CAAF decided the Air Force case of United States v. Eppes, __ M.J. __, No. 17-0364/AF (CAAFlog case page) (link to slip op.), on April 10, 2018. Resolving challenges to two separate searches, the court unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

Judge Sparks writes for the court, joined by Chief Judge Stucky and Judge Ohlson. Judge Ryan writes separately, concurring in part and in the result. Senior Judge Effron dissents in part and would reverse the pleas.

CAAF granted review of two issues:

I. Whether the search of Appellant’s personal bags exceeded the scope of the search authorization where the agent requested authority to search Appellant’s person, personal bags, and automobile, but the military magistrate authorized only the search of Appellant’s person and automobile and did not authorize the search of Appellant’s personal bags.

II. Whether Appellant’s right to freedom from unreasonable search and seizure under the Fourth Amendment was violated when there was no probable cause for the 7 December 2012 warrant.

Captain (O-3) Eppes conditionally pleaded guilty to various offenses primarily involving travel claim fraud. The conditional pleas preserved his motion to suppress the evidence discovered in two searches: one on December 7, 2012 (of Eppes’ residence; Issue II), and the second on February 5, 2013 (of Eppes’ bags; Issue I). The December search was authorized by a warrant issued by the District of Columbia, while the February search was authorized by a military search authorization.

CAAF unanimously rejects the second issue, with Judge Sparks writing that “the December 7, 2012, search of Appellant’s residence was supported by probable cause and was therefore valid.” Slip op. at 7. Emphasizing that “probable cause is a flexible, commonsense standard,” slip op. at 7 (citation omitted), Judge Sparks explains that the civilian judge who permitted the search “was presented with sufficient facts to reasonably infer evidence of Appellant’s crimes, namely fraud against the government and other offenses, would probably be recovered on a computer in Appellant’s home.” Slip op. at 9 (citation omitted). The entire court, including Judge Ryan and Senior Judge Effron, agrees with that analysis.

But the first issue fractures the court somewhat, with Judge Sparks and the majority applying the inevitable discovery doctrine (while doubting that the exclusionary rule should apply under the circumstances); Judge Ryan finding that even though the search authorization did not explicitly mention Eppes’ bags, the bags were fairly included in the authorization to search Eppes’ person; and Senior Judge Effron finding prejudicial error justifying reversal of the conditional pleas.

Judge Sparks begins with the conclusion that the search of Eppes’ bags was beyond the scope of the authorization. He explains:

Here, the affidavit in support of the search authorization expressly and specifically stated it was being submitted “in support of a request for separate search authority for (1) EPPES’ person, (2) EPPES’ personal bags and (3) EPPES’ personally owned vehicle.” The authorization returned to SA Cooper from the military magistrate authorized a search of “the person of TYLER G. EPPES, Capt, USAF” and his vehicle [but not the personal bags].

Slip op. at 11. Judge Sparks and the majority suspect that the omission of the bags from the final authorization “was simply a scrivener’s error,” because the affidavit and the authorization were both drafted by the same person and “it seems incongruous that the agent would include the bags in the affidavit and then intentionally leave them out of the drafted search authorization.” Slip op. at 11-12. Nevertheless, the majority assumes that the omission of bags from the authorization was deliberate, and so the search of the bags was not authorized.

But even though the search was not authorized, the fruits need not necessarily be suppressed. Judge Sparks explains that:

The doctrine of inevitable discovery allows for the admission of illegally obtained evidence when the government demonstrates by a preponderance of the evidence that 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 in a lawful manner.

Slip op. at 12 (marks and citation omitted). Two factors support application of the inevitable discovery doctrine here:

First, we believe the agents would have applied for and received authorization to search had they recognized the discrepancy omitting the bags. . . .

Second, the agents were actively pursuing leads that would have led them to the same evidence. . . .

Slip op. at 13-14. A footnote emphasizes the point:

we believe the officers could have and would have obtained a lawful, valid warrant had they known they were prohibited from searching Appellant’s bags.

Slip op. at 13 n.7.

But Judge Sparks and the majority also go one step further, concluding that the circumstances of the case do not justify application of the exclusionary rule:

Next, we also see no valid policy reason for applying the exclusionary rule in this case. “[A]dmittedly drastic and socially costly,” the exclusionary rule should only be applied where “needed to deter police from violations of constitutional and statutory protections.” Nix, 467 U.S. at 442–43. The exclusionary “rule’s sole purpose … is to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236–37 (2011). As such, its use is limited “to situations in which this purpose is thought most efficaciously served.” Id. at 237 (internal quotation marks omitted) (citation omitted). “For exclusion to be appropriate, the deterrence benefits of suppression must outweigh [the rule’s] heavy costs.” Id.

. . . Here, where the Fourth Amendment violation was likely not the result of deliberate misconduct in need of deterrence, any marginal deterrent benefit to be gained is far outweighed by the heavy costs exclusion would have—namely placing the Government in a worse position than it would have been had the illegality not occurred.

Slip op. at 15. This reminds me of three opinions in Air Force cases involving application of the exclusionary rule: Chief Judge Baker’s dissenting opinion in United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page), Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry, 72 M.J. 100 (C.A.A.F. 2013) (CAAFlog case page), and Chief Judge Baker’s opinion of the court in United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page). Each of those opinions addressed whether exclusion was appropriate under the circumstances, eschewing any automatic application. And the applicable Mil. R. Evid. was changed effective May 20, 2016, to require that “exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3) (2016) (discussed here).

Ultimately, the majority’s conclusion casts the agents who conducted the search of the bags as merely clueless, not malefactors.

Judge Ryan concurs but for a very different reason. While the majority reads the authorization to search Eppes and his vehicle – that was silent as to his bags – as not including the bags, Judge Ryan finds that the bags were actually included:

Utilizing a commonsense rather than a hypertechnical review of the warrant, law enforcement could reasonably conclude that the “person” mentioned in the warrant included bags in close proximity to the “person.” There is nothing constitutionally unreasonable about that conclusion.

Con. op. at 3 (citations omitted). Put differently:

There was no rummaging about here, and it was constitutionally reasonable for the law enforcement officers to conclude that a search of the Appellant’s person referred to more than the literal person of the Appellant and reasonably included bags in his immediate vicinity. Humans are not kangaroos, and the human body thus does not have natural “pockets” or “pouches” in which to store either watch and jewelry collections or documents related to insurance and travel fraud. Graham, 638 F.2d at 1112–14. “To hold differently would be to narrow the scope of a search of one’s person to a point at which it would have little meaning.” Id. at 1114.

Con op. at 3.

Senior Judge Effron’s partial dissenting opinion takes exception to the majority’s application of the inevitable discovery doctrine on the basis that the prosecution failed to create a record of what was discovered in the bags and why lawful discovery of those specific items was inevitable. He writes:

Viewing the evidence in the light most favorable to the Government, we can do no more than speculate as to what, precisely, was found in Appellant’s bags, as the Government did not produce the evidence or describe it with particularity. Without more information as to what was found in the bags — e.g., what was on the merchandise inventory list?; what documents were contained in the Foundry Lofts envelope?; did the Cole Haan receipt record a financial transaction that would have been discovered in Appellant’s bank or credit card records? — we cannot conclude that the evidence inevitably would have been discovered by other means.

Diss. op. at 4.

Eppes’ briefs to CAAF advocated a technical approach, emphasizing that the authorization to search his person did not include the bags and that the warrant to search his residence did not specifically link the allegations to electronic devices in the home. CAAF’s resolution of the case is something of a wholesale rejection of that approach because even though the majority (and Senior Judge Effron) agree that the search of Eppes’ bags exceeded the authorization, that overreach doesn’t really matter.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Law student amicus brief in support of Appellant
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

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