Thursday, June 12, 2008

Warning to defense counsel: don't store privileged materials in your sunglasses case; AFCCA holds they can be opened during a gate inspection

In a published opinion, AFCCA today reversed a military judge's ruling that security forces personnel exceeded the lawful scope of a vehicle gate inspection when they opened the draw string of a sunglasses pouch and looked inside. United States v. Burney, __ M.J. ___, Misc. Dkt. No. 2008-01 (A.F. Ct. Crim. App. June 12, 2008).

The military judge suppressed the drugs that the security forces found in the pouch, ruling that the security forces had exceeded the scope of the written instructions providing for the gate inspection. The government appealed the military judge's ruling under Article 62.

In a unanimous opinion written by the recently retired Judge Soybel, AFCCA reversed. The court ruled:

We hold the military judge erred in ruling, as a matter of law, Security Forces personnel conducting base entry control point inspections are limited to looking inside of a vehicle's compartments and may not inspect other containers in the vehicle. Specifically, in this case we hold it was reasonable under the Fourth Amendment for Security Forces personnel to inspect inside the appellee's closed glasses pouch for contraband as part of conducting a lawful inspection of vehicles entering Cannon Air Force Base.
Id., slip op. at 3 (footnote omitted).

AFCCA applied the Supreme Court's four-part test from Bell v. Wolfish, 441 U.S. 520 (1979), to determine the appropriateness of the inspection: "Courts must consider the scope of the particular intrusion, the manner in which it [was] conducted, the justification for initiating it and the place in which it [was] conducted." Burney, slip op. at 4 (alterations in original).


Anonymous said...

Here is a challenge to fourth amendment enthusisasts:

What would the results be of a "blind fact" test? That is, suppose we listed 100 hypotheticals of searches, but WE DID NOT DISCLOSE THE RESULTS OF THE SEARCH. And like John Rawls' Theory of Justice, an approval of one type of search would become universally applicable (always ok). This means that the search would apply to your grandmother, your spouse, your children, your neighbor, and even yourself.

My hypothesis would be that in this universe, where we don't "cheat" and look for the results of the search before we determine whether the search was okay, what is authorized would be more limited.

I think this is one such case. It is not objectively reasonable to search a sunglass case because it is so small (no weapons or large scale contraband could physically fit). But, alas, because drugs were found, we retroactively authorize the search.

This is a bad decision that plays to the peanut gallery.

Dwight Sullivan said...

A few thoughts about 2155 Anon's post. First, this is a thoughtful, intelligent post with something to say. Why doesn't the author wish to disclose his or her name? (That isn't a rhetorical question. What would motivate someone who posts such a high-quality comment to hide his or her identity? Discuss.)

Second, great use of Rawls.

Third, this post reminds me of an O'Connor opinion. It adopts a compelling test and then proceeds to reach the wrong result when applying it. If I'm driving through the gate, why would I care whether the MPs looked in my sunglasses case? The real world answer is I wouldn't.

Dwight Sullivan said...

p.s., I was referring to former Justice O'Connor, not our own JO'C.

Anonymous said...

Well, I suppose some people like to contribute thoughtful and intelligent comments anonymously. That way, the discussion is about the ideas, and not the people behind the ideas.

Anonymous said...


I am 2155 anonymous. Thanks for the compliment about the post. (I regularly post, sometimes inanely, often bad/sarcastic jokes; for example I am also the same one who 'corrected' your SC petition; I also posted the "This American Life" story about the fascinating tale of a Government terrorism prosecution).

The honest answer as to why I post anonymously is because many of my peers have a dim view of my attitude (over-the-top pro-defense to the point of un-American) and of my work product (raise too many, eh hem, - frivolous - issues).

About a year ago, I went by the name of Bill Buckner. I guess I will resurrect that name.

Anonymous said...

I forgot to answer your point # 3. It is you who are using the wrong paradigm for 4th amendment analysis. You are asking the very question that begs the answer you provide. (In other words, you are not really using my test).

The "real world" answer is that it IS okay to hide things. It IS okay to be private. It IS nobody else's business what is in your stuff. You could be hiding Viagra in your sunglass case because you are old and can't get it up and want to keep that private. You be Mr. Magoo and not want people to know that you look like a dork when you put on your reading glasses. You could have nothing in your sunglass case, but just think it looks cool to carry it around. I can't spin all the hypotheticals. I just know that you have done what me test specifically prohibits: to say that the search was okay because drugs (something illegal) was being hidden. But now, because of your analysis, all gate guards are now authorized to open up all of my stuff (even small stuff) when I drive through the gate. An unacceptable result.

I sure hope you are not obliquely making the same argument that the people who used to call radio stations and say, "I don't care if the government listens to my phone calls, I got nothing to hide." Our liberties are truly in jeapordy if they hang on such a fragile premise.

Dwight Sullivan said...

Sorry, Billy Buck, but your last post was reminiscent of Game 6 of the '86 series. You said the test should be whether we would allow the inspection of the sunglasses case if it applied to everyone, including me. I liked -- and still like -- your Rawlsian analysis. It asks whether we would approve this inspection regime if we were behind the Rawlsian "veil of ignorance" where we didn't know whether we would be one of the ones searched or one of the searchers or have some other role in society.

And my response is that I would authorize a look into the sunglasses pouch from behind the veil of ignorance.

You essentially argue that I SHOULD care whether the MPs at the gate look into my sunglasses case. But I still don't.

I don't justify the inspection in this case because it found something. Rather, I would ALWAYS allow the peek into the sunglasses case -- including my own. I justify the inspection in part as a legitimate deterrent to taking things onto military bases that I don't want on military bases (like controlled substances) and because I don't place any value on the privacy of my sunglasses case. And under a Rawlsian theory, each person in the original position gets to make that call. You can answer it differently. But unless you think I'm lying (I'm not), my answer is a legitimate application of a Rawlsian approach.

Please note that doesn't necessarily mean I agree with the outcome in Burney. I think the relevant inquiry there is whether what the gate guard did fell within the actual authority given to him by the base commander. And I don't know enough about the base inspection reg to answer that question.

But in answering the question of whether it is legally and morally defensible to authorize MPs to look in sunglass pouches at the gates of military installations and applying a Rawlsian analysis to that question, my answer is yes.

Anonymous said...


I don't know if you saw my nearly triumphant return to Fenway earlier this year, but it was tearful. Now that we have are the winningest team of the 21st century, all is (almost) forgiven.

Your more lengthy explanation makes sense and I believe you. We just have a different view on the balance, then, between the hassle of government searches and what is gained in this 'case' - to use a pun.

My view is that a sunglass case is very small. It can't hold anything that would genuinely harm the base - like a gun or enough drugs to distribute. So my analysis is driven by the small size of the sunglass case and my more generalized concern that now MPs can search any such small container. So they won't stop with just the sunglass case; they can search my CD cases; they can search my wallet; they can search the little pockets in my overhead (blinder); etc., etc.

So, I truly respect your position. And I agree, generally, that there must be a theoretical middle ground category of cases and containers that some would protect and some wouldn't. The tipping point for me in the analysis is the size of the container, the small risk of generalized societal harm, and the cumulative 'hassle' effect - that once you authorize a search of my glass case, everything else of similar size is fair game. For me, that potential 20 minutes of hassle at the gate is too much, even from behind the veil of ignorance.

My cutoff, by the way, to allow searches, from behind the veil of ignorance, would start at about the size of containers that could fit guns. This size also is big enough to fit larger quantities of drugs - enough to distribute to others.

Anonymous said...

How about bullets for a gun?

Anonymous said...

The bullets get onto the base.

Think about it: if you allow MPs to search for bullets, where CAN'T they search?

How about your wallet? How about your condoms? How about your birth control pills? How about your pocket morning after pills? How about your medicine pack? How about your address book? How about your day planner? How about your palm pilot? How about your religious jewelry?

So, do you justify the search based on what is found?

I sure hope the base commander has not put out a health note in the plan-of-the-week decrying hemorrhoids. Under those circumstances, would you justify a full cavity search?

Anonymous said...

Commanders do not have an interest in keeping condoms off base. They do have an interest in keeping drugs and other contraband off base. User amounts of drugs are contraband so why wouldn't a commander have a legitimate right in a legitimate search to look in such a place? Such an outlandish argument makes no sense. How much space would 100 E pills take? Or 100 LSD tabs? Less space then your cut off of a gun sized container. And why is a gun the only thing a commander should keep off an installation? The bullets don't get in.

Cloudesley Shovell said...

Interesting debate on how to conduct a 4th Amendment analysis.

As a practical matter, however, the AFCCA got this one right. First and foremost, if you don't want to have your vehicle searched, simply refuse the search and leave the base. I have done it more than once, purely out of principle. Every time I have refused a search, I have simply driven around to another gate and gotten on base.

Second, if customs can drill all the way down to files stored on a laptop computer to find child porn during a border search, there is no way gate guards are going to be prohibited, for 4th Amendment purposes, from searching small containers inside your car at the gate.

If you do get caught with contraband or whatever entering a military base, you are an idiot. Only a true fool would enter a base with contraband, then permit a search when one could simply refuse the search and leave the base.

Finally, I must respond to "bullets for a gun." Ugh. First off, a bullet is a projectile, typically lead, often copper-jacketed. A bullet, all by itself, is pretty harmless. A cartridge, however, is something else. A cartridge is the brass casing containing the powder, with the primer in one end, and the bullet in the other. A bullet is the projectile part of a cartridge. They are not the same thing. Often, cartriges are generically referred to as ammunition. Bullets are not ammunition, they're just little pieces of lead.

A gun is a huge thing firing large projectiles, typically served by a crew. In the Navy, for example, ships have guns. Individuals carry rifles, pistols, firearms, sidearms, revolvers, etc., often collectively referred to as "small arms."

Thus, please don't say "bullets for a gun" when you really mean "small arms ammunition."

Thanks, off my soapbox. Enjoy the weekend.

Anonymous said...

Commentators just aren't getting it. They keep resorting to the results of the search to justify the search.

First, we need to dispel the canard the commanders establish gate guards to search for drugs or "small arms ammunition." This is a specious and contrived argument. Gate guards are about big-ticket safety issues: is the person authorized to be on base; is the vehicle properly decaled and registered; is the occupant sober. It also seems to me that searching for weapons may be reasonable, depending on the circumstances, because we have the threat of mass violence (e.g., Virginia Tech type incident) or terrorism. But the threat of drug distribution is much attenuated to worry about at the gate (absent more information about a distrubution ring or other suspicious conduct).

Second, once you start authorizing searches based on every social harm, there is no end. Why not search for child porn at the gate? (I blush to think that some bloggers are all for that) So, gate guards should rifle through everything and even ask you to start up your computer so they can check your files. For example, this statement: "Commanders do not have an interest in keeping condoms off base." Yes they do. To stop gay sex. (We all no that gay sex is a threat more dangerous to our military than Al-Qaeda) Or to stop barracks sex that harms good order and discipline. Yeah, yeah, yeah, I hear the "outlandish argument" complaint already. But what I am looking for is a guiding legal principle that distinguishes different types of searches...not hazy seat-of-the-pants "this search is ok, but this search isn't" conclusions just based on the aesthetics of the search.

Third, my point about the cumulative "hassle effect" of gate guards rifling through all of your stuff has two implications. It wastes your time and undermines your privacy. These are both individual interests that must be weighed against societal interests. So, I would be less inclined to complain about a one minute "basic" search for obviously dangerous things, but my concern amps up over time as smaller and smaller containers are opened. The point about the small size of LSD is true, but the poster draws the wrong conclusion. A) LSD is not the object of these searches; B) If this tiny size is now the metric of a search, again, WHAT CAN'T BE SEARCHED?

Fourth, I would like to throw the ball back to my worthy opponents: what limit would you impose upon gate searches? If none, please be intellectually honest enough to just say so instead of henpecking my suggestion that there should be some limit.

Finally, I always respect Cloudesley's posts (and humbly accept his amonition about the nomenclature of weaponry). But I disagree with his feaux-solution: "simply refuse the search and leave the base." Yes, this is a potential solution to all potential rights violations. Don't use a phone. Don't use a computer. Don't drive.

I am not mocking his boldness in refusing consent searches. It is indeed very American. And in these circumstances, it is good advice. But I'm guessing that he is intelligent, an officer, and a lawyer (and as Meatloaf said, "two out of three ain't bad") But others are not so fortunate. ("It ain't me, it ain't me, I ain't no fortunate son...")

John O'Connor said...

"Fourth, I would like to throw the ball back to my worthy opponents: what limit would you impose upon gate searches? If none, please be intellectually honest enough to just say so instead of henpecking my suggestion that there should be some limit."


Oh, and I think Mookie would have beaten you to first base anyway.

Anonymous said...

But 1) there is no RIGHT to go onto a base, and 2) we have to stop viewing a 4th Amendment search strictly through a comparison with civilian searches. There are differences in the military and you can't compare the two in that way and use strictly civilian standards. Finally, why isn't a commander just as concerned with drugs (regardless of the amount - talk about a specious argument) as they are with weapons? And, even on your example, what is a user amount in your paradigm?

Anonymous said...

OK. Fine. My worthy opponents have established their argument:

A) There should be NO LIMITS on military searches;

B) There should be NO COMPARISON between civilian and military applications of the 4th Amendment.

To my critics, my argument that there should be a reasonable balance between individual rights (even of servicemembers) and societal rights holds no weight. Gate guards should be authorized to search everything, no matter how small.

While I think your argument is extreme, and even goes further than the current state of military law, I at least appreciate your intellectual honesty.

JO'C, no way! I had Mookie. But Roger Clemens should have been pitching in relief. (Pre-steroids Rocket) It is strange that the idea of permitting a starting pitcher to pitch relief in emergency situation didn't catch on until a decade later (a la Pedro Martinez against the Indians).

John O'Connor said...

Billy Buck:

Didn't Clemens START Game 6? That's how I remember it.

You have, however, mischaracterized my argmwent somewhat. My point was not that there are no limits to military searches, but that there is no limit on what can be searched in a gate search. The only possible exception would be something that by its very nature cannot hold contraband.

I also do not necessarily agree that civilian case law is irrelevant. I do think, however, that the military context has to be taken into account.

Honest question, are there constitutional limits (recognized by the Supreme Court) on what size containers can be searched at the border?

Anonymous said...

And for that matter...if a person came across the border w/a user amount of drugs would they be allowed to pass? Sorry if I am being all Luis Tiant.

Anonymous said...


You are right about Clemens. He did start Game 6. In fact, he pitched a no-hitter for four innings. In the bottom of the 7th inning Coach McNamara put Calvin Schiraldi in relief for Clemens.

I made a mistake by confusing the controversy about Clemens' blister (McNamara claims Rocket refused to go out because had "torn a blister and a fingernail on his pitching hand," but Clemens said he could have continued pitching) in Game 6 from his later quote about Game 7: "I think the only thing I really look back on with regret is that I didn't pitch in the seventh game. I was ready to pitch." He was glaring at McNamara in disbelief from the bullpen during the late innings of Game 7.

Now, we turn away from the 8th Amendment (cruel and unusual punishment) back to the 4th Amendment.

Your comparison is interesting. The border search exception is a doctrine of United States criminal law that exempts searches of travelers and their property from the Fourth Amendment warrant requirement. Customs searches require no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. At the border CBP agents are authorized to search all travelers' closed containers without any level of suspicion. This authority extends to all physical containers, regardless of size or the possible presence of personal, confidential or embarrassing materials. Pursuant to this authority, Customs may also open and search incoming international mail.

However, although I acknowledge the comparison (United States v. Crowley, 9 F.2d 927 (N.D. Ga. 1922), and United States v. Vaughan, 475
F.2d 1262 (10th Cir. 1973)),
I think the border analogy to military gate searches is not a perfect fit. Even though border-searches are exempted from the Fourth Amendment warrant requirement, they are still subject to the amendment's reasonableness requirement. Whether a border search is reasonable depends on a judicial analysis that balances the intrusion into an individual’s legitimate privacy and dignity interests against the government’s legitimate interest in the subject of the search.

The better analogy is "inland stoppings" and searches in areas away from the borders. Almeida-Sanchez v. United States (warrantless stop and search of defendant's car on highway 20 miles from border lacked probable cause and violated 4th Amendment). Or, car stops "fixed checkpoints" (invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent).

On the other hand, its different when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their status, either by asking a few questions or by checking papers.

"Size Matters"

So, there is no "size of container" litigation that I can see under current 4th Amendment law. My point is that there ought to be such a limit (absent specific circumstances or articulable suspicion) because such a size limit comports with the court's privacy and dignity concerns under the reasonableness requirement and duly balances individual and societal interests.

John O'Connor said...

"My point is that there ought to be such a limit (absent specific circumstances or articulable suspicion) because such a size limit comports with the court's privacy and dignity concerns under the reasonableness requirement and duly balances individual and societal interests."

I've never been accused of having dignity, which I suspect explains why we see this so differently.

Anonymous said...


You win for now. The law is on your side. There seems to be no limit to what gate guards can search.

I argue that there should be some limits.

Cloudesley Shovell said...

Bill B--Actually, I agree with you (at least generally with regard to the 4th A-maybe not so much on the scope of gate searches). These days the 4th A provides at best a fig leaf of protection, and if powerful evidence of guilt to some crime is found during a search, no matter how dubious the basis for the search, it's a pretty tiny fig leaf. In Burney's case, it was no fig leaf at all, given the state of the law.

Even more frustrating is that it is darn near impossible to hold the gov't accountable for illegal searches that don't result in evidence used in criminal cases. Good luck suing the gov't for damages or civil rights violations, esp. if you're in the military. Absent some real and robust enforcement mechanism built into the Constitution, rights meant to protect "the people" against the government are always going to end up being whittled away when "the people" that try to enforce those rights are a disfavored class--criminal defendants. Compare how vigorously the courts defend 1st Amendment rights to the contortions they go through to justify violations of 4th Amendment rights.

Thanks for the compliment, by the way. Congress says I'm an officer, three states and a JAG say I'm authorized to practice law (a privilege that these days I never exercise outside the confines of military reserve duty), and now both you and my mom say I'm intelligent. Others may disagree.