CAAF will hear oral argument in the Army case of United States v. Keefauver, No. 15-0029/AR (CAAFlog case page), on Wednesday, April 15, 2015, at noon. This will be a Project Outreach oral argument and will occur at the University of Wisconsin Law School, Madison, Wisconsin.

The case presents a single, somewhat strangely-worded issue about a pretrial ruling:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case began when a postal inspector alerted military authorities to a suspicious package scheduled for delivery to Appellant’s on-base residence. Drug dogs alerted to the package, and a controlled delivery was scheduled. But the Government’s own brief to CAAF acknowledges that its agents intended to do far more than just deliver the package:

The plan was to conduct a controlled delivery of the package and to conduct a search of the home using an MWR [military working dog] after the box was taken into the home. CPT MR [the military magistrate] testified at the Article 39(a) session that he verbally authorized the agents to conduct the search and that they could do it with an MWD. The “actual limits on when the MWD could enter the home and where it could go were not clearly defined during the motion.” SA SR stated he understood the verbal authorization “was to search for the package inside the house and once the package was found, any additional search, if we had a K9 search the house and alerted to any other drugs inside the house, that we would have authorization to search the rest of the house.”

Gov’t Br. at 3 (citations to record omitted). A footnote illustrates the ambiguity in the search authorization granted to the agents:

During the Article 39(a) CPT MR provided approximately five different answers as to what the limits of the search with the MWD were.

Gov’t Br. at 3 n.1. Government agents then attempted to deliver the package, but the home was vacant. So they established surveillance and waited. Eventually, Appellant’s stepson arrived at the house, and the agents pounced, advancing so quickly that “the door was still slightly open and the key was still in the door.” App. Br. at 44. The agents then “discovered the package a few feet from the front door, sitting on a table in the foyer next to the staircase.” Gov’t Br. at 5. However, despite the immediate seizure of the suspicious package and the fact that the home was empty before the child arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials:

When the agents entered the house, SA SR and PI JT immediately conducted a security sweep of the residence in order to make certain no unknown persons were present in the residence who might present a danger to the officers. During his sweep of the premises, SA SR discovered a number of drugs and drug paraphernalia in plain view.

Gov’t Br. at 5. The package itself contained between three and four pounds of marijuana.

Appellant moved to exclude from the trial all of the evidence seized from his home. The military judge denied Appellant’s motion and made three rulings. First, the judge held that the search authorization for the suspicious package itself was lawful. Second, the judge held that the agents were justified in conducting a protective sweep of Appellant’s residence after seizing the package because “under the particular facts of this case, the law enforcement agents had reasonable suspicion to believe that an individual or individuals who posed a danger to the agents may have been hiding in the residence.” Gov’t Br. at 8 (quoting record). Third, the judge concluded that the search authorization was invalid beyond the package itself, however the protective sweep made the further discoveries inevitable.

On appeal, the Army CCA affirmed, concluding that “in this case there are additional facts, including the unknown whereabouts of the adults in the household and the behavior of [Appellant’s stepson], along with the unobjected to testimony of an expert in drug trafficking that ‘guns follow drugs,’ that allow us to conclude the military judge did not abuse his discretion in finding SA SR’s protective sweep of appellant’s home was justified.” 73 M.J. 846, 854.

CAAF then granted review of an issue that appears to question this conclusion by the CCA and not the underlying ruling of the military judge. But CAAF’s caselaw is clear that:

When reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party. . . . [W]e pierce the intermediate level of appellate review and examine the military judge’s ruling directly.

United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011) (citations omitted). And the parties agree that CAAF will review the military judge’s findings of fact and conclusions of law under the abuse of discretion standard. Still, that doesn’t let the CCA completely off the hook, as its opinion included in a footnote the assertion that:

[A]ppellate courts, in reviewing the correctness of [a] ruling [on a motion to suppress], may consider any evidence presented in the trial of the case.

73 M.J. at 849 n.3. The parties briefs treat that assertion as an issue as significant as the military judge’s conclusion regarding the validity of the protective sweep.

Appellant’s brief begins with the argument that the CCA improperly considered matters that were not before the military judge when he ruled on the suppression motion:

[T]he Army Court scoured the record for additional facts, going so far as to look to facts elicited during the merits and after the military judge’s decision on appellant’s motion to suppress. Such a practice is wholly inappropriate, calling into question the Army Court’s neutrality. This practice also encourages the government to piecemeal evidence into a ruling, thus permitting the relitigation of trial motions on appeal under new theories, a strategy previously rejected by this Court.

App. Br. at 9. Unfortunately for Appellant, his brief does not clearly indicate which facts – beyond those considered by the judge when he ruled – the CCA relied upon in affirming the judge’s ruling. And the Government’s brief indicates that there were no such facts:

All four of the facts the [CCA] lists as justifying the protective sweep arise from facts elicited at the Article 39(a).

Gov’t Br. at 23. A law student amicus brief on behalf of the Government also identifies no such facts, though it forcefully asserts that:

An appellate court may rely upon facts developed after a trial court’s pre-trial ruling when reviewing a motion to suppress. Every federal circuit court of appeals has held that this practice is appropriate. Additionally, the majority of states that have addressed this issue have held that an appellate court may consider the entire record when reviewing a trial court’s ruling on a motion to suppress.

Amicus Br. on behalf of Appellee at 2 (citations omitted). And a law student amicus brief on behalf of Appellant does not address this issue at all.

In the absence of specific, articulated facts, unavailable to the military judge at the time of his ruling but considered by the CCA on review, I doubt CAAF will consider addressing whether a CCA may conduct such a searching review of the record to affirm a military judge. But more to the point, I don’t think it matters to the disposition of this case.

In Maryland v. Buie, the Supreme Court held that:

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.

494 U.S. 325, 337 (1990). That holding doesn’t just look like it says the ultimate conclusion regarding the validity of a protective sweep is a conclusion of law – multiple federal courts have explicitly held that it is a conclusion of law. See United States v. Scroggins, 599 F.3d 433, 441 (5th Cir. 2010); United States v. Cash, 378 F.3d 745, 747 (8th Cir. 2004); United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005). This matters because under the abuse of discretion standard, CAAF reviews conclusions of law de novo.

Notably, the Army CCA’s opinion in this case seems to treat the ultimate conclusion about the validity of the protective sweep as more of a mixed question, highlighting that:

Determining the validity of a protective sweep “is an exceptionally fact-intensive one in which we must analyze myriad factors including, among other considerations, the configuration of the dwelling, the general surroundings, and the opportunities for ambush.”

73 M.J. at 852 (quoting United States v. Starnes, 741 F.3d. 804, 808 (7th Cir. 2013)). I think a better way to explain the standard of review of the validity of a protective sweep is that the ultimate conclusion of validity is a conclusion of law that is reviewed de novo, the military judge’s findings of fact are accepted unless they are clearly erroneous, and the evidence is considered in the light most favorable to the party that prevailed at trial.

Yet regardless of how it is worded, the abuse of discretion standard of review is highly deferential. Accordingly, it seems rather unremarkable that an appellate court applying abuse of discretion review would use facts elicited after the ruling to affirm the judge. Yet that still doesn’t shield a judge’s ruling from de novo review.

To that end, Appellant’s brief eventually makes this point:

[The] evidence does not support an articulable belief that someone was in the Keefauver home and that the person posed a danger to law enforcement personnel.

App. Br. at 20. Considering the fact that Government agents had Appellant’s home under surveillance while they waited for a resident to arrive and claim the box full of marijuana, that they immediately apprehended the first person who did so, and that they initiated the entire operation with a plan to thoroughly search the home after the box was claimed, is seems like Appellant stands a good chance of prevailing on this point alone.

Case Links:
ACCA opinion (73 M.J. 846)
Blog post: Army CCA affirms a protective sweep
Appellant’s brief
Appellee’s (Government) brief
Amicus brief in support of Appellant (law students)
Amicus brief in support of Appellee (law students)
• Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Keefauver, No. 15-0029/AR”

  1. TBecket says:

    “Considering the fact that Government agents had Appellant’s home under surveillance while they waited for a resident to arrive and claim the box full of marijuana, that they immediately apprehended the first person who did so, and that they initiated the entire operation with a plan to thoroughly search the home after the box was claimed, is seems like Appellant stands a good chance of prevailing on this point alone.”
    I don’t know; ACCA relies heavily on the fact that the officers did not see anyone leave and were reasonably worried that someone could be hiding in there. 

  2. Zachary D Spilman says:

    Is it reasonable to wonder whether someone is hiding in a drug den, ignoring the postman who tries to deliver a box full of drugs, and allowing said box to sit out on the front step (for hours perhaps)?

    I think not.

  3. JMM says:

    “Unfortunately for Appellant, his brief does not clearly indicate which facts – beyond those considered by the judge when he ruled – the CCA relied upon in affirming the judge’s ruling.”
    The appendix does address this.  It’s admittedly not a lot, but it is there. 

  4. Zachary D Spilman says:

    Sorry JMM, but I just don’t see it. Of the eleven items discussed in the appendix, five of them are things discovered during the search of the residence. The CCA certainly did not use the fruits of the sweep (or a later search) as justification for the sweep. 

    One – # 4, involving the stepson’s reaction to the presence of the agents – is (best as I can tell) functionally no different than what was presented at the motion session. It’s also a weak basis for a sweep of a house that had been under surveillance.

    Five others (#s 1, 2, 3, 5, and 11) seem totally immaterial to the issue of the validity of a protective sweep. Facts like the box being heavily taped, the appellant’s prior address, and a strong smell of marijuana emanating from the home in general don’t provide any basis for a conclusion that the home harbors an individual posing a danger to those on the arrest scene.

    Caselaw says CAAF pierces the CCA’s opinion and reviews the judge’s ruling directly, and CAAF can reverse without directly reaching the issue of whether the ruling should be reviewed in light of all evidence admitted during the trial.