U.S. v. Weston, 67 M.J. 390

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized

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

1. the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized
2. ordinarily, warrantless entry into a person’s house is unreasonable per se

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

1. while the rule against warrantless entry is vigilantly guarded, the voluntary consent of an individual possessing authority is one carefully drawn exception; voluntary consent to search may be obtained from the person whose property is to be searched or from a fellow occupant who shares common authority over the property
2. the consent to search of one who possesses common authority or other sufficient relationship over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared; common authority over a home extends to all items within the home, unless the item reasonably appears to be within the exclusive domain of the third party; additionally, common authority can be obtained via mutual use of the property by a person with joint access or control
3. express refusal to search a home by a physically present co-occupant renders a warrantless search based on the consent of another co-occupant unreasonable and invalid as to him; the specific combination of the physical presence of the cotenant at the scene, plus the cotenant’s immediate challenge renders the warrantless search unreasonable and invalid
4. reasonableness of a warrantless search due to voluntary consent is a simple binary proposition; either there is consent or there is not
5. where one party has joint access and control to a property and voluntarily consents to a search, a warrantless search is reasonable, unless a nonconsenting party who shared authority over the premises was physically present and immediately objected to the search; the term “nonconsenting” is general and inclusive; it encompasses all who do not expressly consent, including those who refuse, those who remain silent, and those who are not asked
6. the search of appellant’s house was reasonable based on his wife’s consent, where his wife possessed common authority over the premises, where appellant was a nonconsenting party who shared authority over the premises, but was not physically present to provide an immediate challenge to his wife’s consent to search, and where there was no evidence that appellant was removed from his house so that he could not effectively object to its search; physical presence and immediate challenge are required for a nonconsenting tenant’s objection to nullify the reasonableness of the search

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

1. the Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized
2. ordinarily, warrantless entry into a person’s house is unreasonable per se

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

1. an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion, and it reviews the judge’s findings of fact for clear error and the judge’s conclusions of law de novo