CAAF decided United States v. Irizarry, No. 12-0451/AF, 72 M.J. 100 (CAAFlog case page) (link to slip op.), on April 15, 2013, affirming the AFCCA and the conviction of larceny of military property in violation of Article 121, UCMJ. The granted issue was:

Whether the military judge erred in refusing to suppress military property seized by Appellant’s First Sergeant after a warrantless entry into Appellant’s off-base apartment.

Judge Stucky writes for the court, with Judge Ryan and Senior Judge Cox concurring. Judge Erdmann writes separately, dissenting in part and concurring in the result, and is joined by Chief Judge Baker.

Judge Stucky finds that the military judge did not abuse his discretion in admitting the evidence seized in the Appellant’s off-base apartment because “under the facts and circumstances of this case, Appellant’s Fourth Amendment rights were not violated because the entry into his apartment was not unreasonable.” Slip op. at 2.

The Appellant was convicted, contrary to his pleas, by a general court-martial composed of officer members, of one specification of larceny of military property of a value of more than $500, and sentenced to confinement for 45 days, reduction to E-1, and a bad-conduct discharge. The corpus delicti was an Altitude Vertical Velocity Indicator (AVVI) that was found in the Appellant’s apartment when Master Sergeant (MSgt) [S] and Technical Sergeant (TSgt) [Z] visited the apartment after receiving numerous calls from the management company regarding unpaid rent and unhygienic conditions. They entered the apartment with the assistance of the property manager. They discussed this entry with their commander and planned to report back their findings, though their purpose for visiting the property was “to protect Appellant against a potentially malicious landlord, to show the community that the Air Force cared about the situation, and to determine if Appellant should be counseled about the issue.” Gov’t Br. at 5 (citations to record omitted). Once inside, they recognized the AVVI and seized it.

At trial the defense moved to suppress the seized AVVI as the fruit of an unlawful search. The military judge disagreed, finding that the property manager had the authority to enter, and that even if it didn’t, MSgt [S] and TSgt [Z] reasonably believed that they had the authority to enter. Relying heavily on United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), the CCA affirmed this ruling, and the findings and sentence.

Judge Stucky begins his opinion by explaining the deferential standard of review of a ruling on a motion to suppress:

This Court reviews a military judge’s ruling on a motion to suppress for abuse of discretion. A military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.

Slip op. at 7 (citations omitted). He then rejects the Government’s argument that third-party consent is dispositive in this case. “Under the circumstances of this case, the landlord did not have common authority under Supreme Court jurisprudence to grant consent to the NCOs to enter Appellant’s apartment for a law enforcement purpose.” Slip op. at 8-9. However, Judge Stucky turns to the applicability of the provisions of the Appellant’s lease that permitted entries, and the CCA’s reliance on United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), to determine that:

After Appellant failed to pay his rent, it was reasonable for Mr. Marquette to enter the premises to determine whether Appellant had abandoned the apartment, post notices inside the apartment, and estimate repair or refurbishing costs after he discovered the state of the apartment. Furthermore, once the damages were discovered, it was reasonable for Cedar Creek to take action to minimize the damages and seek prompt restitution by the quickest and least intrusive manner — including contacting Appellant’s military supervisors.

Slip op. at 9-10. He concludes that “the NCOs acted reasonably in entering Appellant’s apartment at the behest of [the landlord].” Slip op. at 10.

Jacobs involved an entry to make emergency plumbing repairs, followed by a report of concern to military authorities regarding the overall state of the premises. In contrast, this case involved a non-emergency inspection. However, Judge Stucky finds that “this case is stronger than Jacobs” because both the lease and the applicable state law granted the landlord greater rights of access. Slip op. at 11 (emphasis added). He also notes that “there is no Supreme Court precedent indicating that a landlord may never consent to entry for non-law enforcement purposes where state law and the lease allow.” Slip op. at 13 (emphasis in original).

But Judge Stucky expands the analysis beyond the MSgt and TSgt’s entry as representatives of the landlord to also consider the reasonableness of their entry as representatives of the command itself. He finds that their entry was reasonable under the Fourth Amendment in this context as well, explaining that:

Rigid application of Fourth Amendment case law from other jurisdictions to the conduct at issue would fail to account for MSgt [S]’s and TSgt [Z]’s unique “official” duty, as senior NCOs, to be apprised of their subordinates’ behavior and to look out for the well-being of their men and women.

In this context, MSgt [S] and TSgt [Z] acted reasonably. Moreover, where, as here, command representatives entered a subordinate’s off-base residence (1) in order to effectuate their command responsibilities, and (2) with no law enforcement purpose and no expectation that a crime had been committed, or that evidence would be found, it would be unreasonable to expect command representatives to seek a warrant prior to entering.

Slip op. at 16 (emphasis in original). In my argument preview in this case, I considered the possibility of form-revocation of consents to entry if CAAF affirms the search in this case. However, Judge Stucky’s opinion doesn’t just approve of the command’s entry on behalf of the landlord, it also appears to approve the command’s entry on its own authority as the military command, meaning that even if the lease didn’t permit entry, the MSgt and TSgt could still have entered. This is somewhat limited only in the final paragraph of the discussion:

We do not intend to create a broad military exception to the Fourth Amendment; rather, where: (1) command representatives are performing a command function; (2) a reasonable reading of the lease terms permits the landlord to enter; (3) military officials entered the premises at the behest of the landlord; and (4) the purpose of the entry is not for law enforcement purposes or a mere pretext for conducting a warrantless search, Jacobs’s exception to the warrant requirement because the “search” is reasonable makes eminent sense.

Slip op. at 18. Overall, this last section (Part IV.B of the majority opinion) is somewhat confusing. It’s captioned as “Reasonableness of Entry as Command Representatives,” but it ends with a four-part test that twice relies on the involvement of the landlord. Presumably, by disclaiming any “broad military exception to the Fourth Amendment,” the majority does not believe that the command can enter the private residence of a servicemember at will simply in order to “look out for the well being of” that servicemember. But there’s room for argument.

In a separate opinion dissenting in part but concurring in the result, Judge Erdmann, joined by Chief Judge Baker, “disagree[s] with the ultimate holding that Irizarry’s Fourth Amendment rights were not violated because the entry into his apartment was reasonable.” Diss. op. at 1. However, he also finds that “the circumstances of this case do not warrant the application of the exclusionary rule,” (id.) in a decision reminiscent of the Chief Judge’s recent dissent in United States v. Cote, where he agreed with Judge Erdmann’s majority opinion that the search was unreasonable, but disagreed with Judge Erdmann’s application of the exclusionary rule.

Judge Erdmann begins by finding that the Appellant had a reasonable expectation of privacy in the apartment that was undiminished by his non-payment of the rent. He then turns to the question of the reasonableness of the MSgt and TSgt’s entry, starting with the principle that “under most circumstances, warrantless intrusion by the government is per se unreasonable.” Diss. op at 6. He then proceeds through a review of Supreme Court precedent, the provisions of the lease, the application of Jacobs, and the reasonableness of the entry as representatives of the command.

First, Judge Erdmann questions the majority’s reliance on the mere absence of Supreme Court precedent indicating that a landlord may never consent to entry, while also highlighting cases that do prohibit a landlord from giving consent in the absence of common authority. Then he finds that “the lease provisions do not provide authority for either the landlord or the sergeants to enter the apartment under these circumstances.” Diss. op. at 8. The lease permitted entry for “making repairs,” and Judge Erdmann notes that the MSgt and TSgt didn’t enter to make repairs, but rather “to gather information about the condition of the apartment, report back to the commander, and determine whether Irizarry needed to be counseled.” Diss. op at 9. Beyond this distinction, Judge Erdmann also notes that any ambiguity in the lease must be resolved in favor of the tenant, and he finds that “the majority improperly resolves the ambiguity in favor of the landlord, at the expense of Irizarry’s Fourth Amendment rights.” Diss. op. at 12.

The dissent then turns to Jacobs, concluding:

It is difficult to envision a situation where the sergeants -– who the majority recognizes were there in their official capacity as representatives of the U.S. Air Force – can at the same time be representatives of the landlord to further its commercial interests. I would therefore overrule Jacobs to the extent that it allows a landlord to consent to a government entry for any purpose which the landlord may also have a limited right of entry.

Diss. op. at 15. Finally, Judge Erdmann also sees apparent approval by the majority of the entry under the color of command authority:

I am uncomfortable with what appears to be a unique military exception to the Fourth Amendment, which gives military personnel essentially carte blanche authority to enter a subordinate’s off-base residence: (1) at the invitation of the landlord; (2) when the purpose of the entry effectuates a command responsibility; and (3) the entry has no explicit law enforcement purpose at the outset. Such a sweeping exception invites substantial abuse of the privacy interests of military members and their families, many of whom may live off base for the very purpose of obtaining a greater sense of privacy.

Diss. op at 16-17. He concludes that “there is no legal basis for the majority’s holding that the sergeants’ entry and search of Irizarry’s off-base apartment was reasonable for Fourth Amendment purposes.” Diss op. at 17.

However, despite an unreasonable search, the dissenters see “no deterrent benefit resulting from the imposition of the exclusionary rule” in this case. Diss. op. at 18. This is based on a discussion of the rationale supporting the exclusionary rule (deterring improper law enforcement conduct), and the following circumstances of this case:

The critical factor in reaching this conclusion is that the sergeants did not enter for the purpose of conducting a criminal investigation or for the purpose of searching for evidence that might later be utilized against Irizarry at a court-martial, disciplinary hearing, or other legal proceeding. Therefore, suppressing the evidence they unexpectedly discovered would not thwart their initial purpose for entering the apartment, so as to discourage entry under similar circumstances in the future. Their uncontroverted purpose was to assess the scope of the damage to the apartment, possibly protect Irizarry from legal action by the landlord, protect the Air Force’s relationship with the local civilian community, and to report back to command on the situation. None of these purposes constitute police misconduct that the exclusionary rule was designed to or is capable of deterring.

Diss. op. at 18-19 (emphasis added). This seems like an awfully charitable interpretation of the intent of the MSgt and TSgt. “Report back to command on the situation” certainly sounds like there was an ulterior disciplinary motive. In fact, assuming that the purpose for the command involvement was inherently disciplinary in nature is far more practical-reality than paranoia; senior command representatives simply don’t strike out in pairs to enter off-base residences without prior coordination with the servicemember tenant unless they’re looking for problems. Moreover, I have to wonder how the Air Force would go about protecting its relationship with the local community if not through disciplinary proceedings.

Judge Stucky’s opinion affirms the search while Judge Erdmann’s dissent opposes the search but affirms the admission of the fruits. That’s unfortunate, as this case will only encourage similar intrusions by command authorities into the private residences of servicemembers for ever-more attenuated reasons. Taken in conjunction with CAAF’s opinion in United States v. Bowersox (analyzed yesterday), the court sure seems to be giving privacy a one-two punch.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Law student amicus
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: CAAF decides Irizarry
Blog post: Opinion analysis

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