CAAFlog » September 2014 Term » United States v. Keefauver

In United States v. Keefauver, 74 M.J. 230 (C.A.A.F. 2015) (CAAFlog case page), a unanimous CAAF held that a search of the appellant’s on-base residence was not a valid protective sweep. The case involved the controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted an unauthorized search of the property, discovering a significant quantity of drug-related materials. At trial that search was deemed lawful as a protective sweep, but CAAF reversed.

The items discovered during the search (other than the box of marijuana) were used against the appellant at trial (some as evidence to support additional charges). CAAF did not consider the possibility that the discovery of those items was inevitable, but instead remanded the case to the Army CCA to review that possibility in light of its decision regarding the search not being a lawful protective sweep.

Last week, the Army CCA completed its review and concluded that the discovery of the additional items was not inevitable:

There is no evidence at this point [when the search of the residence began -zds] that the agents possessed, or were pursuing, evidence or leads that would have inevitably led to the discovery of any other items in the home. At this particular point in time, investigators had no further evidence to support a finding of probable cause to search than when they originally made the search request. Thus, given that the investigators had, at this point, found only what they expected to find—the box—and nothing more, we cannot even say that “the routine procedures of a law enforcement agency would inevitably find the same evidence.” United States v. Owens, 51 M.J. 204, 210 (C.A.A.F. 1999). In short, the inevitable discovery doctrine cannot rescue any evidence found in the house beyond the box, and the admission of such evidence violated appellant’s Fourth Amendment rights.

United States v. Keefauver, No. 20121026, slip op. at 5 (A. Ct. Crim. App. Nov. 25, 2015) (citations omitted) (link to slip op.). “Further, the sheer mass of inadmissible evidence found in the house eliminates any possibility the error was harmless beyond a reasonable doubt.” Slip op. at 7. But beyond the quantity of illegally-obtained evidence, the CCA also notes the prosecution’s closing argument:

The importance of all of the evidence found in the home was underscored by trial counsel in his closing argument. For example, he began: “what does 5.25 pounds of marijuana, over $7,600 in cash, four unregistered firearms, numerous baggies, and a scale equal? We have a criminal enterprise.” Of the five things he mentioned, only one was properly in evidence.

Slip op. at 7.

The CCA sets aside the findings and authorizes a rehearing.

CAAF decided the Army case of United States v. Keefauver, 74 M.J. 230, No. 15-0029/AR (CAAFlog case page) (link to slip op.), on Friday, June 12, 2015. Extensively analyzing the requirements for a protective sweep, CAAF finds that the Government did not even attempt to meet those requirements in this case, and so the court holds that the sweep of the appellant’s on-base home was invalid. CAAF reverses the decision of the Army CCA and remands the case for further proceedings.

Judge Ryan writes for a unanimous court.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case involves a controlled delivery of a package sent through the U.S. Mail that was suspected (and eventually discovered) to contain marijuana. Government agents obtained verbal authorization to conduct a controlled delivery of the package, but the appellant’s on-base residence was vacant. So the agents left the package by the front door, established surveillance, and waited. Eventually, the appellant’s stepson returned home and brought the package inside, and the agents followed immediately behind, seizing the package and apprehending the boy. Then, despite the immediate seizure of the suspicious package and the fact that the home was empty before the boy arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials.

The appellant moved to suppress the evidence seized during the search. The military judge denied the appellant’s motion, ruling in part that the search was a proper protective sweep. Specifically, the judge found that the:

agents could reasonably have believed “an individual or individuals who posed a danger to the agents may have been hiding in the residence” given the quantity of marijuana present and the inference that residents were engaging in drug distribution, as “[i]t is common knowledge that drug trafficking involves violence, including the use of weapons.” The military judge [also] concluded that [the stepson]’s hostile response to the agents’ announced intent to enter the house and conduct a search supported this belief.

Slip op. at 6-7. The appellant was convicted. On review, the CCA affirmed the judge, finding the sweep proper and also applying the doctrine of inevitable discovery. CAAF then granted review of a single issue:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Judge Ryan’s opinion for a unanimous CAAF dissects the law of protective sweeps and the agents’ rationale for the search, concluding that while a sweep in a situation like the one in this case is permissible, there was insufficient justification for a sweep in this particular case.

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Audio of this week’s Project Outreach oral arguments is now available at the following links:

United States v. Plant, No. 15-0011/AF (CAAFlog case page): Oral argument audio.

United States v. Keefauver, No. 15-0029/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Keefauver, No. 15-0029/AR (CAAFlog case page), on Wednesday, April 15, 2015, at noon. This will be a Project Outreach oral argument and will occur at the University of Wisconsin Law School, Madison, Wisconsin.

The case presents a single, somewhat strangely-worded issue about a pretrial ruling:

Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of violating a general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on-post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134. He was sentenced to confinement for four years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In a published decision that I discussed in this post, the Army CCA affirmed the findings and sentence.

The case began when a postal inspector alerted military authorities to a suspicious package scheduled for delivery to Appellant’s on-base residence. Drug dogs alerted to the package, and a controlled delivery was scheduled. But the Government’s own brief to CAAF acknowledges that its agents intended to do far more than just deliver the package:

The plan was to conduct a controlled delivery of the package and to conduct a search of the home using an MWR [military working dog] after the box was taken into the home. CPT MR [the military magistrate] testified at the Article 39(a) session that he verbally authorized the agents to conduct the search and that they could do it with an MWD. The “actual limits on when the MWD could enter the home and where it could go were not clearly defined during the motion.” SA SR stated he understood the verbal authorization “was to search for the package inside the house and once the package was found, any additional search, if we had a K9 search the house and alerted to any other drugs inside the house, that we would have authorization to search the rest of the house.”

Gov’t Br. at 3 (citations to record omitted). A footnote illustrates the ambiguity in the search authorization granted to the agents:

During the Article 39(a) CPT MR provided approximately five different answers as to what the limits of the search with the MWD were.

Gov’t Br. at 3 n.1. Government agents then attempted to deliver the package, but the home was vacant. So they established surveillance and waited. Eventually, Appellant’s stepson arrived at the house, and the agents pounced, advancing so quickly that “the door was still slightly open and the key was still in the door.” App. Br. at 44. The agents then “discovered the package a few feet from the front door, sitting on a table in the foyer next to the staircase.” Gov’t Br. at 5. However, despite the immediate seizure of the suspicious package and the fact that the home was empty before the child arrived, the agents conducted a search of the property, discovering a significant quantity of drug-related materials:

When the agents entered the house, SA SR and PI JT immediately conducted a security sweep of the residence in order to make certain no unknown persons were present in the residence who might present a danger to the officers. During his sweep of the premises, SA SR discovered a number of drugs and drug paraphernalia in plain view.

Gov’t Br. at 5. The package itself contained between three and four pounds of marijuana.

Appellant moved to exclude from the trial all of the evidence seized from his home. The military judge denied Appellant’s motion and made three rulings. First, the judge held that the search authorization for the suspicious package itself was lawful. Second, the judge held that the agents were justified in conducting a protective sweep of Appellant’s residence after seizing the package because “under the particular facts of this case, the law enforcement agents had reasonable suspicion to believe that an individual or individuals who posed a danger to the agents may have been hiding in the residence.” Gov’t Br. at 8 (quoting record). Third, the judge concluded that the search authorization was invalid beyond the package itself, however the protective sweep made the further discoveries inevitable.

On appeal, the Army CCA affirmed, concluding that “in this case there are additional facts, including the unknown whereabouts of the adults in the household and the behavior of [Appellant’s stepson], along with the unobjected to testimony of an expert in drug trafficking that ‘guns follow drugs,’ that allow us to conclude the military judge did not abuse his discretion in finding SA SR’s protective sweep of appellant’s home was justified.” 73 M.J. 846, 854.

CAAF then granted review of an issue that appears to question this conclusion by the CCA and not the underlying ruling of the military judge. But CAAF’s caselaw is clear that:

When reviewing a ruling on a motion to suppress, we consider the evidence in the light most favorable to the prevailing party. . . . [W]e pierce the intermediate level of appellate review and examine the military judge’s ruling directly.

United States v. Baker, 70 M.J. 283, 288 (C.A.A.F. 2011) (citations omitted). And the parties agree that CAAF will review the military judge’s findings of fact and conclusions of law under the abuse of discretion standard. Still, that doesn’t let the CCA completely off the hook, as its opinion included in a footnote the assertion that:

[A]ppellate courts, in reviewing the correctness of [a] ruling [on a motion to suppress], may consider any evidence presented in the trial of the case.

73 M.J. at 849 n.3. The parties briefs treat that assertion as an issue as significant as the military judge’s conclusion regarding the validity of the protective sweep.

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