

   
   
   
   U.S. v. Vassar



IN THE CASE OF
UNITED STATES, Appellee
v.
William J. VASSAR, Senior Airman
U.S. Air Force, Appellant
 
No. 98-0321
Crim. App. No. 32462
 
United States Court of Appeals for the Armed
Forces
Argued December 15, 1998
Decided September 27, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and CRAWFORD and EFFRON, JJ., joined. SULLIVAN,
J., filed a dissenting opinion.

Counsel
For Appellant: Captain Michael J. Apol
(argued); Colonel Douglas H. Kohrt (on brief); Captain W. Craig
Mullen.
For Appellee: Captain Tony R. Roberts
(argued); Lieutenant Colonel Michael J. Breslin and Major J.
Robert Cantrall (on brief); Colonel Brenda J. Hollis.
Military Judge: Linda S. Murnane
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his conditional guilty pleas, of wrongful
use of cocaine, wrongful use of marijuana, wrongful use of methylenedioxyamphetamine
(ecstasy), and wrongful use of methamphetamine, in violation of Article
112a, Uniform Code of Military Justice, 10 USC § 912a. The military
judge sentenced appellant to a bad-conduct discharge, confinement and partial
forfeitures for 12 months, and reduction to the lowest enlisted grade.
The convening authority reduced the confinement to 10 months in accordance
with the pretrial agreement, but otherwise approved the sentence. The Court
of Criminal Appeals affirmed the findings and the approved sentence in
an unpublished opinion.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING
TO SUPPRESS THE RESULTS OF APPELLANTS URINALYSIS TEST AS A RESULT OF INVALID
CONSENT, AND WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE
OF APPELLANT WHEN SHE RULED ON APPELLANTS MOTION TO SUPPRESS BY CONSIDERING
EVIDENCE ON THE ISSUE OF CONSENT "IN THE LIGHT MOST FAVORABLE TO THE PROSECUTION."

We hold that the military judge erred by applying
the wrong legal standard, but the error was harmless under the specific
facts of this case.

Factual Background
On April 15, 1996, appellant was scheduled
for duty beginning at 7:00 a.m. At about 7:45 a.m., he telephonically informed
his unit that he had been kicked in the head playing rugby, did not feel
well, and was going to sick call. Senior Master Sergeant (SMSgt) Ross overhead
the conversation and intervened, expressing concern that if appellant had
suffered a concussion, he should not try to drive.
SMSgt Ross drove to appellants house and took
him to the emergency room at the base hospital. While in appellants house,
SMSgt Ross had noticed the odor of stale marijuana, but he said nothing
about it to appellant. Appellant conversed normally and "looked fine" to
SMSgt Ross.
While appellant was being examined by a doctor
in the emergency room, SMSgt Ross called the first sergeant, Chief Master
Sergeant (CMSgt) Johnson, and told him that appellant had suffered a head
injury, that he had taken appellant to the emergency room, and that while
in appellants house, he "smelled the stench or the odor of marijuana."
CMSgt Johnson told SMSgt Ross to stay at the emergency room while he called
the base legal office.
Appellant was diagnosed as having suffered
a "closed head injury" and "probable post-concussive syndrome." After appellant
had been examined, SMSgt Ross told him that they needed to wait in the
emergency room. CMSgt Johnson arrived about 30 minutes later. SMSgt Ross
testified that CMSgt Johnson told appellant, "Due to the circumstances
around your injury, we need . . . you . . . to consent to a urinalysis."
CMSgt Johnson testified that he asked appellant, "Due to your injury, would
you consent to a urinalysis test?" Ross testified that appellant "said
yes almost immediately." No one advised appellant of his rights under
Article 31, UCMJ, 10 USC § 831, or informed him that SMSgt Ross had
smelled marijuana in his house.
Appellant, CMSgt Johnson, and SMSgt Ross went
to the laboratory in the hospital, where CMSgt Johnson asked the laboratory
technician for a consent form. The technician replied that the hospital
did not have consent forms, but that the Security Police usually provided
them. Based on his oral consent, appellant was asked to give a urine sample,
and he did so in the presence of SMSgt Ross. SMSgt Ross testified that
appellant had not been advised of his right to withdraw his consent at
the time he provided the sample. While appellant was providing the sample,
he and SMSgt Ross joked about the fact that "its kind of silly, with a
man watching a man."
After appellant provided the sample, they went
to the unit orderly room, where appellant signed a consent form and SMSgt
Ross witnessed it. SMSgt Ross and appellant took the consent form to the
hospital laboratory, but the technician refused to accept it because it
was not filled out correctly. SMSgt Ross thought that appellant was present
when the technician refused to accept the form, but he wasnt sure. They
returned to the orderly room where SMSgt Ross told CMSgt Johnson, in appellants
presence, that the laboratory would not test the sample without a properly
executed consent form. They executed a second consent form, signed by appellant
and witnessed by CMSgt Johnson and SMSgt Ross.
Both of the written consent forms executed
by appellant substantially recite that he was being asked to give "consent
for body fluid for urinalysis drug test due to an injury." Both forms recite
the following:

I know that I have the legal right to either
consent to a search, or to refuse to give my consent.

* * *
Before deciding to give my consent, I carefully
considered this matter. I am giving my consent voluntarily and of my own
free will, without having been subjected to any coercion, unlawful influence
or unlawful inducement and without any promise of reward, benefit, or immunity
having been made to me.

Technical Sergeant (TSgt) Stephen Potter, appellants
supervisor, testified that appellant was interviewed by agents of the Air
Force Office of Special Investigations after he provided the urine sample.
Appellant then knew that the urine had tested positive. TSgt Potter testified
that appellant told him that "if hed known that the test was going to
be positive, he would have refused it."
Appellant testified that, when CMSgt Johnson
came to the hospital, "[h]e said that he needed my consent, due to an injury,
and that it was policy." He did not testify about any matters except what
CMSgt Johnson said. Appellant did not say whether he would have consented
absent mention of the injury or the "policy."
The military judge made extensive findings
of fact, which she concluded with the following:

Based on the foregoing facts, considering
the evidence in the light most favorable to the prosecution, in accordance
with the [sic] United States v. Lowry, at 2 MJ 55, I find the Government
has established, by clear and convincing evidence, that the accuseds consent
was voluntary.

After reciting her rationale, she concluded her
ruling by stating:

Having observed the witnesses in court, their
demeanor and appearance, I am satisfied that the Government has established
the accuseds consent was voluntary, by clear and convincing evidence.

Appellant now argues that the military judge applied
the wrong legal standard when she viewed the evidence in the light most
favorable to the Government. He further argues that his consent was not
voluntary and the military judges finding of voluntary consent was clearly
erroneous.
The Government argues that any error associated
with the military judges use of the phrase, "in the light most favorable
to the prosecution," was harmless because the evidence of voluntary consent
was overwhelming.

Discussion
Mil. R. Evid. 314(e)(5), Manual for Courts-Martial,
United States (1995 edition),*
requires that consent to a search "be shown by clear and convincing evidence."
See United States v. Kitts, 43 MJ 23, 28 (1995). The prosecution
has the burden of proving that consent was freely and voluntarily given.
Bumper v. North Carolina, 391 U.S. 543 (1968).
Whether a purported consent is voluntary must
be determined from the totality of the circumstances. Mil. R. Evid. 314(e)(4);
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973); Kitts,
supra at 28. There is no requirement to give an Article 31 warning
before asking for consent. United States v. Goudy, 32 MJ 88, 91
n. 2 (CMA 1991). Failure to specifically advise a person of the right to
refuse consent is an important factor, but is not determinative. Goudy,
32 MJ at 90. It is permissible to use trickery to obtain consent so long
as it does not amount to coercion. See United States v. Richter,
51 MJ 213 (1999); United States v. Salazar, 44 MJ 464, 468-69 (1996).
We review a military judges ruling on a motion
to suppress for abuse of discretion. "We will reverse for an abuse of discretion
if the military judges findings of fact are clearly erroneous or if [the]
decision is influenced by an erroneous view of the law." United States
v. Reister, 44 MJ 409, 413 (1996), quoting United States v. Sullivan,
42 MJ 360, 363 (1995); citing Kitts, 43 MJ at 28; United States
v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). Consent
"is a factual determination that will not be disturbed on appeal unless
it is unsupported by the evidence or clearly erroneous." United States
v. Radvansky, 45 MJ 226, 229 (1996), quoting United States v. Kosek,
41 MJ 60, 64 (CMA 1994).
In United States v. Lowry, 2 MJ 55,
58-59 (1976), this Court held: "When there is no specific finding of fact
by the authorities below, we must regard all conflicts in the evidence,
as decided, in the light most favorable to the Government." Where there
are findings of fact, we review the evidence "in the light most favorable
to the Government." Kitts, 43 MJ at 28.
Lowry and Kitts set out our
appellate standard of review, not a trial standard for resolving questions
of fact. In this case it appears that the military judge may have mingled
the appellate standard for reviewing findings of fact with the trial standard
for making findings of fact. We agree with appellant that the military
judge erred if she evaluated the evidence in the light most favorable to
the Government.
A finding of consent based on an incorrect
legal test is an abuse of discretion. Reister, supra at 413.
In this case, however, we are satisfied beyond a reasonable doubt that
any incorrect view of the law held by the military judge was harmless,
because there is no evidence suggesting a lack of consent. Assuming without
deciding that any error implicates the Fourth Amendment and thus is constitutional
error, we are satisfied beyond a reasonable doubt that the error was harmless.
See Chapman v. California, 386 U.S. 18, 24 (1967); United
States v. Adams, 44 MJ 251, 252 (1996).
Appellant immediately gave oral consent when
asked for it. Notwithstanding his head injury, he was aware of his surroundings
and conversed normally. The atmosphere was non-coercive and sometimes light-hearted,
as reflected by the joking about the urinalysis. He signed the first written
consent form, which advised him that he had the right to refuse consent.
He signed the second consent form, knowing that the urine sample would
not be sent to the laboratory unless he consented. Most persuasively, his
comment to TSgt Potter, that he would have refused the test if he had known
it would be positive, demonstrates that he was aware of his right to withhold
consent. Even in his trial testimony, he stopped short of testifying that
he did not voluntarily consent. There simply was no conflicting evidence
to resolve. On this record, we conclude that any erroneous view of the
law held by the military judge was harmless beyond a reasonable doubt.

Decision
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All
Manual provisions are cited to the version applicable at trial. The 1998
version is unchanged, unless otherwise indicated.
 
 
SULLIVAN, Judge (dissenting):
I dissent.  I agree with the majority
that the trial judge committed error by using the wrong legal standard
when she evaluated the evidence in deciding the motion to suppress.  
Unlike the majority, I cannot find that this key legal error was harmless. 
The undisputed facts surrounding giving the consent when viewed through
the eyes of a reasonable person are rather a close call on the existence
of voluntary consent.  I dont see how the majority can say that it
was harmless for the judge to weigh the facts at the suppression hearing
using a clearly wrong legal standard.  If the judge had used the right
standard, perhaps the judge would have suppressed the urinalysis evidence.*/ 
Without the urinalysis evidence, the prosecution had no case at all. 
Accordingly, the judges error cannot be viewed as harmless.
It is important to note that this error was
not even mentioned at the court below or uncovered by that court in its
review.  This error was first uncovered by our Court in its review
and the issue was granted as a specified issue by our Court.  Thus,
the court below with its special factfinding power has never had the opportunity
to examine whether the judges error was harmless.  I dissent because
in my view the facts and fair play required our Court (a court of law)
to remand this case to the court below to let them use their statutory
powers to determine whether the trial judges error was harmless or whether
that error deprived appellant of a full and fair consideration of his motion
to suppress.
If the court below finds the error was not
harmless, perhaps then that court should remand the case to the trial level
for an evidentiary hearing where this appellant could have his rightful
fair and legally correct hearing on his suppression motion.
FOOTNOTE:
*/  The facts that were
presented to the judge at the fatally flawed suppression hearing do raise
evidence that could lead a reasonable person to believe that there might
not have been voluntary consent to the urinalysis.  The fact that
appellant at the hospital was diagnosed as having post-concussive syndrome
may lead a factfinder to rule that appellant did not have the full mental
faculties to give voluntary consent.  The fact that CMSgt Johnson,
appellants First Sergeant, and SMSgt Ross, appellants immediate supervisor,
took appellant to a small room in the hospital to ask for his consent may
lead a factfinder to find this procedure a coercive enough military environment
to void the consent.  The further fact that appellant was given the
impression that the urinalysis was part of the medical treatment for his
head injury may alone lead a factfinder to rule that tricking a injured
person to consent to a urinalysis when he is at the hospital for a head
injury may not be a voluntary act.  The person in the hospital may
believe that giving some of his body fluids for testing was a necessary
medical procedure in order to receive proper medical treatment.  All
of the above facts do raise the question of voluntariness and should have
been presented to a factfinder who was using the correct legal standard
to view the facts.

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