CAAFlog » September 2014 Term » United States v. Olson

CAAF decided the Air Force case of United States v. Olson, 74 M.J. 132, No. 14-0166/AF (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the military judge did not err in concluding that Appellant’s consent to a search of her home was voluntary, affirming the decision of the Air Force CCA.

Judge Stucky writes for a functionally-unanimous the court. Chief Judge Baker writes separately, concurring.

CAAF granted review to determine:

Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. Appellant was sent to meet with Air Force investigators in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Then:

The agents advised Appellant that her husband was suspected of distributing illegal drugs on base and that he had been arrested by Calvert County, Maryland, police. The agents asked for consent to search her residence, which she was reluctant to give. Appellant wanted to telephone her husband but was dissuaded from doing so by the agents. At the time, Appellant resided off base with her husband in Maryland, although he had been absent from the house since July. During a smoke break outside the building, an agent tried to convince her to consent to the search. Appellant understood that the agents could try to convince her to consent, and she worried that they were trying to get her in trouble.

Slip op. at 4. Eventually she consented, and drugs and drug paraphernalia were discovered in the residence. She was later convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.

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

United States v. Olson, No. 14-0166/AF (CAAFlog case page): Oral argument audio.

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Olson, No. 14-0166/AF (CAAFlog case page), on Tuesday, January 27, 2014. The court granted review of a single issue relating to Appellant’s consent to the search of her off-base residence by Air Force investigators:

Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Appellant was convicted contrary to her pleas of not guilty, by a special court-martial composed of officer members, of dereliction of duty, spoilage of personal property, wrongful possession of ketamine, and larceny, in violation of Articles 92, 109, 112a, and 121. She was sentenced to confinement for four months, forfeiture of $978.00 pay per month for 4 months, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one month of the adjudged forfeitures but otherwise approved the adjudged sentence.

In August 2011, Appellant’s military supervisor contacted Air Force investigators with suspicions related to Appellant’s civilian husband, who was allegedly involved in illegal drug activity. The supervisor “described Appellant as a bad troop and a ‘dirt bag’ and was concerned that her husband was a bad influence on her, but did not say he believed that Appellant herself was involved in illegal drug use.” Gov’t Br. at 2. The supervisor also communicated “his belief that Appellant’s husband was distributing drugs on base to other airmen.” Gov’t Br. at 2.

Appellant was then sent to meet with Air Force investigators. They met in a conference room and Appellant was not advised of her Article 31(b) right to remain silent. Appellant was questioned for approximately two hours, after which the investigators asked Appellant for consent to search her off-base residence in order to “make sure it was safe and there were no drugs.” App. Br. at 5. Appellant hesitated, but eventually gave consent (she claims that this was only after the investigators threatened to obtain a warrant, but the investigators denied making this threat). Acting on this consent investigators searched her off-base residence, where contraband was discovered and seized.

At trial Appellant moved to suppress the fruits of the search on the basis that her consent was involuntary. The military judge applied the six factor test from United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008), and concluded that Appellant voluntarily consented to the search. The Air Force CCA reviewed this ruling on appeal and affirmed the military judge. CAAF then granted review.

From just these facts, CAAF’s grant is puzzling. This case seems to present a rather mundane application of the six factors for determining voluntariness that were adopted by CAAF in Wallace, and the parties briefs are little more than an analysis of those non-exhaustive factors. But considering recent CAAF decisions involving Article 31(b) (our #3 military justice story of 2014), CAAF’s interest in this case likely goes well beyond the mere facts.

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