

   
   
   
   U.S. v. Marine



IN THE CASE OF
UNITED STATES, Appellee
v.
Robert C. MARINE, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-1021
Crim. App. No. 96-2491
 
United States Court of Appeals for the Armed
Forces
Argued February 10, 1999
Decided September 10, 1999

SULLIVAN, J., delivered the opinion
of the Court in which COX, C.J., and CRAWFORD, and EFFRON, JJ., joined.
GIERKE, J., filed an opinion concurring in part and dissenting in part.
 


Counsel
For Appellant: Lieutenant John
D. Holden, JAGC, USNR (argued).
For Appellee: Lieutenant Margaret
E. Jolly, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, Commander Eugene E. Irvin, JAGC, USN, and Lieutenant Kevin
S. Rosenberg, JAGC, USNR (on brief).
Military Judges: Robert K. Fricke
and Kenneth B. Martin
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge SULLIVAN delivered the opinion of the
Court.
Appellant was tried by a special court-martial
composed of a military judge sitting alone at Camp Pendleton, California,
during April and May of 1996. He was charged with a single specification
of wrongfully possessing .17 grams of marijuana, in violation of Article
112a, Uniform Code of Military Justice, 10 USC § 912a. Contrary to
his pleas, he was found guilty of this offense. He was sentenced to a bad-conduct
discharge, confinement for 40 days, and reduction to pay grade E-1. The
convening authority approved the sentence on November 15, 1996. The Court
of Criminal Appeals on June 17, 1998, affirmed the findings of guilty and
the sentence as adjudged and approved.
On November 5, 1998, this Court granted review
on the following question of law:



WHETHER THE MILITARY JUDGE ERRONEOUSLY ADMITTED
INTO EVIDENCE A MARIJUANA CIGARETTE WHICH WAS IMPROPERLY SEIZED FROM APPELLANT
AS FRUIT OF A TAINTED TERRY STOP.



We hold that this marijuana cigarette was not
improperly seized by the Government and that the military judge did not
err in admitting it as evidence at appellants court-martial. See
United States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir.
1995) ("defendants response to even an invalid arrest or Terry
stop may constitute independent grounds for arrest" and search incident
thereto); see also United States v. Green, 111 F.3d
515, 523 (7th Cir. 1997) (lawful arrest on an outstanding warrant
not tainted by illegal, but not bad faith, investigative stop).
At his court-martial, appellant made a motion
to suppress certain evidence seized during a search of his person on December
10, 1995. He argued that he was illegally stopped and detained based on
his race for investigation of an offense committed by someone else. He
further argued that he was detained beyond the time necessary to investigate
that offense. Finally, he contended that a search of his person incident
to his arrest for disrespect to the investigating commissioned officer
was tainted by his prior unlawful stop and detention. In sum, he argued
that he was illegally detained and unlawfully searched, so the fruits of
that search should not have been admitted at his court-martial.
The military judge made the following findings
of fact and conclusions of law concerning the hand-rolled, half-smoked
marijuana cigarette discovered in a search of appellants clothing at the
enlisted servicemembers club on December 10, 1995:



1. The Fourth Amendment allows a limited
government intrusion (stop and frisk) based on less than probable cause
(reasonable suspicion) where important government interests outweigh the
limited invasion of a suspects privacy.
2. I find the testimony of 1st Lt.
P. Moore to be credible. I base this on his intelligence, ability to observe,
relate to the Court only what he could accurately remember, his sincerity
and conduct in court, body language and overall demeanor.
3. On the evening of 10 December 1995, Lt Moore
was a commissioned officer in the United States Marine Corps who was the
21 Area Guard Officer.
4. That evening an unidentified black male,
wearing a striped rugby type shirt (hereinafter called the suspect) assaulted
one of the members of the Area Guard in front of the 21 Area Enlisted Club.
5. The suspect ran to the other side of the
E Club.
6. This rough description was radioed to a
guard member on that side of the E Club.
7. The guard radioed back he had several (5-6)
black males that met that description and could they give a better description.
8. The guard was told to bring all those individuals
to the front of the E Club so the suspect could be identified.
9. The accused was in this group of individuals.
The accused was wearing a green sweater with a leather coat. Some members
of the group had striped shirts.
10. The accused is a black male. All other
members of the group were black males.
11. The accused was required to walk with the
guard officer to [the] front of the E Club, which took a matter of seconds.
12. I find this limited government intrusion
to be based on reasonable suspicion.
13. Upon the groups arrival in the front of
the E Club the suspect was immediately identified and apprehended.
14. The accused and other members of the group
were not told they were free to go. They were ignored but of course would
still be under the impression they were not free to go.
15. The accused should have been told he was
free to go when the suspect was identified.
16. The law recognizes "A creative judge engaged
in post hoc evaluation of police conduct can almost always imagine
some alternative means by which the objectives of the police might [. .
.] in the abstract, have been accomplished by less intrusive means does
not, by itself, render the search unreasonable. The question is not simply
whether some other alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it." United States
v. Sharpe, 470 U.S. 675, [686-] 687 (1985).
17. The accused was detained approximately
5-7 minutes after the suspect was identified.
18. The guard had no evil motive or purpose
such as harassment in this detention.
19. This detention was a result of oversight
and the concern and focus on the suspect.
20. Ultimately, Lt. Moore came over to address
the group of individuals that had been detained.
21. Lt. Moore does not remember what he said.
22. The accused said something to Lt. Moore
which, although the Lt. cannot remember what was said, he remembers the
tone, content, and absence of the use of the typical military courtesy,
of the use of sir or rank, was disrespectful.
23. Before the Lieutenant responded, one of
the members of the guard told the accused that he was speaking to a Lieutenant
and should do so appropriately.
24. I find this response by the member of the
guard to be highly persuasive particularly since the Lieutenant is unable
to articulate exactly or the substance of what was said.
25. Lt. Moore was in utilities with his rank
insignia. He also had on a guard armband that had his rank.
26. Lt. Moore also looks his age and by that
I mean an individual who looks like given a normal career track would be
an officer or at least a Sergeant.
27. Lt. Moore identified himself by rank and
billet to the accused.
28. Lt. Moore was between 3-6 paces from the
accused.
29. The accused leaned over as if to check
or confirm the rank of Lt. Moore. Lt. Moore took this to be disrespectful.
Under the circumstances Lt. Moores conclusion is probably correct.
30. The accused then said something to Lt.
Moore ending his comments with yes, sir, emphasizing the word sir in a
mocking manner.
31. Lt. Moores actions during this encounter
with the accused were reasonable and in keeping with his rank.
32. Lt. Moore ordered the accuseds detention
which is in fact an apprehension for disrespect to a commissioned officer.
33. Lt. Moore had the authority to order the
apprehension by virtue of his rank and billet as guard officer.
34. Lt. Moore had probable cause to apprehend
the accused.
35. The immediate search of the accused to
include his clothing was lawful as a search incident to apprehension. MRE
314(b)
36. The defense motion to suppress is denied.



___ ___ ___
Before this Court, appellant again contends
that the "half smoked marijuana joint" taken from his pocket on December
10, 1995, was illegally seized by Camp Pendleton guards and was inadmissible
evidence at his court-martial. See Mil. R. Evid. 311, Manual for
Courts-Martial, United States (1995 edition).1
He asserts that this evidence was seized during his impermissibly long
detention by officers of the guard after he was subjected to an unlawful
"Terry stop" based on his race. He acknowledges that he was also
arrested for disrespect to a commissioned officer before the challenged
search and seizure took place. Nevertheless, he argues that this arrest
and the subsequent search were tainted by the "Terry stop" and the
marijuana cigarette must be suppressed as a direct result of the earlier
illegality. We disagree.
As a starting point, we note that in Terry
v. Ohio, 392 U.S. 1 (1968), the Supreme Court created a limited exception
to the Fourth Amendment requirement of probable cause for government search
and seizures, i.e., when law enforcement officers conduct a "stop
and frisk" (Terry, supra at 12) or "Terry stop" (Michigan
v. Summers, 452 U.S. 692, 700 n.12 (1981)). The Court adopted a two-part
test to determine when a Terry stop is lawful. It first asks whether
the police officers stopping action is "justified at its inception" by
"reasonable suspicion"2
and then whether the stop "was reasonably related in scope to the circumstances
which justified" it. 392 U.S. at 20. We review these questions of law "de
novo." Ornelas v. United States, 517 U.S. 690, 699 (1996); see
also United States v. Williams, 35 MJ 323, 327-28 (CMA 1992);
United
States v. Waller, 3 MJ 32, 34-35 (CMA 1977).
We further note that race alone does not amount
to "reasonable suspicion" to justify a Terry stop. See United
States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975). Moreover, the
length of the detention may be so long as to render the seizure, even temporarily,
of a person unreasonable under the Fourth Amendment. Sharpe, 470
U.S. at 685. The Supreme Court there said:



In assessing whether a detention is too long
in duration to be justified as an investigative stop, we consider it appropriate
to examine whether the police diligently pursued a means of investigation
that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant. See Michigan v.
Summers, supra at 701, n.14, 101 S.Ct., at 2594, n.14 (quoting
3 W. LaFave, Search and Seizure § 9.2, p. 40 (1978)); see also
Place, 462 U.S., at 709, 103 S.Ct., at 2645-2646; Royer,
460 U.S., at 500, 163 S.Ct., at 1325. A court making this assessment should
take care to consider whether the police are acting in a swiftly developing
situation, and in such cases the court should not indulge in unrealistic
second-guessing. See generally post, at 712-716, [105
S.Ct. at] 1589-1591 (BRENNAN, J., dissenting). . . . The question is not
simply whether some other alternative was available, but whether the police
acted unreasonably in failing to recognize or to pursue it.



470 U.S. at 686-87.
We need not decide appellants claim that his
initial investigative stop was illegal, because we hold that his subsequent
arrest was lawful and a sufficient intervening circumstance to remove any
taint from a purported illegal Terry stop.
Appellants argument for suppression depends
upon his claim that the marijuana cigarette admitted as evidence in his
case was derived from his purported illegal stop and, therefore, was fruit
of the poisonous tree within the meaning of Wong Sun v. United States,
371 U.S. 471 (1963). See generally Williams, 35 MJ
at 328, citing United States v. Ceccolini, 435 U.S. 268, 276 (1978)
(rejecting "but for" taint rule); see Mil. R. Evid. 311(d)(2)(C)
and (e)(2). In this regard, we note that the pertinent question is whether
the seizure of the marijuana cigarette from appellants pocket "has
been come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint." See
Waller, supra at 34, quoting Wong Sun, 371 U.S. at 488
(emphasis added). The Supreme Court has generally said that no per se
rule applies, but various circumstances should be considered on this question
such as the "temporal proximity" between the illegality and the seizure
of the evidence, "the presence of intervening circumstances," and the "flagrancy
of the official misconduct." See generally Brown v. Illinois,
422 U.S. 590, 603-04 (1975).
Appellant asserts that the challenged search
in his case actually occurred during his illegal detention. He also contends
that "there were no intervening circumstances" in his case between his
unlawful stop and detention and the challenged search of his person. Final
Brief at 10. He discounts his subsequent arrest as a sufficient intervening
circumstance because "if the alleged disrespect was in and of itself significant
enough to be sufficiently distinguishable from the initial illegal Terry
stop, then it begs the question as to why it was not charged as an independent
offense in addition to the possession charge." Final Brief at 10-11 (emphasis
omitted). Finally, he contends that the official misconduct in his case
was flagrant because it was based solely on his race.
We reject appellants non-attenuation arguments
for several reasons. First, we note that the challenged search occurred
immediately after appellants lawful arrest for disrespect to the guard
officer and this police conduct was clearly distinguishable from the earlier
police investigative action. Five or six Marines were initially stopped
and detained by the Marine Guard for investigation but only one was later
arrested for disrespect and searched. Second, although appellant was not
charged or tried for this disrespect offense, that charging decision did
not legally or logically undermine its capacity to attenuate any possible
taint from the earlier police action. See generally H. Moyer,
Justice
and the Military § 2-382 (1972) (discusses prosecutorial considerations
and options for a convening authority). Finally, it is widely held in other
federal Courts of Appeals that a lawful arrest of a person who was initially
illegally seized is an intervening circumstance sufficient to dissipate
any taint caused by an earlier illegal stop.
The Seventh Circuit spoke to this body of law
recently in Green, 111 F.3d at 521-22, as follows:



While there is no case law directly on point,
United
States v. Nooks, 446 F.2d 1283 (5th Cir. 1971),
United
States v. Dawdy, 46 F.3d 1427, 1431 (8th Cir. 1995), and
United
States v. Bailey, 691 F.2d 1009 (11th Cir. 1982), are close
analogous and support our conclusion. These cases involved situations where
the defendants original seizure was arguably unconstitutional, but after
the initial illegal stop, circumstances developed giving the police probable
cause to lawfully arrest the defendants. In arresting the defendants, the
police conducted searches incident to the arrests and found incriminating
evidence. The defendants argued that the evidence was inadmissible as tainted
by the original unlawful seizure. The Fifth, Eighth, and Eleventh Circuits
disagreed. In Nooks the Fifth Circuit held that evidence obtained
following a lawful arrest was admissible as a search incident to an arrest,
even though the lawful arrest followed an originally illegal detention.
Nooks,
446 F.2d at 1288. Similarly, in Dawdy the Eighth Circuit held that
assuming arguendo the "initial stop and arrest of Dawdy were invalid,
Dawdys resistance provided independent grounds for his arrest, and the
evidence discovered in the subsequent searches of his person and his automobile
is admissible."
Dawdy, 46 F.3d at 1431. Likewise, in Bailey,
the Eleventh Circuit held that the evidence discovered during a search
incident to a second lawful arrest was admissible even though the original
seizure was unconstitutional. Bailey, 691 F.2d at 1018-19.3
_____________
3 Similarly, in United States
v. Pryor, 32 F.3d 1192, 1196 (7th Cir. 1994), we held that
evidence of acts constituting a new crime should not be suppressed even
if committed during an illegal detention. While the evidence admitted in
Pryor
was evidence of the second crime itself, and not evidence obtained during
a search incident to a second lawful arrest, the same reasoning applies
as in Nooks, Dawdy and Bailey.



We agree with these decisions and conclude that
their rationale is equally applicable to cases involving disrespect to
a military officer conducting an investigative stop. Moreover, while there
may have been some evidence suggesting improper racial consideration as
delineated in Brigoni-Ponce, 422 U.S. at 886, other evidence in
this case suggested mere confusion and miscommunication. Cf. United
States v. Miller, 48 MJ 49, 52-53 (1998). Thus, the official conduct
of the guards in this case, although not a model, was not shown to be so
flagrant as to warrant application of the exclusionary rule. See Green,
111 F.3d at 523 (official misconduct not flagrant where no bad-faith effort
shown to obtain evidence against person illegally stopped);
Miller,
supra
at 54 ("military persons enjoy considerably less freedom of movement than
civilians"). In sum, appellant exercised his free will to be disrespectful
to the officer of the guard; this conduct constituted probable cause for
his arrest; and his person was searched and the marijuana cigarette discovered
pursuant to a lawful search incident to that arrest.
See generally
Art. 89, UCMJ, 10 USC § 889, and Mil. R. Evid. 314(g).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 All Manual provisions are cited
to the version applicable at trial. The 1998 version is unchanged, unless
otherwise indicated.
2 See Almeida-Sanchez
v. United States, 413 U.S. 266, 268(1973).
 
 
GIERKE, Judge (concurring in part and dissenting
in part):
I agree with the majoritys conclusion that
appellants apprehension for disrespect was not tainted by an unlawful
Terry
stop. I write separately to disassociate myself from the suggestion in
the majority opinion that appellants detention may have been racially
motivated. See ___ MJ at (8) ("We further note that race
alone does not amount to reasonable suspicion" to justify a Terry
stop."); ___ MJ at (12) ("while there may have been some
evidence suggesting improper racial consideration . . . .").
In my view, appellant and the others were stopped
because the suspect was described as a black male and he was one of several
black males who were in the place where the suspects were expected to be
found. The brief detention of several potential suspects falls within the
rationale of United States v. Miller, 48 MJ 49, 54 (1998), where
this Court said it was permissible to detain a potential suspect "for the
purpose of ascertaining his identity and briefly questioning him about
his whereabouts."

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