                       UNITED STATES, Appellee

                                    v.

            Pablo P. IRIZARRY Jr., Airman First Class
                    U.S. Air Force, Appellant

                              No. 12-0451

                         Crim. App. No. 37748

       United States Court of Appeals for the Armed Forces

                       Argued November 7, 2012

                        Decided April 15, 2013

STUCKY, J., delivered the opinion of the Court, in which RYAN,
J., and COX, S.J., joined. ERDMANN, J., filed a separate
opinion dissenting in part and concurring in the result, in
which BAKER, C.J., joined.

                                 Counsel

For Appellant: Dwight H. Sullivan, Esq. (argued); Captain
Travis K. Ausland (on brief); Captain Shane McCammon.

For Appellee: Major Lauren N. DiDomenico (argued); Colonel Don
M. Christensen and Gerald R. Bruce, Esq. (on brief).

Amicus Curiae for Appellee: Gauri D. Nautiyal (law student)
(argued); Robert D. Gifford II, Esq. (supervising attorney) (on
brief) - The University of Oklahoma College of Law.

Military Judge:   William C. Muldoon Jr.


       This opinion is subject to revision before final publication.
United States v. Irizarry, No. 12-0451/AF


     Judge STUCKY delivered the opinion of the court:1

     We granted review to determine whether the military judge

erred in refusing to suppress military property seized by

Appellant’s first sergeant after a warrantless entry into

Appellant’s off-base apartment.   We hold that the military judge

did not abuse his discretion.   Under the facts and circumstances

of this case, Appellant’s Fourth Amendment rights were not

violated because the entry into his apartment was not

unreasonable.

                     I.   Posture of the Case

     Contrary to his pleas, Appellant was convicted by officer

members in a general court-martial of one specification of

larceny of military property of a value greater than $500 in

violation of Article 121, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 921 (2006).   He was sentenced to a bad-

conduct discharge, confinement for forty-five days, and

reduction to the lowest enlisted grade.   The convening authority

approved the sentence as adjudged.    The Air Force Court of

Criminal Appeals (CCA) affirmed the findings and sentence.




1
  We heard oral argument in this case at The University of
Oklahoma College of Law as part of the Court’s “Project
Outreach.” See United States v. Mahoney, 58 M.J. 346, 347 n.1
(C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a
federal court of appeals and the military justice system.

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United States v. Irizarry, No. 12-0451/AF


United States v. Irizarry, No. ACM 37748, 2012 CCA LEXIS 89, at

*8, 2012 WL 1059021, at *3 (A. F. Ct. Crim. App. Mar. 15, 2012).

                            II.   Background

        Believing that Appellant had failed to timely pay his rent

for January 2010, the management of Cedar Creek Apartments

posted a notice for him to vacate his apartment by January 11,

2010.    Appellant did not vacate his apartment or make any

attempt to reconcile the alleged delinquency with the

management.    He also failed to pay his rent for February 2010.

Management posted a second notice to vacate the apartment by

February 7.    On February 5, the new manager, Ms. Lora Norwood,

wanting to ensure there were no misunderstandings, spoke with

Appellant about the rent.    Appellant produced money order stubs,

as evidence that he had paid his January rent, and said he would

pay February’s rent by February 15.     Ms. Norwood took the stubs

and checked management’s records to make sure that his rent had

not been misposted.    Unable to find evidence that management had

received the money orders, Ms. Norwood returned the stubs and

asked Appellant to trace the money orders and told him how to do

it.

        The following week Ms. Norwood tried to contact Appellant

to see if he had been able to resolve the money order issue.

Unable to contact Appellant, she had a staff member, Mr. Charles

Marquette, perform a “skip check” to see if Appellant had

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United States v. Irizarry, No. 12-0451/AF


abandoned the premises.   Upon entering the apartment, Mr.

Marquette discovered large amounts of trash, animal food, and

feces scattered about the floors, and conditions so unsanitary

that a number of repairs, including replacing the floors, would

be necessary to make the apartment livable for the next tenant.

     Based on Mr. Marquette’s experiences in the Navy, he and

Ms. Norwood decided to seek assistance from Appellant’s military

supervisors to convince Appellant to pay for the rent and

repairs without the necessity of civil legal action.   After

unsuccessfully trying to e-mail photos of the damages to

Appellant’s first sergeant, Master Sergeant (MSgt) Matthew G.

Saganski, Ms. Norwood invited him to visit the apartment.    After

two invitations, MSgt Saganski agreed.

     On February 23, MSgt Saganski and Technical Sergeant (TSgt)

Charles Zenor, Appellant’s immediate supervisor, went to the

apartment to view the damage.   Before he went to view the

apartment, MSgt Saganski discussed his trip with his commander,

and told the commander he would report back.   MSgt Saganski and

TSgt Zenor testified that their purpose in visiting the property

was to determine the state of the apartment to decide if

Appellant should be counseled about the issue, show the

community the Air Force cared about the situation, and protect

Appellant from overreaching by the landlord if necessary.    MSgt

Saganski testified:

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United States v. Irizarry, No. 12-0451/AF


     I went there because [Cedar Creek] had called me
     numerous times. I went there to find out more of the
     facts about what was going on so that I could come
     back and discuss with Airman Irizarry and the
     commander, the situation and hopefully put a better
     light on the Air Force that yes, somebody from the Air
     Force does care, and that we came to see what they had
     to show.
     . . . .
     My intent was to find out how bad things really were,
     how much money did he really owe, so that when I sat
     down with [Appellant] later . . . he could be
     counseled and he could be talked to, and see if we can
     get the situation remedied.

TSgt Zenor echoed MSgt Saganski’s desire to show the community

that the Air Force cared and testified that they took a camera

with them to “document any damage and [the] condition of the

apartment” and “to protect [Appellant]” if the damage to the

apartment was not as extensive as the landlord purported.      They

visited the apartment in their uniforms, during duty hours, in

their official capacity, but not in a law enforcement capacity.

     Mr. Marquette took MSgt Saganski and TSgt Zenor to view the

apartment.   Before entering the apartment, Ms. Norwood discussed

with them her intent to post an “Abandonment” sign on the

apartment door.2   MSgt Saganski and TSgt Zenor saw that Ms.

Norwood had accurately described the damage.   There was a large

amount of trash and animal feces on the floor, the bathroom door

2
  At this point the apartment was not “Abandoned” according to
Ms. Norwood, or as a matter of Texas law. However, Ms. Norwood
posted an abandonment notice on the apartment door shortly after
the noncommissioned officers (NCOs) entered the apartment.

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United States v. Irizarry, No. 12-0451/AF


was off its hinges, and bags of cat and dog food had been cut

open and left on the floor (presumably so the animals could eat

while Appellant was out of town on leave).    MSgt Saganski and

TSgt Zenor walked through the apartment taking pictures to

document the damage.

        During the walk through, MSgt Saganski and TSgt Zenor

noticed part of a B-1 aircraft (an altitude vertical velocity

indicator (AVVI)), partially covered by an article of clothing

on Appellant’s bedroom floor.    MSgt Saganski testified he

recognized the part and knew there was no reason Appellant

should have an AVVI in his possession.    TSgt Zenor testified

that he immediately recognized the part, and suspected it to be

the same part that was missing from the B-1 repair shop at the

base.    MSgt Saganski testified that he seized the equipment to

ensure its safekeeping as he worried that an “Abandonment” sign

or eviction notice would attract thieves.

        At trial, Appellant filed a motion to suppress the evidence

resulting from the search of Appellant’s apartment.    After an

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session to

litigate the motion, the military judge denied the motion.      The

CCA held that the military judge did not abuse his discretion in

denying the motion to suppress.    Irizarry, 2012 CCA LEXIS 89, at

*5, 2012 WL 1059021, at *2.    The lower court relied heavily on

United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), to hold that

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United States v. Irizarry, No. 12-0451/AF


the entry by the landlord complied with the lease, and MSgt

Saganski and TSgt Zenor lawfully entered the apartment “in the

shoes” of the landlord for the purpose of encouraging Appellant

to make the necessary repairs.   Id., 2012 WL 1059021, at *2

(internal quotation marks omitted).

                    III.    Standard of Review

     This Court reviews a military judge’s ruling on a motion to

suppress for abuse of discretion.    United States v. Clayton, 68

M.J. 419, 423 (C.A.A.F. 2010); United States v. Ayala, 43 M.J.

296, 298 (C.A.A.F. 1995).

     A military judge abuses his discretion when his
     findings of fact are clearly erroneous, the court’s
     decision is influenced by an erroneous view of the
     law, or the military judge’s decision on the issue at
     hand is outside the range of choices reasonably
     arising from the applicable facts and the law.

United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008);

accord United States v. Graner, 69 M.J. 104, 107 (C.A.A.F.

2010).

                      IV.   Law and Analysis

     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.




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United States v. Irizarry, No. 12-0451/AF


U.S. Const. amend. IV.   A Fourth Amendment “search” only occurs

when “the government violates a subjective expectation of

privacy that society recognizes as reasonable.”   Kyllo v. United

States, 533 U.S. 27, 33 (2001).

     Appellant had a reasonable expectation of privacy in his

apartment and, therefore, a “search” under the Fourth Amendment

occurred.    However, the Fourth Amendment does not prohibit all

warrantless searches, only those that are “unreasonable.”   See

Cady v. Dombrowski, 413 U.S. 433, 439 (1973); United States v.

Michael, 66 M.J. 78, 80 (C.A.A.F. 2008).

     Whether a search is unreasonable is evaluated on a case-by-

case basis, depending on the facts and circumstances of each

situation.   United States v. Chadwick, 433 U.S. 1, 9 (1977),

abrogated on other grounds by California v. Acevedo, 500 U.S.

565 (1991) (citing Cooper v. California, 386 U.S. 58, 59

(1967)).    With few exceptions, the warrantless search of a home

is unreasonable.   Kyllo, 533 U.S. at 31.   One such exception,

argued by the Government as dispositive in this case, is third-

party common authority consent -- consent by a person who is

entitled to joint access or control of the property for most

purposes.    United States v. Matlock, 415 U.S. 164, 170, 171 n.7

(1974).    Under the circumstances of this case, the landlord did

not have common authority under Supreme Court jurisprudence to

grant consent to the NCOs to enter Appellant’s apartment for a

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United States v. Irizarry, No. 12-0451/AF


law enforcement purpose.3   See Georgia v. Randolph, 547 U.S. 103,

112 (2006); Matlock, 415 U.S. at 171 n.7.    But that does not end

our inquiry.   We must still inquire whether, recognizing that

the home is “‘[a]t the very core’” of the Fourth Amendment,

Kyllo, 533 U.S. at 31, it was reasonable under the circumstances

for Cedar Creek to let the NCOs into Appellant’s home.

         A.    Entry Under the Lease Provisions and Jacobs

     Appellant was in default under the terms of the lease, but

even if Appellant was not in default, Cedar Creek and its

“representatives” could enter for a number of reasons.4      After

Appellant failed to pay his rent, it was reasonable for Mr.


3
  Another relevant exception is surrender or abandonment. See
Michael, 66 M.J. at 80 n.4. Cedar Creek personnel did not
believe Appellant had surrendered or abandoned his apartment,
and we need not decide the issue. But see United States v.
Sledge, 650 F.2d 1075, 1082 n.13 (9th Cir. 1981) (suggesting
that some circuits have accepted federal officers searching
premises that were only “apparently abandoned” rather than
abandoned as a matter of law).
4
  The lease allowed Cedar Creek and its “repairers,
servicers, contractors, and representatives” to enter if:

     (1) written notice of the entry is left in a
     conspicuous place in the apartment immediately
     after the entry; and

(2) entry is for: . . . making repairs or replacements;
estimating repair or refurbishing costs . . . preventing waste
of utilities; exercising our contractual lien; leaving
notices . . . removing health or safety hazards (including
hazardous materials) . . . removing perishable foodstuffs if
your electricity is disconnected . . . . inspecting when
immediate danger to person or property is reasonably
suspected . . . .

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United States v. Irizarry, No. 12-0451/AF


Marquette to enter the premises to determine whether Appellant

had abandoned the apartment, post notices inside the apartment,

and estimate repair or refurbishing costs after he discovered

the state of the apartment.   Furthermore, once the damages were

discovered, it was reasonable for Cedar Creek to take action to

minimize the damages and seek prompt restitution by the quickest

and least intrusive manner -- including contacting Appellant’s

military supervisors.   At the time, Ms. Norwood was not seeking

criminal or even civil sanctions against Appellant.

     The NCOs acted reasonably in entering Appellant’s apartment

at the behest of Cedar Creek as its “representative” under the

lease.   See Jacobs, 31 M.J. 138.     Cedar Creek invited the NCOs

to assist them in securing rent and repairs from Appellant --

something that necessarily includes viewing the damage to

estimate repair costs, as allowed under paragraph 28 of the

lease, and to determine how to counsel Appellant.

     Jacobs supports this reading of the lease.     In Jacobs,

while the accused was on leave, the landlord entered the

accused’s apartment to effect emergency plumbing repairs and

found the apartment “trashed.”   Id. at 139.     Concerned about the

state of the apartment and to ensure repairs, the landlord

contacted Staff Sergeant (SSG) Johnston -- the accused’s flight

chief.   Id.   SSG Johnston initially declined to help, but

eventually agreed to look and counsel the accused if necessary.

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United States v. Irizarry, No. 12-0451/AF


Id.   When SSG Johnston entered the accused’s apartment the next

day, he found stolen military property in the accused’s

apartment in plain view.     Id. at 140.   The Court held the

accused’s Fourth Amendment rights were not violated because

under the lease and state law the landlord could lawfully enter

a tenant’s apartment, along with his “agent or representative,”

to make emergency repairs.    Id. at 143.5

      This case is stronger than Jacobs because, although both

leases allowed landlords to grant their representatives entry,

the lease in Jacobs limited entry to “necessary” or “emergency”

repairs.   Id. at 144 n.4.    Similarly, California law limited a

landlord to entry for emergency, necessary, or agreed repairs.

Id.   The lease here allowed the landlord entry for a broader

range of purposes, including making and estimating repairs.

Furthermore, under Texas law an accused can knowingly and

voluntarily contract to allow third parties to enter a space

where the accused has a reasonable expectation of privacy.      See

United States v. Griffin, 555 F.2d 1323, 1324–25 (5th Cir.

5
  The landlord in Jacobs initially entered, pursuant to the
lease, to make emergency repairs. Jacobs, 31 M.J. at 139.
However, after the landlord completed the emergency plumbing
repairs, he sought further help from the accused’s military
supervisors to further repair the trashed apartment. Id.
Therefore, although the lease and relevant state law permitted
entry for emergency repairs in addition to “necessary or agreed
repairs,” it does not appear that the presence of a then-
existing emergency situation was dispositive of the Court’s
decision. Id. at 144 nn.4 & 5.

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United States v. Irizarry, No. 12-0451/AF


1977); Salpas v. State, 642 S.W.2d 71, 72–73 (Tex. Ct. App.

1982); Ferris v. State, 640 S.W.2d 636, 638 (Tex. Ct. App.

1982).6   Other circuits have ruled similarly.   See United States

v. Smith, 353 F. App’x 229, 230 (11th Cir. 2009) (holding that a

storage facility manager had actual authority over a storage

unit, and to admit agents, including police, to make repairs and

ensure the safety of the unit, where the renter breached the

terms of the agreement and the storage owner discovered

contraband when he went to make repairs).

     The concurring judges unnecessarily desire to overturn the

fact-specific holding in Jacobs.     They take particular issue

with the statement that a landlord is not required to have

common authority to allow “police to enter the apartment ‘in the

shoes’ of the landlord to assist him in making emergency

repairs.”   31 M.J. at 144 (noting that where a landlord has


6
  The concurring opinion reads the lease narrowly to suggest that
the NCOs had to enter the apartment, tools in hand, ready to
perform repairs, or have a ledger ready to precisely estimate
costs. We do not read the lease so narrowly, nor does the plain
language of the lease or Texas law require such a narrow
reading. Although the concurring opinion relies on such cases,
it is unclear how much bearing Texas law has on the outcome of
this case. This is not a civil case dealing with an oil and gas
lease or a landlord-tenant dispute that can be resolved through
equitable rules. See Cammack the Cook, L.L.C. v. Eastburn, 296
S.W. 3d 884 (Tex. Ct. App. 2009); ABS Sherman Properties, Ltd.
v. Sarris, 626 S.W. 2d 538 (Tex. Ct. App. 1981); Buffalo
Pipeline Co. v. Bell, 694 S.W. 2d 592 (Tex. Ct. App. 1985). It
is a criminal case addressing Fourth Amendment issues and the
overarching inquiry is reasonableness rather than restitution.

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United States v. Irizarry, No. 12-0451/AF


actual authority to enter for a certain purpose the police may

stand “‘in the shoes’” of the landlord for that purpose (quoting

Sledge, 65 F.3d at 1080 n.10).    But they fail to note that the

Jacobs court used this language in the context of distinguishing

the situation in Jacobs from Chapman v. United States, 365 U.S.

610, 616–17 (1961), which forbids police entry for law

enforcement purposes.    31 M.J. at 144.    Furthermore, neither

Sledge nor the operative cases cited in the footnote have been

negated or overturned.   In short, Sledge was persuasive

authority that the Jacobs court applied, and the concurring

opinion has not shown that the “‘in the shoes’” language is an

incorrect statement of law.

     Finally, although the Supreme Court has held that a

landlord may not consent to entry by law enforcement to search

for evidence of a crime in some circumstances, there is no

Supreme Court precedent indicating that a landlord may never

consent to entry for non-law enforcement purposes where state

law and the lease allow.   Chapman is factually distinguishable

from this case.   In Chapman, the police and landlord forced open

a window to gain entry for the purpose of searching for criminal

activity.   365 U.S. at 616.   The Supreme Court held that state

police officers did not have the right to enter a tenant’s

premises, even with the landlord’s consent, to search for

evidence of a crime.    Id. at 616-18.     There is no police

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United States v. Irizarry, No. 12-0451/AF


presence, no forced entry, and no law enforcement motivation

here.7   The Supreme Court did not claim that lease terms and

state law could never provide a right to enter; rather, it

declined to read a right of entry from the common law and noted

that the parties provided no state case or statute providing

such a right.8   Id.

     Randolph is also factually distinguishable.   In Randolph, a

present co-occupant was objecting to police entry of his home --

a situation clearly not present here.   547 U.S. at 113-14.     The

holding in Randolph does not reach entry for non-law enforcement

purposes, or entry without the presence of a co-tenant.9   Id.

The Supreme Court suggested in dicta that landlords have no

customary understanding of authority to admit persons without

the consent of the occupant, and that ordinary rental agreements

do not provide such authority.   Id. at 112.   However, even

assuming dictum from a factually distinguishable case is

dispositive, these circumstances are not “common” or “ordinary”


7
  United States v. Warner, 843 F.2d 401 (9th Cir. 1988), is
similarly distinguishable.
8
  The Supreme Court has backed away from the holding in Chapman,
stating that it is “ambiguous in its implications.” Illinois v.
Rodriguez, 497 U.S. 177, 188 (1990).
9
  Matlock, like Randolph, addressed common authority in the
context of co-occupied premises. 415 U.S. at 171–72. We agree
that common authority is inapplicable to this case. However,
neither Matlock, nor Randolph hold that common authority is the
only way to uphold a warrantless entry.

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United States v. Irizarry, No. 12-0451/AF


and it is necessary to look to reasonableness under this

contractual arrangement and the circumstances surrounding this

intrusion.   In sum, none of the Supreme Court cases cited by the

concurrence hold that a landlord may never consent to entry for

non-law enforcement purposes.

     B.   Reasonableness of Entry as Command Representatives

     MSgt Saganski’s and TSgt Zenor’s status as “government

agents” acting in their “official capacity” triggered

Appellant’s Fourth Amendment rights.   However, this status was

based solely on the fact that MSgt Saganski and TSgt Zenor are

command representatives performing quintessential command

functions -- looking out for one of their airmen and maintaining

good relations with the local community.    See, e.g., Dep’t of

the Air Force, Instr. 36-2618, The Enlisted Force Structure

¶ 4.1.9 (Feb. 27, 2009) (providing a mandatory duty for all NCOs

to “be familiar with subordinates’ off-duty opportunities and

living conditions”); id. at 5.1.13 (stating the mandatory duties

of senior NCOs to “[p]romote responsible behaviors within all

Airmen” and “[r]eadily detect and correct unsafe and/or

irresponsible behaviors that negatively impact unit or

individual readiness”).

     Although the NCOs were members of the United States Air

Force with supervisory responsibilities over Appellant, they

were not acting for a law enforcement or even a regulatory

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United States v. Irizarry, No. 12-0451/AF


purpose.   They were not seeking evidence of a crime or a

violation of some regulation.     Cf. Chapman, 365 U.S. at 616–18

(striking down a warrantless entry by police to search for

evidence of a crime); Camara v. Municipal Court, 387 U.S. 523,

535–39 (1967) (striking down some warrantless administrative

searches).      Rather, they were acting as military leaders with at

least two purposes related to their command function:     (1) to

minimize possible adverse consequences -- loss of his living

quarters and overcharging for damages to his apartment -- to a

subordinate; and (2) maintaining a good relationship between the

Air Force and the civilian community by assisting a landlord who

did not want to pursue civil legal remedies against a military

member.    Rigid application of Fourth Amendment case law from

other jurisdictions to the conduct at issue would fail to

account for MSgt Saganski’s and TSgt Zenor’s unique “official”

duty, as senior NCOs, to be apprised of their subordinates’

behavior and to look out for the well-being of their men and

women.

     In this context, MSgt Saganski and TSgt Zenor acted

reasonably.10    Moreover, where, as here, command representatives


10
  Furthermore, United States v. Wilson, 472 F.2d 901, 902–03
(9th Cir. 1972), illustrates that an accused’s conduct can
diminish or extinguish a reasonable expectation of privacy such
that consent by a landlord to a warrantless search can be
reasonable under some circumstances. After Wilson failed to pay
his rent for two weeks, his landlord was informed that Wilson
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United States v. Irizarry, No. 12-0451/AF


entered a subordinate’s off-base residence (1) in order to

effectuate their command responsibilities, and (2) with no law

enforcement purpose and no expectation that a crime had been

committed, or that evidence would be found, it would be

unreasonable to expect command representatives to seek a warrant

prior to entering.   Indeed, under the facts of this case, it is

unclear on what basis a warrant could have been obtained as the

standard for obtaining a warrant is wholly unrelated to the

impetus behind the NCOs’ entry.    See Illinois v. Gates, 462 U.S.

213, 238 (1983) (concluding that a magistrate’s probable cause



was gone and his return uncertain. Id. at 902. The landlord
entered the apartment believing it was abandoned and found it in
a similar state to Appellant’s apartment -- in disarray, with
clothing, electronics, and contraband lying around. Id. In
upholding the landlord’s entry, the United States Court of
Appeals for the Ninth Circuit did not depend on the landlord’s
opinion as to whether the apartment was abandoned, require an
express finding of abandonment, or even find the apartment
abandoned. Id. at 903 (“When Wilson departed his lodgings,
leaving . . . the rent unpaid, he should not have been surprised
at his landlord’s visit. The landlord saw explosives in plain
view and considerable evidence of abandonment.”). Rather, it
adopted a functional view of the Fourth Amendment and held that
the “local law of real property does not provide the exclusive
basis upon which to decide Fourth Amendment questions.” Id. at
902. We do not decide whether Appellant’s apartment was
abandoned under Texas law, but recognize that, like in Wilson,
by failing to pay the rent, damaging the apartment, and failing
to respond to his landlord’s inquiries, Appellant significantly
diminished his expectation of privacy in the apartment. See
also Skinner v. Ry. Labor Execs’ Ass’n, 489 U.S. 602, 627-28
(1989) (holding that expectations of privacy can be reasonable,
but diminished, based upon conduct or status, and that a
diminished expectation of privacy can be used in evaluating
reasonableness).

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United States v. Irizarry, No. 12-0451/AF


determination must be supported by “a fair probability that

contraband or evidence of a crime will be found in a particular

place”).   This is not to say that the degree of difficulty in

obtaining a warrant justifies a warrantless entry in every case.

However, where, as here, attempting to obtain a warrant is

impracticable, and does not further the purposes of the Fourth

Amendment it is unnecessary to try to get a warrant and the

absence of one does not render a search unreasonable.   See,

e.g., Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 657, 655

(1989) (“neither a warrant nor probable cause, nor, indeed, any

measure of individualized suspicion, is an indispensable

component of reasonableness in every circumstance”); New Jersey

v. T.L.O., 469 U.S. 325, 340–42 (1985) (recognizing that the

warrant requirement is unsuited to certain environments).

     We do not intend to create a broad military exception to

the Fourth Amendment; rather, where:   (1) command

representatives are performing a command function; (2) a

reasonable reading of the lease terms permits the landlord to

enter; (3) military officials entered the premises at the behest

of the landlord; and (4) the purpose of the entry is not for law

enforcement purposes or a mere pretext for conducting a

warrantless search, Jacobs’s exception to the warrant

requirement because the “search” is reasonable makes eminent

sense.   Under the circumstances of this case, the NCOs intrusion

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United States v. Irizarry, No. 12-0451/AF


into Appellant’s apartment was not a violation of the Fourth

Amendment.   Therefore, the military judge did not abuse his

discretion in refusing to suppress the AVVI.

                          V.   Conclusion

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Irizarry, No. 12-0451/AF

     ERDMANN, Judge, with whom BAKER, Chief Judge, joins

(dissenting in part and concurring in the result):

     While I agree with many of the majority’s preliminary

holdings, I disagree with the ultimate holding that Irizarry’s

Fourth Amendment rights were not violated because the entry into

his apartment was reasonable. I therefore respectfully dissent

from that portion of the majority’s opinion.   I would also

overrule United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), to

the extent that it allows a landlord to consent to the entry of

a government agent into a military member’s apartment for any

purpose which the landlord may also have a limited right of

entry.   However, since I believe that the circumstances of this

case do not warrant the application of the exclusionary rule, I

concur in the result.

                            Background

     Irizarry’s landlord, Cedar Creek Apartments, contacted

Irizarry in early February 2010 concerning his January rent.

Irizarry insisted that he had paid his January rent and provided

his money order stubs.   Later Cedar Creek determined that

Irizarry had attempted to pay his January rent, but that one of

its employees had mistakenly failed to deposit the money order.

Cedar Creek spoke with Irizarry again and he informed its

representatives that he would trace his January money order and

also pay his February rent on February 15.   Irizarry did not pay
United States v. Irizarry, No. 12-0451/AF

the February rent on February 15 nor did he provide any further

information as to the January payment.   Cedar Creek’s further

efforts to contact Irizarry were unsuccessful but at some point

Cedar Creek determined from the Air Force that he was on leave.

     Cedar Creek eventually elected to perform a “skip-check.”

As noted by the majority, during the “skip-check,” a Cedar Creek

maintenance worker discovered that the apartment was in

“disarray.”   However, the maintenance worker also found

toiletries in the apartment as well as items of value, including

furniture, computer speakers, DVDs, and clothes.   Based on the

“skip-check,” the landlord concluded that the apartment had not

been abandoned, and the manager decided to contact the Air Force

for assistance in getting Irizarry to clean up the unit and pay

the overdue rent.

     In response to the landlord’s invitation to view the

apartment, Irizarry’s first sergeant and his immediate

supervisor visited the apartment complex on February 23, and the

manager consented to their entry into the apartment leased by

Irizarry.   While in the apartment the sergeants discovered the

altimeter vertical velocity indicator (AVVI).

     At trial Irizarry moved to suppress this evidence as the

fruit of an unlawful search and seizure.    The military judge

initially found that the sergeants entered “in their official

capacity” and that the inspection was “‘government action’


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United States v. Irizarry, No. 12-0451/AF

sufficient to trigger the [Fourth] Amendment’s protection

against unreasonable searches.”    However, the military judge

also found that “[b]y clear and convincing evidence, [Cedar

Creek] had the authority to consent to [the sergeants] walking

through the accused’s apartment [and that its] purpose was to

effectuate repairs upon the property, a purpose specifically

listed in the lease at Paragraph 28.”      The military judge denied

the motion to suppress the introduction of the AVVI, primarily

relying on Jacobs.

                              Discussion

     The Fourth Amendment protects individuals from unreasonable

intrusion only by government actors.       United States v. Jacobsen,

466 U.S. 109, 113 (1984) (citing Walter v. United States, 447

U.S. 649, 662 (1980) (Blackmun, J., dissenting)).      However, the

protections of the Fourth Amendment are not limited to

intrusions of a law enforcement nature.      See O’Connor v. Ortega,

480 U.S. 709 (1987); New Jersey v. T.L.O., 469 U.S. 325 (1985).

I agree with the majority’s conclusion that the sergeants were

“government agents” acting in their “official capacity” when

they entered the apartment.    United States v. Irizarry, __ M.J.

__, __ (15) (C.A.A.F. 2013).    Once this determination has been

made, the relevant Fourth Amendment inquiry is whether Irizarry

had a reasonable expectation of privacy and if he did, whether

the Government intruded on that expectation in a way that was


                                  3
United States v. Irizarry, No. 12-0451/AF

unreasonable.   See United States v. Michael, 66 M.J. 78, 80

(C.A.A.F. 2008) (citing United States v. Daniels, 60 M.J. 69, 71

(C.A.A.F. 2004)).

  1. Reasonable Expectation of Privacy

       The majority concluded that Irizarry had a reasonable

expectation of privacy in his apartment and that a “search” in

the Fourth Amendment sense occurred.   I agree.   Despite this

holding, the majority goes on to hold that Irizarry had a

significantly diminished expectation of privacy because he

failed to pay the rent, damaged the apartment, and failed to

respond to his landlord’s inquires.    Relying on United States v.

Wilson, 472 F.2d 901, 902 (9th Cir. 1972), the majority believes

that “an accused’s conduct can diminish or extinguish a

reasonable expectation of privacy such that consent by a

landlord to a warrantless search can be reasonable under some

circumstances.”   Irizarry, __ M.J. at __ (16 n.10).

       Wilson, however, simply stands for the principle that there

is no expectation of privacy in abandoned property -- a

principle that this court acknowledged in Michael, 66 M.J. at 80

n.4.   The phrase “diminished expectation of privacy” appears

nowhere in Wilson.    While under the facts presented in Wilson,

the court held that Wilson had abandoned the apartment, the




                                  4
United States v. Irizarry, No. 12-0451/AF

facts in this case do not support a similar result.1    In fact,

the Cedar Creek representatives testified that following the

“skip-check,” they determined that Irizarry had not abandoned

the apartment.   In addition, the sergeants testified that they

believed the apartment was still Irizarry’s residence and had

not been abandoned, and Cedar Creek believed “that the apartment

was not abandoned according to Texas state law or the terms of

the lease.”

       In addition to this testimony and the military judge’s

findings, Irizarry had left toiletries in the apartment along

with clothes, furniture, and electronic equipment.     Unlike

Wilson, no one informed the landlord that Irizarry had moved

out.   While Cedar Creek had been unable to contact Irizarry,

both the Air Force and the landlord were aware he was away on

leave.   Under these circumstances Irizarry retained a reasonable

expectation of privacy in his off-base apartment and his

expectations of privacy were not diminished.2


1
  When Wilson’s rent had not been paid his landlord asked the
neighbors as to his whereabouts and was informed that Wilson had
moved out and it was uncertain whether he would return. Wilson,
472 F.2d at 901. When the landlord went to the apartment he
found the door open and the apartment in disarray. Id. “Lying
about were some old clothing, a television set, pipe bombs,
blasting powder, and impact fuses.” Id. The landlord nailed
the door shut and called the police. Id. The FBI seized the
explosives and after the agents obtained a search warrant, they
returned and searched the apartment. Id.
2
  The majority also relies on Skinner v. Railroad Labor
Executives’ Ass’n, 489 U.S. 602 (1989), in support of Irizarry’s
alleged diminished expectation of privacy. Skinner, however,
                                  5
United States v. Irizarry, No. 12-0451/AF

  2. Reasonableness of the Search

     Under most circumstances, warrantless intrusion by the

government is per se unreasonable.    United States v. Weston, 67

M.J. 390, 392 (C.A.A.F. 2009) (citing Georgia v. Randolph, 547

U.S. 103, 109 (2006)).    “With few exceptions, the question

whether a warrantless search of a home is reasonable and hence

constitutional must be answered no.”   Kyllo v. United States,

533 U.S. 27, 31 (2001).   The majority opinion concludes that the

sergeants’ entry was nevertheless reasonable because the lease

allowed the landlord to enter the apartment under certain

circumstances and Jacobs authorized the landlord to consent to

the entry of third parties when those circumstances existed.

  A. Supreme Court Authority

     As this is an inquiry into the scope of the Fourth

Amendment, the analysis of this issue must start with a review

of relevant Supreme Court precedent.   In Georgia v. Randolph,

the Court reviewed a number of cases dealing with landlords or

hotel managers allowing third parties into rented premises:

     A person on the scene who identifies himself, say, as
     a landlord or a hotel manager calls up no customary
     understanding of authority to admit guests without the
     consent of the current occupant. See Chapman v.
     United States, 365 U.S. 610 (1961) (landlord); Stoner
     v. California, 376 U.S. 483 (1964) (hotel manager). A


has nothing to do with the expectation of privacy in the home,
but rather centers on the diminished expectation of railroad
workers in the context of routine urinalysis “by reason of their
participation in an industry that is regulated pervasively to
ensure safety.” Id. at 627.
                                  6
United States v. Irizarry, No. 12-0451/AF

     tenant in the ordinary course does not take rented
     premises subject to any formal or informal agreement
     that the landlord may let visitors into the dwelling,
     Chapman, supra, at 617, and a hotel guest customarily
     has no reason to expect the manager to allow anyone
     but his own employees into his room, see Stoner,
     supra, at 489, see also United States v. Jeffers, 342
     U.S. 48, 51 (1951) (hotel staff had access to room for
     purposes of cleaning and maintenance, but no authority
     to admit police). In these circumstances, neither
     state-law property rights, nor common contractual
     arrangements, nor any other source points to a common
     understanding of authority to admit third parties
     generally without the consent of a person occupying
     the premises.

547 U.S. at 112 (emphasis added).

     While the majority recognizes this line of cases, it

nonetheless concludes that “there is no Supreme Court precedent

indicating that a landlord may never consent to entry for non-

law enforcement purposes where state law and the lease allow.”

Irizarry, __ M.J. at __ (13).   While relying on the absence of

Supreme Court precedent is questionable authority at best, we do

in fact have a number of Supreme Court cases on this very point.

In order to uphold a warrantless search by consent under those

cases, the consent must be given either by the defendant or by

one with common authority over the property to be searched.

United States v. Matlock, 415 U.S. 164, 171 (1974).   The cases

specifically reject the premise that state property law or lease




                                 7
United States v. Irizarry, No. 12-0451/AF

agreements can substitute for that consent.   Randolph, 547 U.S.

at 112; Matlock 415 U.S. at 171 n.7; Chapman, 365 U.S. at 617.3

      While here the majority holds that the landlord did not

have common authority to grant consent to the sergeants’ entry

into the apartment, it nevertheless concludes that this

authority is inapplicable and goes on to rely on the lease

provisions and Jacobs to find the search reasonable in a Fourth

Amendment context.   Irizarry, __ M.J. at __ (8-16).

    B. Lease Provisions

      Even if it were necessary to turn to the lease, the lease

provisions do not provide authority for either the landlord or

the sergeants to enter the apartment under these circumstances.

paragraph 28 of the Lease Agreement provides, in pertinent part:

      WHEN WE MAY ENTER. If you or any guest or occupant is
      present, then repairers, servicers, contractors, our
      representatives, or other persons listed in (2) below
      may peacefully enter the apartment at reasonable times
      for the purposes listed in (2) below. If nobody is in
      the apartment, then such persons may enter peacefully
      and at reasonable times by duplicate or master key (or
      by breaking a window or other means when necessary)
      if:

      (1) written notice of the entry is left in a
      conspicuous place in the apartment immediately after
      the entry; and

3
  The majority distinguishes these cases on the basis that the
entry in this case was not for a law enforcement purpose. That
distinction is unpersuasive for two reasons. First, the
protections of the Fourth Amendment are not limited to
intrusions of a law enforcement nature. See O’Connor, 480 U.S.
at 714-15; T.L.O., 469 U.S. at 335. Second, a search is not
less intrusive upon a citizen’s protected privacy right simply
because it did not occur with a law enforcement purpose in mind.
                                 8
United States v. Irizarry, No. 12-0451/AF

     (2) entry is for: . . . making repairs or
     replacements; estimating repair or refurbishing costs;
     . . . doing preventative maintenance; . . . exercising
     our contractual lien; . . . .

(Emphasis in second paragraph added.)

     The findings and conclusions of the military judge that the

landlord had the authority to consent to the sergeants’ entry

into Irizarry’s apartment and that their purpose was to

“effectuate repairs upon the property, a purpose specifically

listed in the lease at paragraph 28,” constitute an abuse of

discretion.   Assuming that “effectuate repairs” equates to

“making repairs,” neither the landlord nor the sergeants entered

for that purpose.    The landlord was there to try to get the Air

Force to help in getting Irizarry to clean up the apartment and

pay his back rent.   The sergeants were there to gather

information about the condition of the apartment, report back to

the commander, and determine whether Irizarry needed to be

counseled.    As noted, Irizarry’s first sergeant specifically

testified on cross-examination that he did not intend to

“actually perform repairs,” to “draft up an estimate of the

cost,” or to do “any preventative maintenance.”4   Furthermore,


4
  Amicus argued that the landlord was authorized to enter the
apartment under paragraph 13 of the lease because the rent was
delinquent. Brief of Amicus Curiae at 8, United States v.
Irizarry, No. 12-0451 (C.A.A.F. Oct. 29, 2012). However,
paragraph 13 provides:

     CONTRACTUAL LIEN AND PROPERTY LEFT IN APARTMENT.


                                  9
United States v. Irizarry, No. 12-0451/AF

the first sergeant had already explained to the landlord --

prior to entering the apartment -- that there was nothing that

the Air Force could do for Cedar Creek and that it would have to

pursue the issue through civilian channels.

     The majority holds that the lease authorized the landlord

to invite the sergeants into the apartment “to assist them in

securing rent and repairs from Appellant -- something that

necessarily includes viewing the damage to estimate repair costs

. . . and determine how to counsel Appellant.”   Irizarry, __

M.J. at __ (10-12).   In reaching this holding the majority

relies on paragraph 28 of the lease, but that provision does not

authorize the entry of the landlord or the sergeants in order to

secure rent.   Nor does it authorize the landlord or the

sergeants to enter to secure repairs from Irizarry rather than

to make repairs themselves.   Indeed, there is no provision in

the lease which authorizes entry for the purpose the majority

has identified.



     . . . .

     Removal After We Exercise Lien for Rent. If your rent
     is delinquent, our representative may peacefully enter
     the apartment and remove and/or store all property
     subject to lien. Written notice of entry must be left
     afterwards in the apartment in a conspicuous place --
     plus a list of items removed.

Emphasis added. Cedar Creek had not exercised a lien for
delinquent rent at the time of entry nor did it enter the
apartment to remove Irizarry’s property.


                                10
United States v. Irizarry, No. 12-0451/AF

     The lease provisions must be interpreted under Texas law.5

Texas law is consistent with most state law in requiring a court

to initially look to the language of the lease.   “We cannot

ignore the clear language of an unambiguous contract.   If the

lease provision . . . can be given a certain or definite meaning

or interpretation, it is not ambiguous, and we must simply apply

the language in the lease.”   Cammack the Cook, L.L.C. v.

Eastburn, 296 S.W.3d 884, 891 (Tex. App. 2009) (citations

omitted).   None of the lease terms authorize the landlord to

enter the apartment or to bring third parties into the apartment

for assistance in getting a tenant to pay back rent or to pay

for repairs.

     However, where the lease terms are ambiguous, the terms of

the lease are to be construed in favor of the tenant.   ABS

Sherman Props., Ltd. v. Sarris, 626 S.W.2d 538, 540 (Tex. App.

1981).6   Here the lease terms are not ambiguous and do not

authorize entry of either the landlord or third parties for the

purposes at issue.   However, to the degree the terms of the


5
  I agree with the majority that an analysis of Texas case law is
irrelevant to the Fourth Amendment inquiry. Irizarry, __ M.J.
at __ (12 n.6). I rely on Supreme Court precedent for my Fourth
Amendment analysis and focus on the terms of the lease and Texas
case law only to the degree they are relevant to interpretation
of the lease provisions and to the majority’s Jacobs’s analysis.
6
  See also Buffalo Pipeline Co. v. Bell, 694 S.W.2d 592, 598
(Tex. App. 1985) (“In Texas, it is established that a lease will
be most strongly construed against the lessor. . . .”).


                                11
United States v. Irizarry, No. 12-0451/AF

lease may be ambiguous, they must be resolved in favor of the

tenant rather than the landlord.7     In holding that the lease

terms authorized the entry, the majority improperly resolves the

ambiguity in favor of the landlord, at the expense of Irizarry’s

Fourth Amendment rights.

    C. United States v. Jacobs

      The majority goes on to rely on Jacobs as authority for its

holding that the lease authorized the landlord to invite the

sergeants into the apartment.    In Jacobs, we held that an Air

Force sergeant who entered an airman’s apartment at the

invitation of the landlord to remedy an emergency situation did

not violate the Fourth Amendment.     31 M.J. at 144.   We agreed

with the “implied finding” of the CCA that an emergency

situation existed and specifically held that “no Fourth

Amendment violation occurs when a police officer enters a

tenant’s apartment in such circumstances at the behest of the

landlord and discovers evidence of crime in plain view.”     Id.

We noted that “[b]oth the lease agreement and applicable

California law” explicitly allowed the landlord to enter to make


7
  The majority cites several Texas cases for the principle that
“an accused can knowingly and voluntarily contract to allow
third parties to enter a space where the accused has a
reasonable expectation of privacy.” Irizarry, __ M.J. at __
(11). I agree with that principle and note that Irizarry
contracted to allow the landlord entry into his apartment for
the specific purposes listed in paragraphs 13 and 28 of the
lease -– none of which authorized the entry of either the
landlord or the sergeants in this case.
                                 12
United States v. Irizarry, No. 12-0451/AF

emergency repairs and held that law enforcement may enter “‘in

the shoes’ of the landlord to assist him in making emergency

repairs.”   Id. at 143-44 (footnotes omitted) (citing United

States v. Sledge, 650 F.2d 1075, 1080 n.10 (9th Cir. 1981)).

     Here, neither Texas law nor the lease provisions provide a

basis for this entry of the landlord or the sergeants.   But even

if the sergeants had entered for a purpose allowed under the

lease, I do not believe that the “in the shoes” doctrine adopted

in Jacobs is good law.   Jacobs relied on a footnote in Sledge,

as authority for the “in the shoes” doctrine.   Jacobs, 31 M.J.

at 144.   The relevant language in that footnote states that:

     [I]t is the ordinary rule that a relation between a
     third party and a defendant of landlord-lessee,
     without more, does not actually authorize the third-
     party landlord to consent to a search of the demised
     premises during the period of the defendant-tenant’s
     occupancy or tenancy. However, coexistent with this
     rule is the principle applied to cases in which some
     third party has actual authority for a limited access
     to the defendant’s premises, and that access is
     sufficient to include plain sight of the incriminating
     evidence within its scope. Such cases have sometimes
     held that the police have the authority to stand in
     the shoes of that third party.

Sledge, 650 F. 2d at 1080 n.10 (emphasis added) (citations

omitted).

     However, none of the four cases cited in the Sledge

footnote for the “in the shoes” doctrine actually support that

theory.   United States v. Gradowski, 502 F.2d 563, 564 (2d Cir.

1974), affirmed the search of a car in a one paragraph per


                                13
United States v. Irizarry, No. 12-0451/AF

curiam opinion on the basis that “[c]onsent to a search by one

with access to the area searched, and either common authority

over it, a substantial interest in it or permission to exercise

that access, express or implied, alone validates the search.”

Both United States v. Hersh, 464 F.2d 228, 229-30 (9th Cir.

1972), and Wilson v. Health & Hosp. Corp. of Marion County, 620

F.2d 1201, 1210 (7th Cir. 1980), simply restate the plain view

doctrine and reiterate it does not justify a warrantless entry

in the first place.    Finally, in Wilson, 472 F.2d at 902, the

court concluded that a landlord had a right to allow law

enforcement to enter leased property because the apartment and

the property within it were abandoned and there is “nothing

unlawful in the Government’s appropriation of such abandoned

property.”     Id. (quoting Abel v. United States, 362 U.S. 217,

241 (1960)).    None of the cited cases discussed or even

mentioned an “in the shoes” doctrine.

     I am not aware of any other circuit which has adopted the

“in the shoes” theory of the authority of a landlord to consent

to a government agent’s search of an individual’s apartment, and

the doctrine is contradicted by a later case out of the United

States Court of Appeals for the Ninth Circuit.    See United

States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988).8


8
  In Warner the landlord had limited access to the leased
premises. Warner, 843 F.2d at 403. While mowing the lawn he
noticed a pungent chemical smell and called the police and asked
                                  14
United States v. Irizarry, No. 12-0451/AF

Furthermore, the doctrine is inconsistent with Supreme Court

precedent discussed supra recognizing that landlords have no

actual authority to consent to government intrusions into the

privacy of their tenants, and that consent must be based on

“common authority.”   Randolph, 547 U.S. at 110-13; Matlock, 415

U.S. at 169-71 & n.7.

     It is difficult to envision a situation where the sergeants

-– who the majority recognizes were there in their official

capacity as representatives of the U.S. Air Force -– can at the

same time be representatives of the landlord to further its

commercial interests.9   I would therefore overrule Jacobs to the

extent that it allows a landlord to consent to a government

entry for any purpose which the landlord may also have a limited

right of entry.

  D. Reasonableness of Entry as Command Representative

     The majority also holds that the sergeants’ entry into the

apartment was reasonable due to the fact that they were


that someone from an appropriate agency come to check out the
situation, but that it was not an emergency. Id. at 402. A
police officer arrived and the landlord unlocked the garage,
where they discovered chemicals that are used in the manufacture
of drugs. Id. The drugs were seized, but the Ninth Circuit
held that the landlord could not consent to the search and
upheld the district court’s order suppressing the evidence. Id.
at 403, 405.
9
  This is particularly true in this case, where the first
sergeant had already explained to Cedar Creek, prior to entering
the apartment, that there was nothing that the Air Force could
do and that it would have to pursue the issue through civilian
channels.


                                15
United States v. Irizarry, No. 12-0451/AF

effectuating their command responsibilities with no law

enforcement purpose and no expectation that a crime had been

committed or evidence would be found.   Irizarry, __ M.J. at __

(16-18).   Under these circumstances the majority concludes it

would be unreasonable to expect the sergeants to obtain a

warrant -- thus the warrantless entry was reasonable.    I cannot

agree that the degree of difficulty in obtaining a warrant can

somehow justify a subsequent warrantless entry.   The issue that

we are called upon to decide is whether the sergeants’

warrantless entry into the apartment was reasonable.    The fact

that there was no warrant frames the issue but does not justify

the entry.

     It is not clear whether this discussion of the

reasonableness of the entry under a “command representative”

theory is an independent basis supporting the reasonableness of

the entry or is included for its cumulative effect with the “in

the shoes” theory.   Under either theory the holding is an

unwarranted extension of this court’s Fourth Amendment

jurisprudence.

     I am uncomfortable with what appears to be a unique

military exception to the Fourth Amendment, which gives military

personnel essentially carte blanche authority to enter a

subordinate’s off-base residence:    (1) at the invitation of the

landlord; (2) when the purpose of the entry effectuates a


                                16
United States v. Irizarry, No. 12-0451/AF

command responsibility; and (3) the entry has no explicit law

enforcement purpose at the outset.    Irizarry, __ M.J. at __ (17-

19).   Such a sweeping exception invites substantial abuse of the

privacy interests of military members and their families, many

of whom may live off base for the very purpose of obtaining a

greater sense of privacy.

       In conclusion, there is no legal basis for the majority’s

holding that the sergeants’ entry and search of Irizarry’s off-

base apartment was reasonable for Fourth Amendment purposes.

For that reason, I dissent from that portion of the majority’s

opinion.

3.   Exclusionary Rule

       While I dissent from the majority’s Fourth Amendment

analysis and conclusion, I concur in the ultimate result in the

case because “[t]he [Fourth] Amendment says nothing about

suppressing evidence obtained in violation of [its] command.

That rule -- the exclusionary rule -- is a ‘prudential’

doctrine,” Davis v. United States, 131 S. Ct. 2419, 2426 (2011)

(quoting Pennsylvania Bd. of Probation and Parole v. Scott, 524

U.S. 357, 363 (1998), “created by [the Supreme] Court to ‘compel

respect for the constitutional guaranty.’”   Id. (quoting Elkins

v. United States, 364 U.S. 206, 217 (1960)).    The Supreme Court

has “repeatedly held” that the rule’s sole purpose is to “deter

future Fourth Amendment violations.”   Id. (citing Herring v.


                                 17
United States v. Irizarry, No. 12-0451/AF

United States, 555 U.S. 135, 141 & n.2 (2009); United States v.

Leon, 468 U.S. 897, 909, 921 n.22 (1984); Elkins, 364 U.S. at

217).    “Real deterrent value is a ‘necessary condition for

exclusion’ . . . .”    Id. at 2427 (quoting Hudson v. Michigan,

547 U.S. 586, 596 (2006)).

        This court has also noted that “[u]nwarranted application

of the [exclusionary] rule can result in a disparity between the

error committed by the police and the windfall afforded the

accused.”    United States v. Khamsouk, 57 M.J. 282, 292 (C.A.A.F.

2002).    “The fundamental purpose of the exclusionary rule is to

deter improper law enforcement conduct.”    United States v.

Conklin, 63 M.J. 333, 340 (C.A.A.F. 2006).     “[D]espite 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.’”    Khamsouk,

57 M.J. at 292 (quoting Pennsylvania Bd. of Probation and

Parole, 524 U.S. at 363).     In this case I see no deterrent

benefit resulting from the imposition of the exclusionary rule,

and I would therefore decline to apply it.

        The critical factor in reaching this conclusion is that the

sergeants did not enter for the purpose of conducting a criminal

investigation or for the purpose of searching for evidence that

might later be utilized against Irizarry at a court-martial,


                                  18
United States v. Irizarry, No. 12-0451/AF

disciplinary hearing, or other legal proceeding.   Therefore,

suppressing the evidence they unexpectedly discovered would not

thwart their initial purpose for entering the apartment, so as

to discourage entry under similar circumstances in the future.

Their uncontroverted purpose was to assess the scope of the

damage to the apartment, possibly protect Irizarry from legal

action by the landlord, protect the Air Force’s relationship

with the local civilian community, and to report back to command

on the situation.   None of these purposes constitute police

misconduct that the exclusionary rule was designed to or is

capable of deterring.

     Irizarry argues, however, that Military Rule of Evidence

(M.R.E.) 311 mandates exclusion of evidence regardless of

whether exclusion has any deterrent effect.   A premise of this

argument is that the President has adopted a more restrictive

exclusionary rule for courts-martial than the judicially created

exclusionary rule adopted for the Fourth Amendment.    While I

agree with Irizarry that the President could adopt such a rule

if he chose, I am not convinced that he has done so.

     M.R.E. 311–M.R.E. 317 are intended to “express the manner

in which the Fourth Amendment to the Constitution of the United

States applies to trials by court-martial.”   Manual for Courts-

Martial, United States, Analysis of the Military Rules of

Evidence app. 22 at A22-17 (2012 ed.) [hereinafter Drafters’


                                19
United States v. Irizarry, No. 12-0451/AF

Analysis].    I read this language to reflect the President’s

intent that M.R.E. 311-M.R.E. 317 be interpreted in light of

federal Fourth Amendment case law, including the exclusionary

rule.    This inference is strengthened by the frequent amendments

to the rule which mirror developments in Fourth Amendment

jurisprudence in the federal courts.       See generally Drafters’

Analysis at A22-17 to A22-31 (identifying changes in M.R.E. 311-

M.R.E. 317 to conform to federal Fourth Amendment

jurisprudence).    In addition, this court has previously remarked

on the deterrent purpose of the exclusionary rule in military

cases.    See Conklin, 63 M.J. at 340; Khamsouk, 57 M.J. at 292;

see also United States v. Leedy, 65 M.J. 208, 219-20 (C.A.A.F.

2007) (Erdmann, J., concurring).       In the absence of a clear

statement from the President, I decline to read M.R.E. 311 as

more restrictive than the federal courts’ Fourth Amendment

jurisprudence.

                              Conclusion

        The search of Irizarry’s off-base apartment by his military

supervisors violated the Fourth Amendment, but application of

the exclusionary rule under these circumstances would not

promote further compliance with the Fourth Amendment.      I

therefore join in the result reached by the majority.




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