                        UNITED STATES, Appellee


                                     v.


                Joshua S. DANIELS, Seaman Apprentice
                        U.S. Navy, Appellant


                              No. 03-0614/NA

                        Crim. App. No. 200001604


       United States Court of Appeals for the Armed Forces


                      Argued March 17, 2004

                      Decided June 28, 2004



                                  Counsel

For Appellant: Major Charles R. Zelnis, USMC (argued); Captain
Bruce H. Bokony, JAGC, USNR, Lieutenant Colonel Eric B. Stone,
USMC, and Lieutenant Commander Eric J. McDonald, JAGC, USN.

For Appellee: Captain Glen R. Hines, Jr., USMC (argued);
Commander Robert P. Taishoff, JAGC, USN (on brief); Colonel M.
E. Finnie, USMC.

Amicus Curiae for Appellant: William J. Brown (law student)
(argued); Steven H. Goldblatt, Esq. (director), Elizabeth B.
Wydra, Esq. (supervising attorney), and Amy Wilkinson-Hagen (law
student) (on brief) – for the Georgetown University Law Center
Appellate Litigation Program.

Military Judge: L. T. Booker, Jr.

  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Daniels, No. 03-0614/NA


     PER CURIAM:

     Appellant was charged with a single specification of

wrongful cocaine possession, in violation of Article 112a,

Uniform Code of Military Justice, 10 U.S.C. § 912a (2000).

Prior to trial, Appellant moved to suppress the sole piece of

Government evidence – a vial of cocaine retrieved by his

roommate (Seaman Apprentice (SA) Voitlein)) from a nightstand

drawer used by Appellant, at the direction of the Military

Training Instructor Leading Chief Petty Officer, Chief Wilt, on

the ground that the retrieval of the evidence violated

Appellant’s Fourth Amendment reasonable expectation of privacy.

The military judge denied the motion, finding that although

Appellant had a Fourth Amendment expectation of privacy in the

nightstand drawer, the retrieval of the evidence was not a

“government search” for Fourth Amendment purposes.

     Appellant thereafter entered a conditional guilty plea to

the charge, and was sentenced to confinement for a period of 45

days, reduction to E-1, and a bad-conduct discharge.   The United

States Navy-Marine Corps Court of Criminal Appeals (CCA)

affirmed the findings and sentence as approved by the convening

authority.   United States v. Daniels, 58 M.J. 599, 606 (N-M. Ct.




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United States v. Daniels, No. 03-0614/NA


Crim. App. 2003).   This Court subsequently granted review of the

following two issues:∗

     I.    WHETHER THE LOWER COURT’S DEFINITION OF WHAT
           CONSTITUTES A “SEARCH” FOR PURPOSES OF THE FOURTH
           AMENDMENT OF THE UNITED STATES CONSTITUTION AND
           MILITARY RULE OF EVIDENCE 311(a) IS CONTRARY TO
           UNITED STATES SUPREME COURT PRECEDENT.

     II.   WHETHER THE LOWER COURT ERRED AS A MATTER OF LAW
           WHEN IT CONCLUDED THAT ELECTRONICS TECHNICIAN
           SEAMAN APPRENTICE VOITLEIN WAS NOT ACTING AS AN
           AGENT FOR THE GOVERNMENT WHEN, PURSUANT TO THE
           DIRECTION OF CHIEF ELECTRONICS TECHNICIAN (SS)
           WILT “THE KEY GOVERNMENT ACTOR,” HE SEIZED THE
           INCRIMINATING EVIDENCE.

Answering both issues affirmatively, we reverse the decision of

the lower court.

                               FACTS

     On the evening of March 29, 2000, Appellant entered his

barracks room holding a brown plastic vial.   He displayed this

vial to his two roommates, including SA Voitlein, and announced

that the vial contained cocaine mixed with a tranquilizer.

While his roommates looked on, Appellant placed the vial in a

can of snuff tobacco in the top drawer of his bedside

nightstand.   The following day, SA Voitlein searched out Chief


∗
 We heard oral argument in this case at the Georgetown
University Law Center, Washington, D.C., on March 17, 2004, as
part of "Project Outreach.” This practice was developed as part
of a public awareness program to demonstrate the operation of a
Federal Court of Appeals and the military criminal justice
system.



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United States v. Daniels, No. 03-0614/NA


Wilt, the Military Training Instructor Leading Chief, and told

him what had transpired the previous evening.    In response,

Chief Wilt directed SA Voitlein to retrieve the vial from the

nightstand drawer, as Chief Wilt himself was otherwise occupied.

SA Voitlein returned to the barracks room, retrieved the vial,

and delivered it to Chief Wilt.   The CCA found that at the time

Chief Wilt ordered SA Voitlein to retrieve the vial, Chief Wilt

“surmised that Appellant had been merely joking with his

roommates” about the vial’s contents.    Id. at 601.

Nevertheless, subsequent testing revealed that the vial

contained cocaine.

                           DISCUSSION

     The Fourth Amendment by its express terms protects

individuals against unreasonable searches and seizures.    “Under

the Military Rules of Evidence, which implement the Fourth

Amendment, evidence illegally seized by government agents from a

protected place is inadmissible.”     United States v. Hester, 47

M.J. 461, 463 (C.A.A.F. 1997)(citing Military Rules of Evidence

311-317)[hereinafter M.R.E.]; see also United States v.

Sullivan, 42 M.J. 360, 363-64 (C.A.A.F. 1995)(no Fourth

Amendment violation when a military member acts in a purely

private capacity). Appellant avers that his roommate SA

Voitlein, acting as an agent of government official Chief Wilt,




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unlawfully seized the vial of cocaine from a nightstand drawer

used by Appellant.

     Addressing Appellant’s claim, the CCA considered whether

there was a “search” within the meaning of the Fourth Amendment

and whether SA Voitlein functioned as a government agent when he

seized the vial from Appellant’s drawer.   It focused on the

motivation behind Chief Wilt’s request for SA Voitlein to

retrieve the vial, as well as on SA Voitlein’s private

motivation, and concluded that the vial’s retrieval was not a

Fourth Amendment search conducted by a government agent.    In the

words of the CCA:

     [W]e find that Chief Wilt was simply not engaged in a
     quest for evidence of a crime. . . .

     . . . .

          Given Chief Wilt’s honest belief that ETSA
     Voitlein’s expressed concerns about Appellant actually
     having illegal drugs in their barracks room were
     unreasonable, we conclude that Chief Wilt’s directions
     did not make ETSA Voitlein a Government agent on a
     quest for incriminating evidence. That being the
     case, there was no “search” [for Fourth Amendment
     purposes]. . . .

          Moreover, we find that when ETSA Voitlein
     actually seized the incriminating evidence, he was
     doing so out of a “private motivation” to protect his
     “own personal interests[,]” . . . [and therefore]
     insulated his action from the protections of the
     Fourth Amendment . . . .

Daniels, 58 M.J. at 604-06.   We hold that the CCA erred on both

accounts.



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        First, contrary to the CCA’s motivational approach, the

Supreme Court defines a Fourth Amendment “search” as a

government intrusion into an individual’s reasonable expectation

of privacy.    See Soldal v. Cook County, 506 U.S. 56, 69 (1992)

(suggesting a motivational approach is unworkable); California

v. Ciraolo, 476 U.S. 207, 211 (1986)(defining the expectation of

privacy test as the “touchstone of Fourth Amendment analysis”).

The Court’s twofold “expectation of privacy” test asks, first,

whether the individual by his conduct has “exhibited an actual

(subjective) expectation of privacy and, second, [whether] the

expectation [is] one that society is prepared to recognize as

‘reasonable,’” Katz v. United States, 389 U.S. 347, 361 (1967),

or, in other words, whether the expectation, “viewed

objectively, is ‘justifiable’ under the circumstances,” Smith v.

Maryland, 442 U.S. 735, 740 (1979).

        To this end, the military judge found that Appellant had a

reasonable expectation of privacy in the nightstand drawer he

used.    The Government expressly conceded this point before the

CCA.    Therefore, we need not and do not address whether the

military judge’s determination was correct as a matter of law,

or whether his factual conclusions were clearly erroneous.      The

military judge’s ruling regarding Appellant’s expectation of

privacy is classic “law of the case.”    United States v.

Grooters, 39 M.J. 269, 272-73 (C.M.A. 1994).


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     Moreover, the question of whether a private actor performed

as a government agent does not hinge on motivation, but rather

“on the degree of the Government’s participation in the private

party’s activities, a question that can only be resolved ‘in

light of all the circumstances.’”     Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602, 614-15 (1989)(internal

citations omitted).    To implicate the Fourth Amendment in this

respect, there must be “clear indices of the Government’s

encouragement, endorsement, and participation” in the challenged

search.   Id. at 615-16.

     In the instant case, rather than retrieve the vial on his

own initiative and then bring it to Chief Wilt for consultation,

SA Voitlein instead first consulted Chief Wilt about the issue,

and then, only after he received the order from Chief Wilt to do

so, retrieved the vial.    In other words, Chief Wilt’s specific

order as a government official triggered SA Voitlein’s actual

seizure of the vial.   In light of these facts, we hold that

Chief Wilt clearly encouraged, endorsed, and participated in SA

Voitlein’s seizure of the vial and, accordingly, that SA

Voitlein acted as Chief Wilt’s agent when he seized the vial.

     In reaching this conclusion, we note that it is possible

that an individual functioning as a government agent might at

the same time own or exercise adequate control over the property

searched that he or she could lawfully consent to the search.


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United States v. Daniels, No. 03-0614/NA


See United States v. Matlock, 415 U.S. 164 (1974).

Nevertheless, in this case, the military judge determined that

Appellant had a reasonable expectation of privacy in the drawer,

which extended to his roommates as well as the Government.

Implicit in this ruling is the fact that SA Voitlein did not

have adequate control of the nightstand to exercise independent

authority to consent.

     Given SA Voitlein’s role as a government agent, the

warrantless search of the nightstand drawer used by Appellant to

seize the vial of cocaine was unlawful.    See Camara v. Municipal

Court of San Francisco, 387 U.S. 523, 528-29 (1967)(warrantless

search of private property without proper consent is per se

unreasonable with a few exceptions).    The military judge

therefore erred in admitting the cocaine vial into evidence at

trial.   See M.R.E. 311(a) (evidence obtained from an unlawful

search or seizure is inadmissible against an accused).

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed, the findings and sentence are

set aside, and the record of trial is returned to the Judge

Advocate General of the Navy.   A rehearing is authorized.




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