CAAF decided United States v. Irizarry, No. 12-0451/AF, 72 M.J. 100 (opinion) (CAAFlog case page) on April 15, 2013, affirming the AFCCA and the conviction of larceny of military property in violation of Article 121, UCMJ. The granted issue was:
Whether the military judge erred in refusing to suppress military property seized by Appellant’s First Sergeant after a warrantless entry into Appellant’s off-base apartment.
Judge Stucky writes for the court, with Judge Ryan and Senior Judge Cox concurring. Judge Erdmann writes separately, dissenting in part and concurring in the result, and is joined by Chief Judge Baker.
Judge Stucky finds that the military judge did not abuse his discretion in admitting the evidence seized in the Appellant’s off-base apartment because “under the facts and circumstances of this case, Appellant’s Fourth Amendment rights were not violated because the entry into his apartment was not unreasonable.” Slip op. at 2.
The Appellant was convicted, contrary to his pleas, by a general court-martial composed of officer members, of one specification of larceny of military property of a value of more than $500, and sentenced to confinement for 45 days, reduction to E-1, and a bad-conduct discharge. The corpus delicti was an Altitude Vertical Velocity Indicator (AVVI) that was found in the Appellant’s apartment when Master Sergeant (MSgt) [S] and Technical Sergeant (TSgt) [Z] visited the apartment after receiving numerous calls from the management company regarding unpaid rent and unhygienic conditions. They entered the apartment with the assistance of the property manager. They discussed this entry with their commander and planned to report back their findings, though their purpose for visiting the property was “to protect Appellant against a potentially malicious landlord, to show the community that the Air Force cared about the situation, and to determine if Appellant should be counseled about the issue.” Gov’t Br. at 5 (citations to record omitted). Once inside, they recognized the AVVI and seized it.
At trial the defense moved to suppress the seized AVVI as the fruit of an unlawful search. The military judge disagreed, finding that the property manager had the authority to enter, and that even if it didn’t, MSgt [S] and TSgt [Z] reasonably believed that they had the authority to enter. Relying heavily on United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), the CCA affirmed this ruling, and the findings and sentence.
Judge Stucky begins his opinion by explaining the deferential standard of review of a ruling on a motion to suppress:
This Court reviews a military judge’s ruling on a motion to suppress for abuse of discretion. A military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.
Slip op. at 7 (citations omitted). He then rejects the Government’s argument that third-party consent is dispositive in this case. “Under the circumstances of this case, the landlord did not have common authority under Supreme Court jurisprudence to grant consent to the NCOs to enter Appellant’s apartment for a law enforcement purpose.” Slip op. at 8-9. However, Judge Stucky turns to the applicability of the provisions of the Appellant’s lease that permitted entries, and the CCA’s reliance on United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), to determine that:
After Appellant failed to pay his rent, it was reasonable for Mr. Marquette to enter the premises to determine whether Appellant had abandoned the apartment, post notices inside the apartment, and estimate repair or refurbishing costs after he discovered the state of the apartment. Furthermore, once the damages were discovered, it was reasonable for Cedar Creek to take action to minimize the damages and seek prompt restitution by the quickest and least intrusive manner — including contacting Appellant’s military supervisors.
Slip op. at 9-10. He concludes that “the NCOs acted reasonably in entering Appellant’s apartment at the behest of [the landlord].” Slip op. at 10.
Jacobs involved an entry to make emergency plumbing repairs, followed by a report of concern to military authorities regarding the overall state of the premises. In contrast, this case involved a non-emergency inspection. However, Judge Stucky finds that “this case is stronger than Jacobs” because both the lease and the applicable state law granted the landlord greater rights of access. Slip op. at 11 (emphasis added). He also notes that “there is no Supreme Court precedent indicating that a landlord may never consent to entry for non-law enforcement purposes where state law and the lease allow.” Slip op. at 13 (emphasis in original).
But Judge Stucky expands the analysis beyond the MSgt and TSgt’s entry as representatives of the landlord to also consider the reasonableness of their entry as representatives of the command itself. He finds that their entry was reasonable under the Fourth Amendment in this context as well, explaining that: