U.S. v. Richter, 51 M.J. 213

First Principles: Constitutional Matters: Search and Seizure

1. observation of several items in truck during lawful investigative stop provided probable cause to believe that appellant had stolen government property in his truck, which provided legal basis for search of truck under automobile exception and MRE 315(g)(3)
2. consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous
3. law enforcement officials may properly use sting operations and informants in order to gain valid consent; however, where a third party is used by law enforcement to tell a person that law enforcement authorities have a warrant, the prosecution cannot establish voluntary consent merely by showing the absence of direct communication between law enforcement authorities and the person giving consent
4. search cannot be justified as based on consent where that consent was given only after the official conducting the search has asserted that he has a warrant; such purported consent is mere acquiescence to authority
5. where appellant was informed during pretext phone conversation that law enforcement officials had a warrant to search his home, the mere mention of a warrant or command authorization did not vitiate a subsequent consent where that consent was shown, under the totality of the circumstances, to be truly voluntary
6. reasonable suspicion justifying an investigative stop under MRE 314(f)(1) existed where: (1) agents received information that appellant had taken a government-owned bicycle for personal use; (2) appellant had been observed loading tents into a privately owned vehicle; (3) a medical cabinet surrendered to law enforcement reportedly came from appellant; and (4) after a pretext phone call appellant was observed loading a large box into his truck and driving toward the gate
7. once officers make a valid investigative stop, it is not a violation of the Forth Amendment for them to observe items in plain view

Military Justice Personnel: Convening Authority: Immunity, Grants of

1. where witness for whom defense requested immunity was a prosecution target and awaiting trial, the second prong of RCM 704(e) is not met and there is no claim that “[t]he Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination.”

Core Criminal Law Subjects: Evidence: Search and Seizure › Automobile exception

1. observation of several items in truck during lawful investigative stop provided probable cause to believe that appellant had stolen government property in his truck, which provided legal basis for search of truck under automobile exception and MRE 315(g)(3)

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous
2. law enforcement officials may properly use sting operations and informants in order to gain valid consent; however, where a third party is used by law enforcement to tell a person that law enforcement authorities have a warrant, the prosecution cannot establish voluntary consent merely by showing the absence of direct communication between law enforcement authorities and the person giving consent

Core Criminal Law Subjects: Evidence: Search and Seizure › Consent

1. search cannot be justified as based on consent where that consent was given only after the official conducting the search has asserted that he has a warrant; such purported consent is mere acquiescence to authority
2. where appellant was informed during pretext phone conversation that law enforcement officials had a warrant to search his home, the mere mention of a warrant or command authorization did not vitiate a subsequent consent where that consent was shown, under the totality of the circumstances, to be truly voluntary

Core Criminal Law Subjects: Evidence: Search and Seizure › Investigatory stop

1. reasonable suspicion justifying an investigative stop under MRE 314(f)(1) existed where: (1) agents received information that appellant had taken a government-owned bicycle for personal use; (2) appellant had been observed loading tents into a privately owned vehicle; (3) a medical cabinet surrendered to law enforcement reportedly came from appellant; and (4) after a pretext phone call appellant was observed loading a large box into his truck and driving toward the gate

Core Criminal Law Subjects: Evidence: Search and Seizure › Plain view

1. once officers make a valid investigative stop, it is not a violation of the Forth Amendment for them to observe items in plain view

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Consent to search

1. consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Command influence

1. to raise unlawful command influence on appeal, the appellant must show (1) facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. a ruling on a motion to suppress is reviewed for abuse of discretion; findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record; conclusions of law will be reviewed de novo, and the military judge will not be reversed unless his decision was influenced by an erroneous view of the law
2. consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous
3. military judge’s decision not to abate proceedings under RCM 704(e) [immunity] reviewed for abuse of discretion
4. to raise unlawful command influence on appeal, the appellant must show (1) facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness

Trial Stages: Appeals: Waiver

1. claim of unlawful command influence in the preferral of charges was waived where appellant did not raise the issue at trial, any necessary evidence was available prior to trial, and appellant was not deterred from raising the issue at trial; defects in the preferral of charges are waived if not raised at trial, unless the failure to raise the issue is itself the result of unlawful command influence

Miscellaneous Matters: Command Influence: Generally

1. claim of unlawful command influence in the preferral of charges was waived where appellant did not raise the issue at trial, any necessary evidence was available prior to trial, and appellant was not deterred from raising the issue at trial; defects in the preferral of charges are waived if not raised at trial, unless the failure to raise the issue is itself the result of unlawful command influence

Miscellaneous Matters: Command Influence: Burdens

1. to raise unlawful command influence on appeal, the appellant must show (1) facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness