CAAF decided United States v. Irizarry, No. 12-0451/AF, 72 M.J. 100 (CAAFlog case page) (link to slip op.), 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:

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CAAF has decided United States v. Irizarry, No. 12-0451/AF. The court’s opinion is available here.

Judge Stucky wrote for the court, with Judge Ryan and Senior Judge Cox concurring. Judge Erdmann wrote a separate opinion dissenting in part and concurring in the result, joined by Chief Judge Baker.

We granted review to determine 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. We hold that the military judge did not abuse his discretion. 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.

More to follow.

I’m abandoning the podcasting effort for now, due to some technological hurdles that I don’t have the time to figure out. Here’s a rundown of oral argument audio from cases heard in November:

CAAF Arguments:

• Wednesday, November 7:
  • United States v. Irizarry, No. 12-0451/AF

• Tuesday, November 13:
  • United States v. Goings, No. 11-0547/AR
  • United States v. Altier, No. 12-0496/NA
  • United States v. Hutchins, No. 12-0408/MC

• Tuesday, November 27:
  • United States v. Cote, No. 12-0522/AF
  • United States v. Caldwell, No. 12-0353/MC

NMCCA Arguments:

• Thursday, November 29:
  • United States v. Moreno

Audio of the oral argument of United States v. Irizarry, before CAAF at the University of Oklahoma School of Law on Wednesday, November 7, 2012, is available at this link.

On Wednesday, November 7, 2012, CAAF will travel to The University of Oklahoma School of Law to hear oral argument in United States v. Irizarry, No. 12-0451/AF, in which the court granted review of the following issue:

Whether the military judge erred by denying a defense motion to suppress an item seized by Appellant’s first sergeant during a warrantless entry into Appellant’s off-base home.

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. “Before viewing the apartment, MSgt [S] discussed his trip to the apartment with his commander, and told his commander he would report back with his findings. Their purpose of visiting to 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. The CCA affirmed this ruling, and the findings and sentence.

In his brief to CAAF, Appellant’s counsel argues that “Government officials’ warrantless entry into a citizen’s home is presumptively impermissible,” and no exception applies under the circumstances of this case. Additionally, he argues that The Supreme Court has held that a landlord cannot allow government officials to enter property just because the landlord has the authority to enter, nor can the government officials believe in good faith that such authorization is lawful. Appellant’s Br. at 5-6.

The circumstances of this case are uniquely-military in a number of ways, starting with the fact that it’s hard to imagine that a civilian employer would ever inspect an employee’s residence “to protect [the employee] against a potentially malicious landlord,” and even if one did, then the inspector wouldn’t be a Government agent acting in an official capacity. The Appellant cites strong authority from The Supreme Court’s opinion in Georgia v. Randolph, 547 U.S. 103, 112 (2006), to explain why a landlord’s right to inspect a premises does not translate into a general privilege to admit third parties (particularly Government agents) without the consent of the tenant. He also explains why this exposes the error in the trial-stage ruling that the MSgt and TSgt reasonably believed that the landlord had the authority to permit their entry: “It is a widely shared social expectation that a landlord cannot willy-nilly enter an apartment rented to a tenant, much less invite guests along to do so. Tenants would be shocked to wake up from their beds or get out of their showers to find their landlord in their kitchen or sitting on their couch.” Appellant’s Br. at 14.

The Government cites United States v. Jacobs, 31 M.J. 138 (C.M.A. 1990), to argue that “[t]his Court has determined that a military member, acting in a non-law-enforcement capacity, may properly enter an accused’s rental unit based upon a landlord’s consent in some circumstances.” Gov’t Br. at 11. However, Jacobs involved an emergency entry to make repairs; a fact emphasized by the Appellant’s brief and missing from this case. The Government also argues the non-criminal nature of the entry: “The record clearly indicates the purpose of the non-commissioned officer’s entry was for administrative purposes and civil in nature rather than for the purposes of a criminal investigation. Moreover, by failing to pay rent and his electricity bill, and leaving the apartment in a filthy and damaged condition, Appellant should not have been surprised at the landlord’s entry into the apartment.” Gov’t Br. at 14.

This argument only highlights the uniquely-military nature of this case, and the danger that if CAAF crafts a rule that relies on the “administrative” and “civil” purposes for a warrantless entry into a servicemember’s private residence, then that could be a rule of unlimited application. In our 21st century armed forces, it’s hard to imagine any set of facts where there is no desire “to show the community that the [military] care[s] about the situation.”

A law student Amicus sides with the Government, and argues that “[t]he landlord’s authority in this circumstance defeats the individual’s expectation of privacy in the leased premises. Because the [MSgt and TSgt] stood ‘in the shoes’ of Cedar Creek Apartments management (‘CCA’) while in the apartment, any incriminating evidence seen in plain view – including the AVVI – was visible from a lawful vantage point. Accordingly, the AVVI is admissible evidence in trial.” Amicus Br. at 2. The Amicus admits that “The Supreme Court has not visited the scope of a landlord’s authority to give consent for the government’s entry into a home for a non-investigative purpose,” but then relies on Jacobs without considering the non-emergent circumstances of this case. Amicus Br. at 6. He also takes the radical position that “members of the armed forces, in particular, have a different, lesser degree of expectation of privacy in constitutionally protected areas.” Amicus Br. at 7 (emphasis added). A footnote betrays the true scope of this extreme view: “Some military scholars take the position that the protections of the Fourth Amendment do not apply to service members in general. . .” Amicus Br. at 7, N.7. I didn’t get to the end of this brief, as I had to stop reading at this point to clean the spewed coffee from my keyboard while wondering how this law student would feel if his professors started inspecting his private residence.

Ultimately, this case pits traditional concepts of privacy and tenancy against the growing intrusiveness and diminishing privacy attendant to modern military service. It reminds me of United States v. Dease, No. 12-6001/AF, where CAAF’s opinion in May (finding that the Appellant’s detailed defense counsel revoked consent for analysis of the Appellant’s urine) now compels form-letter revocation of consents by defense counsel in every case. I’m imagining a similar litigation arms race in the future if CAAF affirms the search in Irizarry, with servicemembers preemptively notifying their landlords and commands that they do not consent to the entry of military officials (even if the entry is for the Orwellian purpose of “their own protection”), in order to shield themselves from busybody leaders who consider every dirty dish and unmade bed to be an outrage against the service.

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Law student amicus
• Blog post: Argument preview