

   
   
   
   U.S. v. Richter



IN THE CASE OF
UNITED STATES, Appellee
v.
Jeffrey R. RICHTER, Technical Sergeant
U.S. Air Force, Appellant
 
No. 98-0109
Crim. App. No. 32106
 
United States Court of Appeals for
the Armed Forces
Argued November 17, 1998
Decided August 9, 1999
GIERKE, J., delivered the opinion
of the Court, in which COX, C.J., and EFFRON, J., joined. SULLIVAN, J.,
filed an opinion concurring in part and dissenting in part. CRAWFORD, J.,
filed an opinion concurring in the result.

Counsel
For Appellant: Captain Tishlyn Taylor
(argued); Colonel Douglas H. Kohrt and Captain W. Craig Mullen
(on brief).
For Appellee: Major Eric D. Placke
(argued); Lieutenant Colonel Michael J. Breslin and Lieutenant
Colonel Anthony P. Dattilo (on brief); Major Ronald A. Rodgers
and Captain Martin J. Hindel.
Military Judge: Charles W. Hasskamp
 

THIS OPINION
IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge GIERKE delivered the opinion of
the Court.
A general court-martial composed of
officer members convicted appellant, contrary to his pleas, of dereliction
of duty, wrongful disposition of military property (3 specifications),
larceny, and wrongful disposition of property to prevent seizure (2 specifications),
in violation of Articles 92, 108, 121, and l34, Uniform Code of Military
Justice, 10 USC §§ 892, 908, 921, and 934, respectively. The
adjudged and approved sentence provides for a bad-conduct discharge, confinement
for 6 months, and reduction to airman basic. The Court of Criminal Appeals
affirmed the findings and sentence in an unpublished opinion.
This Court granted review of the following
issues:


I
WHETHER THE MILITARY JUDGE ERRED BY
DENYING THE MOTION TO SUPPRESS EVIDENCE SEIZED FROM APPELLANTS TRUCK,
HOME, GARAGE, AND STORAGE AREAS.

A
WHETHER THE MILITARY JUDGE ERRED BY
CONCLUDING THAT SGT MAXWELL WAS NOT ACTING AS A GOVERNMENT AGENT OR WITH
COLOR OF AUTHORITY WHEN [U.S. AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS
(OSI)] AGENTS DIRECTED HER TO PLACE A PRETEXT CALL TO APPELLANT FALSELY
INFORMING HIM THAT OSI AGENTS SAID THEY HAD A SEARCH WARRANT AND WERE PRESENTLY
ON THEIR WAY TO SEARCH HIS HOME.

B
WHETHER THE MILITARY JUDGE ERRED BY
CONCLUDING THAT APPELLANT VOLUNTARILY CONSENTED TO THE SEARCH OF HIS TRUCK
CAB, GIVEN THAT AGENTS HAD ALREADY SEIZED EVIDENCE OUT OF THE BACK OF HIS
TRUCK, HE WAS UNDER APPREHENSION AND PLACED IN A LOCKED SECURITY POLICE
CAR, HE WAS NOT ADVISED OF HIS ARTICLE 31 RIGHTS, AND HE REASONABLY BELIEVED
OSI ALREADY HAD A SEARCH WARRANT SINCE OSI LIED TO HIM THROUGH THEIR AGENT
ABOUT THE EXISTENCE OF A WARRANT.

C
WHETHER THE MILITARY JUDGE ERRED BY
CONCLUDING THAT APPELLANT VOLUNTARILY CONSENTED TO THE SEARCH OF HIS HOME,
GIVEN THAT AGENTS ALREADY SEIZED EVIDENCE OUT OF THE FRONT AND BACK OF
HIS TRUCK, HE WAS UNDER APPREHENSION AND TAKEN TO AN OSI INTERVIEW ROOM,
HE WAS NOT ADVISED OF HIS ARTICLE 31 RIGHTS, HE WAS DENIED HIS REQUEST
TO CALL HIS HOME, AND HE REASONABLY BELIEVED THE OSI ALREADY HAD A SEARCH
WARRANT SINCE OSI INTENTIONALLY LIED TO HIM THROUGH THEIR AGENT ABOUT THE
EXISTENCE OF A SEARCH WARRANT.

II
WHETHER, AFTER THE CONVENING AUTHORITY
DENIED A DEFENSE REQUEST FOR IMMUNITY FOR AN EXCULPATORY WITNESS BUT GRANTED
A PROSECUTION REQUEST FOR IMMUNITY FOR FIVE INCULPATORY WITNESSES, THE
MILITARY JUDGE ERRED BY FAILING TO EITHER DIRECT THE CONVENING AUTHORITY
TO GRANT THE REQUESTED IMMUNITY OR ABATE THE PROCEEDINGS.

III
WHETHER THIS COURT SHOULD ORDER A DUBAY
HEARING TO EXAMINE THE ALLEGATION THAT MAJOR PETERSON, THE PREFERRAL COMMANDER,
WAS IMPROPERLY PRESSURED BY THE LEGAL OFFICE TO PREFER CHARGES.

Factual Background  Issue
I (Motion to Suppress)
Appellant was the noncommissioned officer-in-charge
(NCOIC) of the Combat Supply Station at Nellis Air Force Base, Nevada,
working at Indian Springs Air Base. Appellant is a 34-year-old security
policeman with 16 years of service. His experience as a security policeman
has been in area security, not law enforcement.
Special Agent (SA) Karl Langman, a
member of the OSI at Nellis Air Force Base, testified that a member of
the Ground Combat Training Flight (GCTF), Sergeant (Sgt) Joseph Marshall,
informed him that a number of individuals were stealing and diverting government
property for personal use. Sgt Marshall identified appellant as one of
the individuals involved. In a statement dated March 30, 1995, Sgt Marshall
related that appellant had been seen loading some tents into another NCOs
vehicle. In a statement dated April 3, 1995, Sgt Marshall said that appellant
took a government-owned mountain bike that was being turned in as excess
government property. Sgt Marshall did not say specifically when he observed
appellants conduct, but SA Langman was under the impression it was in
early 1995. SA Ray, the OSI operations superintendent, recalled SA Langman
telling him that Sgt Marshall said that appellants garage "is like a warehouse."
SA Langman also was aware of three
audit reports from the Air Force Audit Agency indicating lack of control
or accountability for government property in appellants unit. He remembered
that night-viewing devices and radios were reported as missing in the audit
reports.
SA Langman testified that, after receiving
the information from Sgt Marshall, he also interviewed Sgt Kimberly Maxwell,
a member of GCTF. Sgt Maxwell told him that appellant gave her a medical
cabinet. She consented to a search of her residence and the cabinet was
seized.
After interviewing Sgt Maxwell, SA
Langman and SA Ray concluded that appellant probably had government property
in his quarters. They asked Sgt Maxwell to make a pretext telephone call
to appellant. She was instructed to tell appellant that her house had been
searched by the OSI and the medical cabinet seized, and that she had overheard
a conversation to the effect that OSI had a warrant and "possibly" was
coming to his house next. SA Ray testified that Sgt Maxwell told appellant:
OSI was at my house, they
had a search warrant. They took the medical chest that you said I could
have. Im scared. I heard them say that they might be coming to your house
next, they have a search warrant.
Appellants recollection of the telephone
call was similar. He testified that Sgt Maxwell told him "[t]hat OSI had
a search warrant and they had been to her house, and they picked up the
medical shelf that she had, and she overheard that they had a search warrant
and they were coming to [his] house."
Before Sgt Maxwell made the call, SA
Landman and several other investigators positioned themselves to watch
appellants residence. A second police unit was positioned to stop appellants
vehicle "when and if he departed his house with property." SA Ray explained
that the purpose of the telephone call was, "if he did indeed have property
as alleged, that it might prompt him to leave the house with the property."
SA Joseph Wentela described the purpose of the telephone call similarly:
We were going to have a phone
call made and see what his reaction was going to be . . . to see if he
did in fact try to take equipment that he may not need to have at home
back to his work center or somebody elses house, just to try to get rid
of some equipment that he shouldnt have.
A few moments after Sgt Maxwell made the
call, SA Langman observed "two white individuals" near a storage shed alongside
the garage. One individual appeared to be loading items in the bed of a
truck. They also observed someone near the garbage can. Because it was
getting dark, SA Langman was unable to identify the person loading the
truck. They could not see whether the person was removing items from the
storage shed and placing them in the garbage can or in the bed of the truck.
SA Langman observed the person who
had been loading items into the bed of the truck get into the cab, start
the engine, and begin to drive toward the "Craig Road gate." The second
police team stopped the truck. They used headlights and flashlights for
illumination. As SA Langman approached the truck from the rear, two other
investigators pointed out "apparent government property" in an open box
in the bed of the truck.
Appellant, who was driving, asked why
he had been stopped, and SA Langman told him he was "under investigation
for larceny of government property." SA Langman testified that appellant
then made a "spontaneous statement" that "he was taking [the] government
property back to work and there was more at his house." SA Langman testified
that he cautioned appellant "that he was under investigation for larceny
of government property and not to make any more statements." SA Langman
seated appellant in the back of a police vehicle, but did not advise him
at this point of his rights under Article 31, UCMJ, 10 USC § 831.
Appellant testified that he was stopped
and frisked by Sgt Rogers, a security policeman, after his truck was stopped.
He testified that SA Langman told him, "Youre being charged with larceny
of government property from GCTF." He then heard someone say, "We have
night vision," and he saw Sgt Rogers holding up the case for a night vision
device. He testified that SA Langman told Sgt Rogers, "Seize it for plain
view." He testified that he then said, "Yes, theyre in there, Im on my
way to work." He testified that SA Langman asked him, "Then why are you
going out this gate?" He responded, "Because the gate by the youth center
is normally closed at sundown." When appellant said he was going to work,
SA Langman said, "No, we know where youre going, youre going to your
friend Nelsons." Master Sergeant (MSgt) Steven Nelson was appellants
supervisor, who was also suspected of theft and diversion of government
property.
SA Langman testified that, from his
vantage point on the sidewalk, he could see a large box in the bed of the
truck. The box contained a night viewing device, some winter-weight "bunny
boots," and some camouflage netting. The box was open, so that its contents
were visible.
In his testimony on the motion to suppress,
appellant admitted having government property in his truck. He admitted
putting a battery charger and battery for a radio, a carrying case for
a "Maxibeam" light, a global positioning system, and a camping stove in
his truck after receiving the telephone call. He testified that he intended
to take all the items back to work.
SA Langman asked appellant for his
consent to search the vehicle. He testified that he explained to appellant
that "it was completely voluntary, that he didnt have to allow us to go
into his vehicle." Appellant acknowledged that he understood and he consented.
Appellant testified that he did not
try to stop the search of his truck because he believed, based on the telephone
call from Sgt Maxwell, that they had a search warrant.
Appellant testified that he did not
think he was free to leave when he was placed in the back of the police
vehicle. He thought he had been apprehended. After appellant sat in the
police vehicle for about 10-15 minutes, SA Langman asked him for consent
to search the truck. Appellant testified that he responded, "You already
did," and SA Langman explained, "No, we want you to consent to searching
the cab." After appellant orally consented, the OSI searched the cab of
the truck and seized two radios and a battery charger.
SA Langman then instructed appellant
to drive his truck out of the traffic lane of the street and to lock it.
Appellant testified that, after his truck was searched, SA Langman told
him that they were taking him to the OSI building. He asked to call home
to check on his son, but he was not allowed to call home or contact anybody
about his son.
Appellant was taken to the OSI office,
placed in an interview room, and asked to consent to a search of his residence.
SA Ray filled in the written consent form, SA Langman explained it, and
appellant signed it.
SA Langman testified that he did not
mention a search warrant to appellant at any time, neither indicating that
he had a warrant nor telling him that he did not have a warrant. Likewise,
SA Ray testified that there was no mention of a warrant. No one told appellant
that Sgt Maxwell had made the telephone call at the request of the OSI.
Appellant testified that, when they
arrived at the OSI office and SA Langman asked him to consent to a search
of his house, appellant responded that his only concern was, "due to the
hour, that [his] kids would be in bed." Appellant testified that he asked,
"Do we have to do this tonight?" and SA Langman said, "Yes." Appellant
testified that he concluded he had no choice, based on the telephone call
from Sgt Maxwell. He testified that his concern was that if he did not
consent, the OSI would use the search warrant to disturb his children and
"just basically thrash the house." He signed the consent form "because
they told [him] they would not go in the kids room." Defense counsel asked
him, "Did you feel you had any real alternatives to signing it?" Appellant
responded, "Not if I didnt - if I wanted them just to go into the house
and go into the kids room, I suppose I didnt have an alternative, but
I did not want them going in and disturbing the kids, so thats why I signed
the consent form."
Appellant admitted that no one mentioned
a warrant, that he did not ask about a warrant, and that the OSI investigators
did not say they would "trash [the] whole house." He admitted that the
consent form recites that he was not required to consent. He admitted that
he was not threatened, and that the OSI agents were "professional." The
written form recites that appellant consented to a search of "Government
Housing Unit 67B, Manch Manor, Nellis AFB, NV, 67B Stafford, Las Vegas,
NV 89115."
The search team at appellants house
was composed of SA Langman, SA Wentela, Sgt Rogers, and Senior Airman White.
SA Langman testified that, when they arrived at appellants house, he felt
he owed appellants wife "an explanation as to why [they] were there."
He told her "that [they] were going to be as expeditious and thorough as
[they] could but not interrupt her children if at all possible, [and] that
[they] were going to begin in the garage."
SA Langman testified that, as soon
as the search team began searching the garage, appellant began identifying
government property as it was found. SA Langman decided to "stop at that
point and advise him." SA Langman advised appellant of his rights under
Article 31 and then continued searching.
While the garage was being searched,
Airman First Class (A1C) Beavor, one of the security policemen, called
SA Langmans attention to a black case in the garbage can. A1C Beavor testified
that he saw what appeared to be a night-vision equipment case when he opened
the trash can to dispose of a paper cup. This was the same garbage can
that SA Langman had noticed near appellants truck when the pretext telephone
call was made. It was on the curb in front of appellants house, next to
the driveway. The black case contained a Motorola radio. According to SA
Langman, appellant said that he brought the radio back from Saudi Arabia.
Appellant testified that the OSI asked why he threw the radio into the
garbage can, and he responded that he did not have a receipt for it and
did not want the OSI to find it.
After searching the garage, the agents
searched the shed area next to the garage. They seized three tents identified
by appellant as government property. They moved next to the back yard,
where they found "two plastic containers with voluminous items of individual
equipment issue items, sleeping bag, et cetera."
Appellant testified that, when the
search party moved from the garage to the back yard, he did not object.
He testified that he thought "that it was all part of the warrant," even
though no warrant was ever mentioned or displayed.
The search party returned to the OSI
office with appellant, at some time after midnight. SA Langman testified
that, after a "reaffirmation of the oral rights, in writing," appellant
gave a written, sworn statement. The statement is exculpatory and was not
offered in evidence. The statement does not mention any belief by appellant
that the OSI had a warrant.
The military judge made extensive findings
of fact and conclusions of law. He found that appellant "is a mature, experienced,
16-year tech sergeant, 34 years of age, with a security police AFC background
for training." He found as fact that Sgt Marshall and Sgt Maxwell had provided
the information described by SA Langman, and that the OSI had audit reports
of missing items and supplies from appellants unit.
The military judge found that Sgt Maxwells
pretext telephone call was made to tell appellant "that the OSI had come
to her house, searched her house with a warrant, and were coming to his
house with a warrant, or words to that effect." He found that "the intent
of the call being made was to observe [appellants] reactions, if any,
after receiving the call." He found that appellant "may have believed that
Sgt Maxwell was telling him the truth." Contrary to the implication in
Issue I-A, the military judge made no specific findings of fact or conclusions
of law on the question whether Sgt Maxwell was acting "as a government
agent or with color of authority."
The military judge found that SA Langman
observed appellant, "in a quick fashion, exit and enter his quarters a
minimum of two or three times," place a "square item" in the bed of his
truck, and drive away. He found that appellant was stopped, frisked, and
advised that he was being investigated for theft of government property.
He found that appellant was not handcuffed or advised of his rights, but
"was asked to be seated in the rear of the security police car."
The military judge found that one of
the security policemen observed a night-vision goggles case in the bed
of the truck and that SA Langman directed that the item be seized. He also
found that several security policemen and OSI agents observed several items
of suspected government property in the open bed of the truck.
The military judge found that appellant
could not exit the police car, as appellant had testified, but that he
was not otherwise physically restrained. He found that appellant was never
advised that he was being arrested or apprehended.
The military judge found that appellant
consented to a search of the truck, that he did not ask about the consequences
of refusing to consent, and that no one mentioned a warrant. He found that,
"[d]uring the street stop, the procedures were done professionally, were
physically nonthreatening, and in a noncoercive - at least physically
noncoercive - atmosphere."
The military judge found that appellant
consented to a search of his "government housing unit," and that appellant
did not ask about the consequences of refusing to consent. He found that
appellant "conditioned his consent for doing the search at night only,"
and "conditioned on avoiding a search of his childrens bedroom, but in
no other way."
The military judge ruled that appellant
voluntarily consented to the search of his truck, but that appellants
consent to search the truck was unnecessary under the automobile exception
to the Fourth Amendment. The military judge ruled that the OSI had sufficient
evidence to make an investigative Terry stop. See Terry
v. Ohio, 392 U.S. 1 (1968). He ruled that appellant had no expectation
of privacy in the open bed of the truck, and that there was probable cause
to seize the items in plain view.
The military judge ruled that appellant
validly consented to the search of his government quarters, notwithstanding
the pretext telephone call telling him that the OSI had a warrant. He also
ruled that the scope of appellants consent included the yard, and that
even if appellants original consent did not extend to the yard, he voluntarily
broadened his consent by not objecting when the search of the yard began.
Finally, the military judge ruled that
appellant had no reasonable expectation of privacy in the contents of his
garbage can. Based on his findings of fact and conclusions of law, the
military judge denied the motion to suppress.

Discussion
Appellant argues that Sgt Maxwells
pretext telephone call vitiated his consent to the search of both his vehicle
and his home. The Government argues that the pretext telephone call did
not invalidate appellants consent to the search of the truck, and that
under the "automobile exception" to the Fourth Amendment, appellants consent
was not required. The Government argues further that appellant voluntarily
consented to the search of his home.
We review the military judges ruling
on the motion to suppress for abuse of discretion. His findings of fact
will not be overturned unless they are clearly erroneous or unsupported
by the record. We review his conclusions of law de novo.
We will reverse only "if his decision [was] influenced by an erroneous
view of the law." United States v. Sullivan, 42 MJ 360, 363 (1995);
see
also United States v. Reister, 44 MJ 409, 413 (1996).
We need not decide whether appellant
validly consented to the search of his truck, because the items were seized
as a result of a valid investigative stop, observation of items in plain
view, and a search that was permissible under the "automobile exception"
to the Fourth Amendment requirement for a warrant. Mil. R. Evid. 314(f)(1),
Manual for Courts-Martial, United States (1995 ed.),*
provides: "A person authorized to apprehend . . . may stop another person
temporarily when the person making the stop has information or observes
unusual conduct that leads him or her reasonably to conclude in light of
his or her experience that criminal activity may be afoot." This rule implements
the "stop and frisk" authority recognized by the Supreme Court in Terry
v. Ohio, supra. See Drafters Analysis of Mil. R. Evid.
314(f)(1), Manual, supra at A22-27; see also United States
v. Texidor-Perez, 7 MJ 356, 358-59 (CMA 1979).
In this case, the OSI agents had received
information from Sgt Marshall that appellant had taken a government-owned
bicycle for his personal use and had been observed loading tents into a
privately-owned vehicle. Sgt Maxwell surrendered a government-owned medical
cabinet that she said she received from appellant. Based on the uncontested
testimony of the OSI agents, the military judge found that the intent of
the pretext telephone call was "to observe [appellants] reactions, if
any, after receiving the call." When appellant was observed loading a large
box into his truck and driving toward the gate within minutes after the
pretext call was made, the "reasonable suspicion" required for a Terry
stop was satisfied. Once the OSI agents made a lawful investigative stop,
it was not a violation of the Fourth Amendment for them to observe items
in plain view. See United States v. Owens, No. 98-0133, ___
MJ (8-9), citing Texas v. Brown, 460 U.S. 730 (1983); United
States v. Wisniewski, 21 MJ 370, 372 (CMA 1986) ("Plain-view observations
by an officer properly in a position to have such a view do not constitute
unreasonable searches under the Fourth Amendment.").
The military judge found that one security
policeman saw night-vision goggles in the bed of the truck, and several
security policemen and OSI agents saw other items, i.e., boots and
camouflage netting. At that point, they had probable cause to believe that
appellant had stolen government property in his truck. Mil. R. Evid. 315(g)(3)
implements the "automobile exception" and authorizes a search of an operable
vehicle without a warrant if there is probable cause. See Owens,
supra
at (9), and cases cited therein. In light of the foregoing, we hold
that the military judge correctly ruled that appellants truck was lawfully
searched and that the search was not tainted by the pretext telephone call.
Unlike the search of appellants truck,
the lawfulness of the search of his home is based solely on his consent.
Thus, the impact of the pretext telephone call on his consent must be assessed.
The question whether consent to a search was voluntarily given "is a question
of fact to be determined from all the circumstances." Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49 (1973).
In United States v. Kitts, 43
MJ 23, 27-28 (1995), this Court set out the legal framework for reviewing
a military judges determination that an accused voluntarily consented
to a search. Where the prosecution relies on consent, it has the burden
of proving consent by "clear and convincing evidence." Id., citing
Mil. R. Evid. 314(e)(5). On appeal, we will review the evidence "in the
light most favorable to the Government," and we will not overturn the military
judges finding that an accused voluntarily consented unless it is unsupported
by the evidence or clearly erroneous. Id., citing United States
v. Kosek, 41 MJ 60, 64 (CMA 1994), and United States v. Middleton,
10 MJ 123, 133 (CMA 1981).
In United States v. Salazar,
44 MJ 464, 468 (1996), this Court stated that "[l]aw enforcement officials
may properly use sting operations and informants in order to gain valid
consent or to induce criminals to bring stolen goods into plain view."
However, a search cannot be justified as based on consent where that "consent"
was given only after the official conducting the search has asserted that
he has a warrant. In such a case, the purported consent is mere acquiescence
to authority. Bumper v. North Carolina, 391 U.S. 543, 548 (1968);
see
Mil. R. Evid. 314(e)(4) ("Mere submission to the color of authority . .
. is not a voluntary consent."). When the Government uses a third party
as a mouthpiece to tell a person that law enforcement authorities have
a warrant, it cannot establish consent merely by showing the absence of
direct communication between law enforcement authorities and the person
giving consent.
On the other hand, mere mention of
an intent to obtain a warrant or command authorization does not vitiate
consent. The question in each case is whether, under the totality of the
circumstances, the consent is truly voluntary. See United States
v. McClain, 31 MJ 130, 133 (CMA 1990) (Mention of intent to seek command
authorization "must be done in an appropriate manner so as to make the
resulting consent truly voluntary."); see also United States
v. White, 979 F.2d 539, 542(7th Cir. 1992) ("When the expressed
intention to obtain a warrant is genuine . . . and not merely a pretext
to induce submission, it does not vitiate consent."); United States
v. Faruolo, 506 F.2d 490, 494 (2d Cir. 1974) (consent voluntarily given
even though FBI agent said warrant would be sought and probably would be
given).
The military judges finding that appellant
voluntarily consented was based on a correct view of the law and is supported
by the following evidence. See Kitts, 43 MJ at 28.
First, Sgt Maxwell was not a superior,
but a subordinate of appellant. Second, appellant thought she was calling
as a friend and coactor, not as an OSI agent. Third, the warrant was mentioned
to see if appellant would react, not to obtain his consent. Fourth, there
were several intervening events between the mention of a warrant and appellants
consent to the search of his residence. Fifth, appellant was advised by
OSI of his right to refuse consent. Sixth, appellant voluntarily consented
to the search of his truck, even though Sgt Maxwell had not mentioned the
truck. Seventh, at no time did any of the OSI agents or security police
mention a warrant. Eighth, even though appellant testified that he thought
the OSI had a warrant, he used their desire to obtain his consent as a
bargaining chip to limit the scope of the search. Finally, the record demonstrates
that appellants attitude throughout the evening was cooperative. He was
so actively cooperative during the search of his residence that SA Langman
thought it necessary to stop the search and advise appellant of his rights,
because appellant was spontaneously pointing out government property. Appellant
insisted that he could justify and explain his possession of government
property. In contrast, he threw the Motorola radio into the garbage can
because it was the one item he did not think he could justify.
On this record, the military judges
finding of voluntary consent was not clearly erroneous. The nine factors
set out above, considered together, support the military judges finding.Accordingly,
we hold that the military judge did not abuse his discretion by denying
the motion to suppress the evidence seized from appellants residence.
The Motorola radio seized from appellants garbage can was admissible on
two grounds. If the garbage can was within the scope of appellants consent
to the search of his residence, the radio was admissible as the product
of a consensual search. If the garbage can was outside the scope of the
search of appellants residence, the radio was admissible because appellant
had no reasonable expectation of privacy in a garbage can placed outside
the curtilage for pickup. California v. Greenwood, 486 U.S. 35,
40-41 (1988).

Factual Background  Issue II (Request
for Immunity)
The convening authority granted testimonial
immunity to five government witnesses, but refused to grant immunity to
MSgt Steven Nelson, appellants immediate superior, who was under investigation,
along with appellant, for stealing and diverting government property. The
defense asked the military judge to direct the convening authority to grant
immunity to MSgt Nelson or abate the proceedings.
MSgt Nelson stated his intention to
invoke his right against self-incrimination if called to testify. Appellant
made an offer of proof stating that MSgt Nelson would testify that he told
appellant that "it was appropriate to give sleeping bags, tents, and other
assorted camping equipment to the Boy Scouts for their use at a camp out."
He would testify further "[t]hat the Boy Scouts were directed to return
the equipment to the residence of [appellant]," and "[t]hat the sleeping
bags, tents, and other camping equipment found at [appellants] residence
were the items [MSgt Nelson] permitted the Boy Scouts to use for their
camp out and were directed to return to [appellants] residence."
Appellant testified that the Boy Scout
request for the equipment came to him from the scoutmaster, an Air Force
captain, and through his wife, a den leader. He discussed the request with
MSgt Nelson. No one else was present during the discussion. Appellant testified
that MSgt Nelson directed him to let the Boy Scouts use the equipment.
The Boy Scouts used the equipment from March 31 until April 2, and then
returned it to appellants residence on April 3. Appellant believed that,
because the Boy Scouts were dealing with him and not MSgt Nelson, they
believed that he authorized the use of the equipment.
During the hearing on the motion, the
military judge noted and defense counsel agreed that, even if the items
loaned to the Boy Scouts were deleted, there would still be numerous items
alleged to have been stolen that were not loaned to the Boy Scouts.
Counsel for both sides agreed that
none of the five witnesses who had been granted testimonial immunity were
awaiting court-martial. At least one had been given nonjudicial punishment
and several had unfavorable information placed in their personnel files.
MSgt Nelson was the only other suspect awaiting trial by court-martial.
The staff judge advocate (SJA) recommended
that the convening authority deny the request for testimonial immunity
for three reasons. First, the Government was not engaging in discriminatory
use of immunity, because MSgt Nelson was already targeted for prosecution.
Second, the defense was unable to show that the evidence could not be obtained
from another source, because the Boy Scouts could also testify to the same
facts. Third, the testimony was not clearly exculpatory.
The convening authority denied the
request without reciting any reasons. The convening authority further commented,
however, that, "[t]hough not a basis for the denial, it should be noted
that a grant of immunity for MSgt Nelson would create substantial difficulty
for the legal office in the prosecution of his case." This "difficulty"
was based on the fact that both prosecutors in appellants case were also
scheduled to prosecute MSgt Nelson and would have to be removed from a
complicated case less than a month before the scheduled trial date.
Responding to the defense motion, the
prosecution presented the SJAs recommendation and the charge sheet pertaining
to MSgt Nelson. The prosecution argued that RCM 704(e), Manual, supra,
was not satisfied because MSgt Nelson was targeted for prosecution.
The military judge denied the defense
request to compel a grant of immunity or abate the proceedings. He found
that MSgt Nelson would refuse to testify, but found no Government overreaching
or discrimination because MSgt Nelson was "clearly a target for prosecution."
He found that the evidence was "clearly exculpatory" with respect to some
of the items allegedly stolen, but not as to the numerous other items.

Discussion
RCM 704(e) sets out a three-pronged
test for determining when defense-requested immunity must be granted or
the proceedings abated:

(1) The witness intends to invoke
the right against self-incrimination to the extent permitted by law if
called to testify; and
(2) The Government has engaged in discriminatory
use of immunity to obtain a tactical advantage, or the Government, through
its own overreaching, has forced the witness to invoke the privilege against
self-incrimination; and
(3) The witness testimony is material,
clearly exculpatory, not cumulative, not obtainable from any other source
and does more than merely affect the credibility of other witnesses.

Because the three prongs are stated in
the conjunctive, all three must be met. See Drafters Analysis of
RCM 704(e), Manual, supra at A21-38 ("Upon a finding that all
three prerequisites exist," a military judge may abate the proceedings.)
(Emphasis added.) This rule recognizes the view of a majority of the federal
courts that there is no right to grants of immunity under the Fifth or
Sixth Amendments. Id.; see United States v. Turkish,
623 F.2d 769, 773-74, 777 (2d Cir. 1980), cert. denied, 449
U.S. 1077 (1981), and cases cited therein. Where, as in this case, the
witness is a prosecution target and awaiting trial, the second prong is
not met, and "there can be no claim of discrimination or overreaching."
United
States v. Shandell, 800 F.2d 322, 324 (2d Cir. 1986); cf. United
States v. Zayas, 24 MJ 132, 136 (CMA 1987) (Military judge must "fashion
an appropriate remedy" where prosecution "does not make a particular and
substantive contention that testimonial immunity will jeopardize a contemplated
future prosecution of the witness."). Accordingly, because the second prong
of RCM 704(e) was not satisfied, we hold that the military judge did not
abuse his discretion by refusing to abate the proceedings.
See United
States v. Monroe, 42 MJ 398, 402 (1995) (military judges decision
not to abate proceedings reviewed for abuse of discretion).

Factual Background - Issue III (Alleged
Command Influence)
Appellant did not assert unlawful command
influence at trial. He raised the issue for the first time before the court
below. He submitted post-trial affidavits from himself, MSgt Nelson, and
MSgt Nelsons wife, asserting that Major (Maj) Peterson, appellants commander,
was coerced into preferring charges.
In his affidavit, appellant asserts
that Maj Peterson told him, after the court-martial but before the convening
authoritys action, "that the legal office forced him into charging [appellant]."
MSgt Nelson asserts that, at some time between June 1 and July 31, 1995,
several months before appellants court-martial, he was informed by his
former first sergeant, MSgt Sharon Scott, that Maj Peterson told her that
he did not want to prefer charges but that "individuals at the Nellis Legal
Office were threatening to remove us from his command if he didnt prefer
the charges," and have a different command prefer the charges.
No affidavits from Maj Peterson, MSgt
Scott, or any member of the legal office were submitted. The record does
not reflect a reason for not submitting them.

Discussion
Appellant has the initial burden of
raising the issue of unlawful command influence. United States v. Biagase,
50 MJ 143, 150 (1999), citing United States v. Stombaugh, 40 MJ
208, 213 (CMA 1994). At the appellate level, appellant "must show (1) facts
which, if true, constitute unlawful command influence; (2) show that the
proceedings were unfair; and (3) show that unlawful command influence was
the cause of the unfairness." United States v. Biagase, supra.
The court below held that the affidavits were insufficient to raise the
issue of unlawful command influence.
We hold that, even if the affidavits
were sufficient to raise the issue, it was waived. The evidence was readily
available from Maj Peterson and MSgt Scott before trial. Appellant does
not aver, and the record does not reflect, that any evidence was concealed
from him, or that he was unlawfully deterred from raising the issue. Defects
in preferring and forwarding charges are waived if not raised at trial,
unless the failure to raise the issue is itself the result of unlawful
command influence. United States v. Hamilton, 41 MJ 32, 37 (CMA
1994).

Decision
The decision of the United States Air
Force Court of Criminal Appeals is affirmed.
FOOTNOTE:
* All Manual
provisions are cited to the version in effect at the time of trial. The
1998 version is unchanged, unless otherwise indicated.
 
 
SULLIVAN, Judge (concurring in part
and dissenting in part):
I concur in the majority opinion, except
for the section on command influence. In my view, command influence cannot
be waived unless the waiver is clear and knowing. Mere failure to
raise command influence at the trial level does not constitute a waiver.
See
United States v. Hamilton, 41 MJ 32, 39-41 (CMA 1994) (separate
opinions of Judges Wiss and Sullivan). The issue of command influence is
such a special threat to justice in the military that the ability to raise
it deserves special protections. A knowing and clear waiver must be found
on the record to deprive this issue from an appellant who raises it in
good faith on appeal.
 
 
CRAWFORD, Judge (concurring in the
result):
In addition to finding that there was
a lawful stop, a plain view search and seizure, and a valid search of the
truck under the automobile exception, I would also hold that there was
probable cause for an arrest and a search incident to that arrest.
Additionally, I would hold that there
was a valid consent to search based on appellants signing a written consent
to search after being advised of his rights. I would excise from consideration
of the consent to search the house, the call by appellant's friend who
said that the police had a search warrant, since this information was not
mentioned by the law enforcement officials at the time they obtained written
consent. Furthermore, we should not leave the bench and bar with the impression
that absent the nine factors considered by the majority, there would not
be voluntary consent. Such an implication is contrary to precedent of this
Court, cf. United States v. Bubonics, 45 MJ 93, 95 (1996),
and the Supreme Court, cf. Arizona v. Fulminante, 499 U.S.
279, 286 (1991).
Two law enforcement agents, SA Langman
and SA Ray, had received information from two non-commissioned officers
(NCOs) that one had seen appellant stealing government property and putting
it in a truck and the other had received a government medical cabinet from
appellant. This was confirmed when the agents seized the cabinet. The second
NCO agreed to call appellant and tell him that the police had seized the
medical cabinet from her and that "they might be coming to your house next,
they have a search warrant."
Probable cause to search exists when
there are reasonable grounds to believe that items connected with criminal
activity are located in the place to be searched. United States v. Hester,
47 MJ 461, 463 (1998). Probable cause to arrest requires reasonable grounds
to believe that (1) an offense has been committed and (2) the person to
be arrested committed it. RCM 302(c), Manual for Courts-Martial, United
States (1995 ed.). Both of these were met here. The information obtained
from the NCOs was based on their personal observation. See United
States v. Wood, 25 MJ 46 (CMA 1987); United States v. Ochoa,
12 MJ 281 (CMA 1982). Additionally, the police corroborated this information
by seizing the cabinet from the second NCO. Hester, supra
at 464. Since both of these NCOs could have been charged with providing
false information to the police, there was additional reason to believe
them.
Agents placed appellant's house under
observation. After the telephone call, appellant was seen loading items
into the bed of his truck. When appellant drove away, he was stopped by
the agents. During the stop, they noticed government property in the bed
of the pickup truck. The issues in this case concern the search of the
truck and the subsequent search of appellant's home.
Although the police obtained consent
to search the truck, it was not needed because a search incident to arrest
would allow a search of the truck bed. In United States v. Chapman,
954 F.2d 1352 (7th Cir. 1992), a gray Ford Ranger pickup truck
was the description of a getaway vehicle used in a bank robbery. Two officers
observed the truck and stopped it. They found the two defendants in the
back of the truck wearing clothing matching the description of the robbers.
As the defendants were escorted out of the truck, the officers observed
in plain view the top of a money bag, a holster, and a dark ski mask. Once
the defendants were handcuffed, the officers found handguns underneath
the carpeting in the front of the truck bed and money in the money bag.
The court found that the officers had probable cause to arrest the defendants
based on a number of factors: their knowledge that a robbery had just occurred
in the area; the description of the getaway vehicle; the initial evasion
of the police; and the observation of the two men hiding in the rear of
the truck, the money bag, holster, and ski mask. The court also concluded
that, once the defendants were arrested, the officers were justified in
conducting a warrantless search of the truck bed.
However, the court noted specifically
the peculiarity of these facts:



Although the compartment in which
Mr. Chapman was hiding might not be a conventional passenger compartment,
he can take no solace from the fact that the Belton Court noted
that its holding did not extend to the trunk of an automobile. [New
York v. Belton, 453 U.S. 454, 461 n.4 (1981).] Under the circumstances
of this case, it is abundantly clear that the rear of the truck functioned
as a passenger compartment at the time of the arrest.



954 F.2d at 1358 n.6.
Since Belton, there have been
several cases exploring what constitutes a trunk. In United States v.
Henning, 906 F.2d 1392, 1396 (10th Cir 1990), cert.
denied,
498 U.S. 1069 (1991), the court determined that the back portion of a sport
utility vehicle is considered part of the passenger compartment, noting,
"Where, as here, the vehicle contains no trunk, the entire inside of the
vehicle constitutes the passenger compartment and may be lawfully searched."
The Tenth Circuit later noted that the determination that the cargo area
of a sport utility vehicle, whether covered or uncovered, is part of the
passenger compartment is primarily based on "reachability."
United States
v. Olguin-Rivera, 168 F.3d 1203, 1205 (10th Cir. 1999).
Based on these cases, I would hold
that the items obtained from the bed of the truck were obtained based on
a search incident to arrest.
After being taken to the OSI Office,
appellant was warned of his rights, waived them, and consented to a search
of his house.
When the police have probable cause
to obtain a search warrant and tell an individual that they could seek
a search warrant, this does not undermine the consent. See, e.g.,
United
States v. Faruolo, 506 F.2d 490, 495 (2nd Cir. 1974)(not
coercive where belief was "well founded" that warrant would be issued).
In this case, it was the NCO who mentioned the search warrant, not the
police. Cf. United States v. Rios, 48 MJ 261 (1998);
United
States v. White, 48 MJ 251 (1998). Thus, there is no direct compulsion
by law enforcement officials. Trickery by the police does not equal compulsion
where there is independent probable cause to arrest an individual and search
his house. Police trickery is not necessarily wrong.
See generally
Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies
By the Police, 76 Or. L. Rev. 775 (1997).
Based on appellant's lawful arrest,
the search of appellants truck incident to that arrest, and the signed
written consent to search the house when the police had sufficient probable
cause to obtain a search warrant, I concur in the result.

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