CAAF will hear oral argument in the Air Force case of United States v. Olson, No. 14-0166/AF (CAAFlog case page), on Tuesday, January 27, 2014. The court granted review of a single issue relating to Appellant’s consent to the search of her off-base residence by Air Force investigators:
Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.
Appellant was convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.
In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. The supervisor “described Appellant as a bad troop and a ‘dirt bag’ and was concerned that her husband was a bad influence on her, but did not say he believed that Appellant herself was involved in illegal drug use.” Gov’t Br. at 2. The supervisor also communicated “his belief that Appellant’s husband was distributing drugs on base to other airmen.” Gov’t Br. at 2.
Appellant was then sent to meet with Air Force investigators. They met in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Appellant was questioned for approximately two hours, after which the investigators asked Appellant for consent to search her off-base residence in order to “make sure it was safe and there were no drugs.” App. Br. at 5. Appellant hesitated, but eventually gave consent (she claims that this was only after the investigators threatened to obtain a warrant, but the investigators denied making this threat). Acting on this consent investigators searched her off-base residence, where contraband was discovered and seized.
At trial Appellant moved to suppress the fruits of the search on the basis that her consent was involuntary. The military judge applied the six factor test from United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008), and concluded that Appellant voluntarily consented to the search. The Air Force CCA reviewed this ruling on appeal and affirmed the military judge. CAAF then granted review.
From just these facts, CAAF’s grant is puzzling. This case seems to present a rather mundane application of the six factors for determining voluntariness that were adopted by CAAF in Wallace, and the parties briefs are little more than an analysis of those non-exhaustive factors. But considering recent CAAF decisions involving Article 31(b) (our #3 military justice story of 2014), CAAF’s interest in this case likely goes well beyond the mere facts.
At trial the Government had the burden of proving by a preponderance of the evidence that Appellant voluntarily consented to the search. MRE 311(d)(5)(A) (2013) (formerly MRE 311(e)(1)). In Wallace, CAAF explained:
We determine voluntariness from all the circumstances. Schneckloth, 412 U.S. at 226-27, 93 S.Ct. 2041 (applying a totality-of-the-circumstances analysis and citing cases in which the Supreme Court has analyzed the facts for voluntariness on its own).
The Air Force court has laid out the following non-exhaustive factors with respect to the voluntariness of consent: (1) the degree to which the suspect’s liberty was restricted; (2) the presence of coercion or intimidation; (3) the suspect’s awareness of his right to refuse based on inferences of the suspect’s age, intelligence, and other factors; (4) the suspect’s mental state at the time; (5) the suspect’s consultation, or lack thereof, with counsel; and (6) the coercive effects of any prior violations of the suspect’s rights. United States v. Murphy, 36 M.J. 732, 734 (A.F. Ct. Mil. Rev. 1992); United States v. Baker, 45 M.J. 538, 541 (A.F. Ct. Crim. App. 1996) (adopting the test from Murphy). Based on this test, which we adopt, Appellant’s ultimate consent to the computer’s seizure lacks sufficient indicia of voluntariness.
66 M.J. at 9. In Wallace, CAAF concluded that “since four of the six Murphy factors weigh against a finding of voluntary consent, we hold that Appellant’s ultimate consent to the seizure of the computer was not a valid consent, but rather mere acquiescence to the color of authority.” 66 M.J. at 10. However, CAAF affirmed the ruling admitting the evidence in Wallace by applying the doctrine of inevitable discovery. Id. Inevitable discovery is not at issue in Olson.
Yet CAAF was very divided in finding that the appellant in Wallace did not consent to the seizure at issue but merely acquiesced to the color of authority. Judge Stucky wrote for the majority, joined by then-Chief Judge Effron and Judge Erdmann. Then-Judge Baker and Judge Ryan both concurred in the result (affirming the conviction), but they disagreed with the majority’s conclusion that the appellant merely acquiesced to the color of authority. Judge Baker explained:
The line between true consent and mere acquiescence in the presence of law enforcement can be quite ephemeral. At some point, I imagine many accused persons who become aware that their conduct has been discovered acquiesce to law enforcement requests because they feel, in a descriptive sense, the inevitable consequence of their actions. From the accused’s standpoint, this would seem much closer to mere acquiescence than meaningful choice and consent. The real question then is not whether the accused merely acquiesced in the face of law enforcement pressure or presence, but rather, whether or not he was aware that he had a choice to consent or not. That is, of course, different from concluding that as a result of the stress of the situation, one has no real good choice but only bad options that lead to the same result.
When the totality of the circumstances is considered in this case, it becomes evident that four of the five Murphy factors relevant to the case at hand argue for concluding that Appellant fell into this latter category, and as a matter of law, consented to AFOSI seizing and searching his computer. Here, Appellant’s age, experience, intelligence, and military grade are relevant. We are not dealing with a new enlistee. Additionally, the presence of the chaplain and his testimony are also central to this conclusion.
66 M.J. at 13-14 (Baker, J., concurring in the result) (emphasis added); 66 M.J. at 14 (Ryan, J., joining this reasoning).
That was 2008. Today, as the authors of CAAF’s two recent significant opinions about Article 31(b), both Judge Ryan and now-Chief Judge Baker may feel differently about mere acquiescence to authority. As Chief Judge Baker recently wrote:
The ‘unique circumstances of military service require specific statutory protections for members of the armed forces’ from coercive self-incrimination.
United States v. Gilbreath, 74 M.J. 11, __, slip op. at 15 (C.A.A.F. (quoting United States v. Swift, 53 M.J. 439, 445 (C.A.A.F. 2000)). Of course, Article 31(b) isn’t normally implicated in a request for consent to search. See United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992). But there is a potential Article 31(b) issue in Olson. Appellant’s brief explains:
The military judge found that AFOSI should have advised Appellant of her Article 31(b) rights and their failure to do so was a violation of her rights:
Objectively this court finds that AFOSI should have suspected the accused and informed her as such prior to seeking her consent. Under the unique facts of this case and taking into account the demeanor of the witnesses, it strains credulity that AFOSI would not have at least at the point of the smoke break considered the accused a suspect.
App. Br. at 8. And while the Government’s brief doesn’t accept this conclusion by the military judge, the determination of a person’s status as a suspect is a question of law determined using an objective standard. United States v. Muirhead, 51 M.J. 94, 96 (C.A.A.F. 1999). It seems absurd that the Air Force investigators who questioned Appellant did not actually suspect her of an offense and were merely seeking to investigate her civilian husband by searching their off-base residence.
Ultimately, I suspect that CAAF’s interest in this case arises from the second Wallace factor: “the presence of coercion or intimidation.” 66 M.J. at 9. In Murphy (the Air Force case that established the test adopted in Wallace), the Air Force court gave an expanded definition to this factor:
(2) The presence of any coercion, promises, direct orders, threats (including threats that if consent to search is withheld, an authority to search will be obtained or a command-directed urinalysis will be ordered), or other forms of intimidation or pressure.
Murphy, 36 M.J. at 734. Today’s CAAF is keenly aware of the inherently coercive nature of the modern military environment. The court’s decision in Olson may put a new emphasis on the effect of that environment on the ability of a service member to voluntarily consent to a search.