United States v. Olson , 74 M.J. 132 ( 2015 )

UNITED STATES, Appellee
v.
Brittany N. OLSON, Airman First Class
U.S. Air Force, Appellant
No. 14-0166
Crim. App. No. S32034
United States Court of Appeals for the Armed Forces
Argued January 27, 2015
Decided April 2, 2015
STUCKY, J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. BAKER, C.J., filed a
separate concurring opinion.
Counsel
For Appellant: Captain Jeffrey A. Davis (argued).
For Appellee: Major Mary Ellen Payne (argued); Lieutenant
Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief);
Captain Richard J. Schrider.
Military Judge: Joshua Kastenberg
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Olson, No. 14-0166/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether the military judge
erred by denying Appellant’s motion to suppress the fruits of a
law enforcement search of her residence. We hold that the
military judge’s finding that Appellant voluntarily consented to
the search was not clearly erroneous, and he did not abuse his
discretion in admitting the seized evidence.
I. Posture of the Case
A special court-martial composed of officer members
convicted Appellant, contrary to her pleas, of violating a
lawful general regulation by possessing drug paraphernalia;
recklessly spoiling her residence; possessing ketamine, a
Schedule III controlled substance; and larceny of 1000 pills of
cyclobenzaprine, military property of the United States.
Articles 92, 109, 112a, 121, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. §§ 892, 909, 912a, 921 (2012). Appellant was
sentenced to a bad-conduct discharge, confinement for four
months, forfeiture of $978 pay per month for four months, and
reduction to the lowest enlisted grade. The convening authority
reduced the period of forfeitures to three months but otherwise
approved the adjudged sentence.
A panel of the United States Air Force Court of Criminal
Appeals affirmed the approved findings and sentence. United
States v. Olson, No. S32034 2013 CCA LEXIS 822, at *8, 2013 WL
2
United States v. Olson, No. 14-0166/AF
5436496, at *3 (A.F. Ct. Crim. App. Sept. 11, 2013)
(unpublished). This Court set aside that judgment and remanded
for a hearing on whether the panel that decided her case was
properly constituted. United States v. Olson, 73 M.J. 126
(C.A.A.F. 2013) (summary disposition). A differently
constituted panel reaffirmed the approved findings and sentence,
without reference to whether the initial panel was properly
constituted. United States v. Olson, No. S32034 (rem), 2014 CCA
LEXIS 175, at *8, 2014 WL 1301527, at *3 (A.F. Ct. Crim. App.
Mar. 18, 2014).
II. Background
After holding a suppression hearing addressing the
voluntariness of Appellant’s consent to the search of her
residence, the military judge made findings of facts summarized
below.
In early August 2011, Appellant’s supervisor contacted the
Air Force Office of Special Investigations (AFOSI), reporting
that Appellant’s husband, a civilian, might be a source of drugs
on the installation. On August 17, 2011, agents of the AFOSI
had Appellant travel to the AFOSI detachment headquarters to be
interviewed, and she arrived about 11:00 a.m. At the request of
the AFOSI agents, she relinquished her cell phone during the
interview. Her phone was not searched.
3
United States v. Olson, No. 14-0166/AF
Appellant was taken into a conference room, not a small
interview room. She was not restrained in any manner. The
agents did not intimidate her through threats or loud conduct.
She completed an information form. The agents advised Appellant
that her husband was suspected of distributing illegal drugs on
base and that he had been arrested by Calvert County, Maryland,
police. The agents asked for consent to search her residence,
which she was reluctant to give. Appellant wanted to telephone
her husband but was dissuaded from doing so by the agents. At
the time, Appellant resided off base with her husband in
Maryland, although he had been absent from the house since July.
During a smoke break outside the building, an agent tried to
convince her to consent to the search. Appellant understood
that the agents could try to convince her to consent, and she
worried that they were trying to get her in trouble.
The military judge noted that Appellant testified on the
motion that the agents had told her they would get a search
warrant if she declined to consent but that none of the agents
confirmed that. He did not make a finding as to whether an
agent actually made the statement about getting a search
warrant. Instead, he concluded: “Whether or not this statement
was made, the accused may have inferred or deduced that this
statement was made or was the case based on the surrounding
circumstances and her own knowledge of law enforcement.”
4
United States v. Olson, No. 14-0166/AF
At approximately 1:00 p.m., Appellant provided consent for
the agents to search her home. The military judge found that
the agents never informed her that she was a suspect prior to
her providing consent: “The consent form does not include a
statement of suspicion or knowledge of wrongdoing.” Appellant
drove to her residence, followed by the AFOSI agents, who, with
the assistance of local civilian police, searched the residence
between 2:00 p.m. on August 17, and 12:40 a.m. on August 18.
At about 1:00 a.m. on August 18, Appellant, under Article
31, UCMJ, 10 U.S.C. § 831 (2012), rights advisement, provided
consent to search her vehicle, and at 4:00 a.m. she admitted
knowing that drug paraphernalia was located in her residence.
She also consented to a urinalysis.
At trial, Appellant moved to suppress the fruits of the
search of her residence and all derivative evidence, including
her confession, arguing that her consent was involuntary.
III. Discussion
“A military judge’s decision to admit or exclude evidence
is reviewed for an abuse of discretion.” United States v.
Jasper, 72 M.J. 276, 279 (C.A.A.F. 2013). A military judge
abuses his discretion if “his findings of fact are clearly
erroneous or his conclusions of law are incorrect.” United
States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014), reconsideration
denied, 73 M.J. 264 (C.A.A.F. Mar. 24, 2014).
5
United States v. Olson, No. 14-0166/AF
The Fourth Amendment protects persons from unreasonable
searches of, and seizures from, their homes. U.S. Const. amend
IV. A warrantless search is per se unreasonable “subject only
to a few specifically established and well-delineated
exceptions,” one of which is “a search that is conducted
pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973) (internal quotation marks and citations omitted).
“Searches may be conducted of any person or property with
lawful consent.” Military Rule of Evidence (M.R.E.) 314(e)(1).
“To be valid, consent must be given voluntarily.” M.R.E.
314(e)(4). The test for voluntariness is whether the consent
was Appellant’s own “‘essentially free and unconstrained
choice’” or was her will overborne and her “‘capacity for self-
determination critically impaired.’” United States v. Watson,
423 U.S. 411, 424 (1976) (quoting Bustamonte, 412 U.S. at 225).
The prosecution has the burden of proving consent by clear and
convincing evidence. M.R.E. 314(e)(5).
“[W]hether a consent to a search was in fact ‘voluntary’ or
was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances.” Bustamonte, 412 U.S. at 227; see United States
v. Piren, 74 M.J. 24, 28 (C.A.A.F. 2015); M.R.E. 314(e)(4). We
review the evidence in the light most favorable to the
prevailing party at trial. Piren, 74 M.J. at 28. “We will not
6
United States v. Olson, No. 14-0166/AF
overturn a military judge’s finding that a consent to search was
voluntary unless it is unsupported by the evidence or clearly
erroneous.” United States v. Kitts, 43 M.J. 23, 28 (C.A.A.F.
1995); accord Piren, 74 M.J. at 28.
Although recognizing that voluntariness is determined from
the totality of the circumstances, this Court has focused on six
nonexclusive factors to assist in analyzing the voluntariness of
a consent to search. United States v. Wallace, 66 M.J. 5, 9
(C.A.A.F. 2008). As explained below, the military judge applied
his findings of fact to each of the six factors in deciding that
Appellant voluntarily consented to the search:
“(1) [T]he degree to which the suspect’s liberty was
restricted.” Id. Although he recognized that Appellant’s
liberty was nominally restricted, because the AFOSI agents held
Appellant’s cell phone during the interview, the military judge
found that Appellant’s liberty was not restricted. This finding
is not clearly erroneous. Although in addition to the cell
phone sequestration, Appellant was directed to go to the AFOSI
offices and she was escorted by an agent while she took a smoke
break to think about consenting to the search, these incidents
did not amount to restrictions on her liberty. As the military
judge found, Appellant “was not placed in a locked room,
handcuffed or physically restrained and prevented from leaving.
7
United States v. Olson, No. 14-0166/AF
She was not escorted to AFOSI and she was free to leave at any
time between 1100 and 1300 hours on 17 August.”
“(2) [T]he presence of coercion or intimidation.” Id.
The military judge found that the AFOSI agents did not threaten
or bully Appellant into consenting.
“(3) [T]he suspect’s awareness of her right to refuse to
consent based on inferences of the suspect’s age, intelligence,
and other factors.” Id. The military judge found that
“[i]nferentially,” Appellant “was aware of her right to refuse
to consent,” based on “some knowledge of law enforcement
tactics.” We conclude that Appellant’s knowledge of her right
to refuse to consent was actual, not just inferential.
Appellant signed a consent for search and seizure form that
included the following language: “I know that I have the legal
right to either consent to a search, or to refuse to give my
consent. . . . I also understand that if I do not consent, a
search cannot be made without a warrant or other authorization
recognized in law.”
Appellant was a married, twenty-six-year-old high school
graduate, who had attended some college. She had been in the
Air Force for four years. She felt free to ask an AFOSI agent
questions about the consent to search form and did not sign
until after she had taken a smoke break so she could think about
it. During that break, Appellant told an AFOSI agent that she
8
United States v. Olson, No. 14-0166/AF
was aware that agents tried to talk people into doing things
they might not otherwise do.
“(4) [T]he suspect’s mental state at the time.” Id. The
military judge found that Appellant “was upset on learning from
AFOSI that her husband had been arrested but in spite of this
she had the ability to make a rational decision.”
“(5) [T]he suspect’s consultation, or lack thereof, with
counsel.” Id. The military judge found that Appellant did not
consult with counsel because she had not been informed that she
was a suspect and had not been advised of her rights. We note
that the consent to search form which Appellant signed stated
that she had been advised “that the nature of the offense(s) of
which I am suspected (matters concerning which I may have
knowledge) is/are as follows: Art. 112a wrongful use,
possession, or distribution of controlled substances.”
“(6) [T]he coercive effects of any prior violations of the
suspect’s rights.” Id. The military judge found that there
were no prior violations of the accused’s rights but expressed
concern that Appellant was actually a suspect and perhaps should
have been advised of her right to counsel. AFOSI agents may not
interrogate or request a statement from a suspect without first
informing her of her right to remain silent and her right to
counsel. M.R.E. 305(c); Article 31(b), UCMJ. Although
Appellant was a suspect and should have been advised of her
9
United States v. Olson, No. 14-0166/AF
rights, this failure did not result in a coercive effect. No
statements Appellant made before she was advised of her rights
were entered into evidence.
On the whole, we agree with the military judge’s specific
findings as to the Wallace factors. His finding that Appellant
voluntarily consented to the search of her home is not clearly
erroneous under the totality of the circumstances. Appellant’s
consent to search was a product of her free and unconstrained
choice, not a result of duress or coercion, express or implied.
The military judge did not abuse his discretion in admitting
evidence derived from that consent to search.
IV. Judgment
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
10
United States v. Olson, No. 14-0166/AF
BAKER, Chief Judge (concurring):
The lead opinion concludes: “Although Appellant was a
suspect and should have been advised of her rights, this failure
did not result in a coercive effect.” United States v. Olson,
__, __ (9-10) (C.A.A.F. 2015). This is a fair conclusion drawn
from the Wallace factors. United States v. Wallace, 66 M.J. 5,
9 (C.A.A.F. 2008). There is no evidence the consent was
coerced. However, the issue in this case is whether Appellant’s
consent to search was voluntary. To determine the consent was
voluntary, the totality of the circumstances must be considered,
which may include more than just the six Wallace factors.
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). This case
requires that we consider the additional fact that Appellant was
not told she was a suspect when she gave her consent in order to
determine whether her consent was voluntary.
Therefore, I would look in particular at factor six of the
Wallace factors addressing the “coercive effects of any prior
violations of the suspect’s rights” as well as beyond the
Wallace factors to answer the question. Wallace, 66 M.J. at 9.
Why, notwithstanding the fact that the military judge found
Appellant should have been read her Article 31(b), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 831(b) (2012), rights,
does the totality of the circumstances nonetheless favor a
finding of voluntary consent? See Schneckloth, 412 U.S. at 227.
United States v. Olson, No. 14-0166/AF
Knowledge that one is a suspect, for example, might well impact
one’s decision to consult with counsel, factor five of the
Wallace framework. Wallace, 66 M.J. at 9. Voluntary consent
must also be willful and knowing. See Schneckloth, 412 U.S. at
225-26. What is voluntary in the context of a continuum of
ordinary law enforcement tactics will vary and thus is measured
by the totality of the circumstances. Wallace, 66 M.J. at 9
(citing Schneckloth, 412 U.S. at 226-27). In this case, those
circumstances include the obfuscation by law enforcement
officers as to whether Appellant was a suspect at the time she
was asked for consent while in the Air Force Office of Special
Investigations (AFOSI) control.
However, the totality of the circumstances includes four
other facts as well. Appellant knew, or should have known, she
was a potential suspect. Special Agent Burch testified that
Appellant told him during the cigarette break that she was “well
aware of the things we [law enforcement] say and how we word
things to get people to do what we want.” She signed a form
indicating she did not have to consent. The military judge
observed and found Appellant to be a person of sufficient age,
experience, and intelligence to understand and adapt to the
circumstances with which she was confronted. Finally, while
Appellant may have felt some pressure to consent while under
AFOSI control, in contrast to many such scenarios, Appellant was
2
United States v. Olson, No. 14-0166/AF
then given the opportunity to drive alone in her car for forty
minutes while guiding AFOSI to her residence, and did so without
wavering in her decision to consent. In my view, Appellant’s
consent not only was not coerced, it was voluntary. Therefore I
concur.
3