In United States v. Keefauver, 74 M.J. 230 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF held that a search of the appellant’s on-base residence was not a valid protective sweep. The case involved the controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted an unauthorized search of the property, discovering a significant quantity of drug-related materials. At trial that search was deemed lawful as a protective sweep, but CAAF reversed.
The items discovered during the search (other than the box of marijuana) were used against the appellant at trial (some as evidence to support additional charges). CAAF did not consider the possibility that the discovery of those items was inevitable, but instead remanded the case to the Army CCA to review that possibility in light of its decision regarding the search not being a lawful protective sweep.
Last week, the Army CCA completed its review and concluded that the discovery of the additional items was not inevitable:
There is no evidence at this point [when the search of the residence began -zds] that the agents possessed, or were pursuing, evidence or leads that would have inevitably led to the discovery of any other items in the home. At this particular point in time, investigators had no further evidence to support a finding of probable cause to search than when they originally made the search request. Thus, given that the investigators had, at this point, found only what they expected to find—the box—and nothing more, we cannot even say that “the routine procedures of a law enforcement agency would inevitably find the same evidence.” United States v. Owens, 51 M.J. 204, 210 (C.A.A.F. 1999). In short, the inevitable discovery doctrine cannot rescue any evidence found in the house beyond the box, and the admission of such evidence violated appellant’s Fourth Amendment rights.
United States v. Keefauver, No. 20121026, slip op. at 5 (A. Ct. Crim. App. Nov. 25, 2015) (citations omitted) (link to slip op.). “Further, the sheer mass of inadmissible evidence found in the house eliminates any possibility the error was harmless beyond a reasonable doubt.” Slip op. at 7. But beyond the quantity of illegally-obtained evidence, the CCA also notes the prosecution’s closing argument:
The importance of all of the evidence found in the home was underscored by trial counsel in his closing argument. For example, he began: “what does 5.25 pounds of marijuana, over $7,600 in cash, four unregistered firearms, numerous baggies, and a scale equal? We have a criminal enterprise.” Of the five things he mentioned, only one was properly in evidence.
Slip op. at 7.
The CCA sets aside the findings and authorizes a rehearing.