United States v. Daniels , 60 M.J. 69 ( 2004 )

UNITED STATES, Appellee
v.
Joshua S. DANIELS, Seaman Apprentice
U.S. Navy, Appellant
No. 03-0614/NA
Crim. App. No. 200001604
United States Court of Appeals for the Armed Forces
Argued March 17, 2004
Decided June 28, 2004
Counsel
For Appellant: Major Charles R. Zelnis, USMC (argued); Captain
Bruce H. Bokony, JAGC, USNR, Lieutenant Colonel Eric B. Stone,
USMC, and Lieutenant Commander Eric J. McDonald, JAGC, USN.
For Appellee: Captain Glen R. Hines, Jr., USMC (argued);
Commander Robert P. Taishoff, JAGC, USN (on brief); Colonel M.
E. Finnie, USMC.
Amicus Curiae for Appellant: William J. Brown (law student)
(argued); Steven H. Goldblatt, Esq. (director), Elizabeth B.
Wydra, Esq. (supervising attorney), and Amy Wilkinson-Hagen (law
student) (on brief) – for the Georgetown University Law Center
Appellate Litigation Program.
Military Judge: L. T. Booker, Jr.
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Daniels, No. 03-0614/NA
PER CURIAM:
Appellant was charged with a single specification of
wrongful cocaine possession, in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a (2000).
Prior to trial, Appellant moved to suppress the sole piece of
Government evidence – a vial of cocaine retrieved by his
roommate (Seaman Apprentice (SA) Voitlein)) from a nightstand
drawer used by Appellant, at the direction of the Military
Training Instructor Leading Chief Petty Officer, Chief Wilt, on
the ground that the retrieval of the evidence violated
Appellant’s Fourth Amendment reasonable expectation of privacy.
The military judge denied the motion, finding that although
Appellant had a Fourth Amendment expectation of privacy in the
nightstand drawer, the retrieval of the evidence was not a
“government search” for Fourth Amendment purposes.
Appellant thereafter entered a conditional guilty plea to
the charge, and was sentenced to confinement for a period of 45
days, reduction to E-1, and a bad-conduct discharge. The United
States Navy-Marine Corps Court of Criminal Appeals (CCA)
affirmed the findings and sentence as approved by the convening
authority. United States v. Daniels, 58 M.J. 599, 606 (N-M. Ct.
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Crim. App. 2003). This Court subsequently granted review of the
following two issues:∗
I. WHETHER THE LOWER COURT’S DEFINITION OF WHAT
CONSTITUTES A “SEARCH” FOR PURPOSES OF THE FOURTH
AMENDMENT OF THE UNITED STATES CONSTITUTION AND
MILITARY RULE OF EVIDENCE 311(a) IS CONTRARY TO
UNITED STATES SUPREME COURT PRECEDENT.
II. WHETHER THE LOWER COURT ERRED AS A MATTER OF LAW
WHEN IT CONCLUDED THAT ELECTRONICS TECHNICIAN
SEAMAN APPRENTICE VOITLEIN WAS NOT ACTING AS AN
AGENT FOR THE GOVERNMENT WHEN, PURSUANT TO THE
DIRECTION OF CHIEF ELECTRONICS TECHNICIAN (SS)
WILT “THE KEY GOVERNMENT ACTOR,” HE SEIZED THE
INCRIMINATING EVIDENCE.
Answering both issues affirmatively, we reverse the decision of
the lower court.
FACTS
On the evening of March 29, 2000, Appellant entered his
barracks room holding a brown plastic vial. He displayed this
vial to his two roommates, including SA Voitlein, and announced
that the vial contained cocaine mixed with a tranquilizer.
While his roommates looked on, Appellant placed the vial in a
can of snuff tobacco in the top drawer of his bedside
nightstand. The following day, SA Voitlein searched out Chief
∗
We heard oral argument in this case at the Georgetown
University Law Center, Washington, D.C., on March 17, 2004, as
part of "Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military criminal justice
system.
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Wilt, the Military Training Instructor Leading Chief, and told
him what had transpired the previous evening. In response,
Chief Wilt directed SA Voitlein to retrieve the vial from the
nightstand drawer, as Chief Wilt himself was otherwise occupied.
SA Voitlein returned to the barracks room, retrieved the vial,
and delivered it to Chief Wilt. The CCA found that at the time
Chief Wilt ordered SA Voitlein to retrieve the vial, Chief Wilt
“surmised that Appellant had been merely joking with his
roommates” about the vial’s contents. Id. at 601.
Nevertheless, subsequent testing revealed that the vial
contained cocaine.
DISCUSSION
The Fourth Amendment by its express terms protects
individuals against unreasonable searches and seizures. “Under
the Military Rules of Evidence, which implement the Fourth
Amendment, evidence illegally seized by government agents from a
protected place is inadmissible.” United States v. Hester, 47
M.J. 461, 463 (C.A.A.F. 1997)(citing Military Rules of Evidence
311-317)[hereinafter M.R.E.]; see also United States v.
Sullivan, 42 M.J. 360, 363-64 (C.A.A.F. 1995)(no Fourth
Amendment violation when a military member acts in a purely
private capacity). Appellant avers that his roommate SA
Voitlein, acting as an agent of government official Chief Wilt,
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unlawfully seized the vial of cocaine from a nightstand drawer
used by Appellant.
Addressing Appellant’s claim, the CCA considered whether
there was a “search” within the meaning of the Fourth Amendment
and whether SA Voitlein functioned as a government agent when he
seized the vial from Appellant’s drawer. It focused on the
motivation behind Chief Wilt’s request for SA Voitlein to
retrieve the vial, as well as on SA Voitlein’s private
motivation, and concluded that the vial’s retrieval was not a
Fourth Amendment search conducted by a government agent. In the
words of the CCA:
[W]e find that Chief Wilt was simply not engaged in a
quest for evidence of a crime. . . .
. . . .
Given Chief Wilt’s honest belief that ETSA
Voitlein’s expressed concerns about Appellant actually
having illegal drugs in their barracks room were
unreasonable, we conclude that Chief Wilt’s directions
did not make ETSA Voitlein a Government agent on a
quest for incriminating evidence. That being the
case, there was no “search” [for Fourth Amendment
purposes]. . . .
Moreover, we find that when ETSA Voitlein
actually seized the incriminating evidence, he was
doing so out of a “private motivation” to protect his
“own personal interests[,]” . . . [and therefore]
insulated his action from the protections of the
Fourth Amendment . . . .
Daniels, 58 M.J. at 604-06. We hold that the CCA erred on both
accounts.
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First, contrary to the CCA’s motivational approach, the
Supreme Court defines a Fourth Amendment “search” as a
government intrusion into an individual’s reasonable expectation
of privacy. See Soldal v. Cook County, 506 U.S. 56, 69 (1992)
(suggesting a motivational approach is unworkable); California
v. Ciraolo, 476 U.S. 207, 211 (1986)(defining the expectation of
privacy test as the “touchstone of Fourth Amendment analysis”).
The Court’s twofold “expectation of privacy” test asks, first,
whether the individual by his conduct has “exhibited an actual
(subjective) expectation of privacy and, second, [whether] the
expectation [is] one that society is prepared to recognize as
‘reasonable,’” Katz v. United States, 389 U.S. 347, 361 (1967),
or, in other words, whether the expectation, “viewed
objectively, is ‘justifiable’ under the circumstances,” Smith v.
Maryland, 442 U.S. 735, 740 (1979).
To this end, the military judge found that Appellant had a
reasonable expectation of privacy in the nightstand drawer he
used. The Government expressly conceded this point before the
CCA. Therefore, we need not and do not address whether the
military judge’s determination was correct as a matter of law,
or whether his factual conclusions were clearly erroneous. The
military judge’s ruling regarding Appellant’s expectation of
privacy is classic “law of the case.” United States v.
Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994).
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Moreover, the question of whether a private actor performed
as a government agent does not hinge on motivation, but rather
“on the degree of the Government’s participation in the private
party’s activities, a question that can only be resolved ‘in
light of all the circumstances.’” Skinner v. Railway Labor
Executives’ Ass’n, 489 U.S. 602, 614-15 (1989)(internal
citations omitted). To implicate the Fourth Amendment in this
respect, there must be “clear indices of the Government’s
encouragement, endorsement, and participation” in the challenged
search. Id. at 615-16.
In the instant case, rather than retrieve the vial on his
own initiative and then bring it to Chief Wilt for consultation,
SA Voitlein instead first consulted Chief Wilt about the issue,
and then, only after he received the order from Chief Wilt to do
so, retrieved the vial. In other words, Chief Wilt’s specific
order as a government official triggered SA Voitlein’s actual
seizure of the vial. In light of these facts, we hold that
Chief Wilt clearly encouraged, endorsed, and participated in SA
Voitlein’s seizure of the vial and, accordingly, that SA
Voitlein acted as Chief Wilt’s agent when he seized the vial.
In reaching this conclusion, we note that it is possible
that an individual functioning as a government agent might at
the same time own or exercise adequate control over the property
searched that he or she could lawfully consent to the search.
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See United States v. Matlock, 415 U.S. 164 (1974).
Nevertheless, in this case, the military judge determined that
Appellant had a reasonable expectation of privacy in the drawer,
which extended to his roommates as well as the Government.
Implicit in this ruling is the fact that SA Voitlein did not
have adequate control of the nightstand to exercise independent
authority to consent.
Given SA Voitlein’s role as a government agent, the
warrantless search of the nightstand drawer used by Appellant to
seize the vial of cocaine was unlawful. See Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 528-29 (1967)(warrantless
search of private property without proper consent is per se
unreasonable with a few exceptions). The military judge
therefore erred in admitting the cocaine vial into evidence at
trial. See M.R.E. 311(a) (evidence obtained from an unlawful
search or seizure is inadmissible against an accused).
DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is reversed, the findings and sentence are
set aside, and the record of trial is returned to the Judge
Advocate General of the Navy. A rehearing is authorized.
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