United States v. Staff Sergeant JASON A. LOPEZ

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
WOLFE, HAGLER, and EWING 1
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant JASON A. LOPEZ
United States Army, Appellant
ARMY 20170386
Headquarters, United States Army Maneuver Center of Excellence
Richard J. Henry, Military Judge
Colonel Wendy P. Daknis, Staff Judge Advocate
For Appellant: Captain Augustus Turner, JA (argued); 2 Lieutenant Colonel Tiffany
D. Pond, JA; Major Todd W. Simpson, JA; Captain Augustus Turner, JA (on brief
and reply brief); Captain Heather M. Martin, JA.
For Appellee: Captain Brian Jones, JA (argued); Colonel Steven P. Haight, JA;
Lieutenant Colonel Eric K. Stafford, JA; Captain Brian Jones, JA (on brief); Captain
Jeremy S. Watford, JA.
25 March 2019
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OPINION OF THE COURT
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EWING, Judge:
The central issue in this appeal is the lawfulness of the search which
uncovered live hand grenades, stolen government property, and multiple firearms,
including an illegal assault rifle, in appellant’s home. While our reasoning differs
from that of the military judge, we hold that the evidence seized from appellant’s
quarters was properly admitted at appellant’s court-martial. Separately, we agree
1
Judge Ewing decided this case while on active duty.
2
The court heard oral argument on 13 February 2019 at George Washington
University Law School as part of the court’s outreach program.
LOPEZ—ARMY 20170386
with appellant that the government’s evidence was legally insufficient to sustain
appellant’s five convictions for failing to obey a local Fort Benning regulation, and
provide relief in our decretal paragraph. 3
BACKGROUND 4
The Request for a Search Authorization
Appellant was an instructor assigned to the 5th Ranger Training Battalion
(“RTB”), with duty at the mountain phase of the U.S. Army Ranger School at Camp
Merrill, Georgia. Camp Merrill is in north Georgia, approximately three hours by
car from Fort Benning. While stationed at Camp Merrill, appellant lived in “Porter
Village,” a privatized military housing community approximately twelve miles from
Camp Merrill in neighboring Dahlonega, Georgia.
3
An enlisted panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of failure to go to his appointed place of duty, five
specifications of failure to obey a lawful general regulation, two specifications of
failure to obey a lawful order, three specifications of larceny of government property
of a value over $500.00, one specification of wrongful appropriation of government
property, three specifications of assault consummated by battery, and two
specifications of violating the National Firearms Act (28 U.S.C. § 5861), in
violation of Articles 86, 92, 121, 128, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 886, 892, 921, 928, and 934 (2012) (UCMJ). The panel sentenced
appellant to confinement for two years. The convening authority approved the
adjudged sentence, deferred service of the sentence to confinement until appellant
was permanently released to the armed forces by state authorities, and credited
appellant with 202 days of confinement credit.
4
On appeal, appellant asserts five assignments of error. Two of the asserted errors
challenge the military judge’s suppression ruling, and we address these contentions
at length in this opinion. A third assignment of error asserts that the evidence was
legally and factually insufficient to sustain appellant’s convictions for failure to
obey a lawful order. Because we agree with appellant on this issue, his two
remaining assignments of error (vagueness and instructional challenges to the same
specifications) are rendered moot.
We have also considered appellant’s matters submitted pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find that they either do not warrant
discussion or relief, or they are otherwise part and parcel to our discussion of the
suppression motion.
2
LOPEZ—ARMY 20170386
At a St. Patrick’s Day celebration in Savannah, Georgia, on Saturday, 19
March 2016, local authorities arrested appellant for assaulting his wife and carrying
a concealed firearm without a permit. In the immediate wake of appellant’s arrest, a
fellow Ranger Instructor at Camp Merrill, Sergeant First Class (SFC) MM, 5 came
forward to his chain of command, and reported seeing appellant in possession of
what appeared to be two live M67 hand grenades and a military-style M4 assault
rifle during a party at appellant’s residence in December of 2015. Sergeant First
Class MM also reported that appellant had a large gun safe at his residence. The 5th
RTB Executive Officer, Major (MAJ) CG, and the 5th RTB Command Sergeant
Major (CSM) JD, had both also seen the large gun safe in appellant’s quarters.
The 5th RTB chain of command responded to appellant’s arrest and SFC
MM’s disclosures through much of the day on Monday, 21 March 2016. Appellant’s
company commander learned from the Fort Benning Provost Marshal’s Office that
appellant did not have any personal firearms registered with that office. The
command believed that a local Fort Benning regulation, Maneuver Center of
Excellence (MCOE) Regulation 190-11, required appellant to register any privately-
owned weapons stored at his Porter Village residence.
The command consulted the Fort Benning Office of the Staff Judge Advocate
(OSJA), and specifically Senior Trial Counsel, Captain (CPT) MM, regarding the
possibility of searching appellant’s quarters. Captain MM indicated that “[b]ased on
the information provided by [MAJ CG], evaluated by myself and [CPT EI -- the Fort
Benning Garrison trial counsel], we believe there is probable cause to believe that
the subject possesses unregistered weapons in his residence. Further, we believe
that the [Fort Benning] garrison has jurisdiction over Porter Village.” 6
In coordination with the chain of command, CPT EI requested that the Fort
Benning Garrison Commander, Colonel (COL) AH, authorize a search of appellant’s
Porter Village quarters. Along with this request, Captain EI forwarded COL AH an
email from MAJ CG which stated the following:
5
Sergeant First Class MM initially requested confidentiality from the chain of
command because of his fear that appellant would retaliate against him and his
family. While the Garrison Commander did not name SFC MM in his search
authorization, SFC MM’s identity was known to the chain of command, and he
testified at the suppression motion at appellant’s court-martial.
6
Much of the coordination between the 5th RTB and the Fort Benning OSJA was
done via emails which are included in the record of trial. 5th RTB’s higher
headquarters was located on Fort Benning.
3
LOPEZ—ARMY 20170386
[T]he concealed weapon that [appellant] had when
arrested this weekend was not registered on [Fort
Benning]. We know that he has other weapons and
received confirmation that he doesn’t have ANY weapons
registered on [Fort Benning]. The company chain of
command received an anonymous 7 tip from another soldier
that [appellant] displayed M67 Fragmentary grenades and
also an M4 with the W identifier in the serial number (that
is common to government issued weapons) at his residence
2-3 months ago.
Separately, the Fort Benning Staff Judge Advocate, COL WD, indicated via
email that COL AH had jurisdiction over appellant’s residence in Porter Village and
could therefore authorize the search. Colonel AH, who was away from Fort Benning
at the time, responded that he had “[m]onitored” the email traffic and was prepared
to sign the search authorization.
The Search Authorization
On 21 March 2016, COL AH signed a “Search Authorization Based Upon
Probable Cause,” which authorized the military police to search appellant’s quarters.
The search authorization read, in pertinent part, as follows:
On 19 March 2016, [appellant] was arrested in Savannah,
Georgia by civilian authorities for striking his wife and
for carrying a concealed carry weapon while intoxicated.
Fort Benning Military Police conducted a database search
and discovered that [appellant] had no weapons registered
with Fort Benning authorities. [Appellant’s] chain of
command received a tip from a Soldier who had been in
[appellant’s] residence within the last 2-3 months, who
stated that [appellant] had other unregistered firearms, and
possibly explosives, in the house. Due to the relationship
the Soldier has with [appellant] and the Soldier’s concern
for the safety of his family, the chain of command finds
his information very reliable. The chain of command
believes [appellant] poses a danger not only to his wife,
but also to his neighbors and the other Soldiers at Camp
Merrill.
7
Despite repeated references to anonymity within the record, the tip from SFC MM
was confidential, not anonymous – his identity was secret, not unknown.
4
LOPEZ—ARMY 20170386
Ultimately, COL AH authorized the military police to search for “firearms,
explosives, and other armaments, to include any gun safe that may be located on the
premises or outlying curtilage.”
The Fruits of the Search
Military law enforcement personnel, in coordination with the 5th RTB chain
of command, executed the search of appellant’s Porter Village quarters on 22 March
2016. At various locations in appellant’s quarters, law enforcement personnel
found: an AN/PEQ 15 illuminator; an AN/PEQ 2 infrared illuminator; three M67
fragmentation hand grenades; seventeen M115A2 projectile simulators; an M18
smoke grenade; a claymore mine detonator; an M69 practice grenade; an M127 slap
flare; a Smith and Wesson Model M&P-15 semi-automatic rifle; a single bolt-action
rifle; a 12-gauge shotgun; a Ruger .22 caliber rifle; and a Remington Model 700 .22
caliber rifle. 8
The Suppression Motion and Military Judge’s Ruling
At trial, appellant moved to suppress the fruits of the search of his residence.
Appellant contended in his written motion: (1) that the search authorization lacked
probable cause, because of the staleness of SFC MM’s information and the lack of
further information about SFC MM’s veracity; and (2) that the Fort Benning
Garrison Commander did not have authority to authorize a search of appellant’s
residence in Porter Village. At a pretrial motions hearing, appellant further
contended that the search authorization lacked probable cause because MCOE 190-
11 did not apply to Porter Village, and, as such, appellant had no duty to register his
privately-owned weapons.
Following a written response by the government and a suppression hearing,
the military judge denied appellant’s suppression motion in a five-page written
ruling. The military judge held that the Fort Benning Garrison Commander was the
appropriate authority to issue the search authorization, and that the “search of the
Accused’s home was . . . based on valid, non-stale information that formed probable
cause to believe weapons and explosives would be found in the Accused’s home.”
In his ruling, the military judge did not explicitly address whether MCOE 190-11
applied to Porter Village; during trial, however, the military judge denied a defense
motion under Rule for Courts-Martial (R.C.M. 917) regarding the same issue.
8
This evidence ultimately gave rise to appellant’s convictions for violating Articles
92, 121, and 134, UCMJ.
5
LOPEZ—ARMY 20170386
Issues Raised on Appeal
On appeal, appellant challenges the introduction of the fruits of the search of
his residence on the grounds that COL AH did not have the requisite authority over
Porter Village to authorize the search of appellant’s quarters. Appellant further
contends that the search authorization lacked probable cause because MCOE 190-11
did not require appellant to register his privately-owned firearms on Porter Village,
and the search authorization was not otherwise supported by probable cause.
As outlined below, we find that: (1) the Fort Benning Garrison Commander
had authority to issue the search of appellant’s quarters; and (2) MCOE 190-11 did
not require appellant to register his firearms on Porter Village. Ultimately, we hold
that, assuming arguendo that the search authorization otherwise lacked probable
cause, the good-faith exception to the exclusionary rule authorized the admission of
the fruits of the search of appellant’s residence.
LAW AND DISCUSSION
A. Whether the Military Judge Erred in Denying Appellant’s Motion to Suppress
1. Standard of Review and Legal Principles
We review a military judge’s denial of a motion to suppress for an abuse of
discretion. United States v. Smith, 77 M.J. 631, 635 (Army Ct. Crim. App. 2018)
(citing United States v. Hoffmann, 75 M.J. 120, 124 (C.A.A.F. 2016)). We reverse
for an abuse of discretion if the military judge’s findings of fact are clearly
erroneous or if the judge’s decision is influenced by an erroneous view of the law.
United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999) (citation omitted). We
consider the evidence in the light most favorable to the prevailing party, in this case
the government. United States v. Macomber, 67 M.J. 214, 219 (C.A.A.F. 2009)
(citation omitted). Where a military judge reaches the correct result in ruling on a
suppression motion, but for the wrong reason, the judge’s ruling “must be affirmed.”
United States v. Carista, 76 M.J. 511, 515 (Army Ct. Crim. App. 2017) (internal
quotation marks and citations omitted).
Pursuant to the Military Rules of Evidence (Mil. R. Evid.), commanders are
empowered to authorize searches of servicemembers’ quarters. Specifically, an
impartial commander “who has control over the place where the property . . . to be
searched is situated” is authorized to issue a search authorization, Mil. R. Evid.
315(d)(1), “based upon probable cause.” Mil. R. Evid. 315(f)(1).
Probable cause to search exists when, based on written and oral statements
and “information as may be known by the authorizing official that would not
preclude the officer from acting in an impartial fashion,” Mil. R. Evid. 315(f)(2)(C),
6
LOPEZ—ARMY 20170386
there “is a reasonable belief that the person, property, or evidence sought is located
in the place or on the person to be searched.” Mil. R. Evid. 315(f)(2).
A valid search authorization requires the impartial authorizing official to
“make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information, there is a fair probability that contraband
or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 238 (1983); see also, e.g., United States v. Cowgill, 68 M.J. 388, 393
(C.A.A.F. 2010) (following Gates); Ornelas v. United States, 517 U.S. 690, 696
(1996) (probable cause to search “exist[s] where the known facts and circumstances
are sufficient to warrant a man of reasonable prudence in the belief that contraband
or evidence of a crime will be found” in a particular place).
In reviewing probable cause determinations, “courts must look at the
information made known to the authorizing official at the time of his decision.”
United States v. Carter, 54 M.J. 414, 418 (C.A.A.F. 2001) (citation omitted). We do
not review such determinations de novo, but rather “our duty is to make sure that the
authorizing official had a ‘substantial basis’ for concluding that probable cause
existed.” Hoffmann, 75 M.J. at 125 (quoting United States v. Huntzinger, 69 M.J. 1,
7 (C.A.A.F. 2010) (quoting, in turn, Gates, 462 U.S. at 238-39)).
“Evidence derivative of an unlawful search, seizure, or interrogation is
commonly referred to as the ‘fruit of the poisonous tree’ and is generally not
admissible at trial.” United States v. Conklin, 63 M.J. 333, 334 (C.A.A.F. 2006)
(citing Nardone v. United States, 308 U.S. 338, 341 (1939)). However, where the
“good faith exception” to the general rule of exclusion applies, the fruits of an
unlawful search are nonetheless admissible at trial. The good faith exception to the
exclusionary rule is applicable in instances where investigators “act with an
objectively reasonable good faith belief that their conduct is lawful.” Smith, 77 M.J.
at 636 (quoting Davis v. United States, 564 U.S. 229, 238 (2011)) (citing United
States v. Leon, 468 U.S. 897, 909 (1984)) (internal quotation marks omitted).
The test is “whether a reasonably well-trained officer would have known that
the search was illegal” in light of “all of the circumstances.” Id. (quoting Herring v.
United States, 555 U.S. 135, 145 (2009)) (citing Leon, 468 U.S. at 922, n.23). This
standard takes into account the officer’s training and experience, but not his or her
subjective intent. Herring, 555 U.S. at 145-46. The good faith exception recognizes
that the exclusionary rule “cannot be expected, and should not be applied, to deter
objectively reasonable law enforcement activity,” Leon, 468 U.S. at 918-19, but
rather “is designed to deter police misconduct rather than to punish the errors of
judges and magistrates” who “have no stake in the outcome of particular criminal
prosecutions,” so “[t]he threat of exclusion thus cannot be expected significantly to
deter them.” Id. at 916-17.
7
LOPEZ—ARMY 20170386
Mil. R. Evid. 311(a)(3) likewise provides, in pertinent part, that evidence
“obtained as a result of an unlawful search or seizure . . . is inadmissible against the
accused if . . . exclusion of the evidence results in appreciable deterrence of future
unlawful searches or seizures and the benefits of such deterrence outweigh the costs
to the justice system.”
In addition to Mil. R. Evid. 311(a)(3), Mil. R. Evid. 311(c)(3) “embodies the
good faith exception as articulated in Leon and Massachusetts v. Sheppard, 468 U.S.
981 (1984), which specifically address the scenario when law enforcement officers
rely on a subsequently invalidated search warrant.” Smith, 77 M.J. at 636.
2. Search Authority
The threshold question in evaluating the search of appellant’s Porter Village
quarters is whether the Fort Benning Garrison Commander exercised sufficient
“control” over those quarters so as to have the authority, pursuant to Mil. R. Evid.
315, to authorize the search.
We hold that he did.
Military Rule of Evidence 315(d)(1) explains, in pertinent part, that military
commanders are empowered to authorize searches in areas where the commander
“has control over the place where the property or person to be searched is situated or
found.” (emphasis added). Before this Court, appellant has characterized Porter
Village as “owned and operated” by a private entity – namely, “Villages of
Benning,” which also operates privatized housing on Fort Benning itself – and thus
has analogized appellant’s quarters on Porter Village to a private, off-post residence
with no connection to appellant’s military service.
The government presented different facts during the suppression hearing
before the military judge. The government introduced a deed of sale, indicating that
the United States had purchased Porter Village for $300,000 in 1993, and owned the
land in fee simple. Accompanying the deed were U.S. Army Corps of Engineers
documents, which labeled the map of “Porter Village” as “Family Housing for Camp
Frank D. Merrill.”
The government also provided the military judge with a “Memorandum of
Agreement (‘MOA’) between the United States of America and The State of
Georgia,” in which the United States and Georgia agreed to concurrent federal-state
law enforcement jurisdiction over Porter Village. The MOA, finalized in 2009,
recognized that “Porter Village was purchased by the United States for military
family housing for officer and enlisted quarters for soldiers assigned to Camp Frank
D. Merrill,” and gave the United States jurisdiction to enforce federal “laws, rules,
and regulations . . . for the preservation and protection of its property and the
8
LOPEZ—ARMY 20170386
maintenance of good order, including the provision of law enforcement services and
security.” 9
Moreover, the Fort Benning Garrison Commander’s command relationship
with Porter Village was clear and direct. The U.S. Army Ranger School was based
on Fort Benning, and Camp Merrill was a sub-post of Ranger School. The Army
bought and owned the land for Porter Village for family housing for soldiers
assigned to Camp Merrill.
Together, this command relationship, along with the deed of sale and MOA
with Georgia, established that the United States, and particularly the Army and the
Fort Benning Garrison Commander, had ample “control” over Porter Village, as
described by Mil. R. Evid. 315(d), and could therefore authorize a search of
appellant’s quarters.
Appellant’s contrary arguments are unavailing. First, appellant’s main
authority for the proposition that the Fort Benning Garrison Commander lacked
authority over Porter Village – United States v. Chapple, 36 M.J. 410 (C.M.A. 1993)
– is readily distinguishable. In Chapple, a Navy commander authorized a search of
the defendant’s off-base apartment in Italy, where the defendant’s fiancée (another
servicemember) paid rent to an Italian landlord. Id. at 411. The only connection
between the command and the apartment was the command’s responsibility to
“operate a housing referral office.” Id. at 413. The (then) Court of Military Appeals
(C.M.A.) held that the running of such a referral office did not “confer any authority
over the property leased” through the referral office. Id. Notably, unlike here, the
United States did not own the land upon which the apartment sat, nor was there any
special designation of “family housing” for the area, or anything analogous to the
U.S.-Georgia MOA between the United States and Italy. Chapple was simply living
in a private apartment in Italy, which is not analogous to living on Porter Village. 10
Second, the “privatized” nature of Porter Village did not vitiate the United
States’, and in particular the U.S. Army’s, control over the housing complex for
purposes of Mil. R. Evid. 315(d). See Army Reg. 27-10, Legal Services: Military
Justice [AR 27-10], para. 8-13 (11 May 2016) (“The ‘privatization’ of on-post
9
The finalized MOA was signed by the Governor of Georgia, the Deputy Assistant
Secretary of the Army for Installations and Housing, and a two-star general.
Notably, one C.M.A. judge would have found the requisite “control” even in the
10
Chapple scenario, 36 M.J. at 414 (Sullivan, C.J., concurring in the result), and the
majority in Chapple upheld the admission of the fruits of the off-base search
pursuant to the good-faith exception. Id. at 413-14.
9
LOPEZ—ARMY 20170386
housing and other facilities in no way diminishes the authority of military judges
and military magistrates, garrison commanders or installation commanders to
authorize searches of on-post housing or facilities whether ‘privatized’ or not.”) 11;
Cf. United States v. Moreno, 23 M.J. 622, 624 (A.F.C.M.R. 1986) (“The air base
group commander had law enforcement responsibilities over the on-base credit
union.”).
Third, in light of the MOA with Georgia, and the United States’ ownership
interest in Porter Village, the location of Porter Village does not aid appellant.
While it is true that Porter Village was not physically on Camp Merrill or Fort
Benning, other cases have made clear that military commanders can possess
sufficient authority over off-base housing areas to order searches and take other
actions. See, e.g., United States v. Reppert, 76 F. Supp. 2d 185, 188 (D. Conn.
1999) (upholding probable cause search authorized by Navy commander for active
duty servicemember’s off-base apartment, where Navy had rented the apartment for
the benefit of the servicemember); Donnelly v. United States, 525 F. Supp. 1230(E.D. Va. 1981) (upholding admission of fruits of health and welfare inspection of
off-base apartment leased by the Navy on defendant’s behalf); Adamski v. Martis,
2007 U.S. Dist. LEXIS 53160 (N.D. Cal. July 9, 2007) (unpublished) (upholding
Garrison Commander’s authority to bar registered sex offender from “The Parks at
Monterey Bay,” a privatized housing complex on what was formerly Fort Ord,
California). See also Major Jeff A. Bovarnick, Can a Commander Authorize
Searches & Seizures in Privatized Housing Areas?, 181 Mil. L. Rev. 1, 32 (2004)
(“Where the privatized housing community is located, on or off the installation, has
no impact on military law enforcement officials over service members (assuming a
valid apprehension or search authorization)”) (internal parenthesis in original).
Where, as here, the United States had an ownership interest in the land, and
concurrent jurisdiction to conduct law enforcement activities with the State of
Georgia, the Garrison Commander exercised ample control over Porter Village to
authorize the search of appellant’s quarters.
3. Probable Cause
Having found that the Fort Benning Garrison Commander had proper authority
to authorize this search, we next turn to the issue of whether that search
authorization was supported by probable cause. We hold that the evidence that
appellant had unregistered firearms in his residence did not give rise to probable
cause to search appellant’s residence, because appellant had no duty to register
11
The regulation in effect during the search of appellant’s residence included the
same language.
10
LOPEZ—ARMY 20170386
under the applicable local regulation. We also determine that we ultimately do not
need to resolve the close question of whether the search authorization was otherwise
supported by residual probable cause.
a. Applicability of MCOE 190-11 to Porter Village
In both seeking and authorizing the search of appellant’s quarters, appellant’s
command and the Fort Benning Garrison Commander believed that appellant had a
duty to register the personally-owned firearms he kept at his home in Porter Village.
Thus, the question of whether MCOE 190-11 does, in fact, require such registration
bears directly on the question of whether the Fort Benning Garrison Commander’s
search authorization was supported by probable cause.
Construction of regulations is a question of law, which we review de novo.
United States v. Estrada, 69 M.J. 45, 47 (C.A.A.F. 2010) (citations omitted). In
interpreting regulations, we apply the general rules of statutory construction. Id.(citations omitted).
The words “Porter Village” appear nowhere in MCOE 190-11. Moreover,
when we apply the general rules of statutory construction to MCOE 190-11, we
conclude that the regulation cannot fairly be read to cover Porter Village. Paragraph
2-2 of MCOE 190-11 requires servicemembers residing on Fort Benning to register
their privately-owned weapons with the Military Police. However, the regulation
further explains that “[f]or the purpose of this regulation, the words ‘Fort Benning’
shall include the installation of Fort Benning, Camp Merrill, and the Morale,
Welfare, and Recreation Destin Army Recreation Area.” The regulation also states
that it is “equally applicable to occupants of Battle Park Homes,” the privatized
housing located within the confines of Fort Benning.
Thus, MCOE 190-11 makes clear that certain areas outside of Fort Benning
proper are covered by the regulation, and then lists such areas. Moreover, the
regulation lists the privatized housing of “Battle Park Homes” as a covered area. By
defining “Fort Benning” to include a list of covered areas, and by expressly listing
another privatized housing area, the regulation by implication excludes other similar
areas, such as Porter Village. See, e.g., United States v. Hodge, 902 F.3d 420, 428
(4th Cir. 2018) (explaining that “expressio unius exclusio alterius” [the expression
of one thing is the exclusion of another] doctrine of statutory interpretation applies
with greatest force “when the items expressed are members of an associated group or
series, justifying the inference that items not mentioned were excluded by deliberate
choice, not inadvertence”) (internal quotation marks and citation omitted); United
States v. Mooney, 77 M.J. 252, 257 (C.A.A.F. 2018) (applying the same canon of
construction).
11
LOPEZ—ARMY 20170386
Nor can it be said that the inclusion of “Camp Merrill” in the regulation’s list
of covered places incorporated Porter Village. The government’s own documentary
evidence at the suppression motion indicated that Porter Village was miles away
from Camp Merrill, and was the “housing area” for those servicemembers assigned
to Camp Merrill, as opposed to part of the camp itself.
It is true that MCOE 190-11 does not say that “Fort Benning shall only
include” the listed areas, thus leaving open the theoretical possibility of coverage of
additional areas. However, if the regulation actually applied to any area controlled
by the Fort Benning Garrison Commander, the regulation could have easily said that,
rather than providing a specific list of covered areas. See, e.g., Loughrin v. United
States, 573 U.S. 351, 358 (2014) (describing “cardinal principle” of statutory
interpretation that courts “must give effect, if possible, to every clause and word of
a statute”). Thus, as explained supra, while the Fort Benning Garrison Commander
exercised control over Porter Village, and could have required servicemembers
living there to register their weapons pursuant to MCOE 190-11, he did not include
Porter Village in the regulation. It is not for this Court to read into the regulation
words that are not there.
Finally, there is a “fair notice” issue with reading the words “Porter Village”
into MCOE 190-11. See, e.g., United States v. Caporale, 73 M.J. 501, 504 (A.F. Ct.
Crim. App. 2013) (“Due process requires ‘fair notice’ that an act is forbidden and
subject to criminal sanction.”). As having a firearm in one’s home is not inherently
criminal, see District of Columbia v. Heller, 554 U.S. 570 (2008), the “fair notice”
of criminality here would have to come from MCOE 190-11. Because the regulation
does not mention Porter Village, it does not provide the requisite notice of
criminality. Cf. United States v. Pope, 63 M.J. 68, 73 (C.A.A.F. 2006) (to withstand
vagueness challenge, “a regulation must provide sufficient notice so that a
servicemember can reasonably understand that his conduct is proscribed”).
Because we hold that MCOE 190-11 did not impose a registration requirement
on appellant, the evidence that appellant had otherwise lawfully-owned firearms in
his residence did not provide probable cause to search his home.
b. Residual Probable Cause
Having set aside the evidence that appellant had “unregistered” firearms in his
residence, the question remains as to whether the commander nonetheless had a
“substantial basis,” Hoffmann, 75 M.J. at 125, for concluding that probable cause
existed based on the additional information regarding explosive devices. See, e.g.,
Cowgill, 68 M.J. at 393 (following a finding of certain improper information in a
warrant affidavit, our superior court (CAAF) “sever[ed] that [improper] information
from the affidavit and determine[d] whether sufficient information remained in order
for the magistrate to find probable cause.”).
12
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Here, the government’s evidence that appellant had live hand grenades in his
residence is germane. 12 The government’s grenade evidence, however, was
inconclusive.
Unlike firearms, live hand grenades are of a more inherently contraband
nature, both because they are likely stolen government property (particularly in the
context of an active-duty servicemember’s home), and because the Second
Amendment does not cover the private possession of hand grenades. See, e.g.,
Staples v. United States, 511 U.S. 600, 609 (1994) (“one would hardly be surprised
to learn that possession of hand grenades is not an innocent act”) (internal quotation
marks and citation omitted); Hollis v. Lynch, 827 F.3d 436, 447 (5th Cir. 2016)
(Second Amendment does not provide private right to possess hand grenades).
On the other hand, the government’s information that appellant possessed the
grenades was through SFC MM, and was two-to-three months old, and therefore
somewhat stale. See, e.g., United States v. Lopez, 35 M.J. 35, 38-39 (C.M.A. 1992)
(“the timeliness of the information and the relationship between the crime objects
and place to be searched are aspects of the probability test”). Further, while not
dispositive, the Fort Benning Garrison Commander characterized the government’s
evidence as showing that appellant “possibly” had “explosives” (e.g. grenades) in
his residence. Our sister court has said that the “possible” existence of evidence
does not make out probable cause. See United States v. Perkins, 78 M.J. 550, 557
(N.M. Ct. Crim. App. 2018) (certificate of review filed) __ M.J. __, (C.A.A.F. 10
Sep. 2018) (“probable cause requires more than an assessment that something is
possible”).
Ultimately, as explained below, this case does not turn on whether the
government had residual probable cause after setting aside the MCOE 190-11
evidence. Even assuming arguendo that COL AH lacked probable cause to order the
search of appellant’s residence, the fruits of that search were nonetheless admissible
under the good faith exception to the exclusionary rule.
4. The Exclusionary Rule and Military Rule of Evidence 311(a)(3)
The purpose behind the exclusionary rule is only served where “exclusion of
the evidence results in appreciable deterrence of future unlawful searches or seizures
and the benefits of such deterrence outweigh the costs to the justice system.” Mil.
R. Evid. 311(a)(3). The Supreme Court and the CAAF have said likewise. See, e.g.,
12
Sergeant First Class MM also provided the information about an M4 assault rifle
that appeared to him to be a government-issued firearm, which, like grenades, would
be unlawful notwithstanding the applicability of MCOE 190-11.
13
LOPEZ—ARMY 20170386
United States v. Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (fruits of an unlawful
search are inadmissible where exclusion “‘result[s] in appreciable deterrence’ for
future Fourth Amendment violations and where the ‘benefits of deterrence . . .
outweigh the costs’”) (quoting Herring v. United States, 555 U.S. 135, 141 (2009)).
See also United States v. Eppes, 77 M.J. 339, 349 (C.A.A.F. 2018) (exclusionary
rule is “drastic and socially costly” and should only be applied where “needed to
deter police from violations of constitutional and statutory protections”) (quoting
Nix v. Williams, 467 U.S. 431, 442-43 (1984)).
Simply put, even assuming arguendo that the search authorization here lacked
probable cause, exclusion on these facts offers little to no deterrence value. Upon
learning of appellant’s arrest in Savannah, and the additional information about the
guns and explosives in appellant’s quarters, the command prudently sought the
advice of their servicing judge advocates, and sought and obtained a search
authorization from the responsible commander. In other words, appellant’s
command took steps that were appropriate under the circumstances.
Likewise, the law enforcement personnel who carried out the search
reasonably relied on the search authorization. That the search authorization may
have ultimately lacked probable cause does not impute any improper action to either
the chain of command, who sought and obtained the search authorization, or to the
law enforcement personnel who ultimately executed the search. See, e.g., Leon, 468
U.S. at 916 (“the exclusionary rule is designed to deter police misconduct rather
than to punish the errors of judges and magistrates”); Messerschmidt v. Millender,
565 U.S. 535, 547, 549 (2012) (Officers executing warrants are not often expected to
question the conclusions of an issuing authority, and so to preclude application of
the good faith exception, an officer’s reliance on an issuing authority’s probable
cause determination must have been “entirely unreasonable”).
As any miniscule deterrent value here does not “outweigh the costs to the
justice system,” Mil. R. Evid. 311(a)(3), exclusion of the evidence is unwarranted,
but we further address Mil. R. Evid. 311(c) in the next section. As shown below, we
reach the same conclusion.
5. The Good-Faith Exception and Mil. R. Evid. 311(c)
An analysis under Mil R. Evid. 311(c) likewise demonstrates the
appropriateness of the good-faith exception here. Specifically, the government has
shown by a preponderance of the evidence that: (a) the search resulted from an
authorization to search issued by an individual competent to issue the authorization
(e.g., the Garrison Commander); (b) there was a “substantial basis” for determining
the existence of probable cause, both by the command who sought the search
authorization and the law enforcement personnel who carried it out; and (c) the
officials seeking and executing the search authorization reasonably and with
14
LOPEZ—ARMY 20170386
objective good faith relied on the issuance of the authorization. Mil. R. Evid.
311(c)(3). 13
Two separate lines of logic independently, and collectively, show that it was
objectively reasonable for the law enforcement officials who executed the search to
rely on the search authorization. First, while we have determined here that MCOE
190-11 did not require appellant to register his privately-owned firearms, the
command’s mistaken belief that the regulation did require such registration was a
“reasonable mistake of law,” as described by the Supreme Court in Heien v. North
Carolina, 135 S. Ct. 530, 539 (2014). In Heien, the Supreme Court held that a
police officer’s reasonable, but mistaken, understanding that North Carolina law
required drivers to have two working brake lights (the applicable statute actually
required only one) could provide the reasonable, articulable suspicion necessary to
conduct a traffic stop. Id. at 535-37. The Supreme Court further explained that the
officer’s “mistake of law relate[d] to the antecedent question of whether it was
reasonable for an officer to suspect that the defendant’s conduct was illegal.” Id. at
539.
Likewise here, the applicability of MCOE 190-11 related, not directly to the
question of probable cause, but rather to the “antecedent question” of whether
appellant’s conduct in keeping firearms at his residence violated the law. While the
mistake of law in Heien went to the reasonableness of a traffic stop itself (thus the
Supreme Court’s finding that there was no Fourth Amendment violation at all,
Heien, 135 S. Ct. at 536), here the command’s mistaken belief that MCOE 190-11
applied to Porter Village contributed to the reasonableness of their reliance on the
search authorization. See also, e.g., United States v. Fields, 74 M.J. 619, 623 & n.3
(A.F. Ct. Crim. App. 2015) (“[r]easonable mistakes of law are permitted to support
probable cause determinations under the Fourth Amendment”); cf. United States v.
Seerden, No. 18-4124, 2019 U.S. App. LEXIS 4891 (4th Cir. Feb. 20, 2019) (search
of servicemember’s phone authorized by wrong commander, but good faith
exception nonetheless applied); Chapple, 36 M.J. at 413-14 (applying good faith
13
We note that the issue of how to interpret the “substantial basis” language in Mil.
R. Evid. 311(c)(3) is pending decision before the CAAF in United States v. Perkins,
78 M.J. 550 (N.M. Ct. Crim. App. 2018) (certificate of review filed) __ M.J. __,
(C.A.A.F. 10 Sep. 2018). However because our Court followed Carter as recently as
Smith, 77 M.J. at 637 (“in finding the government met prong (B) of Mil. R. Evid.
311(c)(3), we look to Carter”), we likewise do so here. We find that there was a
substantial basis for an objectively reasonable law enforcement official executing
this search to rely on the authorization.
15
LOPEZ—ARMY 20170386
exception where commander who authorized search had no legal authority to do
so). 14
The trial record includes evidence of the reasonableness of this mistake of
law. Multiple Judge Advocates, including the Garrison Commander’s trial counsel,
and the military judge at appellant’s court-martial, believed that MCOE 190-11
required appellant to register his privately-owned weapons in Porter Village. Cf.
Armstrong v. City of Melvindale, 432 F.3d 695, 702 (6th Cir. 2006) (evaluating an
officer’s reliance on a prosecutor as a factor in determining the reasonableness of
the officer’s probable cause determination). Moreover, while the regulation did not
include Porter Village, it could have, based on the nature of Porter Village itself
(described supra) and the command relationship between Porter Village, Camp
Merrill, and the Fort Benning Garrison Commander. Thus, following the logic of
Heien, if it was reasonable (even if incorrect), to believe that appellant had a duty to
register his firearms in Porter Village, then it was also reasonable to rely on the
Garrison Commander’s search authorization for those same unregistered weapons.
Second, even wholly setting aside the MCOE 190-11 evidence, the command
and law enforcement personnel still had an objectively reasonable basis to rely on
the Garrison Commander’s search authorization, which also sought “explosives and
other armaments” in addition to firearms. Unlike firearms, “explosives” are
inherently contraband, and the search authorization details an eyewitness account of
appellant’s possession of explosives in his home. Thus, again, even discounting the
firearms evidence, the search authorization was not “so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.”
Carter, 54 M.J. at 419 (quoting Leon, 468 U.S. at 923). 15
14
Heien involved a reasonable mistake of law by a police officer in a traffic stop
situation. While we are unaware of any case which relies on Heien in the search
warrant/authorization context, Heien’s logic applies here. Like the North Carolina
statute at issue in Heien, the command’s interpretation of MCOE 190-11 was an
“antecedent question” of law. Heien, 130 S. Ct. at 539.
15
Appellant correctly points out that certain law enforcement personnel involved in
the search of appellant’s quarters expressed some doubts about the legality of the
search. Specifically, the PMO personnel on the scene had been informed by their
supervisor that they would conduct only a “safety sweep” of appellant’s residence,
and not a search based on probable cause, presumably because the supervisor had
doubts about the legality of the search authorization. Appellant’s claim that this
negates the good faith exception to the exclusionary rule fails. First, the test is
whether an objectively reasonable law enforcement official could rely on the search
authorization, and does not look to the subjective intent of the officers. See, e.g.,
(continued . . .)
16
LOPEZ—ARMY 20170386
As such, even if the Garrison Commander’s search authorization lacked
probable cause, the fruits of the search of appellant’s residence were properly
admissible under the good faith exception to the exclusionary rule.
B. Legal Sufficiency of Failure to Register Convictions
Appellant has separately claimed that his convictions for failing to register his
privately-owned weapons on Porter Village were not supported by legally and
factually sufficient evidence. We review claims of legal and factual insufficiency de
novo, examining all of the evidence properly admitted at trial. UCMJ art. 66; United
States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007). The test for legal sufficiency is
whether, considering the evidence in the light most favorable to the government, any
rational trier of fact could have found the elements of the contested crimes beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
In light of our holding that MCOE 190-11 did not require appellant to register
his privately-owned weapons on Porter Village, we ipso facto find that the
government’s evidence was legally insufficient to sustain appellant’s five
convictions (Specifications 1-5 of Charge IV) for failing to obey that same lawful
general regulation.
CONCLUSION
Appellant’s convictions for Specifications 1-5 of Charge IV are SET ASIDE
and DISMISSED. The remaining findings of Guilty are AFFIRMED.
Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we affirm only so much of the sentence as provides for confinement for
twenty-three months. All rights, privileges, and property of which appellant has
been deprived by virtue of that portion of his sentence set aside by this decision are
ordered restored. See UCMJ arts. 58b(c) and 75(a).
Judge HAGLER concurs.
(. . .continued)
Smith, 77 M.J. at 636. Second, to the extent that subjective reliance is at all in play,
CID personnel testified at appellant’s suppression hearing that they searched
appellant’s house in subjective reliance on the search authorization.
17
LOPEZ—ARMY 20170386
WOLFE, Senior Judge, concurring:
I am not sure it is quite so clear that MCOE 190-11 did not require appellant
to register the firearms he kept at his residence at Porter Village. The operative
language relied on by appellant is contained in a prefatory “summary” paragraph;
not the body of the regulation. But, I need not answer this question definitively as I
otherwise concur with today’s opinion in full.
I agree that even if MCOE 190-11 technically required the registration of
appellant’s firearms, 16 it did not provide appellant with sufficient notice to hold him
criminally liable (for the exact reasons stated by Judge Ewing). I also agree that the
Garrison Commander had the clear authority to authorize a search of Porter Village.
And I concur with Judge Ewing’s analysis of Mil. R. Evid. 311(a)(3) and Mil. R.
Evid. 311(c)(3) determining that the evidence is admissible; although I suspect that
former will effectively swallow the later, at least for all cases arraigned after the
effective date of Mil. R. Evid. 311(a)(3).
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
16
I note that service regulations currently state, “All personnel residing on an
installation are required to register their firearms.” See Army Reg. 190-11, Physical
Security of Arms, Ammunition, and Explosives [hereinafter AR 190-11], para. 4-
5c(2) (17 Jan. 2019). The term “installation” is broadly defined.
Similar language was included in the version of AR 190-11 applicable to this case.
See AR 190-11, Physical Security of Arms, Ammunition, and Explosives, para. 4-
5c(2) (5 Sep. 2013). However, this language was neither raised at trial nor briefed
to this court, and it does not change my conclusion regarding appellant’s convictions
for violating MCOE 190-11.
That said, one possible reason that everyone thought MCOE 190-11 covered Porter
Village was that, perhaps, it was supposed to cover Porter Village. See AR 190-11,
para. 1-10 (5 Sep. 2013) (senior commanders shall establish punitive policies
regarding firearm registration on Army installations).
18