Argument Preview: Two confessions and the fruits of an authorized search (might) hinge on whether there was probable cause to apprehend, in United States v. Darnall, No. 16-0729/NA
CAAF will hear oral argument in the Navy case of United States v. Darnall, No. 16-0729/NA (CAAFlog case page), on Wednesday, May 10, 2017, after the argument in Tucker. A single issue challenges the admission of evidence discovered after an apprehension of dubious legitimacy:
Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.
Hospitalman (E-3) Darnall was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement; twelve specifications of importing, possessing with the intent to distribute, distributing, and manufacturing controlled substances; four specifications of possessing, distributing, and importing controlled substance analogues; and seven specifications of using a communication facility in furtherance of a conspiracy in violation of Articles 81, 107, 112a, and 134. He was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority suspended one year of the confinement but otherwise approved the findings and sentence.
The case began:
Sometime in November 2011, [when] a package containing white powder entered the United States via airmail from China through San Francisco International Airport. The powder was subsequently identified as dimethylone, which could be classified as a controlled substance analogue, but only if meant for human consumption. The box was addressed to a “Brandon Darnall”at “5985 Mariposa Ave, 29 Palms, CA 92277, USA. . .”
App. Br. at 4. Dimethylone is “street named ‘bath salts,'” Gov’t Div. Br. at 3 (quoting record), and has no known use other than for human consumption by idiots.
From the address on the package federal law enforcement suspected that the intended recipient was in the military. But Darnall “never lived at 5985 Mariposa Ave., which is an off-base residence. Instead, he lived on base.” App. Br. at 5. Nevertheless, military law enforcement agents arranged to have a substitute package delivered to Darnall’s unit’s mailroom and for Darnall to be instructed to pick it up. That happened and Darnall was apprehended.
After Darnall was apprehended he was read and waived his rights. Then he confessed to basically everything. A subsequent search of his cell phone (authorized by his commander) revealed additional evidence. Darnall was released, but he returned the next day to give another confession that reviewed everything from the first confession and provided additional details.
But Darnall asserts that the agents lacked probable cause to apprehend him and so all of this evidence should have been suppressed. The NMCCA rejected this argument, finding that the agents did have probable cause. Now CAAF will decide.
Darnall’s brief explains:
Although HN Darnall agreed to be interviewed, an Article 31(b) rights waiver executed afterwards does not automatically cure the constitutional violation resulting from an illegal apprehension. The Government must demonstrate that this waiver was an independent act of free will, and did not merely result from exploiting the initial illegality. In other words, courts are concerned with a scenario in which a suspect is more likely to waive his right to remain silent after being softened up by a jarring illegal arrest than he would have otherwise been if the police had merely asked him to voluntarily come in and give a statement.
App. Br. at 17-18 (citing Brown v. Illinois, 422 U.S. 590, 603-04; Wong Sun v. United States, 371 U.S. 471, 486 (1963)).
Darnall’s argument hinges on the assertion that there was no probable cause to apprehend him at the time of his apprehension. The Navy-Marine Corps Appellate Government Division’s brief offers a four-part argument for why Darnall’s assertion is wrong:
First, the package contained “almost three pounds” of dimethylone, a Schedule I controlled substance analogue affecting the central nervous system with similar effects to MDMA, “ecstasy.” As there are no uses of dimethylone “[b]esides for human consumption for their stimulant or other effects,” probable cause existed that the importation and possession of the dimethylone violated SECNAVINST 5300.28E. Based on the quantity of dimethylone, probable cause also existed as to an intent to distribute the substance.
Second, the package was intended for “Brandon Darnall.”
Third, the package included an address in Twentynine Palms, California.
Finally, as Appellant conceded in oral argument in front of the lower court, the Record establishes that only one “Brandon Darnall”—Appellant—lived in the immediate area of Twentynine Palms. Based on that information, there were reasonable grounds to apprehend Appellant.
Gov’t Div. Br. at 16-17 (marks in original) (citations to record omitted).
The Government Division also argues that the evidence was admissible even if there wasn’t probably cause to apprehend, based on the circumstances (including Darnall’s waivers of his rights) and the inevitable discovery doctrine.
But if CAAF agrees with the NMCCA that there was probable cause to apprehend, its decision won’t go further.