On 25 September 2007, NMCCA issued a lengthy scholarly published opinion exploring the competing consent doctrine for search and seizure authorizations and the inevitable discovery exception to the exclusionary rule. United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Sept. 25, 2007). (The fact that NMCCA had to discuss the inevitable discovery doctrine tells you how the competing consent analysis came out.) Of course, if you rely on such mundane sources of law as LEXIS or NMCCA’s own web site, you wouldn’t know about this published opinion. But it was posted on NKO today, so as a public service, CAAFlog.com has posted the decision here.

The decision ultimately sets aside the findings and sentence while authorizing a rehearing. (Congrats, Maj Belliss!)

In a further challenge to the validity of the general deterrence concept, the case was a court-martial of the chief court reporter for Marine Corps Base, Kaneohe. He was suspected of having placed a hidden camera in a head to film video of a Marine sergeant with whom he worked. After she discovered the camera and reported SSgt Weston to CID, both SSgt Weston and his wife ended up at the CID office. A CID agent asked SSgt Weston for consent to search his quarters, but he refused. The CID agent then asked SSgt Weston’s wife to consent, though without informing her that her husband had refused. She consented and two computers and storage devices were seized. Twenty-nine days later, the commanding general authorized a search of the computer, which contained incriminating evidence.

NMCCA first holds that SSgt Weston’s wife’s consent did not authorize the search. Weston, slip op. at 9. NMCCA asks: “Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the ‘invitation was a sufficiently good reason to enter when a fellow tenant’ told them to stay out?” Id. (quoting Georgia v. Randolph, 547 U.S> 103, 113 (2006)). NMCCA continues, “If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter?” Id. NMCCA answers, “We think not.” Id.

NMCCA then proceeds to determine whether the violation of SSgt Weston’s Fourth Amendment rights was harmless beyond a reasonable doubt. The crux of this discussion is whether the incriminating evidence would have been inevitably discovered if CID had not made a consent search. Following an exhaustive discussion of the inevitable discovery exception to the exclusionary rule, NMCCA concludes that “the Government’s evidence establishes no more than that the seized evidence ‘could’ have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what ‘could’ have been done and what results ‘might’ have been achieved. Because we must focus on the ‘demonstrated historical facts capable of ready verification or impeachment,’ without speculation, [Nix v. Williams, 467 U.S. 431, 444 n.5 (1984),] we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence.” Id., slip op. at 18-19. The inevitable discovery analysis paints the investigating CID agent as a Keystone Kop, suggesting that his performance hardly suggests that it was inevitable that he would have discovered the evidence but for his reliance on Ms. Weston’s consent.

I’m guessing that the Judge Advocate General of the Navy certifies this one to CAAF.

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