United States v. Eppes

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Tyler G. EPPES, Captain
United States Air Force, Appellant
No. 17-0364
Crim. App. No. 38881
Argued November 8, 2017—Decided April 10, 2018
Military Judge: Shaun S. Speranza
For Appellant: William E. Cassara, Esq. (argued); Major
Annie W. Morgan (on brief).
For Appellee: Lieutenant Colonel Joseph J. Kubler
(argued); Colonel Katherine E. Oler (on brief); Colonel Julie
L. Pitvorec and Mary Ellen Payne, Esq.
Amicus Curiae for Appellant: Seantyel Hardy (law student)
(argued); Angelica Nguyen (law student) (on brief); John H.
Blume, Esq. (supervising attorney) (on brief) — Cornell
Law School.
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge STUCKY and Judge OHLSON
joined. Judge RYAN filed a separate opinion concurring
in part and concurring in the result. Senior Judge
EFFRON filed a separate opinion concurring in part
and dissenting in part.
_______________
Judge SPARKS delivered the opinion of the Court. 1
A military judge sitting alone convicted Appellant, in
accordance with his pleas, of conspiracy, false official
statement, larceny of military and non-military property,
fraud against the United States government, and conduct
unbecoming an officer in violation of Articles 81, 107, 121,
1 We heard oral argument in this case at Cornell Law School,
Ithaca, New York, as part of the Court’s Project Outreach. This
practice was developed as a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.
United States v. Eppes, No. 17-0364/AR
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132, and 133, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 881, 907, 921, 932, and 933. The military judge
sentenced Appellant to a dismissal, a $64,000 fine, forfeiture
of all pay and allowances, and ten years confinement—with
a contingent additional three years confinement should he
fail to pay the fine. The convening authority approved the
adjudged sentence. The United States Air Force Court of
Criminal Appeals affirmed. We granted review of the
following issues: 2
I. Whether the search of Appellant’s personal bags
exceeded the scope of the search authorization
where the agent requested authority to search
Appellant’s person, personal bags, and automobile,
but the military magistrate authorized only the
search of Appellant’s person and automobile and
did not authorize the search of Appellant’s
personal bags.
II. Whether Appellant’s right to freedom from
unreasonable search and seizure under the Fourth
Amendment was violated when there was no
probable cause for the 7 December 2012 warrant.
I. Background 3
Appellant was convicted of submitting fraudulent travel
vouchers and tax documents, falsifying insurance claims,
stealing money and cameras from the United States
government, and conspiring to unlawfully possess an
intoxicating substance. The investigation into Appellant’s
misconduct was far-reaching and complex, and involved
numerous searches and seizures. We are concerned with
only two of these searches: the December 7, 2012, search of
Appellant’s home and the February 5, 2013, search of
Appellant’s bags in his workspace.
Appellant, an Air Force Office of Special Investigations
(AFOSI) agent, began his duties as the Air Force Chief of
2 Pursuant to his pretrial agreement, Appellant entered guilty
pleas conditioned upon his right to raise the suppression issue on
appeal.
3 This background is taken substantially from the military
judge’s findings of fact. The parties do not contend these
particular findings are clearly erroneous as they relate to the two
searches at issue here.
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Staff’s personal security advisor in July 2012. He and his
coworkers shared an office at the Pentagon and had equal
and unfettered access to the desks and computers therein.
In November 2012, Appellant arranged to have his
wedding at a hotel in Dallas, Texas, fraudulently claiming it
was an official Air Force function. He prepared fake travel
orders for his coworkers, maintaining they were his
“security team,” and applied for tax exempt status for
himself and his wedding guests, including his family
members. Appellant also paid his enlisted coworker to take
leave to act as his assistant during the wedding and even
provided his coworker with false documents indicating the
wedding was an official Air Force function. On November 13,
2012, Appellant had a series of disagreements with the hotel
staff, culminating with Appellant threatening to remove the
hotel from consideration for use by government employees.
On November 16, 2012, in response to Appellant’s threat,
the hotel manager contacted AFOSI and the office of the
Chief of Staff of the Air Force. The Air Force opened an
investigation based on the hotel staff’s complaint.
During the week of November 19, 2012, AFOSI Special
Agent (SA) Armstrong traveled to the hotel to interview the
hotel employees. SA Armstrong learned of the tax exemption
request for the cost of the wedding, collected false tax forms
from the hotel, and obtained copies of emails Appellant
exchanged with hotel staff.
AFOSI agents interviewed the supposed wedding
“security team” members. These witnesses provided the
AFOSI agents with the forged documents authorizing their
detail and told the agents Appellant had mentioned filing
insurance claims for a burglary of his previous residence.
On November 29, 2012, one of Appellant’s coworkers
went through the desk he shared with Appellant in search of
a work-related memorandum and came across a folder
labeled “wedding shower.” This folder contained fraudulent
travel documents authorizing the travel of a number of
Appellant’s family members to Dallas, Texas, for a “[Chief of
Staff of the Air Force] Special Interest Itinerary for 10–11
September.” Realizing the itinerary was false, Appellant’s
coworker scanned and emailed it to his AFOSI supervisors.
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Apparently, no such Special Interest event scheduled in
September ever occurred.
On December 6, 2012, AFOSI conducted a formal search
of Appellant’s shared desk at the Pentagon, seizing a work
computer and a receipt for a camera. From December 7 to
December 10, 2012, agents searched Appellant’s work email
accounts.
In the final stages of his initial investigation, SA
Armstrong reviewed a letter of counseling Appellant
received in 2008 for falsifying travel documents.
On December 7, 2012, SA Armstrong swore an affidavit
requesting a search warrant before a District of Columbia
Superior Court judge. SA Armstrong sought to search
Appellant’s home and, inter alia, Appellant’s “computer
hardware, computer software and digital media (e.g.,
computer equipment, digital storage devices, cameras,
photographs, etc.)” for evidence of frauds against the
government.
The Superior Court judge found probable cause to believe
a search of Appellant’s home would reveal evidence of a
crime. He issued the warrant on December 7, 2012, and
AFOSI conducted the search pursuant to the warrant on the
same date. This search yielded a significant quantity of
evidence including blank prescription forms already signed
by a military provider, receipts and documents from two
bags in Appellant’s living room, as well as USB drives, hard
drives, and a laptop from elsewhere in Appellant’s home.
On December 8, 2012, agents interviewed Appellant,
searched his person, and, with his consent, searched two of
his personal bags. The bags contained travel orders on
official letterhead, prescription forms, a laptop, a
Blackberry, SIM cards, an iPad, and medications. Agents
subsequently received verbal search authorization to search
the electronic devices recovered during this search.
In mid-December, AFOSI obtained Appellant’s Defense
Travel System claims, manually submitted travel vouchers,
and Government Travel Card records, and conducted a
review of Appellant’s financial, insurance, and medical
records. Of sixty travel vouchers Appellant submitted
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between January 2009 and December 2012, fifty-one
contained false information and five were completely
fraudulent. The review of Appellant’s insurance records
showed evidence of insurance fraud and reviews of his
medical records showed “no indication that [Appellant] was
prescribed the medications” for which prescriptions and
prescription packaging were found in his home.
At some point during the investigation Appellant was
moved from his regular work station at the Pentagon to a
small office in Chapel 1 at Joint Base Andrews. On February
5, 2013, SA Cooper submitted a signed and sworn affidavit
requesting authorization to search Appellant and his
personal bags at the Chapel 1 office, as well as his personal
vehicle. A military magistrate granted the authorization,
but did not expressly authorize a search of Appellant’s bags.
Pursuant to the authorization, SA Cooper and his
colleagues searched Appellant’s person, vehicle, and office on
February 5, 2013. Agents recovered a jewelry invoice,
pharmacy receipts, and documents evidencing false claims
against the United States in Appellant’s vehicle. They found
leave authorizations, bank statements, a permanent duty
travel voucher, blank Chief of Staff of the Air Force
documents, and various other documents in Appellant’s
office. Agents recovered a watch they believed to be evidence
of insurance fraud during the search of Appellant’s person.
After searching Appellant’s person, agents searched
Appellant’s immediate vicinity and two of his bags. With
respect to the bags, the military judge found that, upon
discovering evidence of travel fraud “in plain view … SA
Cooper stopped the search and consulted the 11 WG Deputy
Staff Judge Advocate (DSJA). The DSJA advised the agents
to continue the search in accordance with the authorization,
but to also collect other documents they know to be evidence
of other crimes.” A Report of Investigative Activity
submitted for this search indicates the bags in question
contained the following items of relevant evidentiary value:
one Marriot [sic] room rate discount authorization
form with the date covered, an 18-page
merchandise inventory sheet, A 10-page United
Services Automobile Association (USAA) valuable
personal property (VPP) insurance document, 11
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airline tickets and travel related documents, three
blank USAA checks, 12 pages of USAA VPP
documents, three blank [CSAF] letter documents,
one Cole Haan receipt, one Citi direct statement,
One ATM card with “Africa Russia” written on it,
and one Foundry Lofts envelope with four
documents inside.
That same day, SA Cooper and his colleagues again
searched Appellant’s home pursuant to a judicial warrant,
and recovered various documents relating to the sale and
appraisal of jewelry and watches, as well as insurance
documents related to Appellant’s vehicle, airline tickets,
receipts, and cameras.
Defense counsel filed a motion to suppress much of the
evidence offered against Appellant, including evidence
gathered in the December 7, 2012, and February 5, 2013,
searches.
The military judge denied the motion to suppress,
holding both searches were supported by probable cause,
and as to the February 5 search, the agents were authorized
to search Appellant’s person and reasonably searched the
area immediately around him, including the bags.
II. Discussion
We review a military judge’s denial of a motion to
suppress for an abuse of discretion. United States v. Nieto,
76 M.J. 101, 105 (C.A.A.F. 2017); United States v. Clayton,
68 M.J. 419, 423 (C.A.A.F. 2010); United States v. Leedy, 65
M.J. 208, 212 (C.A.A.F. 2007). We “reverse for an abuse of
discretion if the military judge’s findings of fact are clearly
erroneous or if his decision is influenced by an erroneous
view of the law.” United States v. Owens, 51 M.J. 204, 204
(C.A.A.F. 1999) (internal quotation marks omitted) (citation
omitted). “[I]n reviewing a ruling on a motion to suppress,
we consider the evidence in the light most favorable to the
prevailing party.” United States v. Macomber, 67 M.J. 214,
219 (C.A.A.F. 2009) (internal quotation marks omitted)
(citations omitted).
The Fourth Amendment provides “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
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not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation.” U.S.
Const. amend. IV. A search conducted pursuant to a warrant
or search authorization is presumptively reasonable. See
United States v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014) (citing
Katz v. United States, 389 U.S. 347, 357 (1967)). When
evidence is unlawfully obtained, however, an accused may
timely move to suppress it and, pursuant to the exclusionary
rule, a military judge may exclude it. See Military Rule of
Evidence (M.R.E.) 311(a); see also Murray v. United States,
487 U.S. 533, 536–37 (1988) (explaining the exclusionary
rule prohibits the admission of unlawfully obtained primary
and derivative evidence).
A. The December 7, 2012, search of Appellant’s residence 4
We find the December 7, 2012, search of Appellant’s
residence was supported by probable cause and was
therefore valid.
Appellant contends the warrant issued by the District of
Columbia Superior Court judge to search Appellant’s
residence on December 7, 2012, was not supported by
probable cause because there was an insufficient nexus
between Appellant’s computer recovered during the search
and the crime Appellant was suspected of committing.
In resolving search and seizure issues, we rely on a
number of principles emerging from our own precedent,
United States Supreme Court precedent, and the Manual for
Courts-Martial, United States.
“Probable cause to search exists when there is a
reasonable belief that the person, property, or evidence
sought is located in the place or on the person to be
searched.” M.R.E. 315(f)(2). “Probable cause deals with
probabilities.” Leedy, 65 M.J. at 213 (internal quotation
marks omitted) (quoting Brinegar v. United States, 338 U.S.
160, 175 (1949)). “[T]here is no specific probability required,
nor must the evidence lead one to believe that it is more
probable than not that contraband will be present.” Id.
“[P]robable cause is a flexible, commonsense standard.”
4 To facilitate the analysis, we address the searches in
chronological order.
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United States v. Bethea, 61 M.J. 184, 187 (C.A.A.F. 2005)
(internal quotation marks omitted) (quoting Texas v. Brown,
460 U.S. 730, 742 (1983)). “It is not a technical standard, but
rather is based on the factual and practical considerations of
everyday life on which reasonable [persons], not legal
technicians, act.” Leedy, 65 M.J. at 213 (internal quotation
marks omitted) (citation omitted). Probable cause
determinations made by a neutral and detached search
authority are entitled to substantial deference. Nieto, 76
M.J. at 105; Clayton, 68 M.J. at 423; Macomber, 67 M.J. at
218. Resolution of doubtful or marginal cases should be
largely determined by the preference for warrants, and close
calls will be resolved in favor of sustaining the search
authority’s decision. Nieto, 76 M.J. at 105, Clayton, 68 M.J.
at 423; Macomber, 67 M.J. at 218; United States v. Monroe,
52 M.J. 326, 331 (C.A.A.F. 2000). Courts should not
invalidate warrants by interpreting affidavits in a
hypertechnical, rather than a commonsense manner. Illinois
v. Gates, 462 U.S. 213, 236 (1983); Clayton, 68 M.J. at 423;
Macomber, 67 M.J. at 218; United States v. Gallo, 55 M.J.
418, 421 (C.A.A.F. 2001). “A grudging or negative attitude
by reviewing courts towards warrants is inconsistent with
the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant ….” Gates, 462 U.S. at 236
(internal quotation marks omitted) (citation omitted).
The search authority must have “a substantial basis for
concluding probable cause exist[s].” Nieto, 76 M.J. at 105
(internal quotation marks omitted) (quoting United States v.
Rogers, 67 M.J. 162, 164–65 (C.A.A.F. 2009)). “A substantial
basis exists ‘when, based on the totality of the
circumstances, a common-sense judgment would lead to the
conclusion that there is a fair probability that evidence of a
crime will be found at the identified location.’ ” Id. (quoting
Gates, 462 U.S. at 238). To establish probable cause, a
sufficient nexus must be shown to exist between the alleged
criminal activity, the things to be seized, and the place to be
searched. 2 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 3.7(d), at 518 (5th ed.
2012). Such a nexus “may be inferred from the facts and
circumstances of a particular case, including the type of
crime, the nature of the items sought, and reasonable
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inferences about where evidence is likely to be kept.” Nieto,
76 M.J. at 106 (internal quotation marks omitted) (citations
omitted). Reviewing courts may read the affidavit and
warrant to include inferences the issuing magistrate
reasonably could have made. See United States v. Williams,
544 F.3d 683, 686–87 (6th Cir. 2008) (reasoning “[the courts
are] entitled to draw reasonable inferences” and holding an
issuing judge could have inferred a nexus (alteration in
original) (internal quotation marks omitted) (citation
omitted)); United States v. Hodge, 246 F.3d 301, 305–06 (3d
Cir. 2001) (reasoning “[a] court is entitled to draw
reasonable inferences about where evidence is likely to be
kept” and holding a magistrate might have inferred a nexus
under the circumstances (internal quotation marks omitted)
(citation omitted)); see also State v. Mell, 182 P.3d 1, 14
(Kan. Ct. App. 2008) (explaining trial judges do not always
“cover the issues raised on appeal to the extent [appellate
courts] would like”). In establishing probable cause a
magistrate may rely, in part, on the affiant law enforcement
agent’s professional experience, knowledge, and expertise.
See Leedy, 65 M.J. at 215–16.
In evaluating the issuing search authority’s probable
cause finding, we examine: 1) the facts known to the
authority when he issued the warrant and 2) the manner in
which he came to know these facts. Id. at 214. Where the
search authority has “a substantial basis to find probable
cause,” a military judge does not abuse his discretion in
denying a motion to suppress. Nieto, 76 M.J. at 105
(internal quotation marks omitted) (citation omitted).
We conclude the Superior Court judge had “a substantial
basis for concluding probable cause existed” because he was
presented with sufficient facts to reasonably infer evidence
of Appellant’s crimes, namely fraud against the government
and other offenses, would probably be recovered on a
computer in Appellant’s home. Id. (internal quotation marks
omitted) (citation omitted); Leedy, 65 M.J. at 214.
SA Armstrong’s affidavit in support of the warrant
stated there was probable cause to believe Appellant
committed several crimes, including frauds against the
United States. The affidavit stated there was probable cause
to search Appellant’s residence and to seize any computers
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and a variety of other items because: 1) Appellant had
submitted false documents to the hotel personnel
representing his wedding was an official event; 2) Appellant
had provided signed state tax exemption forms falsely
certifying that several of the wedding attendees were on
official business; 3) Appellant made false claims about his
tax status to hotel staff via email; 4) it had been discovered
that Appellant had produced fraudulent invitational travel
orders for members of his and his fiancée’s family to travel
to Dallas, Texas, purportedly to attend an earlier official Air
Force event that never occurred; and 5) there was an
indication Appellant had previously engaged in similar
misconduct involving fraud. Finally, the affidavit informed
the issuing judge Appellant was a law enforcement official.
The fact that the affidavit stated Appellant had used
email to communicate with the hotel personnel raised a
reasonable inference Appellant probably used a computer or
other digital device or media as an instrumentality to
pursue the suspected fraudulent scheme. The affidavit also
supports the further reasonable inference that evidence of
this type of criminal conduct, namely travel orders, letters,
notes, financial records, and receipts, probably resided on
such devices. Finally, unlike the average servicemember or
government employee, Appellant, as a law enforcement
official, had specialized knowledge and training about
criminal investigative techniques and where individuals
engaged in criminal conduct might secret the fruits and
instrumentalities of their crimes. Together, these facts
establish that the issuing judge could reasonably have
inferred that given the nature of the criminal activity under
investigation, Appellant probably had evidence of this
criminal activity and the instrumentalities used to carry it
out at his residence. 5 This inference is all the more
reasonable given that there was no indication Appellant
5 We certainly do not intend to suggest that, as a general
matter, servicemembers are likely to store criminal evidence on
their home computers. The knowledge at issue here is specific to
Appellant. Without some other incriminating facts, a search
authority cannot reasonably infer that the average servicemember
is more likely to store evidence of criminality on his home
computer than on his work computer.
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lived elsewhere, and Appellant shared both his workspace
and his computer with his AFOSI coworkers.
Given the state of the investigation on December 7, 2012,
the information contained in the affidavit, and SA
Armstrong’s experience as a law enforcement official, the
Superior Court judge had a substantial basis for finding
probable cause regarding the search of the residence and the
military judge did not abuse his discretion in ruling the
warrant issued for the search of Appellant’s residence was
supported by probable cause.
B. The February 5, 2013, search of Appellant’s bags
We first conclude that the search of Appellant’s bags in
his Chapel 1 office was beyond the scope of the search
authorization.
The Fourth Amendment requires all warrants
“particularly describ[e] the place to be searched, and the
person or things to be seized.” U.S. Const. amend. IV. “Th[is]
requirement … is conventionally explained as being
intended to protect against general, exploratory rummaging
in a person’s belongings. But it also serves to prevent
circumvention of the requirement of probable cause by
limiting the discretion of officers executing a warrant to
determine the permissible scope of their search.” United
States v. Sims, 553 F.3d 580, 582 (7th Cir. 2009) (emphasis
added) (internal quotation marks omitted) (citations
omitted).
Here, the affidavit in support of the search authorization
expressly and specifically stated it was being submitted “in
support of a request for separate search authority for (1)
EPPES’ person, (2) EPPES’ personal bags and (3) EPPES’
personally owned vehicle.” The authorization returned to SA
Cooper from the military magistrate authorized a search of
“the person of TYLER G. EPPES, Capt, USAF” and his
vehicle.
It is likely the omission of the bags from the search
authorization was simply a scrivener’s error because the
agent who swore the affidavit also apparently authored the
search authorization signed by the magistrate. It seems
incongruous that the agent would include the bags in the
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affidavit and then intentionally leave them out of the
drafted search authorization.
Even if the discrepancy was not a scrivener’s error, we
conclude the military judge did not abuse his discretion in
admitting the contents of the bags because agents inevitably
would have searched the bags and discovered their contents.
The military judge’s conclusions of law touch generally on
the independent source doctrine and the inevitable discovery
doctrine as they pertain to the various searches in this
case. 6
The two doctrines, while similar, are separate exceptions
to the exclusionary rule. The inevitable discovery rule is said
to be a variation on the independent source rule. 6 LaFave,
supra § 11.4(a), at 339. Thus, under the inevitable discovery
rule, the question is not whether the police did in fact
acquire certain evidence by reliance upon an untainted (or
independent) source, but rather whether evidence found
because of a Fourth Amendment violation would inevitably
have been discovered lawfully. Id. We conclude that this
analysis is more appropriately applied to the question of the
admissibility of the contents of Appellant’s personal bags
searched on February 5, 2013.
The doctrine of inevitable discovery allows for the
admission of illegally obtained evidence when the
government “demonstrate[s] 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 in a lawful manner.” Wicks, 73 M.J. at 103
(internal quotation marks omitted) (citation omitted); see
also Nix v. Williams, 467 U.S. 431 (1984). The inevitable
discovery of the evidence must occur through “routine
procedures of a law enforcement agency” and “mere
speculation and conjecture” as to inevitable discovery is not
sufficient. Wicks, 73 M.J. at 103 (internal quotation marks
omitted) (citations omitted). M.R.E. 311(c)(2) codifies the
inevitable discovery doctrine into military law as follows,
6 It is not clear whether his conclusions extended specifically
to the search at issue here. We will thus analyze whether either is
applicable in the instant case.
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“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.”
While the inevitable discovery exception does
not apply in situations where the government’s
only argument is that it had probable cause for
the search, the doctrine may apply where, in
addition to the existence of probable cause, the
police had taken steps in an attempt to obtain
a search warrant.
United States v. Souza, 223 F.3d 1197, 1203 (10th Cir.
2000). The doctrine may apply where it is reasonable to
conclude officers would have obtained a valid authorization
had they known their actions were unlawful. 7 See United
States v. Wallace, 66 M.J. 5, 10 (C.A.A.F. 2008) (holding the
doctrine applicable where consent to a search was invalid,
reasoning the officers would have obtained a valid warrant
to retrieve the evidence at issue if the accused had not
consented). We find the inevitable discovery doctrine applies
in this case for the following reasons.
First, we believe the agents would have applied for and
received authorization to search had they recognized the
discrepancy omitting the bags. The agents conducted a
search beyond the scope of the authorization, but within the
confines of the affidavit. Since the military judge made no
finding of bad faith, we assume the agents were unaware of
the discrepancy between the warrant and the affidavit. Had
7 In most of our inevitable discovery precedent, the imminent
and inevitable lawful discovery of the evidence has been so closely
tied to the ongoing investigation its occurrence has been
practically certain. See, e.g., United States v. Kozak, 12 M.J. 389,
393 (C.M.A. 1982) (holding the unlawful search of a locker yielded
the same evidence agents would have lawfully recovered moments
later conducting a search incident to arrest); Owens, 51 M.J. at
204 (holding an officer’s proper automobile search meant he would
have inevitably discovered evidence within the car, despite other
unconstitutional behavior). These cases differ from the one at
present, where we believe the officers could have and would have
obtained a lawful, valid warrant had they known they were
prohibited from searching Appellant’s bags.
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the agents arrived at Appellant’s office and noticed the
personal bags, read the authorization, noticed the
discrepancy, and decided not to search the bags, they could
have, and likely would have lawfully seized the bags, with
probable cause to do so, and either called a military
magistrate and asked for an oral search authorization or left
and obtained a written authorization to search the bags. See
California v. Acevedo, 500 U.S. 565, 575 (1991) (“Law
enforcement officers may seize a container and hold it until
they obtain a search warrant. Since the police, by
hypothesis, have probable cause to seize the property, we
can assume that a warrant will be routinely forthcoming in
the overwhelming majority of cases.” (internal quotation
marks omitted) (citations omitted)). Furthermore, it is
reasonable to conclude the agents would have applied for
authorization to search the bags where, as here, they had
earlier requested, in the affidavit, to search any bags found. 8
The probable cause that existed to search Appellant and his
vehicle would still have supported any later request to
search the bags had the illegality not occurred. 9
Second, the agents were actively pursuing leads that
would have led them to the same evidence. On December 7
and 8, agents searched other bags belonging to Appellant
and recovered blank prescription forms, receipts, travel
orders on official letterhead, a laptop, a Blackberry, SIM
cards, an iPad, medications, and documents. In mid-
December, agents obtained Appellant’s travel records and
vouchers and reviewed his financial, insurance, and medical
8 Cf. Wicks, 73 M.J. at 103 (holding “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 evidence that the police would have
obtained a warrant” (internal quotation marks omitted) (citation
omitted)).
9 We do not condone the officers’ failure to read and/or
understand the scope of the search authorization. We caution law
enforcement to carefully read search authorizations to ensure they
are aware of and understand any limitations the issuing
magistrate may have imposed. As we write elsewhere in this
opinion, we decide this case on its unique and narrow
circumstances.
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records. This yielded evidence Appellant had committed
both travel and medical prescription fraud and spurred an
investigation into whether Appellant committed insurance
fraud. On February 5, 2013, aside from the evidence
contained in the personal bags at Appellant’s office, agents
recovered jewelry invoices, pharmacy receipts, leave
authorizations, bank statements, a permanent duty travel
voucher, and documents evidencing fraud against the
United States during searches of Appellant’s vehicle, his
office, and his residence. Under the preponderance of the
evidence standard, the Government has demonstrated
agents were actively pursuing leads that support the
conclusion that the bags at the Chapel 1 office would
inevitably have been lawfully seized and searched and their
contents discovered.
Next, we also see no valid policy reason for applying the
exclusionary rule in this case. “[A]dmittedly drastic and
socially costly,” the exclusionary rule should only be applied
where “needed to deter police from violations of
constitutional and statutory protections.” Nix, 467 U.S. at
442–43. The exclusionary “rule’s sole purpose … is to deter
future Fourth Amendment violations.” Davis v. United
States, 564 U.S. 229, 236–37 (2011). As such, its use is
limited “to situations in which this purpose is thought most
efficaciously served.” Id. at 237 (internal quotation marks
omitted) (citation omitted). “For exclusion to be appropriate,
the deterrence benefits of suppression must outweigh [the
rule’s] heavy costs.” Id.
Finally, the inevitable discovery exception to the
exclusionary rule unavoidably requires acceptance of certain
reasonable assumptions. Reasonable minds might very well
differ as to whether, in a particular case, these assumptions
have exceeded the bounds of reasonableness. Nonetheless,
the aim is to apply the doctrine in such a way as to not
subvert the deterrence objective of the exclusionary rule.
Here, where the Fourth Amendment violation was likely not
the result of deliberate misconduct in need of deterrence,
any marginal deterrent benefit to be gained is far
outweighed by the heavy costs exclusion would have—
namely placing the Government in a worse position than it
would have been had the illegality not occurred. See, e.g.,
15
United States v. Eppes, No. 17-0364/AR
Opinion of the Court
Sims, 553 F.3d at 581, 583–84 (noting likely scrivener’s
error of omission on warrant of evidence listed in affidavit
and that there was zero social benefit in excluding the
evidence because “[t]he search would have been authorized,
would have taken place, and would have been identical in
scope, both as to places searched and things seized, to the
search that the police did conduct”).
We therefore conclude the inevitable discovery doctrine
applies to the narrow circumstances before us in this case.
III. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
16
United States v. Eppes, No. 17-0364/AF
Judge RYAN, concurring in part and concurring in the
result.
I join fully in the majority decision that there was proba-
ble cause to issue the December 7, 2012, warrant to search
Appellant’s home. With respect to the Court’s resolution of
the search of Appellant’s bags on February 5, 2013, I re-
spectfully concur in the result. To my mind, the better way
to resolve that issue 1 is to ask whether, viewing the evidence
in the light most favorable to the party who prevailed below,
United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015),
the military judge abused his discretion in denying the mo-
tion to suppress the evidence from that search. Id. That de-
cision, in turn, depends on whether he was wrong to deter-
mine that law enforcement’s commonsense, non-
hypertechnical interpretation of the warrant’s scope was
reasonable. That is a factual thumb on the scale in the Gov-
ernment’s favor, on top of two layers of deferential review.
Under the facts of this case, I therefore conclude that the
military judge did not abuse his discretion in denying the
motion to suppress evidence found inside bags in Appellant’s
immediate vicinity, as the military magistrate’s search au-
thorization could reasonably be read to include a search of
Appellant’s bags.
The Fourth Amendment prohibits unreasonable searches
and seizures. U.S. Const. amend. IV. It is axiomatic that a
warrantless search and seizure is “presumptively unreason-
able,” Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting
Payton v. New York, 445 U.S. 573, 586 (1980)); United States
v. Gurczynski, 76 M.J. 381, 386 (C.A.A.F. 2017), and that a
search conducted pursuant to a valid warrant is presump-
tively reasonable. Gurczynski, 76 M.J. at 386; United States
v. Wicks, 73 M.J. 93, 99 (C.A.A.F. 2014). The Fourth Amend-
ment, in turn, requires that “no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
1 It simply cannot be the case, as the majority suggests, that
inevitable discovery pertains wherever law enforcement would
have obtained a different warrant to search if they knew the
search they were conducting was not covered by the warrant in
hand. United States v. Eppes, __ M.J. __, __ (12–15) (C.A.A.F.
2018).
United States v. Eppes, No. 17-0364/AF
Judge RYAN, concurring in part and concurring in the result
particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV.
In this case there is a warrant and, with respect to the
February 5 search, no one argues either that probable cause
was lacking to search Appellant’s bags or that the things
seized as a result of that search were outside the scope of the
warrant. Appellant argues instead that law enforcement
exceeded the scope of the warrant to search his person by
searching the bags in his immediate vicinity at the time of
the search. Brief for Appellant at 10–11, United States v.
Eppes, No. 17-0364 (C.A.A.F. Jul. 12, 2017) (citations
omitted). The military judge simply did not abuse his
discretion in coming to the contrary conclusion as his
decision was not outside the “range of choices reasonably
arising from the applicable facts and the law.” United States
v. Irizarry, 72 M.J. 100, 103 (C.A.A.F. 2013) (quoting United
States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)). 2
The affidavit accompanying the warrant requested
search authorization “for a search of EPPES’ person, his
personal belongings that may be located within a reasonable
vicinity of EPPES’ person or as may be found at his work
location located in Chapel 1, and his vehicle.” The warrant
itself authorized a search of the “person of . . . EPPES,”
“premises known as” his vehicle, and the seizure of
“[d]ocuments and/or items of evidence as may be used in the
commission of fraud against the United States Government
or against federally insured financial institutions; watches
and jewelry matching the description of items claimed lost
or stolen in insurance claims against USAA and commercial
airline companies.”
In his ruling on the defense motion to suppress the evi-
dence found in the “closet-sized office” in Eppes’s immediate
2 The validity of the warrant is precisely why the good-faith
exception to the exclusionary rule, United States v. Leon, 468 U.S.
897, 920–21 (1984), does not apply to this case. There is nothing to
suggest that the warrant itself was constitutionally invalid or de-
fective, and the good-faith exception will not “save an improperly
executed warrant.” United States v. Angelos, 433 F.3d 738, 746
(10th Cir. 2006) (quoting United States v. Rowland, 145 F.3d
1194, 1208 n. 10 (10th Cir. 1998)).
2
United States v. Eppes, No. 17-0364/AF
Judge RYAN, concurring in part and concurring in the result
vicinity, the military judge concluded, inter alia, that “the
agents were authorized to search the person of Capt Eppes
and reasonably searched the area immediately around him.”
Utilizing a commonsense rather than a hypertechnical re-
view of the warrant, United States v. Srivastava, 540 F.3d
277, 289–90 (4th Cir. 2008); United States v. Stiver, 9 F.3d
298, 302–03 (3d Cir. 1993), cert. denied, 510 U.S. 1136
(1994); United States v. Marques, 600 F.2d 742, 751–52 (9th
Cir. 1979); United States v. Salameh, 54 F. Supp. 2d 236,
277–78 (S.D.N.Y. 1999), law enforcement could reasonably
conclude that the “person” mentioned in the warrant includ-
ed bags in close proximity to the “person.” There is nothing
constitutionally unreasonable about that conclusion.
Gurczynski, 76 M.J. at 386 (“[T]he ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’ ” (quoting Ken-
tucky v. King, 563 U.S. 452, 459 (2011))); cf. Groh, 540 U.S.
at 572–80 (Thomas, J., dissenting).
First, there is no evidence that the warrant failed to
include the apparently talismanic words “his personal
belongings that may be located within a reasonable vicinity
of EPPES’ person” because the magistrate believed there
was no probable cause to believe the evidence he authorized
to be seized would be found in his personal bags. Indeed,
such evidence as there is suggests that the same person who
provided the affidavit in support of the warrant also filled
out the warrant’s form, supporting the opposite conclusion:
that both the affiant and the magistrate believed the
“person” of EPPES included within in its scope the
subordinate clause “his personal belongings that may be
located within a reasonable vicinity of EPPES’ person.” This
interpretation of the facts is all the more reasonable given
that the list of items to be seized included documents and
numerous watches, which are unlikely to be found in
someone’s pockets. United States v. Graham, 638 F.2d 1111,
1112–14 (7th Cir. 1981).
Second, it is folly to forget that in executing a warrant
law enforcement is required to exercise judgment, making
commonsense, rather than hypertechnical, determinations
about the scope of their authority, while precluded from
“general rummaging about.” Gurczynski, 76 M.J. at 386;
Stanford v. Texas, 379 U.S. 476, 485 (1965)); United States v.
3
United States v. Eppes, No. 17-0364/AF
Judge RYAN, concurring in part and concurring in the result
Fogg, 52 M.J. 144, 148 (C.A.A.F. 1999). Of course, this abil-
ity to exercise discretion does not give law enforcement a
“blank check,” Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.
1992), and “[f]lagrant disregard for the terms of the war-
rant” is forbidden. Id. But law enforcement’s reasonable in-
terpretation of a warrant’s terms should be respected. See,
e.g., id. (Law enforcement is “not obliged to interpret [war-
rants] narrowly, and would . . . be mistaken to do so . . . .”);
Srivastava, 540 F.3d at 289–90 (holding that personal tax
documents were included in a commonsense understanding
of a warrant authorizing the seizure of documents of a pass-
through tax entity); Stiver, 9 F.3d at 302–03 (holding that
officers had a reasonable basis to answer accused’s tele-
phone when executing a warrant for “drug paraphernalia,”
because the telephone could be considered “paraphernalia”);
Marques, 600 F.2d at 751–52 (holding that a science text-
book including a methamphetamine recipe was reasonably
within the scope of a warrant authorizing the seizure of nar-
cotics and narcotic paraphernalia when the affidavit in the
warrant application makes clear that the police expected to
find evidence of methamphetamine production); Salameh, 54
F. Supp. 2d at 277–78 (emphasizing that law enforcement
interpretation of search warrants should be “commonsensi-
cal” not “hyper-technical” (quoting Johnson v. Massey, No.
3:92 CV 178 (JAC), 1993 U.S. Dist. LEXIS 13100, at *13,
1993 WL 372263, at *4 (D. Conn. Sept. 17, 1993))).
There was no rummaging about here, and it was
constitutionally reasonable for the law enforcement officers
to conclude that a search of the Appellant’s person referred
to more than the literal person of the Appellant and
reasonably included bags in his immediate vicinity. Humans
are not kangaroos, and the human body thus does not have
natural “pockets” or “pouches” in which to store either watch
and jewelry collections or documents related to insurance
and travel fraud. Graham, 638 F.2d at 1112–14. “To hold
differently would be to narrow the scope of a search of one’s
person to a point at which it would have little meaning.” Id.
at 1114.
4
United States v. Eppes No. 17-0364/AF
Senior Judge EFFRON, concurring in part and
dissenting in part.
I agree with the conclusion in the majority opinion that
the military judge properly denied the defense motion to
suppress the evidence seized in the December 7, 2012,
search of Appellant’s residence. I also agree with the
majority opinion’s determination that the military judge
erred in rejecting the defense contention that the February
5, 2013, search of Appellant’s bags exceeded the scope of the
search authorization.
I respectfully disagree with the majority opinion’s
conclusion that all of the evidence seized in the February 5
search was nonetheless admissible under the inevitable
discovery doctrine. Although the record identifies the
information contained in some of the items obtained on
February 5 and provides a basis for concluding that those
items inevitably would have been discovered, the
Government failed to establish in the record a basis for
relying on the inevitable discovery doctrine with respect to
other items at issue. The Government did not identify the
contents of those other items, nor did the Government set
forth in the record a path that inevitably would have led to
the discovery of the unidentified contents of those other
items.
The Scrivener
As an initial matter, the majority opinion suggests a
“scrivener’s error” is to blame for the omission of
authorization to search Appellant’s bags. The Government
had the opportunity at trial to present evidence in support of
this theory, but did not do so. Special Agent WC, who
prepared the affidavit and conducted the search, testified at
the suppression hearing. The trial counsel’s questions did
not ask Special Agent WC about whether or why he thought
he was authorized to search the bags despite their omission
from the authorization. The issuing magistrate did not
testify, and the Government did not present an affidavit
from the magistrate to support the theory of a scrivener’s
error. Notwithstanding the opportunity to do so, the
Government did not establish in the record the magistrate’s
intent to exclude or include the bags.
United States v. Eppes No. 17-0364/AF
Senior Judge EFFRON, concurring in part and dissenting in part
If the Government believed the content of the search
authorization was affected by a scrivener’s error, that
matter should have been litigated at trial, where the factual
basis could have been tested by testimony, addressed
through argument of the parties, and ruled upon by the
military judge. At this point in the appellate proceedings, it
is no longer appropriate to rely on speculation about a
scrivener’s error — a consideration that was not raised or
preserved at trial.
Inevitable discovery — the Government’s Burden and an
Incomplete Record
Where evidence is obtained in an illegal search, such as
the February 5 search that exceeded the scope of the
authorization, the government bears the burden of
demonstrating by a preponderance of the evidence that, at
the time of the illegal search, agents were pursuing leads
that would have led inevitably to the discovery by lawful
means of the unlawfully obtained evidence. Nix v. Williams,
467 U.S. 431 (1984); United States v. Wicks, 73 M.J. 93, 103
(C.A.A.F. 2014). “ ‘Mere speculation and conjecture’ as to the
inevitable discovery of the evidence is not sufficient when
applying this exception.” Wicks, 73 M.J. at 103 (quoting
United States v. Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996)).
At trial, Appellant moved to suppress the evidence found
in searches and seizures conducted on at least eight
different dates, including the evidence found in Appellant’s
bags on February 5. The Government opposed the motion,
arguing the searches and seizures were lawful, and even if
they were not, “law enforcement obtained an overwhelming
amount of evidence of the Accused’s criminal activity
through his own actions of submitting travel vouchers and
insurance claims and compared his proffered substantiating
documents against official records obtained from individual
organizations through subpoenas duces tecum.”
The Government did not introduce into evidence the
items found in Appellant’s bags, nor did the Government
attempt to show that any piece of that evidence inevitably
would have been discovered by other means. Instead, the
Government at trial simply argued that, as a general
matter, “the evidence seized during this search made no
2
United States v. Eppes No. 17-0364/AF
Senior Judge EFFRON, concurring in part and dissenting in part
substantial impact on the investigation” in light of the
“broader criminal investigation,” which yielded evidence of
travel and insurance fraud.
The military judge found that all the searches were
lawful, and even if not lawful, “a preponderance of the
evidence demonstrates that AFOSI possessed and were
actively pursuing evidence and leads independent of the
searches and seizures at issue in this motion.” Reviewing
the evidence discovered in all of the searches at issue, the
military judge found that AFOSI inevitably would have
found a first group of items — fraudulent travel vouchers,
government travel card records, an investigation file into
theft, unfunded purchase requests, financial database
information, Appellant’s USAA claim, a fraudulent vehicle
claim, and Appellant’s bank records.
The military judge made no findings with respect to a
second group of items found in Appellant’s bags, including
the merchandise inventory sheet, the Cole Haan receipt, the
ATM card, or the Foundry Loft envelope or the four
documents inside it. The Government made no offer of proof
or argument as to the manner in which the Government's
investigatory efforts would have led the investigators to the
second group of items, the contents of which were never
described in the record by the Government or in the findings
of the military judge.
We review the military judge’s ruling on a motion to
suppress for abuse of discretion. United States v. Nieto, 76
M.J. 101, 105 (C.A.A.F. 2017). The military judge’s findings
of fact are entitled to deference and will be reversed only if
clearly erroneous.
With respect to the first group of items, the record
contains evidence as to the content and the investigatory
steps then underway regarding those items. I agree with the
majority opinion that evidence from the first group of items
was admissible under the inevitable discovery doctrine.
With respect to the second group of items, the
Government introduced no evidence as to the content; and
the military judge made no specific findings that the items
in the second group inevitably would have been discovered.
3
United States v. Eppes No. 17-0364/AF
Senior Judge EFFRON, concurring in part and dissenting in part
In that context the military judge’s conclusion as to
inevitable discovery is entitled to no deference.
Viewing the evidence in the light most favorable to the
Government, we can do no more than speculate as to what,
precisely, was found in Appellant’s bags, as the Government
did not produce the evidence or describe it with
particularity. Without more information as to what was
found in the bags — e.g., what was on the merchandise
inventory list?; what documents were contained in the
Foundry Lofts envelope?; did the Cole Haan receipt record a
financial transaction that would have been discovered in
Appellant’s bank or credit card records? — we cannot
conclude that the evidence inevitably would have been
discovered by other means.
Harmlessness
With respect to harmlessness, Appellant entered a
conditional guilty plea, preserving his right to challenge the
military judge’s ruling on the motion to suppress. The
Government could have, but did not, present information via
the plea agreement stipulation or otherwise on the record
about the contents of the evidence in the second group of
items contained in the bags or other information that could
have been reviewed during appellate consideration of the
issue.
In this context, where the Government relied on the plea
to meet its burden of proof, we cannot evaluate how the
evidence of the second group of items found in Appellant’s
bags affected his decision to plead guilty. See United States
v. Shelton, 64 M.J. 32, 39 (C.A.A.F. 2006) (although this
Court ordinarily reviews an erroneous evidentiary ruling for
harmlessness, “that avenue of analysis is not presently open
because of the context of this error in the trial proceedings”).
Indeed, the military judge acknowledged that he could not
conclusively determine how suppression of the evidence
would have affected the case, but opined that “it would have
impacted the ability of the government to present its case
and to meet its burden beyond a reasonable doubt” for at
least some of the charges and specifications.
4
United States v. Eppes No. 17-0364/AF
Senior Judge EFFRON, concurring in part and dissenting in part
In this case, the Government did not to meet its burden
on the issue of inevitable discovery. The Government did not
offer into evidence the specific items found in the bags, did
not otherwise identify the contents of the second group of
items found in the bags, and did not identify leads that law
enforcement possessed or was actively pursuing that would
have led to the discovery of the second group of items.
Without more information as to what was found in the bags,
the record does not establish that (1) the evidence inevitably
would have been discovered by other means, or (2) the illegal
search was harmless beyond a reasonable doubt.
In the context of a conditional guilty plea, the
Government has not demonstrated that the erroneous denial
of the motion to suppress was harmless beyond a reasonable
doubt. Under these circumstances, the decision of the United
States Army Court of Criminal Appeals should be reversed,
and a rehearing should be authorized.
5