aware that he could revoke his consent. Although Appellant was
a noncommissioned officer with almost eight years of military
service, this might be insufficient -- in light of the agents’
failure to inform him he could revoke consent -- to presume
Appellant was aware of the nuances of his Fourth Amendment
rights.
With respect to the fourth Murphy factor, 36 M.J. at 734,
it seems intuitive that an individual placed in Appellant’s
position -- accused of a crime, his house searched, and facing
the consequences of his alleged act on his family relations --
would be under considerable stress. However, such anxiety
cannot, by itself, serve to undermine consent. If the
alternative were true, every defendant accused of a crime would
be found to lack free will.
The fifth factor listed in Murphy is whether the suspect
had consulted with counsel. 36 M.J. at 734. The military judge
found that during questioning by AFOSI, Appellant requested
counsel, and was told by AFOSI agents that the Area Defense
Counsel was unavailable. However, it was Appellant who
subsequently reinitiated the line of questioning that led to the
search of Appellant’s home, and Appellant waived his right to
counsel before questioning resumed. Thus, Appellant is hard
pressed to argue that he was denied counsel.
9
United States v. Wallace, No. 07-0194/AF
The line between true consent and mere acquiescence in the
presence of law enforcement can be quite ephemeral. At some
point, I imagine many accused persons who become aware that
their conduct has been discovered acquiesce to law enforcement
requests because they feel, in a descriptive sense, the
inevitable consequence of their actions. From the accused’s
standpoint, this would seem much closer to mere acquiescence
than meaningful choice and consent. The real question then is
not whether the accused merely acquiesced in the face of law
enforcement pressure or presence, but rather, whether or not he
was aware that he had a choice to consent or not. That is, of
course, different from concluding that as a result of the stress
of the situation, one has no real good choice but only bad
options that lead to the same result.
When the totality of the circumstances is considered in
this case, it becomes evident that four of the five Murphy
factors relevant to the case at hand argue for concluding that
Appellant fell into this latter category, and as a matter of
law, consented to AFOSI seizing and searching his computer.
Here, Appellant’s age, experience, intelligence, and military
grade are relevant. We are not dealing with a new enlistee.
Additionally, the presence of the chaplain and his testimony are
also central to this conclusion.
10
United States v. Wallace, No. 07-0194/AF
Thus, while there is nothing inevitable about the discovery
of the child pornography on Appellant’s computer, his valid
consent rendered the evidence properly admissible. I therefore
concur in the result.
11
United States v. Wallace, No. 07-0194/AF
RYAN, Judge (concurring in the result):
I agree with the reasoning undertaken in Part II of Judge
Baker’s separate opinion, join him in concluding that Appellant
consented to the search of his computer, and thus concur in the
result reached by the Court today.