UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                              MULLIGAN, BURTON, and BORGERDING 1
                                    Appellate Military Judges

                                   UNITED STATES, Appellee
                                                v.
                                 Specialist LEVI A. KEEFAUVER
                                  United States Army, Appellant

                                             ARMY 20121026

    Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell (convened)
                          Headquarters, Fort Campbell (action)
          Timothy Grammel, Military Judge (arraignment and motion hearing)
                        Steven E. Walburn, Military Judge (trial)
              Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Jonathan A. Potter,
JA; Major Amy E. Nieman, JA; Captain Patrick J. Scudieri, JA (on brief); Colonel
Kevin Boyle, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Patrick J.
Scudieri, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Major
Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief).

                                            25 November 2015

                         ----------------------------------------------------------------
                          MEMORANDUM OPINION ON FURTHER REVIEW
                         ----------------------------------------------------------------

           This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of violating a lawful general regulation
by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one
specification of wrongful possession of marijuana with intent to distribute, and one
specification of child endangerment, in violation of Articles 92, 112a, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 912a, 934 (2006) [hereinafter
UCMJ]. The military judge sentenced appellant to a bad-conduct discharge,

1
    Judge BORGERDING took final action in this case while on active duty.
KEEFAUVER — ARMY 20121026

confinement for four years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.

       On 29 July 2014, this court issued an opinion of the court in appellant’s case,
affirming the findings of guilty and the sentence as approved by the convening
authority. United States v. Keefauver, 73 M.J. 846 (Army Ct. Crim. App. 2014).
On 12 June 2015, our superior court reversed that decision, finding error in our
upholding of a “protective sweep” conducted in this case. United States v.
Keefauver, 74 M.J. 230, 237 (C.A.A.F. 2015). Our superior court then returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further action consistent with their resolution of the granted issue. Id.

                                         FACTS

       On 8 December 2011, Kentucky postal inspectors intercepted a suspicious box
that smelled of marijuana and was addressed to a residential address on Fort
Campbell, Kentucky belonging to appellant. Upon further inspection of the box,
inspectors observed that it was a heavily taped, approximately eight-pound “Ready-
Post” priority box, with delivery confirmation and insurance stickers. The return
address was a hand-written label showing a “B. Samuelson” mailed it from an
address in northern California. While there was no record of a “B. Samuelson” at
that return address, investigators did learn that appellant and his wife had claimed
that address as their own in years past. These facts, coupled with the odor of
marijuana emanating from the box, indicated to the postal inspectors that the box
was being used for drug trafficking.

          Since the box was addressed to a house located on Fort Campbell, the postal
    inspectors contacted the Drug Suppression Team Chief at the Fort Campbell
    Criminal Investigation Command (CID) office, Special Agent (SA) SR, in hopes of
    conducting a “controlled delivery.” 2

          Special Agent SR then obtained a verbal authorization from the military
    magistrate, Captain (CPT) MR, to conduct a controlled delivery of the package and
    to conduct a search limited to the box itself.

           Special Agent SR and his team conducted surveillance in the front and the
    rear of appellant’s house and watched as a member of the postal inspection team
    delivered the box. When no one answered the door, the agent put the box on the
    front doorstep and the team waited outside for approximately an hour until an


2
 The postal inspector testified that a “controlled delivery” is a delivery controlled
by law enforcement personnel whereby they mimic what a regular letter carrier
would normally do every day in the event that the individuals expecting the package
are conducting surveillance and tracking the package.


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KEEFAUVER — ARMY 20121026

individual later identified as appellant’s sixteen-year-old stepson, TC-D, arrived
home and took the box inside.

      Once the package was inside the house, the surveillance team moved in and
entered the home to retrieve the box. Special Agent SR immediately located the
package right inside the home in the hallway, about ten feet from the front door.

      Once the package was located, SA SR conducted a “security sweep” of the
home to “ensure that no one else [other than TC-D] was inside the house” and that
no one was “destroying evidence.”

       Special Agent SR began this sweep in the downstairs area where he saw a
“marijuana-type smoking device” on the kitchen counter. He then continued
upstairs where he observed a bag of what appeared to be marijuana laying in plain
view on the bed in TC-D’s room as well as at least two items of drug paraphernalia,
also in plain view, in the room. He also saw “a couple rifles” in an unlocked walk-
in closet in the hallway. In the master bedroom, also in plain view, he saw more
boxes with similar characteristics to the one that had just been delivered, all of
which bore similar indicia of drug trafficking.

       After the protective sweep was completed and the home was cleared, law
enforcement brought in a military working dog (MWD) which conducted a search
and alerted on multiple areas within the house. Upon entry into the house, several
of the law enforcement agents noted there was a very strong smell of marijuana
emanating from the house in general and not just from the box.

       The MWD alerted as soon as it entered TC-D’s room. In addition to the
items seen in plain view by SA SR, investigators found more marijuana throughout
the room, both loose and in small Ziploc bags. Next, although SA SR did not recall
seeing any items in plain view in the room later determined to belong to appellant’s
thirteen-year-old biological son, EK, the MWD alerted on a container found in plain
view on the floor in the middle of the room. In addition, the MWD alerted on a
dresser drawer where investigators found more marijuana, rolling papers, and a
pipe.

       In the master bedroom, the MWD alerted to additional bags of marijuana
located in a dresser. The investigators also found a vaporizer which appeared to be
used to smoke marijuana, a scale which could be used to weigh drugs, and a large
sum of money in a dresser drawer.

      In the downstairs area of the home, the MWD alerted on a black duffel bag
found inside a closet under the stairs. It contained no marijuana but did contain
$4,000 in cash. Investigators also found an amount of cash inside a teapot in the
dining room. In a closet immediately inside the residence, investigators found two



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KEEFAUVER — ARMY 20121026

handguns stored in a locked container and a bag of marijuana inside a bin of toy
cars. Finally, investigators searched garbage cans outside the house and found
plastic bags similar to ones found inside the house that had $1,000, $2,000, $8,000,
and $8,300 written on them. All items, including those SA SR saw in plain view
during his protective sweep, were seized and admitted into evidence at trial.

       Following their search, investigators opened the box originally delivered to
the home while it was still inside the residence. The box contained approximately
three to four pounds of “high grade” marijuana packaged in a manner consistent
with drug trafficking.

       Later, at the CID office, investigators searched both appellant and EK “for
officer safety in accordance with . . . standard operating procedures.” During these
searches, they found $900 in cash consisting of nine $100 bills in appellant’s
pockets and $692 in EK’s pockets. After seeing his sons at the CID office,
appellant told the investigators “all the stuff you found in the house is mine, I don’t
want my family getting in trouble,” or words to that effect.

                              LAW AND DISCUSSION

                                 Inevitable Discovery

      In light of our superior court’s decision that SA SR’s protective sweep of the
home was not warranted, we must first determine if there is any other basis upon
which the bulk of the evidence against appellant (besides the delivered box) can be
considered. We find that there is not. Specifically, the doctrine of inevitable
discovery is now inapplicable to the facts of this case.

       The doctrine of inevitable discovery is an exception to the exclusionary rule
allowing for the admission of evidence that, although obtained improperly, would
have been properly obtained by other means. United States v. Wallace, 66 M.J. 5, 10
(C.A.A.F. 2008) (citing Nix v. Williams, 467 U.S. 431, 444 (1984)); see also
Military Rule of Evidence [hereinafter Mil. R. Evid.] 311(b)(2) (“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.”).

       For the inevitable discovery exception to apply, the government had to
demonstrate 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 . . . in a lawful manner . .
. .” United States v. Dease, 71 M.J. 116, 122 (C.A.A.F. 2012) (quoting United
States v. Kozak, 12 M.J. 389, 394 (C.M.A. 1982)); see also United States v. Wicks,
73 M.J. 93, 103 (C.A.A.F. 2014).



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KEEFAUVER — ARMY 20121026


        In this case, the “illegality occurred” as soon as SA SR left the area in the
immediate vicinity of the box. There is no evidence at this point that the agents
possessed, or were pursuing, evidence or leads that would have inevitably led to the
discovery of any other items in the home. Wicks, 73 M.J. at 103; see also United
States v. Alexander, 540 F.3d 494, 502 (6th Cir. 2008) (“The inevitable discovery
doctrine ‘requires [a] court to determine, viewing affairs as they existed at the
instant before the unlawful search, what would have happened had the unlawful
search never occurred.’”) (quoting United States v. Kennedy, 61 F.3d 494, 498 (6th
Cir. 1995)). At this particular point in time, investigators had no further evidence to
support a finding of probable cause to search than when they originally made the
search request. 3 Thus, given that the investigators had, at this point, found only
what they expected to find—the box—and nothing more, we cannot even say that
“the routine procedures of a law enforcement agency would inevitably find the same
evidence.” United States v. Owens, 51 M.J. 204, 210 (C.A.A.F. 1999). In short, the
inevitable discovery doctrine cannot rescue any evidence found in the house beyond
the box, and the admission of such evidence violated appellant’s Fourth Amendment
rights.

      We review constitutional errors under the harmless beyond a reasonable doubt
standard found in Chapman v. California, 386 U.S. 18, 24 (1967). See United States
v. Mott, 72 M.J. 319, 332 (C.A.A.F. 2013); United States v. Paige, 67 M.J. 442, 449
(C.A.A.F. 2009); see also United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F.
2004). “Whether a constitutional error in admitting evidence is harmless beyond a
reasonable doubt is a question of law that we review de novo.” United States v.
Crudup, 67 M.J. 92, 94 (C.A.A.F. 2008); see also United States v. Gardinier, 67
M.J. 304, 306 (C.A.A.F. 2009)).

       “In assessing harmlessness in the constitutional context, the question is not
whether the evidence is legally sufficient to uphold [appellant’s] conviction without
the erroneously admitted evidence. Rather, the question is whether there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.” Gardinier, 67 M.J. at 306 (quoting Chapman, 386 U.S. at 23) (internal
citations and quotation marks omitted). Further, as our superior court noted in
United States v. Moran,




3
  Even if the mere smell of the marijuana then constituted probable cause, the
inevitable discovery doctrine “cannot rescue evidence obtained via an unlawful
search simply because probable cause existed to obtain a warrant when the
government presents no evidence that the police would have obtained a warrant.”
Wicks, 73 M.J. at 103 (citations and internal quotation marks omitted).



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KEEFAUVER — ARMY 20121026

             “To say that an error did not ‘contribute’ to the ensuing
             verdict is not, of course, to say that the jury was totally
             unaware of that feature of the trial later held to have been
             erroneous. It is, rather, “to find that error unimportant in
             relation to everything else the jury considered on the issue
             in question, as revealed in the record.”

65 M.J. 178, 187 (C.A.A.F. 2007) (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991),
overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991)).

       Thus, our determination of whether or not there is a “reasonable possibility”
that the evidence admitted erroneously in this case “might have contributed to the
conviction,” Chapman, 386 U.S. at 24 (citing Fahy v. Connecticut, 375 U.S. 85, 86-
87 (1963)), is “made on the basis of the entire record . . . .” Mott, 72 M.J. at 332
(quoting United States v. Sweeney, 70 M.J. 296, 306 (C.A.A.F. 2011)).

       After a review of the entire record, we find there is a reasonable possibility
that the erroneously admitted evidence might have contributed to appellant’s
convictions for all charges and specifications. With respect to the Specification of
Charge II (wrongful possession of unregistered firearms) and the Specification of
Additional Charge I (wrongful possession of drug paraphernalia), the only 4 evidence
supporting the convictions was found during the illegal search of appellant’s home.
Further, although there was some testimony about appellant’s 13-year-old son’s drug
use that was arguably not tainted by the illegal search, the bulk of the evidence
supporting the conviction for child endangerment (Specification 1 of Additional
Charge II) was discovered in the child’s bedroom during the illegal search.

       We also find that despite the fact that the box containing the majority of the
marijuana appellant was charged with wrongfully possessing was properly admitted
into evidence, there is still a “reasonable possibility” that the sheer volume of


4
  In his trial testimony, appellant did admit to possessing unregistered firearms in his
home. However, “[u]nder the circumstances of this case, we are not convinced that
the defense strategy of having [appellant] testify at trial [in an attempt to explain the
vast amount of incriminating evidence found in his home], would have been the
same in the absence of the improperly admitted evidence.” Simmons, 59 M.J. at 489-
90 (citing United States v. Grooters, 39 M.J. 269, 273 (C.M.A. 1994) (accused may
not have been compelled to testify to explain improperly admitted statements);
United States v. Bearchild, 17 U.S.C.M.A. 598, 602, 38 C.M.R. 396, 400 (1968) (in-
court testimony tainted if given to overcome inadmissible confession)). Thus, “we
cannot view [appellant’s] trial testimony as an ‘independent’ basis for concluding
that the improperly admitted evidence ‘did not contribute to’” any portion of the
findings. Simmons, 59 M.J. at 490.



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KEEFAUVER — ARMY 20121026

evidence illegally admitted “might have contributed to the conviction” for wrongful
possession with the intent to distribute. Chapman, 386 U.S. at 24 (citing Fahy v.
Connecticut, 375 U.S. 85, 86-87 (1963). To convict appellant of wrongful
possession (with the intent to distribute), the government was required to prove,
inter alia, that appellant knowingly and intentionally possessed the controlled
substance. See United States v. Wilson, 7 M.J. 290 (C.M.A. 1979); Manual for
Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶ 37.b.(6)(a),
c.(2). Under the facts of this case, appellant’s alleged possession of the marijuana
was constructive, requiring the government to prove appellant “was knowingly in a
position or had the right to exercise dominion and control over it either directly or
through others.” Wilson, 7 M.J. at 293 (citations and internal quotation marks
omitted); see also MCM, pt. IV, ¶ 37.c.(2) (“An accused may not be convicted of
possession of a controlled substance if the accused did not know that the substance
was present under the accused’s control.”). “[P]ossession may be established by
circumstantial as well as by direct evidence.” Wilson, 7 M.J. at 293 (citation
omitted); see also MCM, pt. IV, ¶ 37.c.(2).

        We recognize that besides the box and its contents, there are additional,
untainted pieces of evidence which may be sufficient to prove beyond a reasonable
doubt appellant had constructive possession of the marijuana. These include: a
return address on the box previously connected to appellant; the smell of marijuana
in the home from the front door; the large amount of cash found on appellant’s
person at CID; appellant’s admission that “all the stuff you found in the house is
mine, I don’t want my family getting in trouble;” and the baggies found in the
outside garbage cans. However, the sheer mass of inadmissible evidence found in
the house eliminates any possibility the error was harmless beyond a reasonable
doubt. See Gardinier, 67 M.J. at 306; see also Chapman, 386 U.S. at 23. Without
the illegally obtained items, the defense claim that the drugs belonged to appellant’s
wife and that appellant had no idea they were delivered to his house may have
succeeded given that the evidence showed only one box delivered at a time when
appellant was not home. However, since the military judge also considered the fact
that there were multiple, similar boxes found in the home, along with a significant
amount of cash and unregistered weapons, it is impossible for us to conclude this
knowledge had no effect on his finding of guilt.

        The importance of all of the evidence found in the home was underscored by
trial counsel in his closing argument. For example, he began: “what does 5.25
pounds of marijuana, over $7,600 in cash, four unregistered firearms, numerous
baggies, and a scale equal? We have a criminal enterprise.” Of the five things he
mentioned, only one was properly in evidence. 5 Moreover, trial counsel’s focus on


5
  The actual amount of marijuana in the box was closer to 3-4 pounds, according to
the postal inspector. The rest of the 5.25 pounds purportedly included the amount of
marijuana found throughout the home, an amount now improperly considered.


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KEEFAUVER — ARMY 20121026

the evidence now determined to be illegally admitted supported not only the
“criminal enterprise,” but also appellant’s knowledge of the drugs in the house, and
the child endangerment specification. In short, the illegally admitted evidence
formed the “cornerstone” of the government’s case against appellant. See United
States v. Long, 64 M.J. 57, 66 (C.A.A.F. 2006).

      For these reasons, at this stage in the proceedings, it is impossible to separate
the impact of all these items on the ultimate conviction. Accordingly, we cannot
conclude that the error was harmless beyond a reasonable doubt.

                                   CONCLUSION

      The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority. See generally R.C.M. 810.

      Senior Judge MULLIGAN and Judge BURTON concur.

                                        FOR THE
                                            THECOURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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