CAAFlog » October 2016 Term » United States v. Darnall

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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Tucker, No. 17-0160/AR (CAAFlog case page): Oral argument audio.

United States v. Darnall, No. 16-0729/NA (CAAFlog case page): Oral argument audio.

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.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: I’m unable to access the Air Force CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on Tuesday, July 12, 2016 at at a.m.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, June 30, 2016, at 10 a.m.:

United States v. Darnall

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted appellant, contrary to his pleas, of four specifications of conspiracy; one specification 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, UCMJ, 10 U.S.C. §§ 881, 907, 912a, and 934 (2012). The members sentenced appellant to reduction in pay grade to E-1, six years’ confinement, and a dishonorable discharge. The Convening Authority approved the adjudged sentence, suspended confinement in excess of five years, and, except for the dishonorable discharge, ordered the sentence executed.

Issue: THE MILITARY JUDGE HELD THAT THERE WAS SUFFICIENT PROBABLE CAUSE FOR A CID AGENT TO ARREST APPELLANT. WAS THIS AN ERRONEOUS RULING, AND IF SO, SHOULD ALL EVIDENCE FLOWING FROM THE APPREHENSION HAVE BEEN SUPPRESSED AT TRIAL?