United States v. Specialist LEVI A. KEEFAUVER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, 1 KRAUSS, and BORGERDING
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist LEVI A. KEEFAUVER
United States Army, Appellant
ARMY 20121026
Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell (convened)
Headquarters, Fort Campbell (action)
Timothy Grammel, Military Judge (arraignment and motion hearing)
Steven E. Walburn, Military Judge (trial)
Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate
For Appellant: Captain Patrick J. Scudieri, JA (argued); Colonel Kevin Boyle, JA;
Lieutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA; Captain
Patrick J. Scudieri, JA (on brief and on supplemental brief); Colonel Kevin Boyle,
JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on reply brief).
For Appellee: Captain Benjamin W. Hogan, JA (argued); Colonel John P. Carrell,
JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA;
Captain Benjamin W. Hogan, JA (on brief).
29 July 2014
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OPINION OF THE COURT
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BORGERDING, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of violating of a lawful 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,
1
Senior Judge Kern took final action in this case prior to his permanent change of
duty station.
KEEFAUVER — ARMY 20121026
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 912a, 934
(2006). The military judge sentenced appellant to a bad-conduct discharge,
confinement for four years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.
This case is before the court for review pursuant to Article 66, UCMJ.
Appellant asserts the military judge abused his discretion by denying a motion to
suppress evidence obtained during an alleged illegal search of appellant’s home.
Appellant also argues that his conviction for possession of marijuana with intent to
distribute is factually and legally insufficient. We find these assignments of error
warrant discussion but no relief. 2
FACTS 3
On 8 December 2011, Postal Inspector DV notified Postal Inspector SL that
during the course of a drug interdiction effort in the Louisville, Kentucky postal
processing center, he discovered a suspicious box that smelled of marijuana. Upon
inspection of the box, Inspector SL observed that it was a heavily taped,
approximately eight-pound “Ready-Post” priority box, with delivery confirmation
and insurance stickers. The return address was a hand-written label showing a “B.
Samuelson” mailed it from an address in northern California. When Inspector SL
2
We have also considered appellant’s supplemental assignment of error and those
matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and find they are without merit.
3
“[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.” United
States v. Cordero, 11 M.J. 210, 215 n.3 (C.M.A. 1981) (citing Carroll v. United
States, 267 U.S. 132, 162 (1925)); see also United States v. Canieso, 470 F.2d 1224,
1226 (2d Cir. 1972) (“It is settled law that the validity of an arrest or search can be
supported by evidence which was adduced at trial even though this was not
presented at the pretrial suppression hearing.”); United States v. Pearson, 448 F.2d
1207, 1210 (5th Cir. 1971) (“Evidence adduced at trial may be considered even
though the evidence on the motion to suppress was insufficient to justify the
search.”); United States v. Hinojosa, 606 F.3d 875, 880 (6th Cir. 2010) (“This court
is not restricted to considering only the evidence presented at a suppression hearing,
and it may consider evidence offered at trial to uphold the denial of a motion to
suppress.”); United States v. Gray, 491 F.3d 138, 148 (4th Cir. 2007); United States
v. Martins, 413 F.3d 139, 144 (1st Cir. 2005); United States v. Villabona-Garnica,
63 F.3d 1051, 1056 (11th Cir. 1995); Rocha v. United States, 387 F.2d 1019, 1021
(9th Cir. 1967).
2
KEEFAUVER — ARMY 20121026
searched an address database to determine if the sender’s information was
legitimate, he found no record of a “B. Samuelson” at the return address. 4 These
facts, coupled with an odor of marijuana emanating from the box, indicated to
Inspector SL the box was being used for drug trafficking. 5 The box was addressed to
“T. Keefauver,” at a house address on Fort Campbell, Kentucky. Military
investigators confirmed the name of the family living at that particular address was
“Keefauver.”
Since the box was addressed to a house located on Fort Campbell, Inspector
SL contacted the Drug Suppression Team Chief at the Fort Campbell Criminal
Investigation Command (CID) office, Special Agent (SA) SR, in hopes of
conducting a “controlled delivery.” 6 Inspector SL and two other postal inspectors
drove the box to Fort Campbell.
Meanwhile, SA SR obtained a verbal authorization from the military
magistrate, Captain (CPT) MR, to conduct a controlled delivery of the package and
then, in SA SR’s understanding, to “go into the house and search for the package
after it was taken into the house.” Special Agent SR also understood that “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.” Captain MR described his verbal authorization as, “if
the box--the package goes into the house, you may search the room, depending on if
you go in right after it, you can search that immediate area that you find the
package, and that’s the limit of your search.” Captain MR also authorized a search
of locations where the K9 military working dog (MWD) alerted to marijuana. The
magistrate’s actual limits on when the MWD could enter the home and where it
could go were not clearly defined during the motion.
Once Inspector SL arrived at the Fort Campbell CID office with the box,
SA SR had a MWD handler inspect the package. The MWD handler indicated that
the MWD alerted on the box, meaning it likely contained a controlled substance.
4
However, Inspector SL did discover appellant and his wife had claimed the return
address in Northern California as their address in years past.
5
The military judge recognized Inspector SL as an expert in drug trafficking without
objection from the defense.
6
Inspector SL testified a “controlled delivery” is a delivery controlled by law
enforcement personnel whereby they “mimic” what a regular letter carrier would
normally do every day in the event that the individuals expecting the package are
conducting surveillance and tracking the package.
3
KEEFAUVER — ARMY 20121026
Special Agent SR then organized the controlled delivery of the package to the
recipient’s address. The team conducted surveillance in the front and the rear of the
recipient’s house and watched as a member of the postal inspection team delivered
the box. When no one answered the door, the agent put the box on the front
doorstep and the team waited outside for approximately an hour until an individual
later identified as appellant’s 16-year-old stepson, TC-D, came home and took the
box inside.
Once the package was inside the house, the surveillance team moved in and
entered the home to retrieve the box. TC-D answered the door and SA SR informed
him that he was with the police and was there to search the home. TC-D became
“irate,” yelling an “ungodly tirade of obscenities” at the agents including, “what the
fuck” and “get the fuck off my property,” as well as “I hate pigs,” “I hate cops,”
“[c]ops can all die,” or words to that effect. He was placed in handcuffs and seated
near the garage. Special Agent SR immediately located the package right inside the
home in the hallway, about ten feet from the front door.
Once the package was located, SA SR conducted a “security sweep” of the
home to “ensure that no one else was inside the house” and that no one was
“destroying evidence.” He indicated “[i]t’s standard procedure for any law
enforcement to clear a house . . . for safety of officers to make sure no one is inside
with a gun, no one’s inside with a knife, or try to [sic] hurt someone that we don’t
know is there.” He later testified “[t]he purpose of the security sweep is to ensure
that--for safety--make sure that there’s nobody inside with a weapon that can harm
one of my officers.” The sweep lasted “a couple of minutes.”
Special Agent SR began this sweep in the downstairs area where he saw a
“marijuana-type smoking device” on the kitchen counter. He then continued upstairs
where he saw a bag of what appeared to be marijuana laying in plain view on the bed
in TC-D’s room as well as at least two items of drug paraphernalia, also in plain
view, in the room. He also saw “a couple rifles” in an unlocked walk-in closet in the
hallway. 7 In the master bedroom, also in plain view, he saw more boxes with similar
characteristics to the one that had just been delivered, all of which bore similar
indicia of drug trafficking.
It was only after the protective sweep was completed and the home was
cleared that the MWD came in, conducted a search, and alerted on multiple areas
within the house. Upon entry into the house, several of the law enforcement agents
7
Prior to the controlled delivery, CID agents determined that no one living in the
home had firearms registered with Fort Campbell authorities pursuant to Fort
Campbell regulations.
4
KEEFAUVER — ARMY 20121026
noted there was a very strong smell of marijuana emanating from the house in
general and not just from the box.
The MWD alerted as soon as it entered TC-D’s room. In addition to the items
seen in plain view by SA SR, investigators found more amounts of marijuana
throughout the room, both loose and in small Ziploc bags. Next, although SA SR
did not recall seeing any items in plain view in the room later determined to belong
to appellant’s 13-year old biological son, EK, the MDW alerted on a container found
in plain view on the floor in the middle of the room. In addition, the MDW alerted
on a dresser drawer where investigators found more marijuana, rolling papers, and a
pipe.
In the master bedroom, the MWD alerted to additional bags of marijuana
located in a dresser. The investigators also found a vaporizer which appeared to be
used to smoke marijuana, a scale which could be used to weigh drugs, and a large
sum of money in a dresser drawer.
In the downstairs area of the home, the MWD alerted on a black duffel bag
found inside a closet under the stairs, located near where appellant had been
sleeping. 8 It contained no marijuana but did contain $4000 in cash. Investigators
also found an amount of cash inside a teapot in the dining room. In a closet
immediately inside the residence, investigators found two handguns stored in a
locked container and a bag of marijuana inside a bin of toy cars. Finally,
investigators searched garbage cans outside the house and found plastic bags similar
to ones found inside the house that had $1000, $2000, $8000, and $8300 written on
them. All items, including those SA SR saw in plain view during his protective
sweep, were seized and admitted into evidence at trial.
Investigators opened the box originally delivered to the home while it was
still inside the residence. The box contained approximately three to four pounds of
“high grade” marijuana packaged in a manner consistent with drug trafficking.
After the search of the home, SA SR prepared a written search and seizure
authorization apparently intended to document CPT MR’s verbal authorization.
Captain MR testified that SA SR typed the authorization and CPT MR reviewed and
signed it. Captain MR did not recall receiving any additional information between
the time he gave the verbal authorization and when he issued the written
authorization. This written authorization permitted a search for “any evidence of the
8
Appellant and his wife were having marital problems, so appellant was sleeping in
the downstairs living room.
5
KEEFAUVER — ARMY 20121026
criminal offense [sic] Wrongful Possesion [sic], distribution and/or Use of a
Controlled Substance.”
Later, at the CID office, investigators searched both appellant and EK “for
officer safety in accordance with . . . standard operating procedures.” During these
searches, they found $900 in cash consisting of nine $100 bills in appellant’s
pockets and $692 in EK’s pockets. After seeing his sons at the CID office, appellant
told the investigators “all the stuff you found in the house is mine, I don’t want my
family getting in trouble,” or words to that effect.
LAW AND DISCUSSION
Search and Seizure
Standard of review
We review a military judge’s ruling on a suppression motion for an abuse of
discretion. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000). We review
a military judge’s findings of fact under the clearly-erroneous standard and his
conclusions of law under a de novo standard. Id. “Thus, on a mixed question of law
and fact as in this case, a military judge abuses his discretion if his findings of fact
are clearly erroneous or his conclusions of law are incorrect.” United States v.
Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). In addition, our review is “shaped by the
outcome of the trial below” as our superior court has held that “in reviewing a ruling
on a motion to suppress, we consider the evidence ‘in the light most favorable to the
prevailing’ party.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007)
(quoting United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996)).
Protective Sweep
The Fourth Amendment of the U.S. Constitution protects “[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth
Amendment further provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const. amend. IV. The
“physical entry of the home is the chief evil against which the wording of the Fourth
Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980) (citation
omitted).
“[S]earches and seizures inside a home without a warrant are presumptively
unreasonable,” however, “this presumption may be overcome in some circumstances
because [t]he ultimate touchstone of the Fourth Amendment is reasonableness.”
Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (quoting Brigham City v. Stuart,
6
KEEFAUVER — ARMY 20121026
547 U.S. 398, 403 (2006)) (internal quotation marks omitted); see also Riley v.
California, 134 S. Ct. 2473, 2482 (2014). Thus, there are “a few specifically
established and well-delineated exceptions” to the warrant requirement of the Fourth
Amendment. United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (quoting Katz
v. United States, 389 U.S. 347, 357 (1967)) (internal quotation marks omitted).
“Where the government obtains evidence in a search conducted pursuant to one of
these exceptions, it bears the burden of establishing that the exception applies.” Id.(quoting United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000)); see also
Military Rule of Evidence [hereinafter Mil. R. Evid.] 311.
One of these exceptions is the “protective sweep” exception established in
Maryland v. Buie, 494 U.S. 325, 327-28 (1990). “A protective sweep is a quick and
limited search of premises conducted to protect the safety of police officers or
others.” United States v. Starnes, 741 F.3d. 804, 807 (7th Cir. 2013) (citing Buie,
494 U.S. at 327). The Buie Court recognized this exception, noting that “in
determining reasonableness, we have balanced the intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate governmental
interests.” Buie, 494 U.S. at 331. Under certain circumstances, a protective sweep
is permissible because these legitimate governmental interests (in this case, the
safety of law enforcement officials) “outweigh an individual’s interest in the
protection of the Fourth Amendment.” Starnes, 741 F.3d at 807-08 (citing Buie,
494 U.S. at 331).
As noted above, however, a protective sweep is not without limits. It consists
of two prongs. First, “as an incident to the arrest the officers could, as a
precautionary matter and without probable cause or reasonable suspicion, look in
closets and other spaces immediately adjoining the place of arrest from which an
attack could be immediately launched.” Buie, 494 U.S. at 334. 9 Second, and
9
Although Buie involved an in-home arrest, federal circuit courts have almost
routinely expanded the “protective sweep” doctrine to apply in situations where
there is lawful entry for reasons other than an in-home “arrest.” Starnes, 741 F.3d at
810; Martins, 413 F.3d at 149-50; United States v. Miller, 430 F.3d 93, 100 (2d Cir.
2005); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001); United States v.
Garcia, 997 F.2d 1273, 1282 (9th Cir. 1993); see also United States v. Billings, 58
M.J. 861, 864 (Army Ct. Crim. App. 2003) (“[W]e will not impose a bright-line rule
limiting protective sweeps to in-home arrests; it is clear that ‘in some circumstances,
an arrest taking place just outside a home may pose an equally serious threat to the
arresting officers.’” (quoting United States v. Colbert, 76 F.3d 773, 776 (6th Cir.
1996))). The Seventh Circuit in Starnes succinctly explained the rationale:
(continued . . .)
7
KEEFAUVER — ARMY 20121026
particularly applicable in this case, a more expansive sweep is permitted if there are
“articulable facts which, taken together with the rational inferences from those facts,
would warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Id. Moreover,
even if such a sweep is permitted:
[It] is nevertheless not a full search of the premises, but
may extend only to a cursory inspection of those spaces
where a person may be found. The sweep lasts no longer
than is necessary to dispel the reasonable suspicion of
danger and in any event no longer than it takes to
complete the arrest and depart the premises.
Id. at 335-36 (footnote omitted).
Determining the validity of a protective sweep “is an exceptionally fact-
intensive one in which we must analyze myriad factors including, among other
considerations, the configuration of the dwelling, the general surroundings, and the
opportunities for ambush.” Starnes, 741 F.3d at 808.
At the time SA SR conducted the sweep, investigators were aware that: 1) an
eight-pound box containing marijuana had just been delivered to the home; 2) in
addition to TC-D, appellant, his wife, and EK lived in the home; 3) although no one
was seen entering the home during the time it was under surveillance, no one was
seen leaving it either; thus the agents did not know the whereabouts of the adults
who lived in the home and it was not unreasonable to believe they could still be in
(. . . continued)
The philosophy behind a protective sweep . . . remains the
same regardless of how the officers arrived in the home.
When officers enter the residence of a criminal suspect and
have reason to believe that a particular area might harbor
an individual . . . who poses a danger to the officers or
others, the Fourth Amendment permits a quick and limited
protective sweep. . . . Thus the constitutionality of a
protective sweep does not depend on whether that sweep is
incidental to a search warrant, an arrest warrant, or a
consensual search.
741 F.3d at 810.
8
KEEFAUVER — ARMY 20121026
the home; 10 and most important, 4) upon discovery that the police were at his home,
TC-D became “irate” and combative, shouting, “I hate pigs. I hate cops. Cops can
all die,” or words to that effect and he had to be placed in handcuffs and moved
away from the front entryway. 11 It was soon after this incident that SA SR
conducted his protective sweep. We find that these “specific and articulable facts”
“would warrant a reasonably prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S.
at 334, 337. We note also that TC-D’s behavior could have caused investigators to
reasonably believe that anyone in the home could have heard TC-D’s tirade, take it
as a warning, and attempt to destroy evidence. See Billings, 58 M.J. at 864 (citing
United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990)).
In making his findings of fact and conclusions of law regarding the protective
sweep, the military judge found “[f]rom that amount [approximately eight pounds] of
marijuana, one can reasonably infer that residents of the home were involved in
distributing drugs; [i]t is common knowledge that drug trafficking involves violence,
including the use of weapons.” Although Inspector SL later testified on the merits
that the evidence found in appellant’s home indicated drug trafficking and in his
experience “guns follow drugs,” we find that this drug trafficking-gun-violence
connection does not per se authorize a protective sweep. See United States v.
Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (citing United States v. Hatcher, 680 F.2d
438, 444 (6th Cir. 1982)). 12 To the contrary, a military judge ruling on a suppression
10
Appellant testified at trial that his wife spent a significant amount of time at home
in her room.
11
Although SA SR testified he conducted the sweep pursuant to standard procedure
and did not articulate some of these facts during his testimony in the Article 39(a),
UCMJ, session, “reasonable suspicion is an objective standard,” Martins, 413 F.3d
at 149, and thus we look to the entire record to determine if “a reasonably prudent
officer” would believe the area harbored “an individual posing a danger” to officials
at the scene. Buie, 494 U.S. at 334; see also Miller, 430 F.3d at 99. We emphasize
that, under Buie, conducting a protective sweep cannot be done solely based on
standard procedure, but must always be based on “specific and articulable facts”
unique to each situation. See Buie, 494 U.S. at 337.
12
But see United States v. Patrick, 959 F.2d 991, 996 (D.C. Cir. 1992) (protective
sweep could have been authorized based on reasonable belief inhabitant was
trafficking in narcotics), abrogated on other grounds by Apprendi v. New Jersey,
530 U.S. 466 (2000); Starnes, 741 F.3d at 806 (“Police officers conducting raids
assume that drug dealers are armed, and the assumption is generally correct, as
weapons are a necessary tool of the drug trade.”). We note that in Starnes, there
(continued . . .)
9
KEEFAUVER — ARMY 20121026
motion must still find that “the searching officer possesse[d] a reasonable belief
based on specific and articulable facts that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 337(emphasis added). While the mere presence of a large amount of drugs is a factor
that may be considered in the analysis, this fact alone without any other “specific
and articulable facts” does not justify a protective sweep. See id.; see also United
States v. Reid, 226 F.3d 1020, 1028 (9th Cir. 2000).
Nevertheless, in this case there are additional facts, including the unknown
whereabouts of the adults in the household and the behavior of TC-D, 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.
In addition, we agree with the military judge’s conclusion that “[t]he sweep
was properly conducted in a quick manner in places where individuals may be
hiding.” Special Agent SR testified it took “a couple of minutes” and everything he
saw was in plain view. See Buie, 494 U.S. at 337 (“There is . . . no dispute that if
[the investigator’s] entry into the [house] was lawful, the seizure of the [item in
question], which was in plain view and which the officer had probable cause to
believe was evidence of a crime, was also lawful under the Fourth Amendment.”).
Special Agent SR was clear that he was searching for people and he looked only in
areas where he might find people, like under beds or in closets. Once he determined
there were no people in a room, he would move on to the next room. Thus, he
conducted a properly limited sweep under the principles articulated in Buie.
Considering the evidence in the light most favorable to the prevailing party,
Leedy, 65 M.J. at 213, we conclude the military judge did not abuse his discretion
when he found the agents were authorized to conduct a protective sweep and the
“sweep was properly conducted in a quick manner in places where individuals may
be hiding.” Accordingly, he properly admitted the evidence seen by SA SR in plain
view during the sweep.
Nevertheless, we reiterate the Seventh Circuit Court’s admonishment in
Starnes:
(. . . continued)
were still myriad other factors in addition to narcotics trafficking that justified a
protective sweep. 741 F.3d at 806 (these factors included a shooting at the residence
hours before the planned raid; two aggressive pit bulls on the premises; other
apartment doors open indicating the possible presence of others; and occupants of
the targeted apartment alerted by gunfire).
10
KEEFAUVER — ARMY 20121026
We continue to recognize that the sweep is a device that
can easily be perverted to achieve ends other than those
acknowledged as legitimate in Buie. This opinion neither
expands nor contracts law enforcement’s right to perform
such a sweep. Regardless of the context of an officers
entry into a home, the same concise standard announced in
Buie stands:
The Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home arrest
when the searching officer possesses a reasonable belief
based on specific and articulable facts that the area to be
swept harbors an individual posing a danger to those on
the arrest scene.
741 F.3d at 810-11 (quoting Buie, 494 U.S. at 337) (internal citations and quotation
marks omitted).
Inevitable Discovery
We turn now to the military judge’s conclusion that the remainder of the
evidence offered against appellant was properly admitted because it “would have
inevitably been discovered.” The Supreme Court recognized the “inevitable
discovery exception” to the exclusionary rule in Nix v. Williams, 467 U.S. 431, 444
(1984). This exception allows the “admission of evidence that, although obtained
improperly, would have been obtained by another lawful means.” United States v.
Wallace, 66 M.J. 5, 10 (C.A.A.F. 2008) (citing Nix, 467 U.S. at 444); see also Mil.
R. Evid. 311(b)(2) (“Evidence that was obtained as a result of an unlawful search or
seizure may be used when the evidence would have been obtained even if such
unlawful search or seizure had not been made.”).
For the inevitable discovery exception to apply, the government had to
demonstrate by a preponderance of the evidence “that when the illegality occurred,
the government agents possessed, or were actively pursuing, evidence or leads that
would have inevitably led to the discovery of the evidence and that the evidence
would inevitably have been discovered in a lawful manner had not the illegality
occurred.” United States v. Dease, 71 M.J. 116, 122 (C.A.A.F. 2012) (quoting
United States v. Kozak, 12 M.J. 389, 394 (C.M.A. 1982)) (internal quotation marks
omitted); see also Wicks, 73 M.J. at 103. “When the routine procedures of a law
enforcement agency would inevitably find the same evidence, the rule of inevitable
discovery applies even in the absence of a prior or parallel investigation.” United
States v. Owens, 51 M.J. 204, 210-11 (C.A.A.F. 1999). In addition, the inevitable
discovery doctrine “cannot rescue evidence obtained via an unlawful search simply
because probable cause existed to obtain a warrant when the government presents no
11
KEEFAUVER — ARMY 20121026
evidence that the police would have obtained a warrant.” Wicks, 73 M.J. at 103
(citations omitted).
The military judge made the following findings of fact with respect to CPT
MR’s search authorization:
Captain [MR] verbally issued a search authorization, if the
package was delivered, to search the house at [appellant’s
address] on Fort Campbell, for the box that was the
subject of the controlled delivery soon after it is
delivered[.]
He limited the search by stating that, once the box was
found, they could search only the immediate area in the
room in which the box was found for any evidence of
possession, use, or distribution of controlled substances[.]
He also stated that, if K9 dogs indicated the presence of
drugs, then they could search anywhere the dogs
indicated[.]
The military judge then concluded:
Based on the way the verbal authorization was issued and
executed, the continued search of the house after [the
protective sweep] was beyond what the magistrate had
authorized[.]
However everything that was discovered during those later
searches would have inevitably been discovered[.]
At that time, there was reason to believe that
approximately 8 pounds of marijuana was delivered to that
residence and that there was already marijuana, drug
paraphernalia, and weapons in that residence[.]
The next immediate step for any reasonable law
enforcement officer would have been to request a search
authorization of the whole residence based on all of the
information[.]
Based on the totality of the circumstances, there was
overwhelming evidence to support a request for search
authorization, and any magistrate would have authorized a
12
KEEFAUVER — ARMY 20121026
search of the residence for evidence of drug distribution
and use, such as drugs, drug paraphernalia, weapons[.]
In summary, all the evidence at issue in this motion was
obtained either pursuant to a lawful search authorization
or would have been inevitably been discovered.
Based on our reading of the record, the military judge’s findings of fact as to
what CPT MR authorized are not clearly erroneous. 13 After a de novo review, we
agree with the military judge’s conclusion that “the continued search of the house
after [the protective sweep] was beyond what the magistrate had authorized.” Once
SA SR completed his protective sweep, he “stepped outside and waited for K9 to
arrive.” He did not contact CPT MR to obtain an additional warrant based on the
items he saw during the sweep nor did he obtain any other warrant or authorization
to continue the search of the home beyond the limits established by the verbal
authorization. 14 Thus, the MWD’s search of appellant’s home was a warrantless
13
Captain MR’s testimony on the motion was, at best, unclear. The military judge
engaged in a lengthy colloquy with him in an attempt to understand what he had and
had not authorized. Captain MR’s testimony varied over six pages of the record
from, “I authorized him to look in the house for evidence of marijuana, for evidence
of distribution of marijuana,” to “if you find the box immediately upon entry, then
your--your limit of search is limited to the room where you find that box.” The
military judge finally attempted to paraphrase what CPT MR was trying to say:
So you told them that if the box was delivered, they could
enter the house and search for any evidence of possession
or distribution of marijuana, which is broad, but then if
they find the box, then they are limited to a room. So, if
they find the box, then the scope of their search is now
decreased substantially. And then another thing after that
is, if K9 dogs alert, then they can search where the K9s
alerted.
Captain MR agreed with this still somewhat confusing rendition.
14
Captain MR specifically testified he was given no new information between the
time he gave the verbal authorization to SA SR to enter the home to find the box and
the time he gave SA SR the written authorization after the search was completed.
Based on our review of the entire record, there was ample “new information” SA SR
could have relayed to CPT MR to convince him there was now probable cause to
search the entire house. In addition to the multitude of items SA SR saw in plain
(continued . . .)
13
KEEFAUVER — ARMY 20121026
search. “With few exceptions, the question whether a warrantless search of a home
is reasonable and hence constitutional must be answered no.” Kyllo v. United States,
533 U.S. 27, 31 (2001).
However, at the time of the MWD’s search, investigators knew that: 1) an
eight-pound box containing marijuana had been delivered to the home; 2) the home
smelled strongly of marijuana apart from the box; and 3) the home contained
additional marijuana, drug paraphernalia, weapons, and boxes very similar to the one
delivered that day. See United States v. Alexander, 540 F.3d 494, 502 (6th Cir.
2008) (“The inevitable discovery doctrine ‘requires . . . [a] court to determine,
viewing affairs as they existed at the instant before the unlawful search, what would
have happened had the unlawful search never occurred.’” (quoting United States v.
Kennedy, 61 F.3d 494, 498 (6th Cir. 1995))).
As SA SR testified, with the knowledge of the delivery of the box and what he
saw during his sweep: “[i]f we had not contacted the magistrate prior to that, we
would have contacted a magistrate or tried to, you know, obtain a verbal consent or
something like that . . . to try and obtain and [sic] authorization . . . to search the
house.” This testimony, in conjunction with the fact that a written authorization was
later secured from CPT MR, establishes some evidence on the record “that the police
would have obtained a warrant” in this case. Wicks, 73 M.J. at 103. Accordingly,
this is not a case where “evidence [was] obtained via an unlawful search simply
because probable cause existed to obtain a warrant.” Id.
Moreover, SA SR’s response indicates to us he believed he had already
contacted a magistrate and that he already had that magistrate’s authorization to
search. During the motion he testified he had:
[V]erbal authorization to go into the house and search for
the package after it was taken into the house. The
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.
(. . . continued)
view during his sweep, almost every law enforcement official who entered the house
testified the home had a strong smell of marijuana as soon as they stepped through
the front door. We have no doubt CPT MR would have authorized the MWD search
had he been consulted.
14
KEEFAUVER — ARMY 20121026
(Emphasis added). After hearing CPT MR’s understanding of the authorization, the
military judge recalled SA SR and asked him again where CPT MR authorized him
to search and for what. Special Agent SR responded:
SA SR: To go into the house to find the package and then
from there, he didn’t authorize a search of the rest of the
house unless we had K9 present, because I told him that
we would have K9 present and they would--and he said
that if they alerted in the house, that they would be able
to-- that would give probable cause to authorization [sic]
to search the rest of the house.
(Emphasis added). The following exchange then occurred between SA SR and the
military judge:
MJ: So that’s what you were looking for. Where could
you look for that package? Did he authorize you to look
through the entire house for that package or?
SA SR: Rooms weren’t specified, it was just inside the
residence until, you know, until we found the package.
MJ: Okay, at what time--- at what point did the K9, the
working dogs, enter the house? Did they enter when you
initially went in?
SA SR: No.
MJ: Did they go in before or after you found the box?
SA SR: They went in after we found the box.
It appears from SA SR’s testimony above, in conjunction with the ambiguity
of CPT MR’s actual authorization and the fact that SA SR did not even attempt to
get a warrant, that SA SR and the other investigators believed they had authorization
from the magistrate to search the entire house if they had the MWD doing the search.
We find that law enforcement agents were not attempting to search without
authorization or to run afoul of the Fourth Amendment’s warrant requirement, but
rather they were relying on what they believed to be a valid search authorization
15
KEEFAUVER — ARMY 20121026
from CPT MR. 15 Thus, if law enforcement had truly understood that they only had
authorization to search for the box and no further, given the information they
discovered immediately before the MWD search was conducted, they most certainly
would have contacted CPT MR to receive additional authorization to search the rest
of the home. We find “[t]here is no reasonable likelihood that [investigators] would
have abandoned [their] efforts to search the [home] at that point.” See Owens,
51 M.J. at 210. Thus, “the routine procedures of a law enforcement agency would
[have] inevitably [found] the same evidence.” Id. at 210-11. Accordingly, we hold
that the military judge did not abuse his discretion by concluding that the remainder
of the evidence would have “inevitably been discovered.”
Constructive Possession
In performing our duty under Article 66, UCMJ, we conduct a de novo review
of legal and factual sufficiency. United States v. Gilchrist, 61 M.J. 785, 793 (Army
Ct. Crim. App. 2005) (citing United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002)). The test for factual sufficiency is “whether, after weighing the
evidence of record and making allowances for not having personally observed the
witnesses, [this court is] convinced of appellant’s guilt beyond a reasonable doubt.”
Gilchrist, 61 M.J. at 793 (citing United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987)). The test for legal sufficiency is whether, considering the evidence “in the
light most favorable to the [g]overnment, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
In the Specification of Charge I, appellant is charged with possession of
marijuana with the intent to distribute. “‘Possess’ means to exercise control of
something.” Manual for Courts Martial, United States (2008 ed.) [hereinafter
MCM], pt. IV, ¶ 37.c(2). “Possession must be knowing and conscious.” MCM, pt.
IV, ¶ 37.c(2). To convict appellant of this specification, the government is therefore
required to prove, inter alia, that appellant knowingly and intentionally possessed a
certain amount of a controlled substance, in this case, 5.25 pounds of marijuana.
See United States v. Wilson, 7 M.J. 290 (C.M.A. 1979); MCM, pt. IV, ¶ 37.b(6)(a),
c(2).
“Possession may be direct physical custody . . . or it may be constructive . . . . ”
MCM, pt. IV, ¶ 37.c(2). Under the facts of this case, appellant’s possession of the
marijuana was constructive, requiring the government to prove appellant “was
15
We note the investigators did get additional authorization from CPT MR to search
appellant’s vehicles.
16
KEEFAUVER — ARMY 20121026
knowingly in a position or had the right to exercise dominion and control over it
either directly or through others.” Wilson, 7 M.J. at 293 (internal citations and
quotation marks omitted); see also MCM, pt. IV, ¶ 37.c(2) (“An accused may not be
convicted of possession of a controlled substance if the accused did not know that
the substance was present under the accused’s control.”). “[P]ossession may be
established by circumstantial as well as by direct evidence.” Wilson, 7 M.J. at 293;
see also MCM, pt. IV, ¶ 37.c(2). “[P]ossession exists though it is jointly shared.”
Wilson, 7 M.J. at 293; see also MCM, pt. IV, ¶ 37.c(2) (“It is possible, however, for
more than one person to possess an item simultaneously, as when several people
share control of an item.”). “[W]here two or more persons share occupancy of the
premises together with the right to exclude others, any one or more, depending upon
the circumstances, may have knowing dominion and control over a particular object
and the choice between those alternatives must be based on more than mere
speculation.” Wilson, 7 M.J. at 293; see also MCM, pt. IV, ¶ 37.c(2) (“Possession
inherently includes the power or authority to preclude control by others.”).
Having determined that all of the evidence found inside appellant’s home was
properly admitted at trial, after weighing the evidence of record and making
allowances for not having personally observed the witnesses, we are convinced of
appellant’s guilt of constructive possession of marijuana with intent to distribute
beyond a reasonable doubt. See Gilchrist, 61 M.J. at 793.
First, although appellant was not at home at the time the box in question was
delivered, this box was at least the fourth of such boxes to have been delivered to
the home in a two or three-week time span, one of which was addressed to “L.
Keefauver.” Second, during their search, investigators found myriad tools of the
drug distribution trade, including scales for weighing drugs, baggies with dollar
values written on them, and large amounts of cash. In particular, in a closet near
where appellant was apparently sleeping, investigators found a duffle bag to which
the MWD alerted and, although it did not contain marijuana, it contained $4000 in
cash. Third, marijuana and items associated with its use were found strewn in plain
view in both childrens’ rooms, as well as other areas of the house. Indeed, the
government called a witness who testified appellant knew of EK’s and TC-D’s use of
marijuana. Fourth, almost every law enforcement official who entered the home
noted the strong smell of marijuana throughout the house. Fifth, once appellant was
at CID, investigators found $900 in cash, all in $100 bills, on his person, as well as
another $692 in his 13-year old son’s pockets. Finally, while at CID, appellant told
one of the investigators the “stuff” they found in the house belonged to him and that
he did not want his “family to get in trouble,” or words to that effect.
Moreover, appellant’s testimony further convinces us of his guilt. See
generally United States v. Pleasant, 71 M.J. 709, 712 (Army Ct. Crim. App. 2012)
(“When an accused testifies on his own behalf, he does so at his own peril, risking
that he might fill in gaps or provide affirmative evidence contributing to or resulting
17
KEEFAUVER — ARMY 20121026
in his conviction.”). In particular, we find appellant’s claim that he “never smelled
marijuana in the house” to be incredible in light of the testimony described above.
Accordingly, we find beyond a reasonable doubt appellant “was knowingly in a
position or had the right to exercise dominion and control over [the marijuana] either
directly or through others.” Wilson, 7 M.J. at 293 (internal citation and quotation
marks omitted).
We also have no trouble concluding that appellant’s conviction is legally
sufficient because, considering all evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found appellant constructively
possessed marijuana found inside his home with the intent to distribute it. See
Winckelmann, 70 M.J. at 406. 16
For these reasons, we find the evidence as to appellant’s conviction for
possession of marijuana with intent to distribute to be factually and legally
sufficient.
CONCLUSION
The findings of guilty and the sentence are AFFIRMED.
Senior Judge KERN and Judge KRAUSS concur.
FORTHE
FOR THECOURT:
COURT:
ANTHONY O. POTTINGER
ANTHONY O. POTTINGER
Acting Clerk of Court
Acting Clerk of Court
16
Even were we to conclude the inevitable discovery doctrine does not apply in this
case, we would still find the remaining admissible evidence, to include the
marijuana in the box, the smell emanating from the home, and the items seen in plain
view during SA SR’s protective sweep, to be legally and factually sufficient to
support appellant’s conviction for possession of marijuana with intent to distribute.
18