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No. 00-123
IN THE
Navy-Marine Corps Court of Criminal Appeals
Fall 2009
Kosmo KRAMER, LCDR, U.S. Navy
Appellant
v.
UNITED STATES of America
Appellee
On Appeal from the Navy-Marine Corps Trial
Judiciary Southern Judicial Circuit General
Court-Martial
BRIEF FOR APPELLEES
Team #14
Counsel for Appellee
October 12, 2009
QUESTIONS PRESENTED
1. Does the appellant’s wife’s consent to search their shared
home constitute valid consent to search an unlocked room
within their house and justify the introduction of evidence
gathered from that room?
2. Should evidence gathered from an open automobile within
mere feet of the arrest have been suppressed on the grounds
that the evidence was obtained without a warrant?
3. Should the appellant’s spontaneous confession of guilt to a
fellow naval officer at the scene of arrest be suppressed
on the grounds that the fellow naval officer did not
administer Article 31(b) warnings?
i
TABLE OF CONTENTS
Questions Presented............................................ i
Table of Contents............................................. ii
Table of Authorities........................................... v
Statement of the Case......................................... ix
Summary of the Argument...................................... xii
Standard of Review............................................ xv
Argument....................................................... 1
I. THE MILITARY JUDGE CORRECTLY INTERPRETED PAST PRECEDENT WHEN
REFUSING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED FROM THE
APPELLANT’S RESIDENCE.......................................... 1
A. The appellant’s wife voluntarily consented to the search
of the home, and the search was valid in scope. .............. 1
1. The appellant’s absence from the martial residence did
not vitiate his wife’s voluntary consent to the search, nor
did other statements made by the NCIS agents to the
appellant’s wife. .......................................... 1
2. Under the applicable totality-of-the-circumstances test,
the consent given by the appellant’s wife was voluntary. ... 2
B. Evidence found within the communal residence was properly
admitted regardless of the appellant’s misplaced privacy
expectation regarding certain areas of the residence. ........ 6
1. The lower court’s findings of fact show that Ms. Holten
had “common authority” to consent to a search of each room in
her home…. ................................................. 6
2. Even if Ms. Holten lacked “common authority” over each
room in the house it is clear that she had “apparent
authority” to consent to the search of the den. ............ 7
ii
3. The briefcase and its contents are admissible and
constitute extensions of Ms. Holten’s valid consent. ....... 9
II. THE JUDGE CORRECTLY DENIED THE APPELLANT’S MOTION TO
SUPPRESS THE EVIDENCE FROM THE AUTOMOBILE; UNDER EACH OF THE
INCIDENT-TO-ARREST, AUTOMABILE, AND PLAN VIEW DISCOVERY
EXCEPTIONS TO THE WARRANT REQUIREMENT, S.A. GEBBS PROPERLY
SEIZED THE INCRIMINATING ITEMS................................ 11
A. S.A. Gebbs was justified in searching the appellant’s
vehicle pursuant to appellant’s lawful arrest. .............. 11
1. The evidence seized from the appellant’s gym bag is
admissible because it was found while within his reaching
distance at the time of arrest. ........................... 11
2. S.A. Gebbs had justification to search the vehicle for
evidence related to the offenses of wrongful possession and
attempted espionage. ...................................... 12
B. The automobile exception to the warrant requirement
allowed S.A. Gebbs to search the vehicle and any items within .
.. . .. ..................................................... 14
1. The simple showing of probable cause is all that is
needed to justify the warrantless search of the appellant’s
vehicle. .................................................. 15
2. The incriminating circumstances surrounding the
appellant’s arrest gave S.A. Gebbs and Gumshoe probable cause
to search the vehicle. .................................... 15
3. The Special Agents were under no obligation to seek a
search warrant before examining the vehicle’s contents, nor
were they unreasonable in continuing the warrantless search
at NCIS headquarters after seizing the items. ............. 16
C. Because the incriminatory evidence inside the open
convertible was exposed to public view, the agents properly
seized the items under the warrant requirement’s plain view
exception. .................................................. 18
1. The appellant retained no expectation of privacy, and
thus no Fourth Amendment protection, in the gym bag and the
iPhone. ................................................... 18
iii
2. The incriminatory natures of the iPhone and the pill
bottle were immediately apparent, so S.A. Gebbs could
lawfully seize the items under the plain view doctrine. ... 19
III. THE TRIAL COURT PROPERLY ADMITTED APPELLANT’S SPONTANEOUS
CONFESSION TO CDR NORRIS...................................... 20
A. The trial court rightly held that Article 31(b), which
mandates the suppression of statements gathered in an improper
interrogation, did not require the suppression of the
appellant’s spontaneous confession to CDR Norris. ........... 21
1. CDR Norris was not an investigative officer, but merely a
helpful bystander, and therefore did not need to warn the
appellant under Article 31(b). ............................ 21
2. The appellant’s answer to CDR Norris’ question indicates
that the appellant did not think he was under interrogation,
so the appellant’s statement should not be suppressed under
Article 31(b). ............................................ 23
3. Even if the appellant’s admission was obtained in
violation of Article 31(b), it should not taint the
appellant’s later confessions to military police. ......... 24
B. The appellant’s confession to NCIS S.A. Colombo that LCDR
had possession of illegal prescription drugs should not be
suppressed because S.A. Colombo properly warned the appellant
of the nature of the charges against him. ................... 24
Conclusion.................................................... 26
iv
TABLE OF AUTHORITIES
Cases
Arizona v. Gant, 129 S. Ct. 1710 (2009),.............. 11, 12, 13
Cardwell v. Lewis, 417 U.S. 583 (1974)........................ 18
Carroll v. United States, 267 U.S. 132 (1925)................. 14
Chambers v. Maroney 399 U.S. 42 (1970)........................ 14
Chimel v. California, 395 U.S. 752 (1969)............. 11, 12, 15
Florida v. Jimeno, 500 U.S. 248 (1991)......................... 9
Georgia v. Randolph, 547 U.S. 103 (2006).................... 1, 2
Herring v. United States, 129 S. Ct. 695 (2009)................ 2
Illinois v. Andreas, 463 U.S. 765 (1983)...................... 19
Illinois v. Gates, 462 U.S. 213 (1983).................... 15, 16
Illinois v. Rodriguez, 497 US. 177 (1990)................ 1, 8, 9
Minnesota v. Carter, 525 U.S. 83 (1998)....................... 18
Minnesota v. Dickerson, 508 U.S. 366 (1993)............... 19, 20
New York v. Class, 475 U.S. 106 (1986)........................ 18
Oregon v. Elstad, 470 U.S. 298 (1985)......................... 24
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)........... 3, 5, 6
Silvan W. v. Briggs, 309 Fed. Appx. 216 (10th Cir. 2009)...... 14
Spinelli v. United States, 393 U.S. 410(1969)................. 15
State v. Madrid, 574 P.2d 594 (N.M. Ct. App. 1978)............. 7
Thornton v. United States, 541 U.S.615 (2004)................. 13
United States v. Ayala, 43 M.J. 296 (C.A.A.F. 1995).......... xiv
v
United States v. Bartee, 50 C.M.R. 53 (N.C.M.R. 1974)......... 22
United States v. Brown, 961 F.2d 1039 (2d Cir. 1992)........... 9
United States v. Byers, 26 M.J. 132 (C.M.A. 1988)............. 22
United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008)..... 3
United States v. Chadwick, 433 U.S. 1 (1997).................. 18
United States v. Clow, 26 M.J. 176 (1988).................. 7, 10
United States v. Corbitt¸67 F.2d 626 (4th Cir. 1982)........... 5
United States v. Cordero, 11 M.J. 210 (C.M.A. 1981)........... 12
United States v. Davis, 8 C.M.A. 196 24 C.M.R. 6 (1957)....... 26
United States v. Duga, 10 M.J. 206 (C.M.A. 1981)...... 21, 22, 23
United States v. Evans, 35 M.J. 306 (C.M.A. 1992)............. 15
United States v. Finley, 477 F.3d 250 (5th Cir. 2007)......... 14
United States v. Gallagher, 66 M.J. 250 (C.A.A.F 2008)..... 8, 11
United States v. Gibson, 3 U.S.C.M.A. 746, 14 C.M.R. 164 (C.M.A.
1954) ....................................................... 21
United States v. Holder, 10 U.S.C.M.A. 448 (C.M.A. 1959)...... 22
United States v. Johns, 469 U.S. 478 (1985)................... 17
United States v. Kozak, 12 M.J. 389 (C.M.A. 1982)............. 12
United States v. Loukas, 29 M.J. 385 (C.M.A.1990)............. 21
United States v. Matlock, 415 U.S. 164 (1974)............ 1, 6, 7
United States v. McClain, 31 M.J. 130 (C.M.A. 1990)............ 5
United States v. Murphy, 552 F.3d 405 (4th Cir. 2009)......... 14
United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996)........... 13
vi
United States v. Radvansky, 45 M.J. 226 (C.A.A.F. 1996)........ 3
United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986).......... 4
United States v. Richter, 51 M.J. 213 (C.A.A.F. 1999).. . .. xiv,
4, 5, 8
United States v. Ross, 456 U.S. 798 (1982).................... 15
United States v. Salazar, 44 M.J. 464 (C.A.A.F 1996)........... 3
United States v. Schmitt, 33 M.J. 24 (C.M.A. 1991)............ 17
United States v. Seward, 31 M.J. 259 (C.M.A. 1990)............ 24
United States v. Shabazz¸993 F.2d 431 (5th Cir. 1993).......... 4
United States v. Simpson, 54 M.J. 281 (C.A.A.F. 2000)......... 25
United States v. Spaulding, 29 M.J. 156 (C.M.A. 1989)......... 24
United States v. Tank, 200 F.3d 627 (9th Cir. 2000)........... 13
United States v. Villasenor, 61 Fed. Appx. 653 (10th Cir. 2003) 6
United States v. Weston, 67 M.J. 390 (C.A.A.F. 2009).... 1, 2, 10
United States v. Whitehead, 428 F. Supp. 2d 447 (E.D. Va. 2006) 5
United States v. Whitfield, 939 F.2d 1071 (D.C. Cir. 1991)..... 9
United States v. Woods, 47 C.M.R. 124 (C.M.A. 1973)........... 22
Wong Sun v. United States, 371 U.S. 471 (1963)................ 24
Statutes
10 U.S.C. § 831............................................... 25
Other Authorities
Mil. R. Evid. 314(e)(4)........................................ 3
Mil. R. Evid. 314(g)(2)....................................... 12
vii
Trial Record.............................................. passim
viii
STATEMENT OF THE CASE
The appellant, Lieutenant Commander Kosmo Kramer, is an
active duty officer in the United States Navy and is stationed
at Naval Air Station Jacksonville (NAS JAX). (R. at 80.) He is
married to Ms. Parish Holten and is childless. Id.
On April 24, 2009, at approximately 1900 hours, NCIS
Special Agent Colombo visited the appellant at his home and
asked the appellant to come to NAS JAX for questioning. Id. The
appellant consented to questioning and drove himself to the
base. Id. During Special Agent Colombo’s interview of the
appellant, the appellant refused to give consent to have his
home searched by NCIS agents. Id. However, NCIS agents did
eventually obtain consent to search the appellant’s home from
his wife Parish Holten. (R. at 81.) After initially refusing
consent and unsuccessful attempting to reach her husband by
telephone, Ms. Holten consented both orally and in writing to a
search of their home. Id. She did not revoke her consent during
the course of the search. (R. at 82.) The search uncovered
approximately $200,000, an iPhone containing classified
documents intended for sale to a foreign government, and an
unlabeled prescription bottle containing a substance later
identified as Modafinil. (R. at 14, 82-83.) The currency, iPhone
and Modafinil were in an unlocked briefcase labeled with the
ix
initials “K.K.” (R. at 82-83.) The briefcase was in the “den” of
the house, which Parish Holten described as her husband’s “game
room.” Id.
After approximately two hours of questioning, the appellant
terminated the interview and left the NCIS office. (R. at 6.)
The appellant then went to his own office in Building 1 at NAS
JAX where he encountered NCIS Special Agents Gumshoe and Gebbs,
who were searching the appellant’s office pursuant to a validly
obtained search warrant. (R. at 4, 7.) Special Agents Gumshoe
and Gebbs identified themselves and attempted to apprehend the
appellant, but the Appellant fled the scene. (R. at 87.)
The appellant exited Building 1 with Special Agents Gumshoe
and Gebbs in hot pursuit. Id. CDR Huck Norris, who was out for
an evening jog at NAS JAX, saw the appellant fleeing from the
NCIS agents who were ordering him to halt. Id. Acting on his own
initiative, CDR Norris detained the appellant with a full-body
tackle just as the appellant was nearing his car. Id. At the
point of contact between CDR Norris and the appellant, the
appellant was two feet from his convertible. Id. After CDR
Norris subdued the appellant and waited for NCIS agents to
arrive, the appellant was five feet from his convertible. In the
moments before NCIS agents caught up with the appellant, CDR
Norris asked the appellant, “What the hell is going on here?”
x
(R. at 93) to which the appellant replied, “I did some very bad
stuff, and it just caught up with me.”(R. at 8.) Special Agent
Gebbs began searching the appellant’s car immediately after his
arrest while the appellant was unbound and standing five feet
away. (R. at 88.) He felt a pill bottle in the appellant’s gym
bag and seized what would later be identified as Modafinil
tablets. (R. at 8.) An iPhone containing classified documents
was found in the passenger compartment of the driver’s side
door. The car was then towed for inventory purposes without the
consent of the appellant or his wife Parish Holten. (R. at 88.)
After apprehending the appellant, NCIS Special Agent
Colombo interviewed him again in the NCIS interview room. (R. at
93.) After informing the appellant of his right to an attorney,
which the appellant waived, NCIS Special Agent Colombo informed
him that he was under investigation for homicide, espionage,
accumulation of massive gambling debts, and flight from
apprehension. Id. At this point, NCIS Special Agent Colombo
confronted the appellant with the briefcase which had been
seized from his residence, and he informed the appellant that
the military police knew of the briefcase’s contents. Id. The
appellant then made further incriminating statements. Id.
xi
SUMMARY OF THE ARGUMENT
NCIS Agents obtained valid written and oral consent from
Ms. Holten, the appellant’s wife, to search the shared marital
residence. Agents did not scheme to have the appellant removed
from the premises in order to get consent. Rather, there was a
legitimate purpose for requesting that the appellant accompany
agents to the station: questioning him regarding the
disappearance of an officer. Ms. Holten, as the appellant’s
wife, had the authority to consent to the search of their home
so long as her husband was not physically present and denying
consent.
The test for determining whether consent is voluntary is
the totality of the circumstances test. Factors to be
considered include age, intelligence, experience, length of
military experience, whether the request was made in a custodial
or overly coercive environment, and whether the individual was
aware of their right to refuse. Applying these factors to facts
in this case indicate that Ms. Holten did indeed give a valid
and voluntary consent.
Further, Ms. Holten gave consent to search the entire
premises of the home. Ms. Holten shared the residence with her
husband and had common authority over the entire home. The
military judge’s findings of fact do not indicate that any of
xii
the rooms within the home were under the appellant’s exclusive
control. More importantly no rooms in the home were locked.
Even if one room in a shared home is primarily used by one
spouse, it is not under that one spouse’s exclusive control,
especially if it is left unlocked.
Even if Ms. Holten lacked common authority, the fact that
she lived in the home as the appellant’s wife forms a
“sufficient relationship” for the purposes of consenting to a
search of the entire home. Beyond the “sufficient relationship”
test, NCIS Agents acted in good faith on the “apparent
authority” of Ms. Holten, so the evidence should not be
suppressed.
Additional evidence obtained from the appellant’s
automobile was properly admitted by the military judge. The
evidence seized by Special Agent (S.A.) Gebbs fits within
several exceptions to the warrant requirement. First, the
appellant’s gym bag fits within the incident-to-arrest exception
because it was within reaching distance at the time of arrest.
Second, S.A. Gebbs had justification to search the vehicle for
evidence related to the offenses of wrongful possession and
attempted espionage because an officer may do so at any time he
believes the search will yield evidence related to the arrest.
xiii
Third, the automobile exception itself allowed S.A. Gebbs to
search the vehicle and items within the vehicle without a search
warrant because he had probable cause to believe there were
articles within the car he was entitled to seize. Finally, the
items seized in the automobile were exposed to public view and
the seizure therefore fits within the plan view exception to the
warrant requirement.
The military judge also properly admitted the appellant’s
spontaneous confession to CDR Norris. Article 31(b), which
mandates suppression of statements gathered in an improper
interrogation, did not apply to the statement given to CDR
Norris. Article 31(b) did not apply because CDR Norris was not
an investigative officer, and the appellant’s answer to CDR
Norris’s question indicates that the appellant did not believe
he was under interrogation. Even if the court believes that the
appellant’s admission was obtained in violation of Article
31(b), it should not taint the appellant’s subsequent
confessions to military police because military police properly
warned the appellant of the nature of the charges against him.
xiv
STANDARD OF REVIEW
A military judge “abuses his discretion if the findings of
fact are clearly erroneous or his conclusions of law are
incorrect.” United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). Likewise, a military trial judge’s decision on consent
should be reviewed “‘in the light most favorable to the
Government’” and should not be overturned unless clearly
erroneous. United States v. Richter, 51 M.J. 213, 221-22
(C.A.A.F. 1999).
xv
ARGUMENT
I. THE MILITARY JUDGE CORRECTLY INTERPRETED PAST PRECEDENT WHEN
REFUSING TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED FROM THE
APPELLANT’S RESIDENCE.
A. The appellant’s wife voluntarily consented to the search of
the home, and the search was valid in scope.
1. The appellant’s absence from the marital residence did
not vitiate his wife’s voluntary consent to the search,
nor did other statements made by the NCIS agents to the
appellant’s wife.
The Supreme Court has held that “consent to search a
residence is valid as long as another with common authority is
not physically present refusing consent.” Georgia v. Randolph,
547 U.S. 103, 120 (2006) (emphasis added). In this case, valid
consent was obtained from a person with common authority and
joint control and possession over the premises; no one else with
common authority was both present and refusing consent. Illinois
v. Rodriguez, 497 US. 177, 181 (1990); United States v. Matlock,
415 U.S. 164, 170-71 (1974) ( “[T]he consent of one who
possesses common authority over premises or effects is valid as
against the absent, nonconsenting person with whom that
authority is shared”). The mere fact that her husband had
refused consent previously does not invalidate her consent.
United States v. Weston, 67 M.J. 390 (C.A.A.F. 2009).
While the agents who obtained Ms. Holten’s consent were
aware of the appellant’s prior refusal of consent, they were
1
seeking critically important information in a time-sensitive
investigation regarding an intelligence officer’s disappearance.
The individual agents who conducted the search did not
maliciously manipulate the situation in order to obtain consent.
In fact, the other agents who removed the appellant had a valid
reason for doing so — questioning the appellant regarding an
officer’s disappearance. As such, a reasonable finder of fact
could easily conclude that there “is no evidence that the agents
removed appellant from his home so that he could not effectively
object to the search.” Weston, 67 M.J. at 394. Since the record
does not suggest that the agents behaved inappropriately in
removing the appellant from the premises, there is even less
reason to believe that such behavior was so inappropriate as to
justify the application of the exclusionary rule. Herring v.
United States, 129 S. Ct. 695, 702 (2009)(police conduct must be
“sufficiently culpable” to invoke the exclusionary rule).
2. Under the applicable totality-of-the-circumstances test,
the consent given by the appellant’s wife was voluntary.
The totality of the circumstances test is the appropriate
test for determining the voluntariness of consent to a search.
Mil. R. Evid. 314(e)(4); United States v. Radvansky, 45 M.J.
226, 229 (C.A.A.F. 1996); Schneckloth v. Bustamonte, 412 U.S.
218 (1973);. Factors to be considered include age, intelligence,
experience, length of military experience, whether the request
2
was made in a custodial or overly coercive environment, and
whether the individual was aware of their right to refuse; no
one factor is dispositive. Schneckloth, 412 U.S. at 227; United
States v. Salazar, 44 M.J. 464, 468 (C.A.A.F 1996). Under the
totality of the circumstances, it is not clearly erroneous for
the district court to have concluded that Ms. Holten voluntarily
consented. (R. at 85.) She is a college-educated adult who
carried on a frank and intelligent conversation with the agents
before ultimately consenting to the search of the marital
residence. (R. at 16-17.) When the conversation took place, Ms.
Holten was not in custody but was on her front porch, which
Judge Hua declared a “non-coercive environment.” (R. at 85.)
While the appellant makes much of the fact that Ms. Holten was
drinking a martini and displaying some signs of intoxication at
the time, the agents were still able to carry on a lucid
conversation with her, in which Ms. Holten demonstrated
knowledge of her right to refuse consent by initially refusing.
(R. at 16.) See United States v. Castellanos, 518 F.3d 965 (8th
Cir. 2008) (“Mere fact that one ... is intoxicated ... does not
render consent to search involuntary ... the question is one of
mental awareness so that the act of consent was the consensual
act of one who knew what he was doing and had reasonable
appreciation of the nature and significance of his actions.”)
3
(citing United States v. Rambo, 789 F.2d 1289 (8th Cir. 1986)).
Based on Ms. Holten’s ability to effectively carry on a
conversation and respond to the agents’ questions, a reasonable
trial judge could conclude that her intoxication was not
significant enough to outweigh the other factors considered in a
correctly-applied totality of the circumstances test.
Moreover, Ms. Holten signed a Permissive Authorization for
Search and Seizure (PASS) form. (R. at 30.) Conveniently, she
now claims that she did not read it. (R. at 18.) In the absence
of reliable evidence that a party did not read a written consent
form, their signature on the form indicates consent. United
States v. Shabazz¸993 F.2d 431, 438-39 (5th Cir. 1993).
Furthermore, the PASS form is merely a written version of what
the agents told her. Therefore, her signature simply records her
earlier oral consent to the search which she does not deny
having given.
The appellant, citing United States v. Richter¸51 M.J. 213,
221 (C.A.A.F. 1999), further alleges that his wife’s consent was
involuntary because the agents informed Ms. Holten they could
obtain a warrant to search the premises. In Richter, however,
the court merely repudiated police officers who falsely claimed
to possess a valid warrant while emphasizing the narrowness of
their ruling: “mere mention of an intent to obtain a warrant or
4
command authorization . . . does not vitiate consent.” Id.
(citing United States v. McClain, 31 M.J. 130, 133 (C.M.A.
1990)); see also United States v. Corbitt¸67 F.2d 626, 628-29
(4th Cir. 1982).
The appellant also claims that his wife’s consent was
involuntary because NCIS agents did not verbally inform Ms.
Holten she had a right to consent. (R. at 40.) In the instant
case, this does not invalidate her consent. Though Ms. Holten
initially rejected the officers’ requests for entry, later in
the conversation she acquiesced. (R. at 16-17.) One court has
recognized, and reasonably so, that a suspect or a third party
who initially refuses to consent but later changes their mind
has thereby demonstrated an understanding of their right to
refuse consent. United States v. Whitehead, 428 F. Supp. 2d 447,
452 (E.D. Va., Mar. 27, 2006). There is also no presumption
that, unless a party was aware of a right to refuse consent,
consent was involuntary. Schneckloth, 412 U.S. at 249 (rejecting
a “litmus-paper test of voluntariness” in favor of totality of
the circumstances test). Moreover, agents and police officers do
not have an affirmative obligation to inform parties of their
right to refuse consent, so long as the totality of the
circumstances test still indicates that the consent was
5
voluntary. United States v. Villasenor, 61 Fed. Appx. 653, 658
(10th Cir. 2003) (citing Schneckloth at 232-33).
B. Evidence found within the communal residence was properly
admitted regardless of the appellant’s misplaced privacy
expectation regarding certain areas of the residence.
1. The lower court’s findings of fact show that Ms. Holten
had “common authority” to consent to a search of each
room in her home.
A third party has sufficient status to consent to a search
if the third party possesses common authority over or has some
other sufficient relationship to the premises or effects
searched. United States v. Matlock, 415 U.S. 164 (1974).
“Common authority” is defined as mutual use of the property by
persons generally having joint access or control so that it is
reasonable for officers to believe the person granting consent
has the authority to do so. Id. at 171 n. 7. See also Rader, 65
M.J. 30, 32 (C.A.A.F. 2007). Although Ms. Holten was not the
principal user of the den, the door was unlocked, and the record
does not indicate that she was unable to use the room.
Even if the Court questions whether Ms. Holten has “common
authority” there is little doubt that living in the house with
her husband puts her in a position to have a “sufficient
relationship to the premises or effects to be searched.”
Matlock, 415 U.S. at 171. In United States v. Clow, 26 M.J. 176
(1988), the United States Court of Military Appeals analyzed
6
case law from across the country concerning spousal consents.
Discussing State v. Madrid, 574 P.2d 594 (N.M. Ct. App. 1978),
the C.M.A. wrote, “Here a ‘sufficient relationship’ existed,
because appellant’s ‘wife had a key’ and ‘a right to occupy the
premises’ and because she had ‘use[d] the residence to some
extent.’” Clow, 26 M.J. at 186. Similarly, Ms. Holten clearly
had a right to occupy the den and did not suggest otherwise to
the agents; thus a sufficient relationship exists for Ms. Holten
to have a right to consent to the search of the den.
In Clow, the C.M.A. also found that an unlocked room was
not under the exclusive control of just one spouse. Id. at 187
(“leaving the door unlocked demonstrates that appellant had no
reasonable expectation that her husband would not enter her
bedroom at any time; and the absence of any such expectation
signifies that he could validly consent to a search of the
bedroom by the police”). The appellant left the door to the den
unlocked, severing any expectation of privacy he had in the den
and reinforcing the claim that Ms. Holten’s consent was valid.
2. Even if Ms. Holten lacked “common authority” over each
room in the house it is clear that she had “apparent
authority” to consent to the search of the den.
The question of consent to a search is a “question of
fact.” United States v. Richter, 51 M.J. 213, 220 (1999). The
Supreme Court held that a warrantless entry is valid when based
7
upon the consent of a third party whom the police, at the time
of the entry, reasonably believed to possess common authority
over the premises, but who in fact did not have such authority.
Illinois v. Rodriguez, 497 U.S. 177(1990). Because an error as
to whether Ms. Holten could give the agents consent to search
the den is one of fact and not of law, the evidence is
admissible because it was obtained in good faith.
The “apparent authority” doctrine is less stringent than
the “common authority” test. Under the “apparent authority”
doctrine, a search is reasonable “even if the person giving
consent lacks actual authority to consent, if, viewed
objectively, the facts available to the law enforcement officers
at the moment would warrant a man of reasonable caution to
believe that the consenting party had authority over the
premises or effects.” United States v. Gallagher, 66 M.J. 250,
253 (C.A.A.F 2008) (internal quotations omitted). As the agents
came to the last room, the den, Ms. Holten informed the agents
that she should not be held responsible for the decorating
decisions. (R. at 82.) However, the room was unlocked, part of
the marital residence, and Ms. Holten did not object to their
entrance. (R. at 82.) Special Agents Magnum and Closeau
therefore reasonably believed that Ms. Holten had the authority
to consent to the search of the den.
8
Additionally, the agent’s belief that Ms. Holten had
authority suggests they were acting in good faith. If a search
exceeds the scope of the consent given, an officer’s objectively
reasonable belief that the search was within the scope of the
consent is sufficient to validate the search. Florida v. Jimeno,
500 U.S. 248, 249 (1991). Only searches that are based on
reasonable mistakes as to the facts, and not those based on
erroneous legal conclusions drawn from known facts, are valid.
Several Circuit Courts have interpreted Rodriguez accordingly:
“Rodriguez has been construed as ‘applicable to situations in
which an officer would have had valid consent to search if the
facts were as he reasonably believed them to be.’” United States
v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992) (quoting United
States v. Whitfield, 939 F.2d 1071, 1074 (D.C. Cir. 1991)).
Agents reasonably believed that Ms. Holten had the authority to
consent to the search of each room in her home. Should the
Court find that the belief was erroneous, it should not deny
that the agents reasonably relied upon their factual error.
Thus, the evidence is admissible.
3. The briefcase and its contents are admissible and
constitute extensions of Ms. Holten’s valid consent.
Under the valid search of the den, the trial court properly
admitted all evidence found therein. Judge Hua found that a
black leather briefcase was on the closet floor of the den, the
9
briefcase was engraved with the letters “KK,” and inside the
briefcase agents found cash, pills, and a cellular telephone
with sensitive material stored in its memory. (R. at 82-83.)
Common authority extends to all items within a home, unless
an item reasonably appears to be exclusive domain of the third
party. United States v. Weston, 67 M.J. 390, 392 (C.A.A.F.
2009). When the agents found the briefcase Ms. Holten
volunteered no information about its provenance. (R. at 82.)
Special Agent (herein S.A.) Magnum, in an effort to speedily
investigate a serious national security breach, opened the
briefcase and found the cell phone, pills, and money. Most
importantly, the briefcase was unlocked. In Clow, the court
determined that the appellant’s failure to lock the door negated
his expectation of privacy and extended that rationale to the
“schrank” [closet like apparatus]. Clow, 26 M.J. at 179. In this
case the closet is clearly analogous to the “schrank.” As with
the unlocked door, leaving the briefcase unlocked negates the
appellant’s expectation of privacy in its contents.
Under the “apparent authority” doctrine, agents may search
all objects within the home that a reasonable observer could
regard as under Ms. Holden’s authority, unless she notes
otherwise. Gallagher, 66 M.J. at 253 (“While the scope of the
consent to search may be delimited by the consenter, if consent
10
‘would reasonably be understood to extend to a particular
container, the Fourth Amendment provides no grounds for
requiring more explicit authorization.”) The den was an
unlocked common room in which the appellant had no expectation
of privacy, the briefcase was unlocked, and the briefcase’s only
distinguishing characteristics were the inscribed initials “KK.”
S.A. Magnum reasonably assumed that the initials were merely a
signal of primary usage by the appellant and didn’t establish
his exclusive control. The agents fairly believed that Ms.
Holden had the authority to consent to its search.
II. THE JUDGE CORRECTLY DENIED THE APPELLANT’S MOTION TO
SUPPRESS THE EVIDENCE FROM THE AUTOMOBILE; UNDER EACH OF THE
INCIDENT-TO-ARREST, AUTOMABILE, AND PLAN VIEW DISCOVERY
EXCEPTIONS TO THE WARRANT REQUIREMENT, S.A. GEBBS PROPERLY
SEIZED THE INCRIMINATING ITEMS.
A. S.A. Gebbs was justified in searching the appellant’s
vehicle pursuant to appellant’s lawful arrest.
1. The evidence seized from the appellant’s gym bag is
admissible because it was found while within his reaching
distance at the time of arrest.
The reaching-distance rule, first announced in Chimel v.
California, 395 U.S. 752, 763 (1969), and upheld as applied to
vehicle searches in Arizona v. Gant, 129 S. Ct. 1710, 1716
(2009), depends on the dual interests of officer safety and
evidence preservation. Only when there is “no possibility that
an arrestee could reach into the area that law enforcement
officers seek to search” is a warrantless search impermissible.
11
Gant, 129 S. Ct. at 1716. Conversely, so long as some
possibility remains that an “unsecured” arrestee could reach for
a weapon or evidence within a given area, the police are
permitted to search that area. Id. at 1719. When S.A. Gebbs
began the search of the gym bag, the appellant was unbound, on
his feet, and within approximately five feet of the vehicle. (R.
at 87-88.) Certainly some possibility existed that the appellant
could reach for the gym bag. See, e.g., United States v. Kozak,
12 M.J. 389, 393 n. 10 (C.M.A. 1982) (Chimel allows the police
to search an area “four to five feet” from where the appellant
is standing at the time of apprehension); United States v.
Cordero, 11 M.J. 210, 217 (C.M.A. 1981) (while appellant was
still “close by and unrestrained,” agent’s “quick ad hoc
judgment” to search the vehicle was not unlawful). The threat of
the appellant reaching his gym bag with a “sudden movement” is
enough to trigger the incident-to-arrest exception. Mil. R.
Evid. 314(g)(2).
2. S.A. Gebbs had justification to search the vehicle for
evidence related to the offenses of wrongful possession
and attempted espionage.
An officer may search an arrestee’s vehicle at any time so
long as it is "reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle." Gant, 129 S. Ct.
at 1720 (quoting Thornton v. United States, 541 U.S.615, 632
12
(2004) (Scalia, J., concurring in judgment). The appellant was
arrested and charged not only with fleeing apprehension by a
police officer, but also with wrongfully possessing a controlled
substance and attempting to communicate classified information
to an agent of a foreign government. (R. at 26.) In fact, S.A.
Columbo had already issued an arrest authorization related to
the latter two charges before the appellant attempted to flee.
Those offenses of arrest “supply a basis for searching the
passenger compartment of an arrestee's vehicle and any
containers therein.” Gant, 129 S. Ct. at 1720.
Both the gym bag and the iPhone are considered containers for
constitutional purposes. Id. (Briefcases and purses are
containers that may be searched). See also, United States v.
Tank, 200 F.3d 627, 632 (9th Cir. 2000) (incident to arrest
exception validated search and seizure of all containers in
vehicle, including Zip disk.); United States v. Ortiz, 84 F.3d
977, 984 (7th Cir. 1996) (an electronic pager is a container for
which law enforcement officers may search immediately to
retrieve data that may soon disappear), 1 cert. denied, 519 U.S.
1
The iPhone’s technological advancements also justify the immediate
warrantless search due to exigent circumstances. For instance, an iPhone user
or owner may erase an iPhone’s memory from any Internet access point using
the iPhone’s Remote Wipe feature. See “Introducing iPhone 3GS” available at
http://www.apple.com/iphone/iphone-3gs/. With newer iPhones, the process of
erasing an iPhone’s memory from a remote location can take less than a
minute. "Inside IPhone 3.0's Remote Wipe Feature" by Dan Frakes,
13
900. The Fourth, Fifth, and Tenth Circuits have all deemed cell
phones to be “containers” searchable incident to a lawful
arrest. United States v. Murphy, 552 F.3d 405, 411 (4th Cir.
2009); Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir.
2009); United States v. Finley, 477 F.3d 250, 260 (5th Cir.
2007), cert. denied, 549 U.S. 1353 (2007).
B. The automobile exception to the warrant requirement allowed
S.A. Gebbs to search the vehicle and any items within.
Police officers are also allowed to search an automobile
without a warrant “provided that there is probable cause to
believe that the car contains articles that the officers are
entitled to seize.” Chambers v. Maroney 399 U.S. 42, 49 (1970).
This exception to the warrant requirement, first introduced in
Carroll v. United States, 267 U.S. 132 (1925), and limited to
the vehicle context, is based on the notion that a “vehicle can
be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.” 267 U.S. at 153. Probable cause
allows police officers to search “every part of the vehicle and
its contents that may conceal the object of the search.” United
States v. Evans, 35 M.J. 306, 309-10 (C.M.A. 1992) (quoting
United States v. Ross, 456 U.S. 798, 825 (1982)).
Macworld.com, July 15, 2009, available at
http://www.macworld.com/article/141605/2009/07/remotewipe.html.
14
1. The simple showing of probable cause is all that is
needed to justify the warrantless search of the
appellant’s vehicle.
The “predicate step” for invoking the automobile exception
is the existence of probable cause that would otherwise allow a
magistrate to authorize the vehicle search. 2 Evans, 35 M.J. at
308. The standard of probable cause requires “only the
probability, and not a prima facie showing, of criminal
activity.” Spinelli v. United States, 393 U.S. 410, 419 (1969).
Whether or not probable cause exists is judged by a totality-of-
the-circumstances analysis from the understanding of those
“versed in the field of law enforcement.” Illinois v. Gates, 462
U.S. 213, 230-232 (1983).
2. The incriminating circumstances surrounding the
appellant’s arrest gave S.A. Gebbs and Gumshoe probable
cause to search the vehicle.
Special Agents Gebbs and Gumshoe knew of the evidence that
had been seized earlier that evening from the appellant’s
residence. This knowledge formed the basis for their
authorization to arrest the appellant. Further, this knowledge
corroborated information given to S.A. Closeau by the informant,
IS2 Clean, who claimed that the appellant was selling classified
2
Provided there is probable cause to search a vehicle, Chimel’s reaching-
distance rule does not apply. Chambers, 399 U.S. at 50 n. 8. The automobile
exception “proceeds on a theory wholly different from that justifying” a
search under the incident-to-arrest exception. Id. at 49. Probable cause, not
proximity to the arrestee, is all that matters under the automobile
exception.
15
documents and possessing non-prescribed pills. (R. at 3.) The
evidence found in the search of the appellant’s home gave the
NCIS agents probable cause to believe that more evidence of
criminal activity would likely appear on or nearby his person at
the time of arrest.
Even disregarding the evidence seized from the appellant’s
residence, S.A. Gebbs and S.A. Gumshoe had probable cause to
search the vehicle based on the informant’s tip, the informant’s
mysterious disappearance, and the appellant’s attempt to flee
apprehension. The Supreme Court in Gates rejected any rigid test
to determine whether an informant’s tip satisfies probable cause
requirements. 462 U.S. at 230-31. Instead probable cause “turns
on the assessment of probabilities in particular factual
contexts.” Id. at 232. In this case, the informant’s tip,
combined with information derived from the appellant’s Facebook
profile, were enough to issue the search authorization of the
appellant’s office. Subsequently, the informant’s suspicious
disappearance and the appellant’s attempt to flee arrest only
add to the probability of criminal activity. Thus, Special
Agents Gebbs and Gumshoe reasonably concluded that probable
cause existed to search the appellant’s vehicle for contraband
or evidence of criminality.
3. The Special Agents were under no obligation to seek a
search warrant before examining the vehicle’s contents,
16
nor were they unreasonable in continuing the warrantless
search at NCIS headquarters after seizing the items.
The argument that S.A. Gebbs should have sought a warrant
before opening the exterior flap of the gym bag is meritless.
There is no constitutional difference between performing an
immediate warrantless search of an automobile based on probable
cause and a seizure of the automobile before presenting a
request for a warrant to a magistrate. Chambers, 399 U.S. at 52.
Any argument that the officers could have easily obtained a
search authorization for the vehicle, parked validly in a
parking spot, is not to be considered when the automobile
exception applies. United States v. Schmitt, 33 M.J. 24, 25 n. 1
(C.M.A. 1991)(upholding warrantless search based on probable
cause of vehicle “lawfully parked in a parking lot”).
The fact that S.A. Gebbs seized the pills and the iPhone for
further analysis at NCIS and the drug lab does not implicate the
Fourth Amendment either. If S.A. Gebbs had probable cause to
search and seize the items in the parking lot of building 1,
that probable cause did not dissipate over the next few hours.
See United States v. Johns, 469 U.S. 478, 487-88 (1985),
(upholding a three-day delay by agents with probable cause
between the time of seizure and the time of the warrantless
search of the vehicle and its contents at agency headquarters).
17
C. Because the incriminatory evidence inside the open
convertible was exposed to public view, the agents properly
seized the items under the warrant requirement’s plain view
exception.
1. The appellant retained no expectation of privacy, and
thus no Fourth Amendment protection, in the gym bag and
the iPhone.
For appellant to succeed under the Fourth Amendment, the
“appellant must demonstrate that he personally has an
expectation of privacy in the place searched, and that his
expectation is reasonable.” Minnesota v. Carter, 525 U.S. 83, 88
(1998). The Supreme Court has repeatedly held that an automobile
has a diminished expectation of privacy because its occupants
and contents are often in plain view. United States v. Chadwick,
433 U.S. 1, 12 (1997); New York v. Class, 475 U.S. 106, 112-113
(1986); Cardwell v. Lewis, 417 U.S. 583, 591 (1974).
Areas in the interior of a car which are ordinarily visible
from outside the car are “more similar to the exterior of the
car than to the trunk or glove compartment” and are therefore
not protected under the Fourth Amendment. Class, 475 U.S. at
114. The appellant, by leaving his gym bag and his iPhone in the
open compartment of his Volkswagen convertible, retained no
expectation of privacy in those items’ exteriors. Thus, in
noticing the presence of the iPhone and the gym bag, S.A. Gebbs
did not perform a search which implictes the Fourth Amendment.
18
2. The incriminatory natures of the iPhone and the pill
bottle were immediately apparent, so S.A. Gebbs could
lawfully seize the items under the plain view doctrine.
Under the plain view exception, incriminating evidence
found during a warrantless search remains valid if within the
plain view of a police officer who has prior justification to be
in sight of the evidence. Illinois v. Andreas, 463 U.S. 765, 771
(1983). In order to be lawfully seized by the police, an object
must have an incriminatory nature that is “immediately
apparent,” meaning that “the police must have probable cause to
believe that [the] object is contraband.” Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993).
While carrying a cellular phone is perfectly lawful and
normally innocent, the exposed presence of an Apple iPhone in
the storage compartment of the appellant’s vehicle immediately
raised the probability of finding evidence related to criminal
activity. After all, earlier that evening an iPhone with
incriminatory evidence was found at the appellant’s residence.
Thus the iPhone product had been marked as a primary channel for
the appellant’s espionage scheme, and any subsequent iPhone in
his possession carries the strong probability of containing
additional evidence related to that scheme. S.A. Gebbs, upon
finding a second iPhone in the appellant’s vehicle, had probable
19
cause to believe that the iPhone was contraband in connection
with criminal activity.
As for the gym bag, the plain view doctrine also applies to
discoveries made by touching a concealed object whose “identity
is immediately apparent.” Dickerson, 508 U.S. at 375-76. S.A.
Gebbs had authorization to pat the exterior flap of the gym bag
when the appellant was unrestrained and being arrested in the
immediate vicinity. Though the initial reason for touching the
gym bag was due to an incident-to-arrest search (R. at 23.), the
identity of the pill bottle was plain enough to warrant its
immediate seizure. Nothing in the record indicates that S.A.
Gebbs engaged in a search beyond what was exposed to his plain
touch in order to discern the nature of the bulge in the
exterior flap. Cf. Dickerson, 508 U.S. at 379. Immediately and
reasonably convinced of the object’s identity as a pill bottle,
S.A. Gebbs properly seized the object by having sufficient
probable cause to believe that the pills were associated with
criminal activity. His probable cause determination was further
supported by the informant’s information about the appellant’s
pill-popping activity, the appellant’s Facebook page, and the
bottle of pills discovered at the appellant’s residence.
III. THE TRIAL COURT PROPERLY ADMITTED APPELLANT’S SPONTANEOUS
CONFESSION TO CDR NORRIS.
20
A. The trial court rightly held that Article 31(b), which
mandates the suppression of statements gathered in an
improper interrogation, did not require the suppression of
the appellant’s spontaneous confession to CDR Norris.
In order to decide whether a conversation between an
appellant and a third party constitutes an improper
interrogation, it is necessary to determine whether “(1) a
questioner subject to the Code was acting in an official
capacity in his inquiry or only had a personal motivation; and
(2) whether the person questioned perceived that the inquiry
involved more than a casual conversation.” United States v.
Duga, 10 M.J. 206, 208-209 (C.M.A. 1981).
1. CDR Norris was not an investigative officer, but merely a
helpful bystander, and therefore did not need to warn the
appellant under Article 31(b).
CDR Norris was not a “person subject to the code” as
described in Article 31(b), because he acted as a private
citizen-soldier rather than a representative of military law
enforcement. United States v. Gibson, 3 U.S.C.M.A. 746, 14
C.M.R. 164 (C.M.A. 1954). Although such a person “may conduct an
interrogation of or request a statement from a suspect, he does
not come within the operation of Article 31(b) unless he is
doing so officially and not in a purely private capacity.”
United States v. Loukas, 29 M.J. 385, 387-389 (C.M.A.1990).
Hence, “the ultimate inquiry is whether the individual, in the
line of duty, is acting on behalf of the service or is motivated
21
solely by personal considerations.” United States v. Bartee, 50
C.M.R. 53, 58-59 (N.C.M.R. 1974) (citing United States v. Woods,
47 C.M.R. 124 (C.M.A. 1973)).
The above question is usually settled by a simple inquiry
into whether the questioner was a law enforcement officer. See
United States v. Byers, 26 M.J. 132 (C.M.A. 1988) (holding that
questioning was not done in official capacity because Byers was
neither military police officer nor internal investigator). On
the night of appellant’s apprehension CDR Norris was not a law
enforcement officer. Indeed, CDR Norris’s only question to the
appellant indicates CDR Norris’ serendipitous involvement with
the case: “What in the hell is going on here?” (R. at 8.)
The fact that CDR Norris’s actions were helpful to military
police does not retroactively confer CDR Norris with an
“official capacity” under the rubric of Duga. In United States
v. Holder, 10 U.S.C.M.A. 448 (C.M.A. 1959), evidence gathered by
an agent of the FBI who independently apprehended a deserter was
held to be compliant with Article 31(b). Despite the fact that
the FBI agent was a civilian law enforcement officer authorized
by an act of Congress to apprehend deserters from the armed
forces, the FBI officer was held to be “obviously not [a]
person[] subject to the code” with respect to Article 31(b).
Id. at 450. Unlike the FBI agent in Holder, who acted in
22
obedience to a Congressional mandate to catch deserters, CDR
Norris was under no obligation whatsoever to assist the police
and acted purely out of goodwill.
2. The appellant’s answer to CDR Norris’ question indicates
that the appellant did not think he was under
interrogation, so the appellant’s statement should not be
suppressed under Article 31(b).
This second prong of the Duga test need not be reached if
the first prong—whether CDR Norris was acting in an official
capacity—is answered in the negative. United States v. Duga, 10
M.J. 206, 210 (C.M.A. 1981) (“Unless both prerequisites are met,
Article 31(b) does not apply”). However, even assuming that CDR
Norris was acting in an official capacity, the appellant’s
statements should not be suppressed. The context of the
appellant’s statement makes clear that the appellant did not
think he was under interrogation.
The appellant confessed his conduct to CDR Norris in the
most casual terms. (R. at 20.) (“He said that he had done some
bad stuff and it was catching up with him”). The appellant’s
frank, instant confession to CDR Norris stands in contrast to
his protracted refusal to cooperate with NCIS investigators
after his conversation with CDR Norris. Once the appellant was
within NCIS custody, he had to be confronted with evidence
before giving even a partial confession, in which he was still
23
careful to defend himself with respect to particulars. (R. at
10.)
3. Even if the appellant’s admission was obtained in
violation of Article 31(b), it should not taint the
appellant’s later confessions to military police.
Assuming arguendo that the appellant’s admission was
obtained in violation of Article 31(b), it does not follow that
the appellant’s later confessions are “fruit of the poisonous
tree” under Wong Sun v. United States, 371 U.S. 471 (1963). A
merely “technical failure” to provide warnings guaranteed—in the
military context-by Article 31(b) do not require suppression of
evidence obtained after Article 31(b) warnings have been
administered later. United States v. Seward, 31 M.J. 259, 265
(C.M.A. 1990); see also Oregon v. Elstad, 470 U.S. 298 (1985).
If “all the facts and circumstances” of the case warrant, then
the evidence should not be suppressed. Id. A single question
from a concerned citizen who arrested the appellant but who
immediately withdrew once the police arrived is, at worst, a
mere technical violation. Statements taken in violation of
Article 31(b) before a military policeman, who was certainly in
an official position, may be allowed into evidence if the
totality of the circumstances warrants. United States v.
Spaulding, 29 M.J. 156 (C.M.A. 1989).
B. The appellant’s confession to NCIS S.A. Colombo that LCDR
had possession of illegal prescription drugs should not be
24
suppressed because S.A. Colombo properly warned the
appellant of the nature of the charges against him.
Article 31(b) indicates, in relevant part, that "No person
subject to this chapter may interrogate, or request any
statement from an accused or a person suspected of an offense
without first informing him of the nature of the accusation.” 10
U.S.C. § 831.
NCIS S.A. Colombo, as a “person subject to this chapter”,
did properly inform the appellant “of the nature of the
accusation” against him, since the litany of charges read by
NCIS S.A. Colombo described the arc of the appellant’s criminal
conduct in sufficient detail to “orient [him] to the general
nature of the allegation.” United States v. Simpson, 54 M.J.
281, 284 (C.A.A.F. 2000). In particular, the trial court
correctly observed that S.A. Colombo’s explicit mention of an
espionage charge against the appellant oriented the appellant to
the possibility of a drug charge, because the drugs were in the
same container as evidence establishing the appellant’s guilt in
an espionage scheme. (R. at 95.) Trial testimony shows that the
appellant instantly understood that NCIS S.A. Colombo was
referring to the same general scheme. The colloquy between them
proceeded quickly and without any apparent confusion, moving
from the briefcase, to the cell phone, to the pills. (R. at 9.)
25
Proving that the accused was properly informed of the
charges against him for the purposes of Article 32(b) does not
require notification that is thorough to the point of pedantry.
The list of actual charges described is less important than
illuminating to the accused the nexus of criminal conduct under
investigation:
Advice as to the nature of the charge need not be spelled
out with the particularity of a legally sufficient
specification; it is enough if, from what is said and done,
the accused knows the general nature of the charge. A
partial advice, considered in light of the surrounding
circumstances and the manifest knowledge of the accused,
can be sufficient to satisfy this requirement of Article
31.
United States v. Davis, 8 C.M.A. 196, 198, 24 C.M.R. 6, 10
(1957)(emphasis added). The partial advice given in this case
did just that.
CONCLUSION
For each of the foregoing reasons, the Government
respectfully requests that the Navy-Marine Corps Court of
Criminal Appeals affirm the decisions of the lower court.
Respectfully submitted,
_____________________
Team #14
Counsel for Appellees
October 12, 2009
26
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