Opinion Analysis: Finding no probable cause to apprehend and a clear violation of the Fourth Amendment, CAAF reverses the convictions in United States v. Darnall, No. 16-0729/NA
CAAF decided the Navy case of United States v. Darnall, __ M.J. __, No. 16-0729/NA (CAAFlog case page) (link to slip op.), on Wednesday, June 28, 2017. Concluding that military criminal investigators did not have probable cause to apprehend Darnall, CAAF finds that the fruits of his subsequent interrogation should have been suppressed by the military judge. The findings and sentence are set aside, and the decision of the Navy-Marine Corps CCA is reversed, with a rehearing authorized.
Judge Sparks writes for a unanimous court.
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 various offenses related to the importation, manufacture, and distribution of controlled substances (steroids and designer drugs). 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.
CAAF granted review to determine:
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.
Darnall became a suspect when a U.S. Mail package containing dimethylone (a controlled substance analogue) was intercepted. The package was addressed to someone with Darnall’s name at an address in the town of Twentynine Palms, California, (the location of a large Marine Corps base where Darnall was stationed). Based on the address, Agent Pledger of the Marine Criminal Investigative Division (CID) suspected that the intended recipient of the package might be a servicemember, and he arranged “to have a counterfeit version of the package containing no real drugs delivered to Appellant at the regimental mailroom and to apprehend him after he picked it up.” Slip op. at 3. This occurred, and Darnall was apprehended (arrested), handcuffed, and interrogated, leading to the discovery of much incriminating evidence.
Darnall moved to suppress the evidence at trial on the basis that the apprehension was without probable cause. The military judge denied the motion and the the Navy-Marine Corps CCA affirmed. The CCA found that the military judge wrongly determined that Darnall previously lived at the residential address on the package, but the CCA concluded that even without this information there was probable cause to apprehend Darnall.
CAAF reverses. Judge Sparks finds that the CCA “provided minimal analysis” in its opinion and “unlike the lower court, we do not conclude that the facts . . . provide sufficient evidence to establish probable cause to apprehend.” Slip op. at 7. Rather, CAAF concludes that Agent Pledger’s actions were not “objectively reasonable law enforcement activity,” but instead was a “somewhat sloppy and apathetic investigation” leading to an apprehension “in clear violation of [Darnall’s] Fourth Amendment rights.” Slip op. at 10.
Judge Sparks’ analysis begins with Rule for Courts-Martial 302(c):
A person subject to the code or trial thereunder may be apprehended for an offense triable by court-martial upon probable cause to apprehend. Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing it.
Slip op. at 5 (quoting the RCM). “[P]robable cause requires more than bare suspicion, but something less than a preponderance of the evidence.” Slip op. at 6 (quoting United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)). Furthermore:
“To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). “[P]robable cause is measured at the moment the arrest occurs and must derive from facts and circumstances based on reasonably trustworthy information.” Cortez v. McCauley, 478 F. 3d 1108, 1121 (10th Cir. 2007); see also United States v. Rodriguez, 60 M.J. 239, 247 (C.A.A.F. 2004) (stating that an arrest must be supported by probable cause and distinguishing between the probable cause necessary for arrest and the reasonable suspicion necessary to conduct an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968)).
Slip op. at 6 (marks in original).
CAAF reviews a military judge’s ruling on a motion to suppress for an abuse of discretion, which is a highly-deferential standard. The existence of probable cause, however, is a question of law reviewed de novo “using a totality of the circumstances test, and consider[ing] the evidence in the light most favorable to the prevailing party.” Slip op. at 6 (marks and citation omitted).
Conducting this de novo review, CAAF finds no probable cause to apprehend:
Unlike the lower court, we do not conclude that the facts listed above provide sufficient evidence to establish probable cause to apprehend. Agent Pledger had uncovered nothing aside from a name connecting Appellant to the incriminating box. It appeared to have been mailed from an unidentified sender in China and Appellant was asked to pick it up—he did not volunteer, nor was it delivered to the address on the box. There was simply no connection between Appellant and the box apparent to Agent Pledger at the time of the arrest except that his name was printed on the outside and it was mailed to an address in the community surrounding the Marine base.
Slip op. at 7. Judge Sparks also distinguishes the delivery of a fake package to the regimental mailroom from the recognized investigative technique of a controlled delivery on the basis that the fake package here was “rerouted to the mailroom to which Appellant was summoned to retrieve it,” rather than being delivered to the intended destination to see who accepts it. Slip op. at 7-8.
But the absence of probable cause does not automatically result in suppression, as there must also be a “causal connection between an illegal arrest and a subsequent confession.” Slip op. at 8. “[F]actors that should be considered include ‘the temporal proximity of the arrest and the confession, the presence of intervening circumstances, … and, particularly, the purpose and flagrancy of the official misconduct.'” Slip op. at 8 (quoting Brown v. Illinois, 422 U.S. 590, 603–04 (1975)) (omission in original)).
CAAF finds that such a causal connection exists in this case:
Here, the initial interview took place directly following the arrest, with no intervening circumstances except the drive to the CID building and Appellant being advised of his rights. . . .
This brings us to the third factor, the purpose and flagrancy of the official conduct. The record does not reveal any malignant intent behind Agent Pledger’s actions. However, we do not think it necessary that the agent’s misconduct be outrageous for the third factor in Brown to apply. Though there is no evidence of bad motive or intent on the investigator’s behalf, we do believe that his actions were “unwise, avoidable, and unlawful.” Conklin, 63 M.J. at 339. By all appearances, Agent Pledger conducted a hasty and flimsy initial investigation before apprehending Appellant.
Slip op. at 8-9. Judge Sparks then highlights many ways Agent Pledger could have investigated the case and likely obtained probable cause to apprehend Darnall.
Having found that the apprehension was without probable cause and that it is causally connected to the subsequent confession and discovery of incriminating evidence, Judge Sparks turns to remedy:
The Government argues that even if probable cause to apprehend did not exist, the exclusionary rule should not apply in the circumstances of this case. It cites the Supreme Court’s statement in United States v. Leon that the exclusionary rule “operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” 468 U.S. 897, 906 (1984) (internal quotation marks omitted) (citation omitted). The exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Id. at 919.
Slip op. at 10. But CAAF “do[es] not view Agent Pledger’s behavior as objectively reasonable law enforcement activity.” Slip op. at 10. Specifically:
The somewhat sloppy and apathetic investigation conducted by Agent Pledger prior to apprehending Appellant, in clear violation of his Fourth Amendment rights, is one type of law enforcement activity we would certainly hope to deter. Were we to determine that the exclusionary rule did not apply under such circumstances, excusing Agent Pledger’s actions because they were not sufficiently flagrant or purposeful, we “might well be encouraging unlawful conduct rather than deterring it.” Conklin, 63 M.J. at 340.
Slip op. at 10.
CAAF also rejects application of the inevitable discovery and good faith exceptions.
For inevitable discovery, Judge Sparks explains that the exception only applies if “when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence and that the evidence would inevitably have been discovered in a lawful manner had not the illegality occurred.” Slip op. at 10-11 (quoting United States v. Hoffmann, 75 M.J. 120, 125 (C.A.A.F. 2016) [(CAAFlog case page)]) (emphasis in original). The court is not convinced that such evidence was being pursued at the time of the apprehension. Slip op. at 11.
The good faith exception is raised by the fact that the interrogation of Darnall revealed information that supported issuance of a search authorization to search his cell phone, however CAAF summarily concludes that “the Government has not met its burden of establishing the good faith doctrine.” Slip op. at 11 (citing United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page)).
The wording and circumstances of this decision should give the Navy and Marine Corps legal community reason for serious self-reflection. CAAF finds no probable cause to apprehend, a “somewhat sloppy and apathetic investigation,” and a “clear violation of [Darnall’s] Fourth Amendment rights.” Slip op. at 10. And it does so unanimously and relatively quickly (less than two months after oral argument).
An objective member of the public observing the military justice system would likely wonder how the military judge and the judges of the NMCCA – all of whom are charged with protecting the constitutional and statutory rights of the accused – could reach the opposite conclusion and allow the imprisonment of a fellow member of the Naval Service.