U.S. v. Olson, 74 M.J. 132

First Principles: Constitutional Matters: Search and Seizure

1. the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent

Military Justice Personnel: Military Judge: Discretion

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. (in this case, the military judge’s finding that appellant voluntarily consented to the search of her home was not clearly erroneous under the totality of the circumstances where the military judge applied the Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) and determined that ((1) appellant’s liberty was not restricted, (2) law enforcement agents did not threaten or bully appellant into consenting, (3) appellant was inferentially aware of her right to refuse to consent based on some knowledge of law enforcement tactics, (4) appellant was upset on learning from law enforcement agents that her husband had been arrested, but in spite of this, she had the ability to make a rational decision, (5) appellant did not consult with counsel because she had not been informed that she was a suspect and had not been advised of her rights, and (6) there were no prior violations of appellant’s rights; as such, appellant’s consent to search was a product of her free and unconstrained choice, and not a result of duress or coercion, express or implied, and the military judge did not abuse his discretion in admitting evidence derived from that consent to search)

Core Criminal Law Subjects: Evidence: Generally

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect

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

1. the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent

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

1. the Fourth Amendment protects persons from unreasonable searches of, and seizures from, their homes; a warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions, one of which is a search that is conducted pursuant to consent
2. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
3. searches may be conducted of any person or property with lawful consent; to be valid, consent must be given voluntarily; the test for voluntariness is whether the consent was appellant’s own essentially free and unconstrained choice or was her will overborne and her capacity for self-determination critically impaired
4. the prosecution has the burden of proving consent to search by clear and convincing evidence
5. whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances
6. (in this case, the military judge’s finding that appellant voluntarily consented to the search of her home was not clearly erroneous under the totality of the circumstances where the military judge applied the Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) and determined that ((1) appellant’s liberty was not restricted, (2) law enforcement agents did not threaten or bully appellant into consenting, (3) appellant was inferentially aware of her right to refuse to consent based on some knowledge of law enforcement tactics, (4) appellant was upset on learning from law enforcement agents that her husband had been arrested, but in spite of this, she had the ability to make a rational decision, (5) appellant did not consult with counsel because she had not been informed that she was a suspect and had not been advised of her rights, and (6) there were no prior violations of appellant’s rights; as such, appellant’s consent to search was a product of her free and unconstrained choice, and not a result of duress or coercion, express or implied, and the military judge did not abuse his discretion in admitting evidence derived from that consent to search)

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

1. the prosecution has the burden of proving consent to search by clear and convincing evidence

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

1. a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect
2. in reviewing a military judge’s finding that a consent to search was voluntary, an appellate court reviews the evidence in the light most favorable to the prevailing party at trial; and it will not overturn a military judge’s finding that a consent to search was voluntary unless it was unsupported by the evidence or clearly erroneous
3. although recognizing that voluntariness of a consent to search is determined from the totality of the circumstances, an appellate court focuses on six nonexclusive Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) to assist in analyzing the voluntariness of a consent to search: (1) the degree to which the suspect’s liberty was restricted, (2) the presence of coercion or intimidation, (3) the suspect’s awareness of her right to refuse to consent based on inferences of the suspect’s age, intelligence, and other factors, (4) the suspect’s mental state at the time, (5) the suspect’s consultation, or lack thereof, with counsel, and (6) the coercive effects of any prior violations of the suspect’s rights