                        UNITED STATES, Appellee

                                        V.

     Toro KHAMSOUK, Ship’s Serviceman Seaman Apprentice
                    U.S. Navy, Appellant


                                 No. 01-0387
                         Crim. App. No. 9900711


    United States Court of Appeals for the Armed Forces

                       Argued November 27, 2001

                      Decided September 20, 2002

BAKER, J., delivered the judgment of the Court. CRAWFORD,
C.J., GIERKE and EFFRON, J.J., and SULLIVAN, S.J., each
filed an opinion concurring in and dissenting in part.



                                    Counsel

For Appellant:      Lieutenant Hardy Vieux, JAGC, USNR (argued).

For Appellee: Major Robert M. Fuhrer, USMC (argued);
Colonel Rose M. Favors, USMC (on brief); Colonel M. W.
Fisher, USMC, Major Edward C. Durant, USMC.




Military Judge:       Mark S. Utecht



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Khamsouk, No. 01-0387


    Judge BAKER delivered the judgment of the Court:

    Appellant was tried by a military judge sitting as a

general court-martial.   Contrary to his pleas, he was

convicted of fraudulent enlistment, five specifications of

larceny, forgery, and sixteen specifications of the

unauthorized use of another’s credit card in violation of

Articles 83, 121, 123, and 134, Uniform Code of Military

Justice (UCMJ), 10 USC §§ 883, 921, 923, and 934,

respectively.   The adjudged and approved sentence provided

for a bad-conduct discharge, confinement for five years, a

fine of $2,500, forfeiture of all pay and allowances, and

reduction to pay grade E-1.   The Court of Criminal Appeals

affirmed the findings and sentence.   54 MJ 742 (2001).    We

granted review of the following issues:

                               I

     WHETHER THE MILITARY JUDGE ERRONEOUSLY DENIED
     APPELLANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED
     FROM AN UNLAWFUL ENTRY IN A THIRD PARTY’S HOME BY
     MILITARY LAW ENFORCEMENT AGENTS WHO, BELIEVING HE
     WAS INSIDE, ENTERED THE RESIDENCE WITHOUT A SEARCH
     WARRANT IN VIOLATION OF THE FOURTH AMENDMENT.

                              II

     WHETHER THE APPREHENSION OF APPELLANT BY MILITARY
     LAW ENFORCEMENT AGENTS, AFTER THEIR ENTRY INTO A
     PRIVATE THIRD PARTY RESIDENCE, WAS IN VIOLATION OF
     RCM 302(e)(2) AND HIS CONSTITUTIONAL PROCEDURAL
     DUE PROCESS RIGHTS.


                              III

     WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED THAT
     THE INORDINATE AND UNEXPLAINED POST-TRIAL DELAY


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United States v. Khamsouk, No. 01-0387


      CAUSED BY THE MILITARY JUDGE DID NOT PREJUDICE
      APPELLANT.

      We conclude that the entry into a civilian third

party’s residence violated the Fourth Amendment, U.S. Const.

amend. IV.1    Nonetheless, for the reasons set forth below,

we hold that the evidence obtained subsequent to this

illegality was not subject to suppression at trial.

However, regarding Issue III, we find it necessary to order

a remand to the Court of Criminal Appeals for that court’s

analysis of appellant’s claim in light of this Court’s

decision in United States v. Tardif, __ MJ ___ (2002).


                              Background

       On December 18, 1996, the Naval Criminal Investigative

Service (NCIS) initiated an investigation into several

checks fraudulently passed through the Atlantic Fleet Credit

Union.   Appellant soon became the focus of this

investigation.     When Special Agent (SA) Edward M. Coyle, the

lead investigator on the case, contacted appellant’s

command, he learned that appellant had been an unauthorized

absentee since December 12, 1996.         On January 6, 1997,

appellant’s commanding officer issued a Department of

Defense (DD) Form 553 (Deserter/Absentee Wanted by the Armed

Forces).    On February 5, 1997, an informant advised SA Coyle



1
  Our resolution of Granted Issue I obviates any need to reach Granted
Issue II.


                                   3
United States v. Khamsouk, No. 01-0387


that appellant was staying at the private off-base residence

of Hospital Corpsman Second Class (HM2) Tom Guest.   The

informant also indicated that appellant might be leaving the

residence around 2:00 p.m. for an appointment.   Other

individuals contacted during the investigation informed SA

Coyle that appellant often carried around a black knapsack

thought to contain stolen or fraudulent credit cards and

credit card receipts.   Further, two young women interviewed

by NCIS indicated that they had seen appellant in possession

of credit card receipts that were not in his name.   Based on

this information, SA Coyle and three other NCIS agents went

to HM2 Guest’s residence to set up surveillance and await

appellant’s departure for his appointment.   Although SA

Coyle had a copy of the DD Form 553 in his possession, he

did not have either a search warrant or an arrest warrant

issued by a civilian magistrate.   Because SA Coyle was not

sure whether the knapsack was in the residence and because

he knew the residence belonged to HM2 Guest, he believed

that he needed a search warrant to search the residence.

Since he did not have a search warrant, he made the decision

to wait and attempt to apprehend appellant outside the

residence.

     At approximately 1:15 p.m., the NCIS agents saw two men

leave the home, one of whom they thought fit appellant’s

description.   They stopped the two men and discovered they



                              4
United States v. Khamsouk, No. 01-0387


were in fact HM2 Guest and a friend, Bobby Salazar.    SA

Coyle then informed HM2 Guest that he had a warrant for

appellant’s arrest.   HM2 Guest replied that appellant was

still inside the residence.   When asked whether NCIS agents

could enter his residence to apprehend appellant, HM2 Guest

replied, “I would prefer if [you] would wait and allow me to

bring him out.”   SA Coyle followed HM2 Guest, stopping at

the entrance to the front door while HM2 Guest entered.

     The front door of the house opened into a foyer with an

entrance on the left that led to a living room where

appellant had been staying for two or three days, sleeping

on a sofa.   According to HM2 Guest, who was standing in the

foyer, appellant was in the living room on the sofa when he

entered the residence.   However, neither the living room nor

the sofa were visible from the front door.   HM2 Guest called

to appellant from the foyer and told him that there were

people at the door to see him.

     SA Coyle and HM2 Guest testified slightly differently

about what transpired next.   According to SA Coyle, when

appellant stepped out of the living room to see who was at

the door, he first asked appellant for his name.   When

appellant responded, SA Coyle informed him that he was under

apprehension and entered the residence to take him into

custody.   As noted earlier, SA Coyle realized he needed a

search warrant before entering HM2 Guest’s residence to



                              5
United States v. Khamsouk, No. 01-0387


search for appellant, which is why he and the other NCIS

agents initially waited outside.       However, when appellant

appeared after being beckoned by HM2 Guest, SA Coyle

reasoned that because appellant was “in my sight, in plain

view,” he was authorized to enter the residence.       He also

indicated that his concern for “officer safety” prompted his

entrance because he did not know if there were other people

or weapons in the room from where appellant had just

emerged.   In SA Coyle’s view, the DD Form 553 authorized his

entry to apprehend appellant.       SA Coyle testified that

appellant was approximately three feet inside the house when

he told appellant he was under apprehension.

     According to HM2 Guest, he entered his residence,

stopped at the entrance to the living room, and called

appellant.   He stated that SA Coyle came past him as soon as

appellant tried to look to see who was at the door.

According to HM2 Guest, at this point SA Coyle entered the

house, went to the entrance to the living room and told

appellant, “’[D]on’t move.    I’ve got you,’ or something to

that effect.”    The military judge resolved this factual

issue by finding that “[SA] Coyle, upon seeing [appellant]

peek around the corner into the foyer, went inside the

residence and placed [appellant] under military apprehension

in the foyer.”




                                6
United States v. Khamsouk, No. 01-0387


      Appellant was immediately given his Article 31, UCMJ,

10 USC § 831, rights upon apprehension and was guided back

into the living room to the sofa.         However, he was not

questioned beyond being asked his name and, whether a

knapsack adjacent to the couch belonged to him.2           SA Coyle

then asked appellant to sign a one-page consent form

authorizing the search of his knapsack.          According to SA

Coyle, he apprehended appellant at 1:25 p.m. and appellant

signed the form at some time between 1:25 p.m. and 1:45 p.m.

The permissive search authorization form indicated

appellant’s consent to the search of his “personal bags,

knapsack(s) and other luggage.”        It further stated that he

was advised of, and understood, his “constitutional right to

refuse to permit this search in the absence of a search

warrant.”    Only after appellant’s consent was given did SA

Coyle seize the knapsack.

      HM2 Guest subsequently consented to a search of his

home for appellant’s additional belongings.           During this

search, appellant’s duffel bag was seized from a second

floor room.    The NCIS agents checked the bags for weapons

and loaded them in their car for transport back to the NCIS

field office in Norfolk, Virginia.3



2
  The military judge found that the knapsack was not “within the
‘wingspan’ of [appellant] at the time of his apprehension.”
3
  The military judge specifically found that this was not a search of
the bags.


                                   7
United States v. Khamsouk, No. 01-0387


      The NCIS agents then took appellant and his bags to the

field office.     There, appellant acknowledged his Article 31

rights again and executed a written waiver of those rights.

However, the agents did not seek additional consent to

search his bags, at the field office.          Special Agents Coyle

and James Campbell then searched appellant’s bags and

questioned him about individual items as they discovered

them.   These items included credit card receipts and credit

card numbers.     The NCIS agents asked appellant if he had

used the credit card numbers or signed the receipts.

Appellant confessed that he had obtained the credit card

numbers from a Mr. Ratsamy Phanivong, that he knew that they

did not belong to Mr. Phanivong, that he did not have

permission to use the credit card numbers, and that he used

them fraudulently.

      At trial, defense counsel made a timely objection to

the admission of the contents of the bags and to the

confession.    The thrust of his argument was that the entry

into HM2 Guest’s residence violated R.C.M. 302, Manual for

Courts-Martial, United States (2000 ed.),4 and the Fourth

Amendment.    Therefore, he asserted, the evidence from the

bags and the confession, derived from the illegal entry,

were inadmissible.      The military judge found the DD Form 553



4
  All Manual provisions cited are identical to those in effect at the
time of appellant’s court-martial.


                                   8
United States v. Khamsouk, No. 01-0387


to be the “functional equivalent of an arrest warrant,” that

appellant was not a “resident” of HM2 Guest’s residence, and

that appellant’s consent was valid.

      In this Court, appellant contends that he had a

reasonable expectation of privacy in HM2 Guest’s residence

because he was an overnight guest and, therefore, has

standing to challenge the search.         He claims that the

warrantless entry by the NCIS agents into HM2 Guest’s

residence violated the Fourth Amendment, and therefore, that

the evidence and confession must be suppressed as fruits of

the illegal entry.

      The Government first argues that SA Coyle’s

apprehension of appellant satisfies the Fourth Amendment

because a DD Form 553 is the equivalent of a civilian arrest

warrant.    In the alternative, the Government argues both

that HM2 Guest consented to SA Coyle’s entry into the

residence, and that exigent circumstances independently

justified the entry.5

      For the reasons set forth in Part I of the discussion

below, we reject the military judge’s conclusion, and that

of the court below, that the entry was lawful.           However, in

Part II, under the rationale of Brown v. Illinois, 422 U.S.

590 (1975), and Wong Sun v. United States, 371 U.S. 471


5
  We find it necessary to address only the first of these contentions.
Furthermore, it is questionable whether the record supports the
Government’s latter two arguments.


                                   9
United States v. Khamsouk, No. 01-0387


(1963), we further conclude that appellant’s subsequent

consent to the search of his bags was not the exploited

product of the prior illegal entry and thus, was

sufficiently attenuated from that illegality.    Therefore,

under the principles enunciated in New York v. Harris, 495

U.S. 14 (1990), the confession obtained at the field office

was also sufficiently attenuated from the prior illegality

and properly admitted at trial.

                             I

     A military judge’s denial of a motion to suppress is

reviewed for an abuse of discretion.    United States v.

Monroe, 52 MJ 326, 330 (2000).    A military judge’s fact-

finding is reviewed under a clearly erroneous standard, and

his conclusions of law are reviewed de novo.    Id.

     Granted Issue I requires us to consider the entry by

military law enforcement officials into a civilian

residence, without a civilian warrant, to apprehend a

military member whom military officials have designated an

unauthorized absentee or deserter.

     The Fourth Amendment provides:

     The right of the people to be secure in their
     persons, houses, papers, and effects, against
     unreasonable searches and seizures, shall not be
     violated; and no Warrants shall issue, but upon
     probable cause, supported by Oath or affirmation,
     and particularly describing the place to be
     searched and the persons or things to be seized.


U.S. Const. amend. IV.


                             10
United States v. Khamsouk, No. 01-0387


     The history of the protections secured by this

amendment is both long and familiar.    At its core stands

“the right of a man to retreat into his own home and there

be free from unreasonable governmental intrusion.”

Silverman v. United States, 365 U.S. 505, 511

(1961)(citations omitted).    The principles of the Fourth

Amendment “apply to all invasions on the part of the

government and its employees of the sanctity of a man’s home

and the privacies of life.”    Boyd v. United States, 116 U.S.

616, 630 (1886).   Indeed, “physical entry of the home is the

chief evil against which the wording of the Fourth Amendment

is directed . . . .”    United States v. United States

District Court For the Eastern District of Michigan, 407

U.S. 297, 313 (1972).   “The right of officers to thrust

themselves into a home is . . . a grave concern, not only to

the individual but to a society which chooses to dwell in

reasonable security and freedom from surveillance.”      Johnson

v. United States, 333 U.S. 10, 14 (1948).    “Were federal

officers free to search without a warrant merely upon

probable cause to believe that certain articles were within

a home, the provisions to the Fourth Amendment would become

empty phrases, and the protection it affords largely

nullified.”   Jones v. United States, 357 U.S. 493, 498

(1958).   See Kirk v. Louisiana, 536 U.S. __, __, 122 S.Ct.

2458, 2459 (2002)(per curiam)(“[B]ecause ‘the Fourth



                               11
United States v. Khamsouk, No. 01-0387


Amendment has drawn a firm line at the entrance to the house

. . .[, a]bsent exigent circumstances, that threshold may

not reasonably be crossed without a warrant’”)(quoting

Payton, 445 U.S. at 590).

     Application of the Fourth Amendment to these facts

requires a review of several Supreme Court cases dealing

with seizures within the home and the warrant requirement:

Wong Sun, Brown, Payton, and Minnesota v. Olson, 495 U.S. 91

(1990).

                                    A.

                              Standing

     The first question is whether appellant has standing to

challenge his arrest in the residence of HM2 Guest, a third

party.    The Government conceded at oral argument that

appellant has standing as a resident of HM2 Guest’s house to

press his Fourth Amendment claim that the entry into the

residence was unlawful.    Notwithstanding this concession, we

conclude independently that appellant has such standing.

     Mil.R.Evid. 311, Manual, supra, states:

     (a) General rule. Evidence obtained as a result
     of an unlawful search or seizure made by a person
     acting in a governmental capacity is inadmissible
     against the accused if: . . .

     (2) [T]he accused had a reasonable expectation of
     privacy in the person, place or property searched;
     the accused had a legitimate interest in the
     property or evidence seized when challenging a
     seizure; or the accused would otherwise have
     grounds to object to the search or seizure under



                               12
United States v. Khamsouk, No. 01-0387


      the Constitution of the United States as applied
      to members of the armed forces.

      An arrest6 is a seizure of the body covered by the

Fourth Amendment, and warrantless seizures inside a home are

presumptively unreasonable, absent exigent circumstances.

Payton, 445 U.S. at 585-86.       However, the arrest of a person

inside his own home made with a valid arrest warrant does

not violate the Fourth Amendment, and does not require a

search warrant.     Id. at 602-03.      In Payton, the Supreme

Court explained that an arrest warrant is sufficient to

protect a citizen’s privacy interest in his own home when he

is arrested there.

    It is true that an arrest warrant requirement may
    afford less protection than a search warrant
    requirement, but it will suffice to interpose the
    magistrate's determination of probable cause between
    the zealous officer and the citizen . . . . Thus, for
    Fourth Amendment purposes, an arrest warrant founded
    on probable cause implicitly carries with it the
    limited authority to enter a dwelling in which the
    suspect lives when there is reason to believe the
    suspect is within.

Id.

Noting the distinct interests at issue between an arrest

warrant and a search warrant, the Court stated:



6
  As a matter of terminology, under R.C.M. 302(a)(1), Manual for
Courts-Martial, United States (2000 ed.), “the taking of a person
into custody” is referred to as “apprehension” and not arrest.
“Apprehension is the equivalent of ‘arrest’ in civilian terminology.
(In military terminology, ‘arrest’ is a form of restraint. See
Article 9; R.C.M. 304.)” R.C.M. 302(a)(1), Discussion, Manual,
supra. However, apprehensions by military personnel are unlawful if
they violate the Fourth Amendment as applied to the armed forces.
See id.; Mil.R.Evid. 311(c)(1), Manual, supra.


                                   13
United States v. Khamsouk, No. 01-0387


   An arrest warrant is issued by a magistrate upon a
   showing that probable cause exists to believe that the
   subject of the warrant has committed an offense and
   thus the warrant primarily serves to protect an
   individual from an unreasonable seizure. A search
   warrant, in contrast, is issued upon a showing of
   probable cause to believe that the legitimate object
   of a search is located in a particular place, and
   therefore safeguards an individual's interest in the
   privacy of his home and possessions against the
   unjustified intrusion of the police.

Steagald v. United States, 451 U.S. 204, 213 (1981).

     In Olson, the Supreme Court extended the Fourth

Amendment’s protections to overnight guests.        The Court

concluded that “Olson's status as an overnight guest is

alone enough to show that he had an expectation of

privacy in the home that society is prepared to recognize

as reasonable.”   Olson, 495 U.S. at 96-97.       Defendant

Olson was implicated in a robbery and feared being

arrested if he returned home.        State v. Olson, 436 N.W.2d

92, 96 (Minn. 1989).   Instead, that night he stayed at an

acquaintance’s home.   Id.    The following day, police were

informed of Olson’s whereabouts and proceeded to that

location.   Olson, 495 U.S. at 93.        With guns drawn, they

entered into the acquaintance’s home without either

permission or a warrant.     Id. at 94.     The Court held that

Olson’s subsequent arrest was unlawful.        Id. at 100-01.

     Similarly, appellant had been staying with HM2 Guest

for two or three days, sleeping on a sofa.        Like Olson,

appellant was an overnight guest with a sufficient



                                14
United States v. Khamsouk, No. 01-0387


interest in HM2 Guest’s home and therefore, was protected

from a warrantless arrest in the home under the Fourth

Amendment as interpreted by Olson.           Accordingly,

appellant has standing to challenge the lack of an arrest

warrant.7      Id. at 98-99.

                                      B.

                    Legality of the Apprehension.

        As noted earlier, the Government contends that the DD

Form 553, combined with the authority in Article 8, UCMJ, is

the equivalent of a civilian arrest warrant.             This form

differs, however, from a civilian arrest warrant in several

respects.      First, it is issued by a military commander and

gives authority to apprehend based on Article 8, UCMJ.               The

DD Form 553 in this case indicated on its face that the

person named was a “Deserter/Absentee Wanted by the Armed

Forces.”      On the fill-in-the-blank form, appellant’s

commanding officer8 certified that appellant had been absent

for 10 days, and that he had investigated appellant’s

absence.      No authorization beyond the commander’s signature

was noted on the form.         The reverse side of the DD Form 553

noted that the form itself, combined with an oral

notification from military or federal officials “that the


7
  While we deem it unnecessary to reach Granted Issue II, we assume,
without deciding, that the use of the term “resident” in R.C.M.
302(e)(2)(D), Manual, supra, is coterminous with the term “householder”
as used by the Supreme Court in Olson. See Olson, 495 U.S. at 95.
8
    Commander Daniel Holloway, USN, USS Gonzalez (DDG-66).


                                     15
United States v. Khamsouk, No. 01-0387


person has been declared a deserter and that his/her return

to military control is desired,” gives a civil officer

authority to apprehend.    However, the DD Form 553 is

applicable only to the military offense of desertion.

       A federal arrest warrant, by contrast, is issued by a

federal magistrate judge, derives its authority from the

Federal Rules of Criminal Procedure and can be issued for

any federal offense.    A federal arrest warrant may be issued

after a finding of probable cause by a magistrate judge

based upon a written complaint made under oath.    Fed. R.

Crim. P. 3 & 4.    If the magistrate judge finds “probable

cause to believe that an offense has been committed and that

the person named in the complaint has committed it, a

warrant for the arrest of that person shall issue to any

officer authorized by law to execute it.”    Fed. R. Crim. P.

4(a).    The warrant must be signed by the magistrate judge

and contain the name or description of the person.    Fed. R.

Crim. P. 4(c)(1).    Most significantly, however, a federal

warrant may be executed “at any place within the

jurisdiction of the United States.”    Fed. R. Crim. P.

4(d)(2)(emphasis added).

       We agree that, on a superficial level, a DD Form 553

resembles an arrest warrant issued by a federal magistrate

judge.    However, in our view that is where the similarities

end.    Because the source of authority of the two issuing



                               16
United States v. Khamsouk, No. 01-0387


officials is different, so too is the legal effect of the

two documents when the issue is entry into a civilian home.

      The Supreme Court permits a non-lawyer to act as a

magistrate judge as long as he is “neutral and detached,”

and “capable of determining whether probable cause exists

for the requested arrest or search.”         Shadwick v. City of

Tampa, 407 U.S. 345, 350 (1972).        However, the Court also

made clear that a magistrate judge must be a public civil

officer with jurisdiction.       Id. at 349 (emphasis added).9

We conclude that the Constitution does not permit military

investigators greater power to conduct warrantless entries

into the civilian home than their civilian counterparts.

See Posse Comitatus Act, 18 USC § 1385 (2000).10           While a


9
  In limited instances, commanders can authorize searches for
individuals on property not within military control, in foreign
countries. Mil.R.Evid. 315, Manual, supra; see United States v.
Chapple, 36 MJ 410 (CMA 1993)(applying the good faith exception to an
invalid search authorization for an off-base apartment in foreign
country not within military control).
10
   Congressional caution regarding military law enforcement in civilian
settings is long-standing and is reflected in the Posse Comitatus Act
(PCA), which provides, inter alia:

      Whoever, except in cases and under circumstances expressly
      authorized by the Constitution or Act of Congress,
      willfully uses any part of the Army or Air Force as a posse
      comitatus or otherwise to execute the laws shall be fined
      under this title or imprisoned not more than two years, or
      both.

18 USC § 1385 (2000).

Although the Navy and Marine Corps are not included in the plain
language of the PCA, Congress directed the Secretary of Defense to
promulgate regulations prohibiting all branches of the military from
participating in civilian law enforcement activities as well. See 10
USC 375.   In response, the Secretary of Defense promulgated Department
of Defense (DOD) Directive 5525.5 (Jan. 15, 1986)(as amended Dec. 20,
1989), regulating the cooperation of military personnel with civilian


                                   17
United States v. Khamsouk, No. 01-0387


commander has powers similar to a federal magistrate judge,

those powers are constrained in scope to persons and places

under military control. See Mil.R.Evid. 315(c), Manual,

supra.

      In this case, SA Coyle correctly believed that he

lacked the authority to initially enter and search a

civilian residence possessing only a DD Form 553.            The DD

Form 553, or its predecessor, has long been used to

authorize civilian law enforcement to apprehend the named

individual as a deserter under Article 8, UCMJ.           United

States v. Holder, 10 USCMA 448, 451, 28 CMR 14, 17 (1959);

United States v. Garner, 7 USCMA 578, 581, 23 CMR 42, 45

(1957).   In Garner, this Court noted that the genesis of

Article 8, UCMJ, was the separation of civil and military

jurisdiction that previously prevented civil authorities

from apprehending deserters for a purely military crime.

Garner, 7 USCMA at 581, 23 CMR at 45 (citing Kurtz v.

Moffitt, 115 U.S. 487 (1885)).          However, none of these

authorities stands for the proposition that either military

or civilian officials acting pursuant to a request to


law enforcement officials. The Secretary of the Navy issued SECNAV
Instruction 5820.7B (Mar. 28, 1988), implementing the DoD Directive.

Although the PCA was passed in the context of Civil War reconstruction,
Congress has had occasion to reconsider its reach in creating a
patchwork framework of express exceptions to it, such as those covering
certain training for civilian law enforcement personnel, and the use of
military personnel to combat weapons of mass destruction when human life
is at risk, and when civilian law enforcement is incapable of addressing
the threat. 50 USC §§ 2301-02 (2000).



                                   18
United States v. Khamsouk, No. 01-0387


apprehend a military absentee, may do so by entering a

civilian residence without a civilian warrant.            Moreover,

this Court has also held that “a military commander — no

matter how neutral and impartial he strives to be — cannot

pass muster constitutionally as a ‘magistrate’ in the strict

sense.”   United States v. Stuckey, 10 MJ 347, 361 (CMA

1981).    Among other things, a military commander is not a

civilian.    In short, the Fourth Amendment mandates that,

absent exigent circumstances, law enforcement officials of

all types possess a proper warrant or obtain consent prior

to entry in off-base civilian homes.

      Therefore, we hold that the DD Form 553 is not the

functional equivalent of a civilian arrest warrant in the

context of entering a civilian home.11         Thus, SA Coyle’s

entry into HM2 Guest’s residence was a warrantless entry in

contravention of the Fourth Amendment.12




11
   We leave undisturbed present law allowing civilian and military
officials to apprehend in a public place military members sought
pursuant to a DD Form 553.
12
  The military judge at trial, and the Government in this Court, relied
on United States v. James, 464 F.2d 1228 (9th Cir. 1972), and Martin v.
Commonwealth, 592 S.W.2d 134 (Ky. 1979), for the proposition that
warrantless entry into the home may be effected by a civil officer with
probable cause to believe that a person is a deserter. Since these
cases were decided prior to the Supreme Court’s pronouncement in Payton,
they do not reflect applicable Fourth Amendment jurisprudence. Whatever
value these authorities may have as precedent in their respective
jurisdictions, we find them unpersuasive and not binding on military
courts.



                                   19
United States v. Khamsouk, No. 01-0387


                                  II

      Having determined that the entry into HM2 Guest’s

residence to apprehend appellant was illegal, we turn now to

the pivotal issue in this case, namely, appellant’s consent

to the search of his knapsack while still in the residence.

Did the illegal entry vitiate appellant’s consent?            If so,

the contents of the knapsack must be excluded.           Given the

military judge’s finding regarding the relation between the

contents of the knapsack and appellant’s later statements,

so too must appellant’s confession be excluded, unless the

military judge’s finding in this respect is clearly

erroneous.    We conclude this particular finding is not

clearly erroneous.13

      The critical inquiry is whether appellant’s consent to

search was “sufficiently an act of free will to purge the

primary taint of the unlawful invasion.”          Wong Sun, 371 U.S.

at 486.   Thus, Wong Sun requires not merely that statements

taken following an illegality meet the Fifth Amendment, U.S.

Const. amend. V, standard of voluntariness, but that they

also be sufficiently voluntary to attenuate the taint.

Brown, 422 U.S. at 602.       After all, it is not whether the

evidence would have come to light “but for” the warrantless

apprehension, but “whether, granting establishment of the



13
  The military judge found that “[t]he questioning of [appellant] . . .
at NCIS was based solely on the evidence seized at 1248 Jackson Avenue.”


                                   20
United States v. Khamsouk, No. 01-0387


primary illegality, the evidence to which instant objection

is made has been come at by exploitation of that illegality

or instead by means sufficiently distinguishable to be

purged of the primary taint.”        Id. at 599 (citations

omitted).    In the instant case, if appellant’s consent,

albeit voluntary, is determined to have been obtained

through exploitation of the illegal entry, it can not be

said to be sufficiently attenuated from the taint of that

entry.

       In Brown, the Court established a framework for

analyzing whether statements made following an unlawful

arrest are sufficiently attenuated, or removed, from the

taint of the unlawful act.     There, police officers

investigating a homicide broke into Brown’s apartment

without probable cause and without a search warrant while

Brown was away.    422 U.S. at 592.      During the course of the

unlawful search, Brown returned.        Id.    The officers, still

in the apartment, watched Brown through a window as he

approached his door.    Id.   With guns drawn, they then

surprised Brown and arrested him.        Id.    He was subsequently

handcuffed and transported to the police station.          Id. at

593.    A little less than two hours after his arrest, and

after being read his Miranda warnings, Brown made a

statement implicating himself in the homicide.          Id. at 594-

95.    After several more hours spent assisting the police in



                                21
United States v. Khamsouk, No. 01-0387


finding his accomplice, Brown made a second statement to an

Assistant State’s Attorney.    Id. at 595.      This statement was

made some seven hours after his initial arrest and was also

preceded by Miranda warnings.        Id.   The statements were

subsequently used to convict Brown at trial.

     Holding that the statements should have been

suppressed, the Court, relying on Wong Sun, noted that “the

question of whether a confession is the product of free will

[following an illegal arrest] must be answered on the facts

of each case.   No single fact is dispositive.”       Brown, 422

U.S. at 603.    The Court went on to explain that Miranda

warnings, while an important factor, were not dispositive in

determining whether the statements were obtained by

exploitation of the illegal arrest.        “The voluntariness of

the statement is a threshold requirement.        And the burden of

showing admissibility rests, of course, on the prosecution.”

Id. at 603-04 (citations omitted).         The Court set out three

factors also relevant to the inquiry: “[t]he temporal

proximity of the arrest and the confession, the presence of

intervening circumstances, and, particularly, the purpose

and flagrancy of the official misconduct . . . .”        Id. at

604 (emphasis added).   So, while the voluntariness of the

statement is a threshold requirement to vindicate the Fifth

Amendment interest, the Fourth Amendment interest arising




                                22
United States v. Khamsouk, No. 01-0387


from the illegal seizure of the person is vindicated through

a consideration of the three factors mentioned above.

     Applying these principles to Brown’s situation, the

Court concluded that the time period between Brown’s arrest

and his first statement along with the lack of any

intervening circumstance were insufficient to purge the

taint of the illegal arrest.     Brown, 422 U.S. at 604-05.        In

what appears to be its analysis under the third factor, the

Court characterized the police officers’ conduct as having

“a quality of purposefulness.”        Id. at 605.   “The arrest,

both in design and in execution, was investigatory, [and

had] the appearance of having been calculated to cause

surprise, fright, and confusion” in the hope that some

evidence might be discovered.        Id.

     While Brown involved a confession, this framework has

been adopted to address issues of attenuation in the context

of consent as well.   Florida v. Royer, 460 U.S. 491, 501

(1983)(consent at issue, “statements given during a period

of illegal detention are inadmissible even though

voluntarily given if they are the product of the illegal

detention and not the result of an independent act of free

will”)(citing Wong Sun, 371 U.S. at 471; Brown, 422 U.S. at

601-02; Dunaway, 442 U.S. at 218-19); see United States v.

Santa, 236 F.3d 662, 677-78 (11th Cir. 2000)(Brown factors

used to determine whether voluntary consent was obtained



                                23
United States v. Khamsouk, No. 01-0387


through exploitation of illegal seizure); United States v.

Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994)(factors

enunciated in Brown are “especially relevant to determining

whether a consent is tainted by a preceding illegal search

or seizure”); United States v. Chavez-Villarreal, 3 F.3d

124, 128 (5th Cir. 1993)(Brown factors used to determine

whether causal chain between consent and prior illegality

broken); United States v. McCraw, 920 F.2d 224, 230 (4th

Cir. 1990)(even if consent to search was voluntary by Fifth

Amendment standard, application of Brown factors required

suppression); United States v. Taheri, 648 F.2d 598, 601

(9th Cir. 1981)(even assuming consent voluntary, it was

necessary to apply Brown attenuation analysis).

                   A.   The Brown Factors

     The first two factors enunciated in Brown are more

related to classic notions of attenuation.   See generally,

57A Am. Jur. 2D Negligence §§ 465, 491 (1989 & Supp.

2000)(discussing how temporal factor and an intervening

circumstance affect remoteness and causation analysis).

However, more so than the first two, the third factor is

directed at police misconduct and whether such conduct has

been employed to exploit the illegality.    The Supreme Court

has identified this third factor as “particularly”

important, presumably because it comes closest to satisfying

the deterrence rationale for applying the exclusionary rule.



                             24
United States v. Khamsouk, No. 01-0387


New York v. Harris, 495 U.S. 14, 23 (1990); see also United

States v. George, 883 F.2d 1407, 1416 (9th Cir. 1989).     In

fact, given the exclusionary rule’s purpose of deterring

police misconduct, this factor may be “the most important

factor.”   Dunaway v. New York, 442 U.S. 200, 226

(1979)(Rehnquist, J., dissenting).

     “The primary justification for the exclusionary rule .

. . is the deterrence of police conduct that violates Fourth

Amendment rights.”   Stone v. Powell, 428 U.S. 465, 486

(1976).    When police intentionally violate what they know to

be a constitutional command, “exclusion is essential to

conform police behavior to the law.”   Harris, 495 U.S. at 23

(Marshall, J., dissenting).   However, despite its broad

purpose, “the rule does not ‘proscribe the introduction of

illegally seized evidence in all proceedings or against all

persons,’. . . but applies only in contexts ‘where its

remedial objectives are thought most efficaciously served.’”

Penn. Board of Probation and Parole v. Scott, 524 U.S. 357,

363 (1998)(quoting Stone v. Powell, 428 U.S. at 486; United

States v. Calandra, 414 U.S. 338, 348 (1974)).   The Court

has heralded the need for caution when employing the rule

because it “deflects the truthfinding process” by depriving

the factfinder of otherwise relevant and probative evidence.

Stone, 428 U.S. at 490.   Unwarranted application of the rule

can result in a disparity between the error committed by the



                               25
United States v. Khamsouk, No. 01-0387


police and the windfall afforded the accused that is

“contrary to the idea of proportionality that is essential

to the concept of justice.”   Id.   “[A]lthough the rule is

thought to deter unlawful police activity . . . if applied

indiscriminately it may well have the opposite effect of

generating disrespect for the law and administration of

justice.”   Id. at 491 (footnote omitted).   Moreover, even

the dissenters in Harris suggested that excluding evidence

that is the “product of a good-faith misunderstanding of the

relevant constitutional requirements . . . may result in

deterrence of legitimate law enforcement efforts.”    Harris,

495 U.S. at 24 (Marshall, J., dissenting).    Thus, in

determining whether invocation of the rule is warranted, the

Court insists that lower courts strike a balance between

“the public interest in determination of truth at trial” and

the “incremental contribution that might [be] made to the

protection of Fourth Amendment values. . . .”    Stone, 428

U.S. at 488.

     With these principles in mind, we turn to the

circumstances relating to SA Coyle’s conduct in obtaining

appellant’s consent to search his bags.    The first two Brown

factors arguably tip in appellant’s favor.    SA Coyle’s

testimony indicates that the consent was given within 20

minutes after appellant’s apprehension.    Similarly, the only

“intervening circumstances” between the apprehension and the



                              26
United States v. Khamsouk, No. 01-0387


consent to search were (1) the administration of appellant’s

Article 31 rights, and (2) appellant’s subsequent signed

acknowledgement of the right to refuse consent.           Taken

together, these facts allow a conclusion that the consent

given was voluntary.      However, as Brown instructs, this is

not dispositive of the issue of whether appellant’s consent

is sufficiently attenuated from the taint of the unlawful

entry.

      As for the third factor, there are several facts

suggesting the absence of purposeful or flagrant conduct on

the part of the NCIS agents in this case.          First, after

apprehending appellant in the residence, SA Coyle obtained

written consent to search appellant’s bags before touching

them.    As noted earlier, this one-page form advised

appellant that he had the right to refuse the search in the

absence of a search warrant.14          We are aware of no legal

requirement for tendering such advice to a suspect.            Thus,

the fact the NCIS agents provided the form with its warning

mitigates against a conclusion that the police engaged in

flagrant or purposeful conduct to exploit the illegal entry.

See United States v. Ramos, 42 F.3d. 1160, 1164 (8th Cir.


14
   Specifically, the form (NISFORM 003/03-80) states: “I have been
informed of my constitutional right to refuse to permit this search in
the absence of a search warrant. In full understanding of this right, I
have nevertheless decided to permit this search to be made.” Unlike
many forms, this one is short and clear. It lists the date, items to be
searched, start and ending times of the search and the searching officer
[SA Coyle].



                                   27
United States v. Khamsouk, No. 01-0387


1994)(defendant’s signing of consent form after unlawful

traffic stop was "sufficiently an act of free will to purge

the primary taint").

      Second, SA Coyle stated that part of his basis for

entering the premises to apprehend appellant was his concern

for officer safety.15     We agree with the military judge’s

conclusion that the situation encountered by the NCIS agents

did not rise to the level of exigent circumstances, as that

term is understood in Fourth Amendment jurisprudence.

However, SA Coyle’s perception of the situation at the time

of appellant’s apprehension is relevant to the application

of the third Brown factor.       In the real world of law

enforcement, officers are often required to make split-

second decisions resulting in choices, which, later subject

to the frame by frame magnification of appellate review, do

not meet Fourth Amendment muster.         Nonetheless, decisions

taken in good faith, as that term is used in common

vernacular, warrant our careful and measured consideration

when we assess the purposefulness and flagrancy of police

conduct.    While not rising to the level of “exigent

circumstances”, we do not find Coyle’s concern for safety

misplaced, nor evidence of flagrant conduct for the purpose

of assessing the third Brown factor.

15
  Specifically, he testified at the Article 39(a), UCMJ, 10 USC
839(a), session that appellant “was near a room to his right that I
didn’t know what was present in the room, so for officer safety issues,



                                   28
United States v. Khamsouk, No. 01-0387


     Finally, because SA Coyle erroneously viewed appellant

as a nonresident of the home, he and the other NCIS agents

waited outside because they understood they needed a search

warrant before entering HM2 Guest’s residence to search for

appellant.    However, SA Coyle’s testimony strongly suggests

he believed the DD Form 553 was the functional equivalent of

an arrest warrant.     Indeed, the military judge concluded as

much, as did the court below.          The fact that we now hold

that the DD Form 553 is not the equivalent of a civilian

arrest warrant for the purpose of entering a civilian home

does not suggest SA Coyle acted flagrantly or purposefully

in relying on the form.

     Unlike the officers in Brown and Dunaway, supra, there

is no evidence in the record that SA Coyle knew he was

committing a constitutional violation and notwithstanding

that knowledge, intentionally entered unlawfully in order to

pursue a quest for evidence “in the hope that something

might turn up.” Brown, 422 U.S. at 605.          Further, SA Coyle’s

three-foot intrusion across the threshold under the genuine,

albeit erroneous, belief in the authority of the DD Form

553, does not suggest flagrant or purposeful conduct of the

sort the Court in Brown was attempting to address.           In

Brown, “[t]he impropriety of the arrest was obvious. . . .”




not knowing what was around that corner, I immediately took him into
custody. I didn’t know if there were any weapons present or not. . . .”


                                  29
United States v. Khamsouk, No. 01-0387


Id.   We can not say the same for the circumstances

surrounding appellant’s apprehension.

      While the first two factors are relevent to the

analysis, ultimately, in this case a decision to exclude the

evidence derived from appellant’s consent comes down to a

resolution of the issue on the third Brown factor.           Such a

decision must be based on a determination whether SA Coyle’s

conduct is the type that the policy underlying the

exclusionary rule was intended to deter.        It is not evident

to us that the SA Coyle’s intrusion across the threshold to

apprehend appellant was designed to achieve any

investigatory advantage he would not have otherwise achieved

by simply waiting for appellant to exit the doorway onto the

step outside.   The NCIS agent’s conduct here is dramatically

unlike the officers’ conduct in Brown and Dunaway.           Here, SA

Coyle had probable cause and the inherent authority to

apprehend appellant had appellant traversed the three feet

between himself and SA Coyle.        In short, appellant’s

apprehension did not have “a ‘quality of purposefulness’ in

that it was an ‘expedition for evidence’ admittedly

undertaken in the hope that something might turn up.”

Dunaway, 442 U.S. at 218 (quoting Brown, 422 U.S. at 605).

Nor, was their conduct designed to cause “surprise, fright

and confusion.”




                                30
United States v. Khamsouk, No. 01-0387


     Therefore, we hold that appellant’s consent to the

search of his knapsack was a voluntary act of free will.

Further, we hold that his consent was not the exploited

product of the unlawful entry into HM2 Guest’s civilian

residence, and thus, it was sufficiently attenuated from the

taint of the prior illegality.

     Thus, it follows that since we hold that appellant’s

consent to the search of his bags was valid, the subsequent

seizure of them was valid as well because, in this instance,

one can not search without first seizing.    Similarly, since

the seizure of the bags at the residence was valid, the

later search of those bags at the field office was valid.

          B. Appellant’s Statement at the Field Office

     The manner in which the contents of the bags may have

been used to obtain appellant’s confession does not alter

the admissibility of the confession.    That determination

rests solely on the relationship between the inculpatory

statements and the earlier unlawful entry by the NCIS

agents.    Against this backdrop, the rationale of Harris,

supra, compels our conclusion that appellant’s statement

obtained at the field office was properly admitted.

     In Harris, police officers developed probable cause

that the defendant had committed a murder, yet they failed

to seek either a search or arrest warrant.    495 U.S. at 15.

Nonetheless, they proceeded to the defendant’s home and



                               31
United States v. Khamsouk, No. 01-0387


presented their guns and badges.      Id.   The defendant allowed

the officers in, and subsequently confessed to the murder.

Id. at 15-16.   The officers then transported Harris to the

station house where he was administered his Miranda rights.

Id. at 16.   There he made a second statement confessing his

responsibility for the murder.      Id.   The issue before the

Court was the admissibility of the second statement taken at

the station house.   Id.   After reviewing its rationale in

Payton, supra, the Court refused to exclude the confession

reasoning that the rule in Payton “was not intended to grant

criminal suspects, like Harris, protection for statements

made outside their premises where the police have probable

cause to arrest the suspect for committing a crime.”

Harris, 495 U.S. at 17.    The crux of the Court’s holding is

that a warrantless arrest of a suspect in his home does not

render unlawful continued custody of the suspect once he is

removed from the house.    Id. at 17-18.     Similar analysis

applies in this case because appellant was a resident of HM2

Guest’s residence.   As in Harris, because the agents in this

case had probable cause to apprehend appellant, he was not

in unlawful custody when he was removed to the field office,

given his Article 31 rights and allowed to speak.       Thus, the

statement was properly admitted.

                                    III

                           Post-Trial Delay



                               32
United States v. Khamsouk, No. 01-0387


     Appellant’s trial concluded on August 22, 1997.      The

trial counsel examined the 668-page record of trial on

September 26, 1997.    However, the military judge did not

authenticate the record until October 31, 1998, over 13

months later.   The convening authority took action in the

case on April 15, 1999, over four months later, and nearly

20 months after the court-martial.

     The Court of Criminal Appeals, relying on our precedent

in this area, found the military judge’s delay in

authenticating the record unexplained.    54 MJ at 748.

However, it expressly rejected as speculative appellant’s

claim that this delay prejudiced his chances of receiving

clemency and parole.   Appellant makes the identical

complaint in his appeal to this Court.

     For the reasons set forth in our recent decision of

United States v. Tardif, __ MJ __ (2002), we conclude that

remand is appropriate in this case.

                              DECISION

     The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is set aside.    The record of trial

is returned to the Judge Advocate General of the Navy for

remand to that court for reconsideration in light of this

opinion.   Thereafter, Article 67, UCMJ, 10 USC § 867 will

apply.




                               33
United States v. Khamsouk, No. 01-0387/NA


     CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

     For the following reasons, I concur in the result as to the

motion to suppress:

     (1)   The police needed only a Department of Defense (DD)

Form 553 on which the commanding officer certified under oath

probable cause to believe that appellant was a deserter because

they already had reasonable cause to believe that appellant was

“liv[ing]” at Guest’s apartment.    Payton v. New York, 445 U.S.

573, 602-03 (1980); see also Steagald v. United States, 451 U.S.

204, 214 (1981).

     (2)   Assuming the DD Form 553 does not satisfy the

requirement for an arrest warrant, and that a search warrant was

required, exigent circumstances would excuse the lack of either

warrant.

     (3)   The rights warning severed any illegality.

                                FACTS

     On December 18, 1996, Special Agent (SA) Edward M. Coyle,

of the Naval Criminal Investigative Service (NCIS), Norfolk,

Virginia, field office, initiated a credit card theft and fraud

investigation against appellant, who was then known as “SHSA

Anthony Khamsouk.”    SA Coyle soon learned that appellant was

absent without leave from the Navy.     On January 6, 1997, the

commanding officer executed a DD Form 553, which declared
United States v. Khamsouk, No. 01-0387/NA


appellant a “Deserter/Absentee Wanted by the Armed Forces.”               The

DD Form 553 indicated that appellant had, in violation of

Article 85, UCMJ, 10 USC § 885, “without authority and with

intent to remain away therefrom permanently,” absented himself

on December 13, 1996.      The DD Form 553 was executed by the

commanding officer based on personal knowledge and under the

penalty of perjury that appellant was a deserter.

      During January 1997, the fraud investigation into

appellant’s criminal schemes expanded into other financial

dealings.1    At some point prior to February 5, 1997, SA Coyle

learned that appellant had attempted to use an automated teller

machine card in St. Louis, Missouri, and therefore, he contacted

appellant’s command to obtain a copy of the DD Form 553.             In

early February 1997, SA Coyle interviewed two citizens who

indicated that appellant was involved in a credit card fraud

scheme.   One of these citizens told SA Coyle that appellant was

staying at the home of Hospital Corpsman Second Class (HM2) Tom

Guest on Jackson Avenue.       The citizen also told SA Coyle that

appellant always traveled with a knapsack, and that this


1
    Subsequent investigation, in the spring and summer of 1997, revealed that
appellant’s fraudulent schemes had cut a wide swathe across the United
States, Japan, and Germany. NCIS agents learned in March, 1997, that
appellant’s true identity was Toro Khamsouk, and that he was suspected of
having been a member of an Asian gang in the Portland, Oregon, area.
Investigative leads concerning appellant’s fraudulent use of stolen credit
cards were followed throughout the country, to inclue California, Maine,
Oregon, and Missouri.   Secret Service agents tracked down and interviewed
the real Anthony Khamsouk. In all, more than 20 law enforcement agents were
involved in the investigation and the collection of far-flung evidence.


                                      2
United States v. Khamsouk, No. 01-0387/NA


knapsack might contain evidence of credit card fraud.     In

addition, the citizen stated that appellant was likely moving to

Los Angeles in the near future.   As set forth below, these facts

were later corroborated by HM2 Guest.

     Based on this information, SA Coyle, accompanied by three

other NCIS agents, established surveillance of HM2 Guest’s home

on February 5, 1997.   HM2 Guest owned the home on Jackson

Avenue, which was a private, off-base residence.     SA Coyle and

his colleagues did not plan to enter HM2 Guest’s home to

apprehend appellant; rather, they were waiting for appellant to

leave the home because they had received information that he had

an appointment at about 2:00 p.m.     The investigators suspected

appellant was involved in a fraudulent scheme using numerous

credit cards with someone else’s identity.     Presenting one of

these cards, appellant would call a restaurant and reserve a

dinner for a group of about ten people.     However, just before

the appointment, he would call the restaurant and tell them that

he could not attend but would treat his friends.     He would then

ask the restaurant to charge the dinner to his credit card and

add a healthy tip, sometimes in excess of 25 percent.     Because

the fraudulent use of the credit cards happened numerous times

in the Norfolk area, the agents knew others were involved.     Even

so, SA Coyle at this point testified that he believed he could




                                  3
United States v. Khamsouk, No. 01-0387/NA


not enter HM2 Guest’s residence to apprehend appellant without a

search warrant.

     At approximately 1:20 p.m., SA Coyle observed two men leave

HM2 Guest’s house.   He could not determine whether either man

was appellant, so he stopped them both and asked for their

identification.   Neither man was appellant.   One of the men, HM2

Guest, identified himself as the owner of the house.   HM2 Guest

testified that the NCIS agents arrived in “two or three cars”

and told them to “freeze.”   He testified further that the NCIS

agents apparently believed the other man was appellant, and

therefore, they placed him up against HM2 Guest’s car.     SA Coyle

identified himself and asked HM2 Guest if he knew appellant’s

whereabouts.   SA Coyle explained that he had an arrest warrant

for appellant, and HM2 Guest told him that appellant was inside

his home.   SA Coyle asked HM2 Guest for permission to enter the

house to arrest appellant, but HM2 Guest demurred, saying that

he “would prefer” to bring appellant out himself.

     At that point, SA Coyle followed HM2 Guest to the front

door and waited on the front porch, just outside the doorway.

The door remained open, and HM2 Guest stepped into the foyer.

While standing in the passageway between the foyer and the

living room, HM2 Guest called out to appellant in the living

room, telling him to “come to the door” because someone wanted

to speak with him.   In response to HM2 Guest’s summons,


                                 4
United States v. Khamsouk, No. 01-0387/NA


appellant came toward the door.    SA Coyle saw appellant as he

peeked around from the living room, approximately three feet

away from the front door.     At this point, he was concerned

about his safety and the safety of the other officers based on

appellant’s criminal conduct and use of multiple accomplices in

the local area.   When appellant peered around the counter, SA

Coyle had no knowledge who was present or what weapons were in

the residence and might be used.       SA Coyle asked appellant if he

was “Anthony Khamsouk,” and then told him he was under arrest.

During this exchange, or immediately afterwards, SA Coyle

stepped into the foyer and took appellant into custody.      SA

Coyle had the DD Form 553 in his possession when he apprehended

appellant.   The apprehension alleviated the agent’s concern for

his safety and the safety of the other officers, as well as for

the destruction of items he saw in the room.

     SA Coyle then moved appellant into the living room and sat

him down on the sofa.    After advising him of his rights under

Article 31, Uniform Code of Military Justice (UCMJ), 10 USC §

831, SA Coyle asked appellant if a knapsack sitting near the

sofa was his, and appellant said it was.      Appellant was asked if

the knapsack was the only belonging he had in the house, and he

replied affirmatively.    HM2 Guest then stated that appellant was

not being truthful, and that he had another bag upstairs.      HM2

Guest volunteered to go get the bag for the NCIS agents.      He


                                   5
United States v. Khamsouk, No. 01-0387/NA


also executed a “Permissive Authorization for Search and

Seizure” form, which states that the signatory has been informed

of his “constitutional right to refuse to permit the search in

the absence of a search warrant. . . .”    HM2 Guest led another

NCIS agent to the duffel bag, which was located on the second

floor.

     In the meantime, SA Coyle asked appellant to execute a

consent form identical to the one HM2 Guest signed.    Appellant

executed the form while he sat in the living room.    Although the

bags were subsequently subjected to a cursory examination for

weapons at the scene, neither the knapsack nor the duffel bag

were searched at HM2 Guest’s home.

     Appellant was taken to the NCIS field office and re-advised

of his Article 31 rights using the standard NCIS rights

advisement and waiver form.    Appellant indicated that he

understood his rights, initialing each one, and thereafter

signed and dated the waiver.    Appellant was not similarly re-

advised of his search and seizure rights.

     Appellant falsely identified himself as “Anthony Khamsouk”

and provided a military identification card bearing his picture

and that name.   A search of appellant yielded an American

Express card in the name of Eric Johnson, and a Mastercard from

his shirt pocket in the name of Virginia Green.    A date book was

taken from appellant which contained several credit card


                                  6
United States v. Khamsouk, No. 01-0387/NA


receipts.    SA Coyle then interviewed appellant about items taken

from the knapsack and duffel bag.     Appellant admitted that he

had obtained a list of credit card numbers from a purported

member of an Asian gang in Portland, Oregon, and that he had

used these credit card numbers to make credit purchases at

restaurants and clothing stores, and to purchase airline

tickets.    It took NCIS agents more than a day to inventory

nearly one hundred items of evidentiary value taken from the

knapsack and duffel bag.

     HM2 Guest testified at the hearing pursuant to Article

39(a), UCMJ, 10 USC § 839(a), that appellant was staying with him

for a few days.    He stated that he was not aware of appellant

having any other residence, and that appellant was using his

house as his “home base.”    When asked if he had been willing to

assist SA Coyle in apprehending appellant, HM2 Guest explained

that if appellant had done something “wrong[,] and they had a

warrant for his arrest,” then he was willing to bring him out of

the house so that appellant could deal with them personally.       HM2

Guest also described appellant as appearing “scared” when he

peeked around the living room doorway in response to HM2 Guest’s

summons.

     SA Coyle testified that he “frequently apprehended deserters

based on information provided by computer read out that there was

a warrant issued for the arrest of a subject through NCIC,” but,


                                  7
United States v. Khamsouk, No. 01-0387/NA


in this particular case, he had only a copy of the DD Form 553

with him at the time of apprehension.     SA Coyle also stated that

he was concerned about safety because he did not know whether

there were any weapons in the house, or whether appellant was

carrying a weapon; therefore, when he saw appellant peek around

the corner of the living room, he decided to immediately take

custody of him.

                            DISCUSSION

     This Court accepts the findings of the military judge

unless clearly erroneous.   See, e.g., United States v. Hollis,

57 MJ 74 (2002); however, the issues in this case -- the right

to privacy, the warrant requirement, the exigent circumstances

exception, and the fruit of the poisonous tree doctrine -- are

all reviewed under a de novo standard of review.     Cf. Ornelas v.

United States, 517 U.S. 690 (1996).

     Appellant’s rights in this case, like a defendant in a

federal or state court case, stem from the Constitution,

statutes, rules of procedure (in the military, called Rules for

Courts-Martial), and the common law.     See, e.g., United States

v. Lopez, 35 MJ 35 (CMA 1992).   While the Supreme Court has

assumed the Bill of Rights applies to the military, see, e.g.,

Davis v. United States, 512 U.S. 452, 457 n.* (1994), this Court

has held that they apply absent military necessity or




                                 8
United States v. Khamsouk, No. 01-0387/NA


operational needs.    United States v. Jacoby, 11 USCMA 428, 430-

31, 29 CMR 244, 246-47 (1960).

     The Fourth Amendment to the United States Constitution

provides:

            The right of the people to be secure in their
            persons, houses, papers, and effects, against
            unreasonable searches and seizures, shall not be
            violated; and no Warrants shall issue, but upon
            probable cause, supported by Oath or affirmation,
            and particularly describing the place to be
            searched, and the persons or things to be seized.

It contains two clauses:    the Warrant Clause and the

Reasonableness Clause.    Over the years, the Supreme Court has

recognized the “cardinal principle that ‘searches conducted

outside the judicial process, without prior approval by [a]

judge or [a] magistrate, are per se unreasonable under the

Fourth Amendment - subject only to a few specifically

established and well-delineated exceptions.’”     Mincey v.

Arizona, 437 U.S. 385, 390 (1978)(quoted in California v.

Acevedo, 500 U.S. 565, 580 (1991)); see also Horton v.

California, 496 U.S. 128, 133 n.4 (1990).     One of these

exceptions is a search incident to a lawful arrest.      To prevent

any abuse of this exception, the Supreme Court reinforced the

Warrant Clause in Payton.

                            Payton/Steagald

     In Payton, the Court held that absent exigent

circumstances, “the Fourth Amendment ... prohibits the police


                                   9
United States v. Khamsouk, No. 01-0387/NA


from making a warrantless and nonconsensual entry into a

suspect’s home in order to make a routine felony arrest.”      445

U.S. at 576.     The Court recognized “an arrest warrant founded on

probable cause implicitly carries with it the limited authority

to enter a dwelling in which the suspect lives when there is

reason to believe the suspect is within.”    Id. at 603.   This was

a recognition of the special privacy interest in one’s home.

While the Court permits the use of an arrest warrant for

nonconsensual entry when an individual lives at the house,

Steagald requires a search warrant, rather than merely an arrest

warrant, for a nonconsensual entry into a third party’s

residence when the individual sought by law enforcement

authorities is living there.    451 U.S. at 213-14.

     In 1984, R.C.M. 302(e)(2) was added to the Manual for

Courts-Martial to adopt “the warrant requirement of Payton ...

conforming the procedure to military practice.”    Drafters’

Analysis of R.C.M. 302(e), Manual for Courts-Martial, United

States, 1984, at A21-13.    This provision remains unchanged

today.   R.C.M. 302(e)(2), Manual for Courts-Martial, United

States (2000 ed.).    R.C.M. 302 does not define “resident,” the

language used in both Payton and Steagald, in terms of where a

suspect lives.

     What constitutes “living at the house?”    Does it equate to

the requirements for standing?    Must the individual be the


                                  10
United States v. Khamsouk, No. 01-0387/NA


lessee or the owner, or something in between?      Lines must be

drawn.    It may be that the line should be drawn between a guest

in a household and someone who is staying for an agreed-upon

duration and could consent to a search of the premises, but that

has not been decided to date.     The dissenters in Steagald

suggested a fairly short time-line:    “If a suspect has been

living in a particular dwelling for any significant period, say

a few days, it can certainly be considered his ‘home’ for

Fourth Amendment purposes....”    451 U.S. at 230-31 (Rehnquist,

J., dissenting).

     In this case, appellant was more than an overnight guest.

Even if he was an overnight guest, the police had probable cause

to believe that he was living at the house.     Appellant had been

living in HM2 Guest’s house for a number of days and planned to

leave three or four days after the search.      Thus, Payton, rather

than Steagald, would apply.   Because appellant was living at the

house, a warrant to search was not needed for the entry in this

case.    See, e.g., Watts v. County of Sacramento, 256 F.3d 886,

889-90 (9th Cir. 2001); see also Werbicki v. County of Los

Angeles, 2002 U.S. App. LEXIS 3428 (9th Cir. 2002).

The DD Form 553 was sufficient.

                        Exigent Circumstances

     An exigent circumstance is an exception to both Payton and

Steagald.   See Kirk v. Louisiana, ___ U.S. ___, 122 S. Ct. 2458


                                  11
United States v. Khamsouk, No. 01-0387/NA


(2002)(state court reversed because the officer had neither an

arrest warrant nor a search warrant, and the state court

“declined to decide whether exigent circumstances had been

present”); cf. Maryland v. Buie, 494 U.S. 325, 327 (1990).              A

warrantless entry2 will be sustained when the circumstances were

such as to lead a person of reasonable caution to conclude that

evidence of a crime would be found on the premises, and that

such evidence would probably be destroyed within the time

necessary to obtain a search warrant.          See Roaden v. Kentucky,

413 U.S. 496, 505 (1973); United States v. Mitchell, 12 MJ 265

(CMA 1982); United States v. Elkins, 732 F.2d 1280 (6th Cir.

1984).   Moreover, Mil.R.Evid. 315, Manual, supra, entitled

“Probable cause searches,” provides specific guidance with

respect to exigent circumstances.         Mil.R.Evid. 315(g) states, in

pertinent part:

         A search warrant or search authorization is not required
         under this rule for a search based on probable cause
         when:

            (1) Insufficient time. There is a reasonable belief
         that the delay necessary to obtain a search warrant or
         search authorization would result in the removal,
         destruction, or concealment of the property or evidence
         sought. . . .




2
   I will use the term “warrantless entry,” for purposes of this section of my
opinion, because SA Coyle did not have a search warrant for HM2 Guest’s home.
As set forth above, under the facts of this case, I do not believe that he
needed both an arrest and a search warrant to make a reasonable entry into
HM2 Guest’s home.


                                     12
United States v. Khamsouk, No. 01-0387/NA


In addition, Mil.R.Evid. 316(d)(4)(B), Manual, supra, explicitly

allows the seizure of evidence in the case of exigent

circumstances, as defined in Mil.R.Evid. 315(g).   Mil.R.Evid.

316(f), the “catch-all” provision, provides that “[a] seizure of

a type not otherwise included in this rule may be made when

permissible under the Constitution of the United States as

applied to members of the armed forces.”

     Exigent circumstances may arise when law enforcement

officers “tip their hand” and reveal the existence of an

investigation, or those officers reasonably believe that the

“possessors of the contraband” are aware that the police are “on

their trail.”   See, e.g., United States v. Rubin, 474 F.2d 262,

268 (3d Cir. 1973), cert. denied, 414 U.S. 833 (1973); United

States v. Parra, 2 F.3d 1058 (10th Cir. 1993)(exigent

circumstances arose when agents believed that other suspects may

have observed them from a partially open door arresting a

confederate and, as a result, might begin destroying evidence);

United States v. Almonte, 952 F.2d 20 (1st Cir. 1991)(commotion

resulting from convergence of agents following undercover drug

purchase justified warrantless initial sweep of defendant’s

apartment where apartment was located across the street from

drug transaction); United States v. Socey, 846 F.2d 1439 (D.C.

Cir. 1988)(exigent circumstances justified entry when agents had

a reasonable belief that third persons inside a private dwelling


                                13
United States v. Khamsouk, No. 01-0387/NA


were aware of an investigatory stop or arrest of a confederate

outside the premises and might see a need to destroy evidence);

United States v. Wulferdinger, 782 F.2d 1473 (9th Cir.

1986)(exigent circumstances justified warrantless entry where

confederate’s failure to return to premises, due to arrest,

might cause those inside to dispose of evidence); United States

v. Gardner, 553 F.2d 946 (5th Cir. 1977) (narcotics-related

arrest outside home, involving agents in five cars with guns

drawn, coupled with knowledge that drugs were inside the home

and a female suspect remained inside, provided agents with

reasonable belief that an immediate entry was necessary to

prevent disposal of drugs inside home).

     For example, in United States v. Elkins, the Sixth Circuit

held that a warrantless entry was justified once a surveillance

team had revealed their presence and a reasonably cautious

person would have concluded that Elkins had seen the officers

and, therefore, would “prudently proceed to dispatch all

possible evidence.” 732 F.2d 1280, 1285 (6th Cir. 1984).    In

that case, officers had probable cause to believe that Elkins

was involved in narcotics trafficking, had recently participated

in a controlled delivery of cocaine, and that he was currently

in his residence.   Id. at 1284.    Agents established surveillance

around Elkins’s home and began the process of obtaining a search

warrant.   Id. at 1283-84.   Two cars then drove down Elkins’s


                                   14
United States v. Khamsouk, No. 01-0387/NA


driveway, including a vehicle associated with Elkins, and the

“entire surveillance team of four or five cars” converged on the

driveway to halt the departing vehicles.      Id. at 1283.   After

determining that Elkins was not in either car, the agent in

charge determined that the occupants of the house had probably

seen the commotion and were in the process of destroying

evidence.   Id.   Agents then entered the house, made a protective

sweep, and took several individuals into custody.      Id. at 1283-

84.   The Court found that after causing the commotion in the

driveway and discovering that neither person arrested was

Elkins, “a reasonably cautious person would quickly conclude

that Elkins, who was still in the house, had seen the hubbub,

realized the situation, and would prudently proceed to dispatch

all possible evidence.”     Id. at 1285.   Moreover, the court

concluded, that evidence would reasonably be expected to include

additional cocaine, books and records of the enterprise, and

drug paraphernalia.   Id.    The court further explained that once

the agents entered the premises, they were required to sweep for

weapons and the safety of all concerned, and that this was done

with minimal intrusion.     Id.

      In United States v. Mitchell, this Court arrived at the

same conclusion in a case with similar facts.      12 MJ 265 (CMA

1982).   In that case, an informant provided the Army Criminal

Investigation Command (CID) with information indicating that


                                  15
United States v. Khamsouk, No. 01-0387/NA


Mitchell had heroin in his off-post apartment in Germany and he

would have it until he left for work the next morning.                 Id. at

266.    A CID agent sent the informant, with marked money, to make

a controlled purchase of heroin from Mitchell.            Id.    The

informant completed the transaction inside the apartment and

reported back to the agent.     Id.       The agent then repeatedly

attempted to coordinate with the German police and have them

conduct a search of the premises.          Id. at 267.    The German

police did not respond promptly, so the agent went to Mitchell’s

apartment to secure it until the German Police could perform a

search.    Id.   The agent feared that Mitchell would be leaving

for work because it was almost 7:00 a.m.           The agent asked the

informant to ring Mitchell’s doorbell in order to gain entry

through the front door of the apartment building.              Id.   When the

informant subsequently entered Mitchell’s apartment, having been

invited by Mitchell, the informant left the front door open.

Id.    While the agent waited in the hallway outside Mitchell’s

front door, his walkie-talkie began to sound.            Id.    At that

point, “Mitchell stuck his head back out the door” and the agent

told him he was under apprehension.          Id.   Mitchell pulled back

into the apartment and the agent told him to have a seat until

the German police arrived.     Id.    Mitchell subsequently tried to

throw evidence out the window.       Id.




                                     16
United States v. Khamsouk, No. 01-0387/NA


      While the military judge declined to uphold the arrest of

Mitchell in the apartment based on a theory of hot pursuit, the

judge concluded that “exigent circumstances existed which

justified apprehending Mitchell inside his private dwelling.”

Id. at 268.    The judge observed that “if the agent had taken

the time to get the proper authorization from an appropriate

commander, ... the lapse of time required to do so would have,

in this case, jeopardized the possibility of recovering the

recorded money.”   Id.   The military judge explained further that

      it is not required under those circumstances for the agent
      to ... speculate on when or even if the accused would exit
      his dwelling so that the apprehension could be made outside
      in a public place. Even though the agent had some reason to
      believe that he might come out[,] it was by no means
      certain that he would within any reasonable time. And
      that[,] coupled with the uncertainty as to what might be
      happening to evidence in the apartment in the meantime, I
      think, justifies the warrantless entry to make the
      apprehension.

Id.

      This Court explicitly held in Mitchell that the phrase

“exigent circumstances,” as used in Payton, was intended to

encompass the danger of destruction of evidence.   Id. at 270.

Thus, the Court affirmed the trial judge’s conclusion that the

warrantless entry into the apartment was fully justified by

“exigent circumstances.”   This Court surmised that if Mitchell

had not been promptly apprehended, and the agent had continued

his surveillance, “there was the risk that [the] appellant might



                                 17
United States v. Khamsouk, No. 01-0387/NA


notice that he was being watched or might see the German police

arriving” and be alerted to destroy the contraband before it

could be discovered.      Id.

      Likewise, in this case, exigent circumstances arose once SA

Coyle and his colleagues, “in two or three cars,” approached HM2

Guest and his friend outside the Jackson Avenue house.             Once the

NCIS agents had “tipped their hand,” SA Coyle could have

reasonably believed that appellant would have noticed what was

happening out front and would destroy evidence of his credit

card schemes.     SA Coyle knew before he went to Jackson Avenue

that appellant was suspected of being involved in an extensive

fraud scheme, and that he always carried a knapsack that might

contain evidence of the fraud.        It is reasonable to assume that

SA Coyle would have deduced that the evidence contained in the

knapsack might include items that are easily destroyed, such as

documents, credit card receipts, or credit card number

information.    SA Coyle knew that appellant was a deserter, and

that appellant likely understood that the Navy would be looking

for him.3   Moreover, once appellant tentatively peeked his head



3
  In United States v. Ayala, 26 MJ 190, 193 (CMA 1988), this Court held, inter
alia, that the appellant’s “actions in putting in for retirement and
clearing his quarters were strong indications of an intention on his part to
flee.” This was one of two factors considered in determining that exigent
circumstances existed to justify appellant’s immediate apprehension without
authorization of his commander. Likewise, because appellant was a deserter,
and had deliberately absconded from the Navy, SA Coyle could reasonably have
believed that appellant might flee the area before he could obtain a search
warrant.


                                     18
United States v. Khamsouk, No. 01-0387/NA


around the corner of the living room, with a scared look on his

face, SA Coyle had even more reason to believe that, if allowed

to, appellant would attempt to destroy evidence of his crimes.

     This also is not a case where law enforcement officers

“manufactured” exigent circumstances to obtain entry into HM2

Guest’s home.    See United States v. Tarazon, 989 F.2d 1045, 1050

(9th Cir. 1993)(officers did not create exigent circumstances as

means of obviating need for obtaining warrant when they believed

they had probable cause to enter only after they went to

establishment and circumstances arose indicating that suspects

inside might suspect presence of law enforcement and destroy

evidence).   To the contrary, SA Coyle did not know whether

appellant was at the Jackson Avenue house until HM2 Guest told

him so.   At that point, the “cat was out of the bag, and exigent

circumstances arose justifying the entry into the house.

     It is worth noting that the intrusion here was minimal and

tailored to the circumstances as they developed.    The NCIS

agents did not conduct a search of HM2 Guest’s house; rather

they merely seized appellant’s knapsack, which was found near

appellant, and his duffel bag, which HM2 Guest located for the

NCIS agents.    To the extent that HM2 Guest’s privacy interests

were invaded that day, the intrusion was remarkably

circumscribed and reasonable in the face of rapid developments.

Indeed, if NCIS agents had pursued an alternate course of action


                                 19
United States v. Khamsouk, No. 01-0387/NA


and secured the Jackson Avenue house while they sought a search

warrant, HM2 Guest’s privacy interests as a resident and

homeowner would have been invaded in a much more onerous

fashion.    At a minimum, he would have been prevented from

enjoying the interior of his house for a much longer period of

time.    It is also reasonable to assume that, had the NCIS agents

obtained a search warrant, the search for evidence would have

taken much longer and would have involved a larger area of the

house.    See Chambers v. Maroney, 399 U.S. 42, 51 (1970)(Court

unwilling to characterize an immediate search as a greater

intrusion than a seizure and an indefinite immobilization while

securing warrant); United States v. Johnson, 862 F.2d 1135, 1139

(5th Cir. 1988)(detaining suspects while obtaining search

warrant more intrusive than immediate search).

     Because the NCIS agents acted reasonably in the face of

exigent circumstances, the evidence seized as a result of that

apprehension was properly admitted by the military judge.

                          Exclusionary Rule

     The exclusionary rule has been applied by federal, state,

and military courts to violations of the Fourth Amendment right

to privacy, violations of the Fifth Amendment, U.S. Const.

amend. V, due process and self-incrimination clauses, and Sixth

Amendment, U.S. Const. amend. VI, right to counsel.   In

describing the application of the exclusionary rule, the courts


                                 20
United States v. Khamsouk, No. 01-0387/NA


have, over the years, declined to apply the exclusionary rule

where there is attenuation, an independent source, or inevitable

discovery.   Regardless of the violation, courts have applied the

Brown v. Illinois, 422 U.S. 590 (1975), factors.   Thus, I agree

with the majority in applying the Brown factors to this case.

     On Issue III, I dissent for the reasons set forth in my

separate opinion in United States v. Tardif, ___ MJ ___ (2002).




                                21
United States v. Khamsouk, 01-0387/NA

GIERKE, Judge (concurring in part and dissenting in part):

    I agree with the lead opinion’s disposition of Issue III.

With respect to Issues I and II, I agree with the lead opinion’s

conclusion that appellant’s apprehension was unlawful, because a

DD Form 553 is not the equivalent of a civilian arrest warrant.

However, I disagree with the lead opinion’s resolution of Issues

I and II.    Finally, I agree with Judge Effron’s conclusion that

all three prongs of the attenuation analysis set out in Brown v.

Illinois, 422 US 590 (1972), would weigh in appellant’s favor if

it were applicable to this case.

    The lead opinion’s attenuation analysis rests on the premise

that the Government met its burden of proving that appellant’s

consent was voluntary.      ___ MJ at (23, 29-30).   I disagree with

that premise.     Thus, in my view, the Brown attenuation analysis

is not applicable to this case.

    The predicate question is whether appellant voluntarily

consented to the search.       The lead opinion recognizes that “if

appellant’s consent, albeit voluntary, is determined to have been

obtained through exploitation of the illegal entry, it can not be

said to be sufficiently attenuated from the taint of that entry.”

___ MJ (22).    However, if appellant’s consent was not truly

voluntary, the search was illegal, and we do not reach the issue

of attenuation.

    In my view, the military judge’s finding that appellant

voluntarily consented was clearly erroneous.       See United States
United States v. Khamsouk, 01-0387/NA


v. Radvansky, 45 MJ 226, 229 (1996).         A major factor undermining

the military judge’s finding is the short time between the

unlawful apprehension and appellant’s execution of the consent

form.   Appellant was caught by surprise when Special Agent Edward

M. Coyle burst into Hospital Corpsman Second Class (HM2) Tom

Guest’s home, followed by three other Naval Criminal

Investigative Service (NCIS) agents.         While surrounded by four

NCIS agents, appellant signed the preprinted consent form within

15-20 minutes of his apprehension.          Although the record reflects

that appellant was orally advised of his Article 31, Uniform Code

of Military Justice, 10 USC § 831, rights, there is no evidence

that he was orally advised of his right to refuse to consent to

the search.    The only evidence that appellant was aware of his

right to refuse to consent is the small print on the consent

form.   In contrast to the Article 31 rights advisement form,

where appellant indicated his understanding of his rights by

placing his initials beside the listing of each right, appellant

did not similarly initial the statement on the consent form

acknowledging his awareness of his right to refuse to consent to

the search.

    The Government had the burden of proving by clear and

convincing evidence that appellant voluntarily consented.         Mil.

R. Evid. 314(e), Manual for Courts-Martial, United States (2000

ed.).   Because I believe that the Government failed to meet its

burden of proving voluntary consent, I do not reach the

attenuation issue.


                                        2
United States v. Khamsouk, 01-0387/NA


    Finally, I believe that the illegal apprehension and searches

made appellant’s subsequent confession inadmissible.      Although

appellant was warned of his Article 31 rights, he was not given a

cleansing warning.      Once the incriminating evidence was seized

during the searches of the knapsack and the duffel bag, the

Government had a heavy burden to show that appellant’s subsequent

waiver not only met the standard of voluntariness under the Fifth

Amendment, U.S. Const. amend. V, and Article 31, UCMJ, but that

it was “sufficiently an act of free will to purge the primary

taint” of the previous unlawful apprehension and search.      Brown,

422 U.S. at 602, (quoting Wong Sun v. United States, 371 U.S.

471, 486 (1963)).     In my view, the Government failed to carry its

burden, and the military judge erred by admitting the confession

into evidence.

    I would set aside the affected findings and sentence and

authorize a rehearing.




                                        3
United States v. Khamsouk, No. 01-0387/NA




     EFFRON, Judge (concurring in part and dissenting in part):

     I agree with the lead opinion’s conclusion that, at a

minimum, a remand is necessary to address the violation of

appellant’s right to reasonably prompt post-trial processing.   I

also agree with the lead opinion’s conclusion that under the

Fourth Amendment, U.S. Const. amend. IV, and RCM 302, Manual for

Courts-Martial, United States (2000 ed.), a Department of

Defense (DD) Form 553 is not the equivalent of a civilian arrest

warrant.   For the reasons set forth below, I respectfully

disagree with the lead opinion’s conclusion that no relief is

warranted with respect to the violation of appellant’s rights

under the Fourth Amendment and R.C.M. 302.

     The Naval Criminal Investigative Service (NCIS) agents

entered a private home without a valid warrant to apprehend

appellant for unauthorized absence.   ___ MJ at (19-20).

According to the military judge, their subsequent search of

appellant’s belongings was not justified by exigent

circumstances, such as protection of the safety of the NCIS

agents, and did not otherwise constitute a valid search incident

to apprehension.   In light of these considerations, the critical

issue in this case is whether the Fourth Amendment violation

impermissibly tainted appellant’s subsequent consent to the

search of his belongings.


                                 1
United States v. Khamsouk, No. 01-0387/NA


     The lead opinion relies on Brown v. Illinois, 422 U.S. 590

(1975), for the analytical framework.   Brown involved the

admissibility of a confession obtained after an illegal arrest.

As noted in the lead opinion, the Supreme Court identified the

critical issue as whether the statement was “the product of free

will,” which it viewed as an issue to be “answered on the facts

of each case” in which “[n]o single fact is dispositive.”    ___

MJ at (22)-(23)(quoting Brown, 422 U.S. at 603).     The Court

emphasized the importance of considering admissibility “in light

of the distinct policies and interests of the Fourth Amendment,”

and identified three relevant factors: (1) “[t]he temporal

proximity of the arrest and the confession”; (2) “the presence

of intervening circumstances”; and (3) “particularly, the

purpose and flagrancy of the official misconduct.”    Brown, 422

U.S. at 604.   In Brown, despite the fact that appellant’s

statements were preceded by rights warnings under Miranda v.

Arizona, 384 U.S. 436 (1966), the Court concluded that under the

particular circumstances of the case, the government had failed

to meet its burden of showing that the evidence should have been

admitted. 422 U.S. at 604-05.

     In the present case, the lead opinion applies the Brown

factors by analogy to assess whether appellant’s consent to the

seizure and search of his knapsack and duffel bag, and the

confession obtained as a result of that search, were the product


                                 2
United States v. Khamsouk, No. 01-0387/NA


of circumstances sufficiently attenuated from the Fourth

Amendment violations.      It proceeds on the assumption that the

first two factors -- temporal proximity and intervening

circumstances -- favor appellant.         See ___ MJ at (26).      Assuming

that Brown is applicable to the present case,1 the validity of

the consent under the lead opinion’s analytical framework turns

on Brown’s third factor -- the purpose and flagrancy of the

official misconduct.

      The Government bears the burden of demonstrating

attenuation of appellant’s consent from the preceding

illegalities by clear and convincing evidence.           Mil.R.Evid.

314(e)(5), Manual, supra; see also Florida v. Royer, 460 U.S.

491, 507-08 (1983).      For the reasons set forth below, the

Government did not carry its burden in the present case.



                                 DISCUSSION

      The draft opinion concludes that the consent was

sufficiently attenuated under Brown’s third factor, relying on

Special Agent (SA) Edward M. Coyle’s belief that he had a valid

warrant to apprehend appellant for unauthorized absence, his

concern for safety during the apprehension, and his use of a


1
  But cf. People v. Robbins, 369 N.E.2d 577, 581 (1977)(holding that the Brown
analysis ordinarily is not necessary when an illegal search constitutes the
“poisonous tree” that produces a confession because “[c]onfronting a suspect
with illegally seized evidence tends to induce a confession by demonstrating
the futility of remaining silent.”)


                                      3
United States v. Khamsouk, No. 01-0387/NA


form that advised appellant of his right to refuse permission

for the search.   ___ MJ at (30-35).    SA Coyle’s actions,

however, went far beyond these considerations, providing

substantial evidence of purposeful and flagrant conduct in

disregard of applicable restrictions on search and seizure.



                            1.    Purpose

     The record indicates that although SA Coyle believed he had

a valid warrant to apprehend appellant for desertion, the

primary purpose of the law enforcement activity at issue was to

search and seize appellant’s knapsack in furtherance of the

ongoing fraud investigation.     SA Coyle had been advised that

“whenever [appellant] went out, he carried . . . a black

knapsack, which was known to carry . . . fraudulent credit cards

or stolen credit cards and credit card receipts.”     When SA Coyle

went to the private residence to apprehend appellant, he knew

that he lacked probable cause to obtain a warrant to search for

evidence of the aforementioned financial crimes, and that he

could not seize appellant inside a third party’s home without a

search warrant.   His plan was to set up surveillance on the

private residence, wait for appellant to depart, apprehend him

outside, and seize the knapsack incident to the apprehension.

See Payton v. New York, 445 U.S. 573 (1980); Wilson v. Layne,

526 U.S. 603, 611 (1999).   Despite his stated belief that he


                                   4
United States v. Khamsouk, No. 01-0387/NA


could not enter the premises without a search warrant, SA Coyle

entered anyway, in the absence of either exigent circumstances

or the homeowner’s consent.

      Even if SA Coyle had a reasonable belief that the DD Form

553 was a substitute for a civilian arrest warrant, his actions

exceeded the scope of authority that would have inhered in an

arrest warrant, including the limited authority to take

protective actions.      See Discussion, infra part 2.        Once SA

Coyle apprehended appellant three feet inside the home of

Hospital Corpsman Second Class (HM2) Tom Guest, the arrest was

complete and further entry was not authorized.           See Payton,

supra; United States v. Albrektsen, 151 F.3d 951, 954-55 (9th

Cir. 1998); see also Dunaway v. New York, 442 U.S. 200, 218

(1979)(quoting Brown, 422 U.S. at 605).2          The disregard of well-

established principles of law by an experienced law enforcement

officer underscores the purposeful and flagrant nature of the

Fourth Amendment violations.




2
  It is noteworthy that the military judge expressly found that, at the time
of the officers’ entry:

      No exigent circumstances existed requiring immediate apprehension of
      [Appellant]. [Appellant] made no effort to escape and engaged in no
      peculiar actions. NCIS knew of no evidence that could be destroyed or
      secreted away, and [SA] Coyle had with him enough back up agents to
      secure the premises and obtain a separate warrant had he chosen to do
      so.


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United States v. Khamsouk, No. 01-0387/NA


                             2. Safety

     When executing an arrest warrant in a home, law enforcement

officials may conduct a protective sweep incident to the arrest

if they have “a reasonable belief based on specific and

articulable facts which, taken together with the rational

inferences from those facts, reasonably warrant[s] the officer

in believing that the area swept harbor[s] an individual posing

a danger to the officer or others.”   Maryland v. Buie, 494 U.S.

325, 327 (1990)(quoting Michigan v. Long, 463 U.S. 1032, 1049-50

(1983); Terry v. Ohio, 392 U.S. 1, 21 (1968)).   The search must

be “narrowly confined to a cursory visual inspection of those

places in which a person might be hiding,” and, consistent with

Payton, may last “no longer than is necessary to dispel the

reasonable suspicion of danger and in any event no longer than

it takes to complete the arrest and depart the premises."     Id.

at 335-36.   Likewise, if lawfully within the premises to make an

arrest, the police may search the premises in order to locate

the individual to be arrested.   Id. at 330.

     In this case, even if SA Coyle had possessed a valid arrest

warrant, his conduct far exceeded the authority that would have

been provided by such a document.    Under Payton and Buie,

requirements which would have been well-known to an experienced

law enforcement official such as SA Coyle, with a decade of

field experience, an arrest warrant would have conferred the


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United States v. Khamsouk, No. 01-0387/NA


limited authority to: (1) enter the home, which according to SA

Coyle involved a distance of only three feet; (2) locate and

apprehend appellant in the foyer; and (3) remove appellant from

the premises.    See Albrektsen, 151 F.3d at 955 (“[T]he mere

existence of an arrest warrant does not authorize entry into a

defendant’s home, where there is no necessity to enter because

the defendant can be arrested at the threshold”); Horton v.

California, 496 U.S. 128, 140 (1990)(“If the scope of the search

exceeds that permitted by the terms of a validly issued warrant

. . . the subsequent seizure is unconstitutional without more”).

Once the law enforcement officials entered the dwelling and

apprehended appellant in the foyer, appellant’s seizure for

unauthorized absence -- “the objective of the authorized

intrusion” -- was complete.   See Wilson, 526 U.S. at 611.

Nevertheless, the NCIS agents did not remove appellant from the

premises, but instead, continued the intrusion into the home to

further the aims of a separate matter -- the fraud

investigation.   They moved appellant into the living room,

searched the couch for weapons, placed him on the couch,

retrieved a consent to search form from their automobile,

procured appellant’s signature on the consent form, obtained HM2

Guest’s consent to search the home for appellant's belongings,

seized the knapsack and a duffel bag, and then departed.




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United States v. Khamsouk, No. 01-0387/NA


     Although it was well within his authority to take actions

necessary to protect his safety and the safety of his fellow law

enforcement officers, SA Coyle’s actions reflect that his

concern over the contents of the knapsack prevailed over

concerns about safety.    He not only failed to conduct a

protective sweep of the residence upon entry, but he also sent a

lone agent upstairs with the owner of the residence to secure

appellant’s duffel bag.    SA Coyle went well beyond the steps

necessary to apprehend appellant and remove him from the

residence -- out of the range of potential weapons and

accomplices.   Instead, SA Coyle moved appellant further into the

residence.   He moved appellant from the foyer, where the items

were not within appellant’s reach, into the living room, near

the items he wanted to search.    Such actions make it

inappropriate to rely on officer safety as a basis for

sustaining the consent under Brown, and underscores the

purposefulness of the Fourth Amendment violations.    Cf. United

States v. Mason, 523 F.2d 1122, 1126 (D.C. Cir. 1975) (officers

conducting an arrest may not “lead the accused from place to

place and use his presence in each location to justify a 'search

incident to arrest'”).




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United States v. Khamsouk, No. 01-0387/NA


                        3.   The Consent Form

     The lead opinion notes that the form used to record

appellant’s consent stated that he could refuse to grant

permission to search.   The lead opinion contends that because

there is no legal requirement to provide such advice, provision

of such advice suggests that the NCIS agents were not attempting

to exploit the illegality and, therefore, did not act in a

purposeful or flagrant manner.    ___ MJ at (30).

     It is noteworthy that the information at issue was

contained in a preprinted form, and was not verbally

communicated to appellant.    Appellant was apprehended at 1:25

p.m., and he signed the consent form within 15 to 20 minutes of

his apprehension while surrounded by four NCIS agents.    Although

the record reflects that appellant was advised orally of his

rights against self-incrimination under Article 31, Uniform Code

of Military Justice, 10 USC § 831, the record does not reflect

any oral advice of his right to refuse consent to the search.

Instead, the only evidence of advice regarding the search was

the small print on the consent form that was provided to

appellant in the immediate environment of his apprehension.

Under these circumstances, use of a preprinted form does not

satisfy the Government’s burden to show that the officer’s

conduct was neither purposeful nor flagrant.    Cf. United States

v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)(use of a consent


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United States v. Khamsouk, No. 01-0387/NA


form following a lengthy conversation between the officer and

accused indicated a lack of flagrant officer conduct when the

officer also explained in English and Spanish that appellant had

a right to refuse consent).   Furthermore, advisement of rights

alone does not act to sever the taint of the prior illegality.

Brown, 422 U.S. at 603.



                           4. Conclusion

     SA Coyle sought to secure appellant’s knapsack in

furtherance of a financial fraud investigation.    He lacked

probable cause to seize this item, so he sought to capitalize on

an unrelated charge of unauthorized absence as a means of

apprehending appellant while carrying the knapsack.    His plan

did not work as he had hoped, however, because he confronted

appellant when he was not carrying the knapsack.    The scope of

the DD Form 553 relied upon by SA Coyle was limited to

apprehension for unauthorized absence, and the actions of the

NCIS agents in making that apprehension went far beyond the

requirements for an apprehension or protection of officer

safety.

     The lead opinion suggests that SA Coyle acted with a

subjective good faith belief that his actions were permissible.

__ MJ at (30-33).   We need not reach a judgment, however, as to

his subjective beliefs.   The attenuation analysis in Brown


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United States v. Khamsouk, No. 01-0387/NA


cautions against reliance on the subjective good faith of a law

enforcement officer, particularly with regard to assessing the

purposefulness and flagrancy of the law enforcement officer’s

conduct.   Brown’s attenuation analysis is designed to ameliorate

the societal costs of employing the exclusionary rule by

precluding its application at the point where it loses its

deterrent effect.   As the Supreme Court noted in United States

v. Leon, 468 U.S. 897 (1984), “[i]f subjective good faith alone

were the test, the protections of the Fourth Amendment would

evaporate, and the people would be ‘secure in their persons,

house, papers, and effects’ only in the discretion of the

police.”   Id. at 915 n.13 (quoting Beck v. Ohio, 379 U.S. 89, 97

(1964)).   We should evaluate an officer’s conduct by considering

whether a reasonably well-trained officer would have acted

similarly under the circumstances.   Id. at 923; see also Malley

v. Briggs, 475 U.S. 335, 345 (1986)(“reasonably well-trained

officer” is standard for assessing whether an officer is

entitled to qualified immunity for applying for a warrant that

is subsequently held invalid for lack of probable cause).    In

the present case, a reasonably well-trained officer should have

known that the scope of the law enforcement investigation

undertaken after apprehension of appellant was not permissible

under well-established law.




                                11
United States v. Khamsouk, No. 01-0387/NA


     Under these circumstances, the Government has not met its

burden to demonstrate the validity of the consent under the

third prong of Brown.   I also agree with Judge Gierke’s

conclusion that the Government has not met its burden under

applicable voluntariness standards.   The evidence obtained as a

result of the search, including appellant’s related confession,

should have been suppressed.   Our Court should set aside the

affected findings and the sentence, and authorize a rehearing.




                                12
United States v. Khamsouk, No. 01-0387/NA


    SULLIVAN, Senior Judge (concurring in part and dissenting in

 part):


    I would affirm this case, and I see no reason for a remand.

I only agree with the lead opinion that evidence seized from

appellant’s knapsack and duffel bag and his confession at the

Naval Criminal Investigative Service (NCIS) field office were

admissible at his court-martial.   I do not agree with the lead

opinion’s conclusion that appellant’s arrest, without civilian

search or arrest warrants, violated the Fourth Amendment.

Moreover, I do not agree with its remand of this case under

United States v. Tardif, __ MJ __ (2002).   See id. (Sullivan,

S.J., dissenting).

    Appellant was arrested in Hospital Corpsman Second Class

(HM2) Tom Guest’s private off base residence in Chesapeake,

Virginia, by Special Agent (SA) Edward M. Coyle, a civilian

special agent of the NCIS.   His arrest was directed by a command

- issued Department of Defense Form 553 (Sep 89) Report of

Deserter/Absentee Wanted By The Armed Forces, and Article 8,

Uniform Code of Military Justice, 10 USC §838.   In my view this

arrest order is the equivalent of a civilian arrest warrant for

purposes of Fourth Amendment analysis.   See generally, United

States v. Stringer, 37 MJ 120, 126 (CMA 1993);   see also United

States v. Mitchell, 12 MJ 265, 269 (CMA 1982);   cf. United States

v. Thompson, 33 MJ 218, 219 (CMA 1991)(noting that accused was

arrested in residence in civilian community during undercover
United States v. Khamsouk, No. 01-0387/NA

operation involving Air Force Office of Special Investigations

agents).    Whether appellant was a house guest rather than a

resident of HM2 Guest’s house, for purposes of the Fourth

Amendment and R.C.M. 302(e), Manual for Courts-Martial, United

States (1995 ed.), is an interesting question of law which I need

not answer in this case.    See Watts v. County of Sacramento, 256

F.3d 886, 889 (9th Cir. 2001); cf. United States v. Gamez-Orduño,

235 F.3d 453, 458-460 (9th Cir. 2000); United States v. Salazar,

44 MJ 409, 414 (1996).

    In this case, the owner of the house, HM2 Guest, tried to

lure appellant out of his house so that the NCIS agents, armed

with a properly authorized arrest document, could make a safe

arrest.    When appellant showed himself to SA Coyle at the doorway

of the house during this attempt, SA Coyle acted reasonably to

pursue and seize appellant when he suddenly retreated into the

living room of the house.    SA Coyle testified that he was

concerned for “officer safety” since he could not tell whether

anyone else or any weapon was in the living room where appellant

fled.

    In my view, this evidence shows that the law enforcement

officers acted reasonably and responsibly in seizing appellant in

the house of HM2 Guest.    See United States v. Santana, 427 U.S.

38 (1976).   Furthermore, HM2 Guest consented to the search of his

home.   The Fourth Amendment requires only that searches and

seizures be reasonable.    That is what the record in this case

supports.    Accordingly, I see no unreasonable search and seizure


                                  2
United States v. Khamsouk, No. 01-0387/NA

in violation of the Fourth Amendment in these circumstances.   Id.

See generally United States v. Stringer, 37 MJ at 126, 129 n.4;

United States v. Visser, 40 MJ 86, 91 (CMA 1994) (both applying

“reasonableness” standard to measure Fourth Amendment

constitutionality of government action in military context).




                                3
