       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
           Brandon G. DARNALL, Hospitalman
               United States Navy, Appellant
                          No. 16-0729
                    Crim. App. No. 201500010
         Argued May 10, 2017—Decided June 28, 2017
                 Military Judge: Leon J. Francis
   For Appellant: Lieutenant Christopher C. McMahon, USN,
   JAGC (argued).
   For Appellee: Major Cory A. Carver, USMC (argued);
   Colonel Valerie Danyluk, USMC, and Lieutenant James
   Belforti, USN, JAGC (on brief).
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and OHLSON, joined.
                     _______________

   Judge SPARKS delivered the opinion of the Court.

    This case arises out of the conviction by members,
contrary to his pleas, of Hospitalman (E-3) Brandon G.
Darnall (Appellant) of multiple drug-related charges
including      possession,      importation,      distribution,
manufacture, possession with intent to distribute, attempt
to possess with intent to distribute, conspiracy to import and
distribute, making false official statements, and misuse of a
communications facility—in violation of Articles 81, 107,
112a, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 881, 907, 912a, 934 (2012). Appellant was
sentenced to six years of confinement, a dishonorable
discharge, and reduction to grade E-1. The convening
authority suspended confinement over five years but
otherwise approved the findings and sentence. The United
States Navy-Marine Corps Court of Criminal Appeals noted
a court-martial order error but otherwise affirmed the
findings and sentence. We granted review of the following
issue:
            United States v. Darnall, No. 16-0729/NA
                      Opinion of the Court

       Whether the military judge erred in failing to
       suppress evidence directly flowing from the illegal
       apprehension of Appellant, whether the NMCCA
       ruling upholding this decision conflated reasonable
       suspicion with probable cause, and whether this
       decision should be reversed.
Upon review, we conclude that the Marine Criminal
Investigative Division (CID) agents did not have probable
cause to apprehend Appellant, and that both the military
judge and the lower court erred in failing to suppress the
evidence flowing from that apprehension. Accordingly, the
decision of the Navy-Marine Corps Court of Criminal
Appeals is reversed.

                             Facts

   Between October 2011 and March 2012, Appellant
imported, manufactured, and distributed controlled
substances including steroids and designer drugs,
communicating by cell phone (text and other apps) with
suppliers in China and customers and middlemen in the
United States. Investigators first grew suspicious of
Appellant in November 2011 when federal Customs and
Border Control agents intercepted a package containing
dimethylone 1 sent from China to someone with Appellant’s
name at an address in the town of Twentynine Palms in San
Bernardino County, California, which is home to the Marine
Corps Air Ground Combat Center also called Twentynine
Palms. The package was labeled with the name Brandon
Darnall, the Twentynine Palms address, and a phone
number. Thinking the intended recipient might be a
servicemember, the agents passed on the package to the
Marine CID, who took over the investigation. A search
through public records revealed three people named
Brandon Darnall in the entire county, one of whom was a
servicemember. The CID agent, Agent Pledger, went to the
address on the package and found an empty house with a




   1 Dimethylone is an analogue of several controlled substances
in the cathinone family with effects similar to methylone and to
MDMA. Methylone became a schedule I controlled substance in
October 2011. Dimethylone became a schedule I controlled
substance in March 2014.



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            United States v. Darnall, No. 16-0729/NA
                      Opinion of the Court

“For Rent” sign. 2 Based on the above information, Agent
Pledger received permission to have a counterfeit version of
the package containing no real drugs delivered to Appellant
at the regimental mailroom and to apprehend him after he
picked it up. Agent Pledger’s stated intent was to see
whether Appellant had any visible reaction upon seeing the
package, as well as to arrest and question Appellant to
determine how he intended to use the dimethylone. 3 At this
point, Agent Pledger had not initiated any previous contact
with Appellant, nor had he interviewed anyone else in
conjunction with the investigation. When Appellant, after
receiving a phone call to pick up a package, arrived at the
mailroom his only reaction was to appear as though he
didn’t remember ordering the package. On his way out, he
was stopped by three CID officers—one of them with a taser
drawn—handcuffed, and escorted to CID offices where he
was informed of his rights and waived them. During an
interview, he admitted to previously purchasing the drug
methylone from China and selling it to local “smoke shops”
to make into “spice” and “bath salts,” but only before it was
listed as a controlled substance in October 2011. His
statements were not recorded due to a power outage.

   Appellant gave agents permission to search his barracks
room and car but not his cell phone. Instead, Agent Pledger
took protective possession of Appellant’s phone until he was
able to obtain oral command authorization later that
evening to search it. The search authorization was granted
based on information obtained by Agent Pledger during his
questioning of Appellant. The phone contained messages,
audio and video recordings, and photos all related to
Appellant’s drug activity, including images of Appellant
holding up drugs and large rolls of cash. At Agent Pledger’s
request, Appellant voluntarily returned to CID offices and
was reinterviewed the following day. This interview was

    2 A search for prior residents at the address on the package
turned up a servicemember, not the Appellant, who later testified
at court-martial that Appellant asked to receive packages at his
address. However, the lower court’s factual determination that it
was likely the CID agent was not aware of this at the time of
Appellant’s arrest was not clearly erroneous.
   3 At the time of Appellant’s arrest, dimethylone was
considered a controlled substance only if intended for personal
consumption.



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           United States v. Darnall, No. 16-0729/NA
                     Opinion of the Court

recorded and his statement was put in writing. A
subsequent records review by Customs and Border
Protection revealed that in October 2011 another package
from China, this one containing methylone and addressed to
the same name and Twentynine Palms address, had been
intercepted and destroyed.

    At an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),
session conducted on October 31, 2013, Agent Pledger
testified that Appellant willingly participated in both
interviews. He also testified that in order to obtain an oral
search authorization for the cell phone, he informed his
battalion commander of the contents of the initial interview
with Appellant as well as his own experience and knowledge
about how the narcotics trade works. He stated that, had the
controlled delivery been denied, they would have simply
apprehended Appellant at his place of work and that the
investigation would have most likely “sunk” if Appellant had
not admitted during the interview that he had been the
person intended to receive the package.

    The motion to suppress was argued before the military
judge twice. In between, the charges were withdrawn and
dismissed by the Government and new charges were filed
because Appellant elected to withdraw from a pretrial
agreement. Appellant, who testified only during the second
motion to suppress, contradicted Agent Pledger’s account.
He testified that he never gave any statement when he was
first apprehended and that Agent Pledger had threatened to
put him in jail if he got a lawyer. The military judge found
Agent Pledger’s version of events to be the more credible.
The military judge denied the motion to suppress, relying
on, among other facts, a factual finding that Appellant had
previously lived at the Twentynine Palms address to which
the package was addressed.

   Upon review, the Navy-Marine Corps Court of Criminal
Appeals found the military judge’s factual finding that
Appellant had previously lived at the address on the
package to be clearly erroneous and proceeded to determine
whether, absent that fact, there were still sufficient facts to
establish probable cause. United States v. Darnall, No.
NMCCA 201500010, 2016 CCA LEXIS 398, at *8, 2016 WL
3853731, at *3 (N-M. Ct. Crim. App. July 12, 2016)
(unpublished). The lower court found that probable cause



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            United States v. Darnall, No. 16-0729/NA
                      Opinion of the Court

did exist but provided minimal analysis for its finding
simply stating that:

       At the time of the appellant’s arrest, the CID agent
       had the following facts at his disposal: (1) that
       Customs and Border Control agents seized a
       package mailed from China containing more than
       two pounds of dimethylone, a Schedule I controlled
       substance analogue; (2) that the package was
       addressed to “Brandon Darnall” at a rental
       property near MCAGCC, Twentynine Palms; (3)
       that there were only three “Brandon Darnalls”
       located in the entirety of San Bernardino County,
       California; (4) that the appellant was the only
       “Brandon Darnall” of the three who was a
       servicemember; and (5) that the appellant was
       stationed on board MCAGCC, Twentynine Palms.
       We find these facts sufficient to establish probable
       cause.
Id. at *9–10, 2016 WL 3853731, at *4.

                          Discussion

   The central question before this Court is whether Agent
Pledger had sufficient information to establish probable
cause to apprehend Appellant after he picked up the
package. Rule for Courts-Martial (R.C.M.) 302(c) outlines
“Grounds for apprehension,” 4 and states that:

       A person subject to the code or trial thereunder
       may be apprehended for an offense triable by court-
       martial upon probable cause to apprehend.
       Probable cause to apprehend exists when there are
       reasonable grounds to believe that an offense has
       been or is being committed and the person to be
       apprehended committed or is committing it.

The R.C.M. 302(a) Discussion further provides that evidence
obtained as the result of an apprehension which is in
violation of R.C.M. 302 may be challenged as an unlawful
search or seizure and excluded under Military Rule of
Evidence (M.R.E.) 311(c).



   4 R.C.M. 302(a) defines apprehension as “the taking of a
person into custody.”



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           United States v. Darnall, No. 16-0729/NA
                     Opinion of the Court

    The Fourth Amendment states that “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.” U.S.
Const. amend. IV. The Supreme Court has characterized
probable cause as “a fluid concept—turning on the
assessment of probabilities in particular factual contexts,”
and meriting an evaluation of the totality of the
circumstances in any given case. Illinois v. Gates, 462 U.S.
213, 232 (1983). This Court has stated that “probable cause
requires more than bare suspicion, but something less than
a preponderance of the evidence.” United States v. Leedy, 65
M.J. 208, 213 (C.A.A.F. 2007). “To determine whether an
officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then decide
‘whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to’
probable cause.” Maryland v. Pringle, 540 U.S. 366, 371
(2003). “[P]robable cause is measured at the moment the
arrest occurs and must derive from facts and circumstances
based on reasonably trustworthy information.” Cortez v.
McCauley, 478 F. 3d 1108, 1121 (10th Cir. 2007); see also
United States v. Rodriguez, 60 M.J. 239, 247 (C.A.A.F. 2004)
(stating that an arrest must be supported by probable cause
and distinguishing between the probable cause necessary for
arrest and the reasonable suspicion necessary to conduct an
investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968)).

    This Court reviews a military judge’s denial of a motion
to suppress for an abuse of discretion. United States v. Nieto,
76 M.J. 101, 105 (C.A.A.F. 2017). “An abuse of discretion
occurs when we determine that the military judge’s findings
of fact are clearly erroneous or that he misapprehended the
law.” United States v. Clayton, 68 M.J. 419, 423 (C.A.A.F.
2010). “We review the legal question of sufficiency for
finding probable cause de novo using a totality of the
circumstances test,” and “consider the evidence in the light
most favorable to the prevailing party.” Leedy, 65 M.J. at
212–13 (internal quotation marks omitted) (citations
omitted).

    We accept the lower court’s conclusion that the military
judge clearly erred in finding that Appellant had previously
lived at the address on the package. The lower court then
analyzed whether probable cause still existed absent the



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            United States v. Darnall, No. 16-0729/NA
                      Opinion of the Court

erroneous fact considered by the military judge. As with an
affidavit, in this situation: “[W]hen there are misstatements
or improperly obtained information, we sever [that
information] and examine the remainder to determine if
probable cause still exists.” United States v. Gallo, 55 M.J.
418, 421 (C.A.A.F. 2001). The lower court relied upon the
following facts, as stated in its opinion: (1) that Customs and
Border Control agents seized a package mailed from China
containing more than two pounds of dimethylone, a
Schedule I controlled substance analogue; (2) that the
package was addressed to “Brandon Darnall” at a rental
property near MCAGCC, Twentynine Palms; (3) that there
were only three “Brandon Darnalls” located in the entirety
of San Bernardino County, California; (4) that Appellant
was the only “Brandon Darnall” of the three who was a
servicemember; and (5) that Appellant was stationed aboard
MCAGCC, Twentynine Palms.

    Unlike the lower court, we do not conclude that the facts
listed above provide sufficient evidence to establish probable
cause to apprehend. Agent Pledger had uncovered nothing
aside from a name connecting Appellant to the incriminating
box. It appeared to have been mailed from an unidentified
sender in China and Appellant was asked to pick it up—he
did not volunteer, nor was it delivered to the address on the
box. There was simply no connection between Appellant and
the box apparent to Agent Pledger at the time of the arrest
except that his name was printed on the outside and it was
mailed to an address in the community surrounding the
Marine base. The artificial setup orchestrated by Agent
Pledger—having a fake package delivered to the unit
mailroom and then telephoning Appellant to have him come
pick it up—bears little resemblance to a “controlled delivery”
situation in which law enforcement officials allow the
shipment of a contraband substance to continue on its way
to the intended recipient in order to confirm a suspect’s
involvement in the transport. As described by the Supreme
Court in Illinois v. Andreas, in a controlled delivery:

       [T]he police, rather than simply seizing the
       contraband and destroying it, make a so-called
       controlled delivery of the container to its consignee,
       allowing the container to continue its journey to the
       destination contemplated by the parties. The person
       dealing in the contraband can then be identified




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            United States v. Darnall, No. 16-0729/NA
                      Opinion of the Court

       upon taking possession of and asserting dominion
       over the container.

463 U.S. 765, 769 (1983) (emphasis added). Here, the
container did not continue on its journey to the Twentynine
Palms address on the package but was rather rerouted to
the mailroom to which Appellant was summoned to retrieve
it. The fact that he did so would not in any way confirm
Appellant’s involvement to a degree significant enough to
establish probable cause.

   “Evidence derivative of an unlawful search, seizure, or
interrogation is commonly referred to as the ‘fruit of the
poisonous tree’ and is generally not admissible at trial.”
United States v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006)
(quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963)). Here, the statements Appellant made in that initial
interview provided the basis for the search of his phone,
which in turn supplied the photos and text messages that
formed the basis for subsequent charges. Appellant’s first
interview also led directly to his return to the CID building
the following day where he then took part in a second,
recorded interview with Agent Pledger, who was still in
possession of and had at that point searched Appellant’s
phone.

    We do not find any intervening factors sufficient to
attenuate the taint of the illegal apprehension on the
evidence derived from the phone or from the first or second
interviews. The Supreme Court has stated that, in testing
for causal connection between an illegal arrest and a
subsequent confession, factors that should be considered
include “[t]he temporal proximity of the arrest and the
confession, the presence of intervening circumstances, …
and, particularly, the purpose and flagrancy of the official
misconduct.” Brown v. Illinois, 422 U.S. 590, 603–04 (1975)
(footnote omitted) (citations omitted). Here, the initial
interview took place directly following the arrest, with no
intervening circumstances except the drive to the CID
building and Appellant being advised of his rights. 5 Though

   5 In Brown, the Supreme Court found that the warnings in
accordance with Miranda v. Arizona, 384 U.S. 436 (1966), by
themselves did not automatically purge the taint of an illegal
arrest, stating that “[i]f Miranda warnings, by themselves, were
held to attenuate the taint of an unconstitutional arrest,


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             United States v. Darnall, No. 16-0729/NA
                       Opinion of the Court

Appellant did leave the building overnight between the first
and second interviews, the fact that Agent Pledger told him
to return and that the agent still possessed Appellant’s
phone indicate the second interview is best characterized as
an extension of the first rather than a fresh start.

    This brings us to the third factor, the purpose and
flagrancy of the official conduct. The record does not reveal
any malignant intent behind Agent Pledger’s actions.
However, we do not think it necessary that the agent’s
misconduct be outrageous for the third factor in Brown to
apply. Though there is no evidence of bad motive or intent
on the investigator’s behalf, we do believe that his actions
were “unwise, avoidable, and unlawful.” Conklin, 63 M.J. at
339. By all appearances, Agent Pledger conducted a hasty
and flimsy initial investigation before apprehending
Appellant. He did not seek out and speak to the previous
owner of the house to which the package was addressed,
attempt to speak to Appellant at all prior to his detention, or
even call the telephone number listed on the package. He did
not ask Customs and Border Protection for help in running
the names and addresses involved through their own
records, which would have, and later did, turn up the
October 2011 box that had been destroyed. In Agent
Pledger’s own words, if Appellant had given no indication
during that initial interview that he was the intended
recipient of the package, the “investigation probably would
have sunk at that time and not been continued.” In Conklin,
after executing an illegal search and finding contraband on
the appellant’s computer, officers alerted law enforcement
agents, who obtained consent from the appellant to search
his room and computer. This Court, finding the officers’
actions were “unnecessary and unwise,” determined that the
taint of the unlawful search was not attenuated by obtaining
subsequent consent to search. Conklin at 63 M.J. at 339–40.
As in Conklin, the law enforcement actions in the instant
case infringed inexcusably upon Appellant’s Fourth
Amendment rights and Agent Pledger openly “exploited the
original illegality,” using information obtained from
Appellant in his post-apprehension interview to obtain a
warrant for his phone. Id. at 339.


regardless of how wanton and purposeful the Fourth Amendment
violation, the effect of the exclusionary rule would be substantially
diluted.” 422 U.S. at 602.



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           United States v. Darnall, No. 16-0729/NA
                     Opinion of the Court

    The Government argues that even if probable cause to
apprehend did not exist, the exclusionary rule should not
apply in the circumstances of this case. It cites the Supreme
Court’s statement in United States v. Leon that the
exclusionary rule “operates as a judicially created remedy
designed to safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a personal
constitutional right of the party aggrieved.” 468 U.S. 897,
906 (1984) (internal quotation marks omitted) (citation
omitted). The exclusionary rule “cannot be expected, and
should not be applied, to deter objectively reasonable law
enforcement activity.” Id. at 919. However, we do not view
Agent Pledger’s behavior as objectively reasonable law
enforcement activity. In Brown, the Supreme Court
reminded us that the exclusionary rule “is calculated to
prevent, not to repair. Its purpose is to deter—to compel
respect for the constitutional guaranty in the only effectively
available way—by removing the incentive to disregard it.”
422 U.S. at 599–600 (internal quotation marks omitted)
(quoting Elkins v. United States, 364 U.S. 206, 217 (1960)).
The somewhat sloppy and apathetic investigation conducted
by Agent Pledger prior to apprehending Appellant, in clear
violation of his Fourth Amendment rights, is one type of law
enforcement activity we would certainly hope to deter. Were
we to determine that the exclusionary rule did not apply
under such circumstances, excusing Agent Pledger’s actions
because they were not sufficiently flagrant or purposeful, we
“might well be encouraging unlawful conduct rather than
deterring it.” Conklin, 63 M.J. at 340.

    The Government also suggests that both the inevitable
discovery and the good faith exceptions to the exclusionary
rule should apply here. We disagree. The inevitable
discovery doctrine is contained in M.R.E. 311(b)(2), which
states that: “Evidence that was obtained as a result of an
unlawful search or seizure may be used when the evidence
would have been obtained even if such unlawful search or
seizure had not been made.” To take advantage of this
doctrine, the prosecution must establish, by a preponderance
of the evidence, that: “when the illegality occurred, the
government agents possessed, or were actively pursuing,
evidence or leads that would have inevitably led to the
discovery of the evidence and that the evidence would
inevitably have been discovered in a lawful manner had not
the illegality occurred.” United States v. Hoffmann, 75 M.J.



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           United States v. Darnall, No. 16-0729/NA
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120, 125 (C.A.A.F. 2016) (internal quotation marks omitted)
(citations omitted). Though there was further evidence
against Appellant that may have arisen in the course of the
investigation independent of his admissions to Agent
Pledger (the renter of the house’s statement that Appellant
asked to have packages delivered to him, the previous
package destroyed by Customs and Border Protection), we
are not convinced that, when CID arrested Appellant, they
were actively pursuing this evidence. We also note Agent
Pledger’s testimony that if Appellant had not suggested
during that initial interview that he was the intended
recipient of the package, the “investigation probably would
have sunk at that time and not been continued.”

    “The ‘good faith’ exception to the exclusionary rule
[applies] in cases where the official executing the warrant
relied on the magistrate’s probable cause determination and
the technical sufficiency of the warrant, and that reliance
was ‘objectively reasonable.’ ” United States v. Carter, 54
M.J. 414, 419 (C.A.A.F. 2001) (citing Leon, 468 U.S. at 922).
Here, we determine that the Government has not met its
burden of establishing the good faith doctrine. See Nieto, 76
M.J. at 108.

   We therefore conclude that Agent Pledger did not have
probable cause to apprehend Appellant and that any
evidence derived from the fruits of that apprehension should
be suppressed.

                          Decision

   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The findings and
sentence are set aside. The record of trial is returned to the
Judge Advocate General of the Navy. A rehearing may be
authorized.




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