U.S. v. McMahon, 58 M.J. 362

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects the security of one’s privacy against arbitrary intrusion by the police; a search of a residence conducted without a warrant based on probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search conducted with the resident’s consent

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

1. a search of a residence conducted without a warrant based on probable cause is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search conducted with the resident’s consent
2. consent is valid only if it is freely and voluntarily given; the determination as to whether consent is voluntarily given is a question of fact to be determined from the totality of all the circumstances; considerations include age, intelligence, experience, length of military service, whether the environment was custodial or coercive, and knowledge of the right to refuse consent; consent must be more than acquiescence to a claim of lawful authority; the expressed object of the search generally defines the scope of the consent
3. the evidence in the present case clearly supports the judge’s finding that appellant validly consented to the initial search of his residence; in light of the stated purpose of the search (to search the house for clues to a woman's death), appellant’s calm demeanor, and his apparent understanding of the agents’ objectives, the military judge did not abuse her discretion in finding appellant’s consent to have been voluntary and valid
4. while searching pursuant to appellant’s valid consent, agents found items indicative of criminal activity, but unrelated to the woman's death and therefore beyond the scope of appellant’s consent; the agents promptly stopped their search and properly obtained a search authorization from a military magistrate; the search authorization was for, among other things, items of U.S. Government property, including Government-owned CDs; we hold that the magistrate’s search warrant authorized an agent to search appellant's binder; the agent was justified in opening the binder because it was a place where CDs might reasonably be kept; once inside the binder, having observed what appeared to be a falsified award certificate, the agent had probable cause to believe the item was contraband or evidence of a crime, and he was authorized under the plain view doctrine to seize the certificate therein
5. law enforcement officials conducting a lawful search may seize items in plain view if the officials are acting within the scope of their authority, and they have probable cause to believe the item is contraband or evidence of a crime

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

1. we review a military judge’s evidentiary ruling for abuse of discretion; the military judge’s findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record; we review conclusions of law de novo; we will 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