Thursday, June 11, 2009

New CAAF opinion

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

Have I mentioned lately that I love reading Judge Stucky's opinions? Here's how Weston starts:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

We granted review in this case to determine two issues. First, whether the search of Appellant's house was reasonable where Appellant objected to the search, but was not physically present when the search was conducted pursuant to his wife's consent. Second, if, as Appellant argues, the search was unreasonable under Georgia v. Randolph, 547 U.S. 103 (2006), whether the inevitable discovery exception would allow admission of the seized evidence. As we find that the search was reasonable under these circumstances, we do not reach the second issue.
Judge Stucky wrote the majority opinion, which was joined by Judges Baker and Ryan. Chief Judge Effron and Judge Erdmann each filed separate opinions concurring in the result.

Judge Stucky's opinion for the court explains that "CID obtained consent from Appellant's wife who possessed common authority over the premises." Id., slip op. at 1-11. "Appellant was a nonconsenting party who shared authority over the premises, but was not present to provide immediate challenge to his wife's consent to search. The 'fine line' drawn by the Supreme Court in Randolph indicates that physical presence and immediate challenge is required for the nonconsenting tenant's objection to nullify the reasonableness of the search. That was not the case here, thus the holding of Randolph does not apply and the search was reasonable." Id., slip op. at 11. The majority also rejects the notion that CID intentionally removed SSG Weston from his house to prevent him from objecting to the search. Id., slip op. at 10.

The majority considers and rejects the Ninth Circuit's approach, which might lead to a different result. See United States v. Murphy, 516 F.3d 1117, 1123-24 (9th Cir. 2008). The majority instead follows the Seventh and Eighth Circuits' approach. So it looks like SSgt Weston will have a pretty strong cert petition asking the Supremes to resolve a split among the circuits. See Weston, slip op. at 10. Surprisingly, it doesn't appear that the Solicitor General sought cert in Murphy. So SCOTUS could use Weston as a proxy to engage in one of the Court's favorite indoor activities -- reversing the Ninth Circuit.

Chief Judge Effron writes that he would resolve the case on inevitable discovery grounds. He catalogs the evidence that law enforcement agents already had when they conducted the consent search and concludes that it would have resulted in a probable cause search authorization had the agents not acted on the basis of SSgt Weston's wife's consent.

Judge Erdmann concludes that SSgt Weston's Fourth Amendment rights were violated when the search of his house was conducted over his objection. But he agrees with Chief Judge Effron that the evidence obtained by the search is nevertheless admissible under the inevitable discovery doctrine. Judge Erdmann reasoned:

If, as the majority holds, physical presence is required to overcome a cotenant's subsequent consent, then a situation where law enforcement officers keep an objecting cotenant from returning to his marital home where he could again voice his objection and do not allow him to communicate that objection to his spouse falls clearly within the Randolph exception.

. . . .

The Supreme Court noted in Randolph that "'it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.'" Randolph, 547 U.S. at 115 (citations omitted). Given that special protection and the fact that Weston was detained by the police while his house was searched, I would find that the actions of law enforcement violated Weston’s Fourth Amendment rights.


Cloudesley Shovell said...

I suspect we'll be seeing a cert petition on this one, and this case is worth the effort.

No quibbles with the opinion. The bigger question is this--when two people have equal rights over an area to be searched, who wins, he who consents or he who objects? The deciding factor is presence at the scene. I'm not sure that's the right way to decide a constitutional issue.

The constitution defines gov't powers, and also serves as an important explicit limitation on those powers. In any case between a person and the gov't, all ties should go to the person whose life, liberty, or property is in peril, esp. in a criminal context. Entitlement to rights should not hinge on presence, particularly where there has been an express invocation of those rights. A third party's consent should never trump the invocation of the rights of a party in interest.

Getting a warrant was a no-brainer in this case. However, nobody mentions the troublesome fact that it took law enforcement several weeks to get a warrant to search the stuff they seized from the home. In the face of demonstrated gov't incompetence in ability to obtain a timely warrant, inevitable discovery should be utterly inapplicable.

The minute Weston objected, the PMO should have secured the house and obtained a warrant THAT NIGHT from whatever authority was authorized to issue one, and searched the house. Then none of this would be an issue.

Unfortunately, it appears that law enforcement practice, at least in the military, is to consider the warrant a tool of last resort, rather than a tool of first resort. Perhaps this attitude is inevitable given all the holes blasted in the 4th A over the years, but there is no reason why courts cannot reinvigorate the 4th A and make law enforcement actually comply with constitutional requirements.

Anonymous said...

Especially since the odds of a warrant being issued are extremely high. It is not like police/CID are being denied warrants by magistrates left and right.

Anonymous said...

The military seems to have a very expensive view of inevitable discovery. If inevitable discovery is satisfied merely by possession of enough information to establish probable cause, then it becomes more of a harmless error analysis and the warrant requirement is a thing of the past. I do not find Circuit cases that push the envelope that far. As far as the competing consent issue goes, the dissenting opinion in Hudspeth strikes me as the more compellig argument.

John O'Connor said...

I guess I see the bigger picture a little bit differently than my good friend the deceased Admiral.

To me, if one lives in a space where he or she elects to share access with another, then there's no basis for complaining when that person you have elected to share access with decides to let somebody else see the same things he or she has access to. I guess I see it as you can't have a reasonable expectation of privacy in something that you let somebody else see and that somebody else is willing to show to the cops.

I see Randolph as a narrow, essentially practical case that focuses on the potential for breach of the peace when there are different instructions at the scene of the search.

So I would take conflicting instructions and break the tie in favor of the one who grants success, subject (whether I agree or not) to the instruction in Randolph that a refusal of consent at the scene of the search always carries the day.

I agree with the good Admiral's other larger point that it's, to use a precise legal term, "stupid" not to get a search authorization, particularly in the Marine Corps (maybe elsewhere, but I'm only familiar with Marine procedures). It's not exactly hard to get the authorization.

John O'Connor said...

I also agree with Anon 0859 that it seems odd to apply inevitable discovery on the conclusion that "they didn't get a warrant but, heck, if they had asked for one they would have gotten it."

That seems to throw out the warrant requirement in favor of a rule that allows a search whenever you could have gotten a warrant. Essentially, allowing all searches where probable cause exists and ignoring the requirement for a warrant.

John O'Connor said...

Maybe I should add the disclaimer that I know (or knew) many of the principals involved in this case, including the accused.

Anonymous said...

But the thinking there leads to the conclusion that if you are single and live alone you have more right to privacy from the government than if you are married or have a kid who is old enough (whatever that age is) to give consent to search or you perhaps need a roommate because you can't afford to live alone.

Just because you live with someone does not seem to me to equate to giving up one's right to privacy from the GOVERNMENT, even if you are in a practical sense giving it up to those with whom you cohabit.

Anonymous said...

Regarding the inevitable discovery discussion, the most troubling aspect to the Chief Judge's reasoning was his statement that "routine police practices" would have resulted in discovery, i.e. it is a "routine police practice" to seek warrants. To my knowledge, no fed. cir. has held such. IMHO, the C.J. has confused two separate lines of inevitable discovery cases: (1) those that involve some testimony that a warrant would have been sought if thought necessary (coupled with a high certainty that if sought, the warrant would have been granted) and (2) those cases that involve testimony of some routine police practice that would have resulted in discovery, such as a protective sweep of the crack den, a search incident to arrest, etc.

It is one thing to consider the strength of probable cause in a case, but another thing entirely to apply inevitable discovery because it is a routine police practice to seek warrants (particularly when it apparently is not so routine).

Anonymous said...

The references to the PMO indicate that this is on base housing being discussed, but even in on base housing, it is possible the search authorization v search warrant from a magistrate might not be sufficient when the house is also in the possession of a civilian. That might explain SOME delay in getting the warrant but not weeks.

Anonymous said...

At the end of the day, if your standard is, well, the police would have gotten a warrant eventually, then what is the purpose of a warrant anymore?

Why even require warrants anymore? Why not simply allow police to do what they will, and then retroactively decide whether or not there was probable cause? Because it seems more and more that is effectively what we end up doing.