                         UNITED STATES, Appellee

                                         v.

                  Rodolfo FLORES, Private First Class
                      U.S. Marine Corps, Appellant

                                  No. 06-0675
                        Crim. App. No. 200400701

       United States Court of Appeals for the Armed Forces

                        Argued February 12, 2007

                          Decided April 23, 2007

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.

                                     Counsel

For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued);
Lieutenant Aimee M. Cooper, JAGC, USNR.


For Appellee: Major Brian K. Keller, USMC (argued); Major Kevin
C. Harris, USMC (on brief); Commander C. N. Purnell, JAGC, USN.


Amicus Curiae for Appellant: Jaymeski Pullins-Gorham (law
student) (argued); Donald W. North, Esq. (supervising attorney),
Brandon Brown (law student), Karen Hayes (law student), and
Katherine Pellegran (law student) (on brief) – for the Southern
University Clinical Education Program, Southern University Law
Center.

Military Judge:    R. S. Chester



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Flores, No. 06-0675/MC


    Chief Judge EFFRON delivered the opinion of the Court.1

    At a general court-martial composed of a military judge

sitting alone, Appellant faced charges of conspiracy to commit

larceny and six specifications of larceny.   See Articles 81 and

121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881,

921 (2000).   Prior to entering pleas, Appellant filed a motion

challenging the legality of a search that had produced

significant evidence on the charged offenses.   The military

judge denied Appellant’s motion, ruling that Appellant lacked

standing to challenge the legality of the search.   Following

denial of the motion, Appellant entered conditional guilty

pleas, preserving his right to appeal the military judge’s

ruling on the search.

     After receiving Appellant’s pleas, the military judge found

Appellant guilty of the charged offenses and adjudged a sentence

that included a dishonorable discharge, confinement for six

years, forfeiture of all pay and allowances, and reduction to

the lowest enlisted grade.   The convening authority approved the

sentence, but suspended execution of that portion of the

sentence adjudging confinement in excess of sixty months, for a

1
  We heard oral argument in this case at the Southern University
Law Center in Baton Rouge, Louisiana, 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


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United States v. Flores, No. 06-0675/MC


period of twelve months from the date of the convening

authority’s action.      The convening authority approved

forfeitures of all pay and allowances only until such time as

the approved confinement was lawfully terminated, and

thereafter, approved forfeitures of two-thirds pay per month

while Appellant remained in a pay status.      The United States

Navy-Marine Corps Court of Criminal Appeals affirmed.         United

States v. Flores, 63 M.J. 557 (N-M. Ct. Crim. App. 2006).

     On Appellant’s petition, we granted review of the following

issues:

     I.        WHETHER THE LOWER COURT ERRED WHEN IT
               HELD THAT APPELLANT DID NOT HAVE STANDING IN
               ORDER TO CHALLENGE THE GOVERNMENT’S SEARCH.

     II.       WHETHER THE MILITARY JUDGE ERRED WHEN HE
               CONCLUDED THAT THE GOVERNMENT WOULD HAVE
               “INEVITABLY DISCOVERED” APPELLANT’S
               CONFESSION.

     We hold that Appellant lacked standing to challenge the

legality of the Government’s search.      In light of our conclusion

on standing under Issue I, we need not resolve Issue II.



          I.    STANDING TO CHALLENGE THE LEGALITY OF A SEARCH

     Evidence obtained as a result of an unlawful search is

inadmissible against an accused who makes a timely motion or

objection establishing “a reasonable expectation of privacy in



system.

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United States v. Flores, No. 06-0675/MC


the person, place or property searched.”   Military Rule of

Evidence (M.R.E.) 311(a)(2); see United States v. Daniels, 60

M.J. 69, 70 (C.A.A.F. 2004).   An accused bears the burden of

demonstrating “a subjective expectation of privacy which is

objectively reasonable.”    United States v. Monroe, 52 M.J. 326,

330 (C.A.A.F. 2000); see United States v. Miller, 13 M.J. 75, 77

(C.M.A. 1982) (the accused “bears the burden of proving . . .

that he had a legitimate expectation of privacy in the area

being searched”) (citing Rawlings v. Kentucky, 448 U.S. 98

(1980); Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978)); see

also United States v. Freitas, 716 F.2d 1216, 1220 n.2 (9th Cir.

1983) (concluding that when “a defendant fails to meet this

burden in the suppression hearing, he cannot prevail on appeal

even though the Government also did not establish the contrary,

unless, of course, the record on appeal independently

demonstrates the requisite standing”).

     An accused has no privacy interest in voluntarily abandoned

property, and lacks standing to complain of the search or

seizure of such property.   See, e.g., California v. Hodari, 499

U.S. 621, 629 (1991) (judge properly denied motion to suppress

evidence of cocaine abandoned by defendant while fleeing from

police); Miller, 13 M.J. at 78.    If, however, a person

“discard[s] articles in reaction to illegal police conduct,”

such action does not deprive the individual “of the right to


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United States v. Flores, No. 06-0675/MC


object to the illegitimacy of the police action” in searching or

seizing those articles.   United States v. Robinson, 6 M.J. 109,

110 (C.M.A. 1979).


       II.   EVIDENCE PRESENTED AT THE SUPPRESSION HEARING

     The challenged search took place on the date that

Appellant’s platoon graduated from recruit training at the

Marine Corps Recruit Depot at San Diego, California.

     On the evening before graduation, the commanding officer of

Appellant’s platoon reported to his battalion commander that

several recruits had discovered unauthorized automatic teller

machine (ATM) withdrawals from their credit union accounts

amounting to approximately $3,700.   Appellant was one of the

recruits reporting lost funds.

     Agents from the Criminal Investigation Division (CID)

immediately launched an investigation into the apparent thefts,

questioning each of the platoon’s approximately sixty recruits

into the night in an attempt to identify a suspect.    By the

morning of graduation day, the investigation had not yet yielded

a suspect, but had focused suspicion on the members of

Appellant’s platoon.

     The schedule for graduation day called for the recruits to

participate in a graduation ceremony.   They would then depart




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United States v. Flores, No. 06-0675/MC


immediately after the ceremony for ten days of leave before

reporting for further training at the School of Infantry.

     On the morning of graduation day, the recruits placed their

bags, already packed in anticipation of their expected

departure, in a staging area.   They then left the barracks to

prepare for graduation.   While the recruits were on the parade

deck forming up for graduation, the CID and a credit union

representative briefed the battalion commander on the status of

the ongoing investigation.    Taking note of the lack of suspects

and imminent departure of the graduates, the battalion commander

became concerned that any evidence would disappear once the

recruits departed.   He ordered a guard and a drill instructor to

stand guard over the recruits’ bags, and ordered a search to be

conducted after graduation.   Although the recruits had been

interviewed by the CID and were aware that an investigation was

ongoing, the record is silent as to when they learned that their

belongings would be searched.

     After graduation, the recruits collected their bags from

the staging area and marched back to the squad bay.   In the bay,

they were ordered to line up with their bags.   One by one, each

recruit was ordered to empty his bags.    After a drill instructor

searched the contents of each bag, its owner was directed to

repack it.




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United States v. Flores, No. 06-0675/MC


     The bags carried by Appellant were searched and repacked

without incident.   As he was walking out the door, a drill

instructor alerted the CID to the discovery of a substantial

amount of cash in a bag that had been unpacked by Recruit S.

When viewing the contents, Recruit S denied ownership of the

bag, and expressed a belief that the bag had been switched when

the newly graduated Marines had been escorted to their bags just

before returning to the barracks for the search.

     The CID agents inspected the contents of the clothing bag

unpacked by Recruit S and found a substantial amount of material

pointing to Appellant as the owner of the bag, including

photographs of Appellant, mail addressed to Appellant, and

uniforms bearing Appellant’s name.   At the same time, the

clothing bag carried by Appellant was determined to be Recruit

S’s bag, and was returned to Recruit S.   Appellant was placed

under arrest, and soon thereafter, he confessed to the conduct

that subsequently resulted in his court-martial.   After

Appellant’s arrest, other members of the platoon discovered

unauthorized withdrawals from their accounts.

     At trial, Appellant moved to suppress evidence obtained as

a result of the search of his clothing bag, including his

confession.   At the hearing on the motion to suppress, the

military judge heard testimony from the commanding officer who

ordered the search, a CID agent who participated in the


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United States v. Flores, No. 06-0675/MC


investigation, and the drill instructor who conducted the search

that revealed the incriminating evidence in Appellant’s bag.

      In the course of ruling on the issue, the military judge

entered findings of fact and conclusions of law.    The military

judge found that Appellant voluntarily abandoned his bag by

switching bags with another recruit before the search was

ordered.   As matter of law, the military judge held that

Appellant lacked standing to challenge the legality of the

search of that bag, and denied the motion to suppress.



                          III.   DISCUSSION

      We review the military judge’s denial of the motion to

suppress for abuse of discretion.     United States v. Khamsouk, 57

M.J. 282, 286 (C.A.A.F. 2002).    Findings of fact are reviewed

for clear error, while conclusions of law are reviewed de novo.

Id.   We view the evidence in the light most favorable to the

prevailing party.   United States v. Reister, 44 M.J. 409, 413

(C.A.A.F. 1996).

      Appellant contends that the military judge’s finding that

the bags were switched before the search was ordered is

unsupported by the record and therefore erroneous.    According to

Appellant, the evidence suggests that the bags were switched at

the last minute in a hasty attempt to avoid detection during the

search.    Under Appellant’s theory, the bags were switched after


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United States v. Flores, No. 06-0675/MC


he learned of an imminent, illegal search.   In that context,

according to Appellant, he did not voluntarily abandon his bag,

and therefore did not lose standing to challenge the search.

     The motion hearing provided the military judge with scant

evidence on the question of whether Appellant abandoned his

clothing bag voluntarily or in response to the knowledge of the

imminent search.   The testimony established that on October 3,

2002, Appellant reported that there had been unauthorized

withdrawals from his credit union account.   The military judge

found that Appellant reported the withdrawals in an effort to

shift suspicion away from himself.   The military judge also

found that no one was allowed access to the recruits’ bags from

the time they were placed under guard until they were searched.

He concluded as a matter of fact that Appellant intentionally

switched clothing bags with Recruit S before the commanding

officer posted guards over the bags and ordered a search.

     The testimony at the hearing established that Appellant,

when asked to unpack his bag, presented Recruit S’s clothing bag

to be searched, passed it off as his own, and repacked the

contents of the bag after it had been searched.   He then took

Recruit S’s bag with him and walked out the door, without

telling anyone that the bag was not his.   The military judge

found that the bags carried by Appellant were searched before

Recruit S’s bags were searched, and that Appellant was walking


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United States v. Flores, No. 06-0675/MC

out the door after having had his bags searched when money was

found in Recruit S’s bag.

     The only direct evidence concerning when the bags were

switched is the drill instructor’s testimony that Recruit S said

he thought the bags were switched when the Marines returned to

their gear after graduation.   The defense did not object to the

drill instructor’s hearsay testimony.    Appellant could have

testified regarding the circumstances of the search, including

the issue of voluntary abandonment, without incriminating

himself on the charged offenses.     See M.R.E. 311(f).   He did not

testify, however.

     On appeal, Appellant bears the burden of showing a

reasonable expectation of privacy in his clothing bag after it

was switched with Recruit S’s bag.    We view the evidence in the

light most favorable to the Government, including Appellant’s

steps to divert suspicion from himself before the search by

reporting that he had been victimized by unauthorized

withdrawals, the platoon’s limited access to the guarded bags

immediately prior to the search, and the drill instructor’s

hearsay testimony suggesting that Appellant may not have

switched the bags until after the search was ordered.     In that

context, the military judge did not make a clearly erroneous

finding of fact in concluding that the bags were switched before

the commanding officer ordered the search.    Because the military


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United States v. Flores, No. 06-0675/MC

judge properly determined that Appellant abandoned his bag

voluntarily and not in response to the allegedly illegal police

conduct, we conclude that Appellant did not carry his burden at

the motion hearing, and has not carried his burden on appeal, of

demonstrating that he had a reasonable expectation of privacy in

the bag.   Accordingly, Appellant lacked standing to challenge

the validity of the search or the admission of derivative

evidence, including his confession.



                          IV.   CONCLUSION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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