United States v. Olson

UNITED STATES, Appellee

v.

Brittany N. OLSON, Airman First Class
U.S. Air Force, Appellant

No. 14-0166
Crim. App. No. S32034

United States Court of Appeals for the Armed Forces

Argued January 27, 2015

Decided April 2, 2015

STUCKY, J., delivered the opinion of the Court, in which
ERDMANN, RYAN, and OHLSON, JJ., joined. BAKER, C.J., filed a
separate concurring opinion.

Counsel

For Appellant: Captain Jeffrey A. Davis (argued).

For Appellee: Major Mary Ellen Payne (argued); Lieutenant
Colonel Katherine E. Oler and Gerald R. Bruce, Esq. (on brief);
Captain Richard J. Schrider.

Military Judge: Joshua Kastenberg

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Olson, No. 14-0166/AF

Judge STUCKY delivered the opinion of the Court.

We granted review to determine whether the military judge

erred by denying Appellant’s motion to suppress the fruits of a

law enforcement search of her residence. We hold that the

military judge’s finding that Appellant voluntarily consented to

the search was not clearly erroneous, and he did not abuse his

discretion in admitting the seized evidence.

I. Posture of the Case

A special court-martial composed of officer members

convicted Appellant, contrary to her pleas, of violating a

lawful general regulation by possessing drug paraphernalia;

recklessly spoiling her residence; possessing ketamine, a

Schedule III controlled substance; and larceny of 1000 pills of

cyclobenzaprine, military property of the United States.

Articles 92, 109, 112a, 121, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 892, 909, 912a, 921 (2012). Appellant was

sentenced to a bad-conduct discharge, confinement for four

months, forfeiture of $978 pay per month for four months, and

reduction to the lowest enlisted grade. The convening authority

reduced the period of forfeitures to three months but otherwise

approved the adjudged sentence.

A panel of the United States Air Force Court of Criminal

Appeals affirmed the approved findings and sentence. United

States v. Olson, No. S32034 2013 CCA LEXIS 822, at *8, 2013 WL

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5436496, at *3 (A.F. Ct. Crim. App. Sept. 11, 2013)

(unpublished). This Court set aside that judgment and remanded

for a hearing on whether the panel that decided her case was

properly constituted. United States v. Olson, 73 M.J. 126

(C.A.A.F. 2013) (summary disposition). A differently

constituted panel reaffirmed the approved findings and sentence,

without reference to whether the initial panel was properly

constituted. United States v. Olson, No. S32034 (rem), 2014 CCA

LEXIS 175, at *8, 2014 WL 1301527, at *3 (A.F. Ct. Crim. App.

Mar. 18, 2014).

II. Background

After holding a suppression hearing addressing the

voluntariness of Appellant’s consent to the search of her

residence, the military judge made findings of facts summarized

below.

In early August 2011, Appellant’s supervisor contacted the

Air Force Office of Special Investigations (AFOSI), reporting

that Appellant’s husband, a civilian, might be a source of drugs

on the installation. On August 17, 2011, agents of the AFOSI

had Appellant travel to the AFOSI detachment headquarters to be

interviewed, and she arrived about 11:00 a.m. At the request of

the AFOSI agents, she relinquished her cell phone during the

interview. Her phone was not searched.

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Appellant was taken into a conference room, not a small

interview room. She was not restrained in any manner. The

agents did not intimidate her through threats or loud conduct.

She completed an information form. The agents advised Appellant

that her husband was suspected of distributing illegal drugs on

base and that he had been arrested by Calvert County, Maryland,

police. The agents asked for consent to search her residence,

which she was reluctant to give. Appellant wanted to telephone

her husband but was dissuaded from doing so by the agents. At

the time, Appellant resided off base with her husband in

Maryland, although he had been absent from the house since July.

During a smoke break outside the building, an agent tried to

convince her to consent to the search. Appellant understood

that the agents could try to convince her to consent, and she

worried that they were trying to get her in trouble.

The military judge noted that Appellant testified on the

motion that the agents had told her they would get a search

warrant if she declined to consent but that none of the agents

confirmed that. He did not make a finding as to whether an

agent actually made the statement about getting a search

warrant. Instead, he concluded: “Whether or not this statement

was made, the accused may have inferred or deduced that this

statement was made or was the case based on the surrounding

circumstances and her own knowledge of law enforcement.”

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At approximately 1:00 p.m., Appellant provided consent for

the agents to search her home. The military judge found that

the agents never informed her that she was a suspect prior to

her providing consent: “The consent form does not include a

statement of suspicion or knowledge of wrongdoing.” Appellant

drove to her residence, followed by the AFOSI agents, who, with

the assistance of local civilian police, searched the residence

between 2:00 p.m. on August 17, and 12:40 a.m. on August 18.

At about 1:00 a.m. on August 18, Appellant, under Article

31, UCMJ, 10 U.S.C. § 831 (2012), rights advisement, provided

consent to search her vehicle, and at 4:00 a.m. she admitted

knowing that drug paraphernalia was located in her residence.

She also consented to a urinalysis.

At trial, Appellant moved to suppress the fruits of the

search of her residence and all derivative evidence, including

her confession, arguing that her consent was involuntary.

III. Discussion

“A military judge’s decision to admit or exclude evidence

is reviewed for an abuse of discretion.” United States v.

Jasper, 72 M.J. 276, 279 (C.A.A.F. 2013). A military judge

abuses his discretion if “his findings of fact are clearly

erroneous or his conclusions of law are incorrect.” United

States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014), reconsideration

denied, 73 M.J. 264 (C.A.A.F. Mar. 24, 2014).

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The Fourth Amendment protects persons from unreasonable

searches of, and seizures from, their homes. U.S. Const. amend

IV. 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.” Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973) (internal quotation marks and citations omitted).

“Searches may be conducted of any person or property with

lawful consent.” Military Rule of Evidence (M.R.E.) 314(e)(1).

“To be valid, consent must be given voluntarily.” M.R.E.

314(e)(4). 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.’” United States v. Watson,

423 U.S. 411, 424 (1976) (quoting Bustamonte, 412 U.S. at 225).

The prosecution has the burden of proving consent by clear and

convincing evidence. M.R.E. 314(e)(5).

“[W]hether 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.” Bustamonte, 412 U.S. at 227; see United States

v. Piren, 74 M.J. 24, 28 (C.A.A.F. 2015); M.R.E. 314(e)(4). We

review the evidence in the light most favorable to the

prevailing party at trial. Piren, 74 M.J. at 28. “We will not

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overturn a military judge’s finding that a consent to search was

voluntary unless it is unsupported by the evidence or clearly

erroneous.” United States v. Kitts, 43 M.J. 23, 28 (C.A.A.F.

1995); accord Piren, 74 M.J. at 28.

Although recognizing that voluntariness is determined from

the totality of the circumstances, this Court has focused on six

nonexclusive factors to assist in analyzing the voluntariness of

a consent to search. United States v. Wallace, 66 M.J. 5, 9

(C.A.A.F. 2008). As explained below, the military judge applied

his findings of fact to each of the six factors in deciding that

Appellant voluntarily consented to the search:

“(1) [T]he degree to which the suspect’s liberty was

restricted.” Id. Although he recognized that Appellant’s

liberty was nominally restricted, because the AFOSI agents held

Appellant’s cell phone during the interview, the military judge

found that Appellant’s liberty was not restricted. This finding

is not clearly erroneous. Although in addition to the cell

phone sequestration, Appellant was directed to go to the AFOSI

offices and she was escorted by an agent while she took a smoke

break to think about consenting to the search, these incidents

did not amount to restrictions on her liberty. As the military

judge found, Appellant “was not placed in a locked room,

handcuffed or physically restrained and prevented from leaving.

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She was not escorted to AFOSI and she was free to leave at any

time between 1100 and 1300 hours on 17 August.”

“(2) [T]he presence of coercion or intimidation.” Id.

The military judge found that the AFOSI agents did not threaten

or bully Appellant into consenting.

“(3) [T]he suspect’s awareness of her right to refuse to

consent based on inferences of the suspect’s age, intelligence,

and other factors.” Id. The military judge found that

“[i]nferentially,” Appellant “was aware of her right to refuse

to consent,” based on “some knowledge of law enforcement

tactics.” We conclude that Appellant’s knowledge of her right

to refuse to consent was actual, not just inferential.

Appellant signed a consent for search and seizure form that

included the following language: “I know that I have the legal

right to either consent to a search, or to refuse to give my

consent. . . . I also understand that if I do not consent, a

search cannot be made without a warrant or other authorization

recognized in law.”

Appellant was a married, twenty-six-year-old high school

graduate, who had attended some college. She had been in the

Air Force for four years. She felt free to ask an AFOSI agent

questions about the consent to search form and did not sign

until after she had taken a smoke break so she could think about

it. During that break, Appellant told an AFOSI agent that she

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was aware that agents tried to talk people into doing things

they might not otherwise do.

“(4) [T]he suspect’s mental state at the time.” Id. The

military judge found that Appellant “was upset on learning from

AFOSI that her husband had been arrested but in spite of this

she had the ability to make a rational decision.”

“(5) [T]he suspect’s consultation, or lack thereof, with

counsel.” Id. The military judge found that 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. We note

that the consent to search form which Appellant signed stated

that she had been advised “that the nature of the offense(s) of

which I am suspected (matters concerning which I may have

knowledge) is/are as follows: Art. 112a wrongful use,

possession, or distribution of controlled substances.”

“(6) [T]he coercive effects of any prior violations of the

suspect’s rights.” Id. The military judge found that there

were no prior violations of the accused’s rights but expressed

concern that Appellant was actually a suspect and perhaps should

have been advised of her right to counsel. AFOSI agents may not

interrogate or request a statement from a suspect without first

informing her of her right to remain silent and her right to

counsel. M.R.E. 305(c); Article 31(b), UCMJ. Although

Appellant was a suspect and should have been advised of her

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rights, this failure did not result in a coercive effect. No

statements Appellant made before she was advised of her rights

were entered into evidence.

On the whole, we agree with the military judge’s specific

findings as to the Wallace factors. His finding that Appellant

voluntarily consented to the search of her home is not clearly

erroneous under the totality of the circumstances. Appellant’s

consent to search was a product of her free and unconstrained

choice, not a result of duress or coercion, express or implied.

The military judge did not abuse his discretion in admitting

evidence derived from that consent to search.

IV. Judgment

The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.

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BAKER, Chief Judge (concurring):

The lead opinion concludes: “Although Appellant was a

suspect and should have been advised of her rights, this failure

did not result in a coercive effect.” United States v. Olson,

__, __ (9-10) (C.A.A.F. 2015). This is a fair conclusion drawn

from the Wallace factors. United States v. Wallace, 66 M.J. 5,

9 (C.A.A.F. 2008). There is no evidence the consent was

coerced. However, the issue in this case is whether Appellant’s

consent to search was voluntary. To determine the consent was

voluntary, the totality of the circumstances must be considered,

which may include more than just the six Wallace factors.

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). This case

requires that we consider the additional fact that Appellant was

not told she was a suspect when she gave her consent in order to

determine whether her consent was voluntary.

Therefore, I would look in particular at factor six of the

Wallace factors addressing the “coercive effects of any prior

violations of the suspect’s rights” as well as beyond the

Wallace factors to answer the question. Wallace, 66 M.J. at 9.

Why, notwithstanding the fact that the military judge found

Appellant should have been read her Article 31(b), Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 831(b) (2012), rights,

does the totality of the circumstances nonetheless favor a

finding of voluntary consent? See Schneckloth, 412 U.S. at 227.
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Knowledge that one is a suspect, for example, might well impact

one’s decision to consult with counsel, factor five of the

Wallace framework. Wallace, 66 M.J. at 9. Voluntary consent

must also be willful and knowing. See Schneckloth, 412 U.S. at

225-26. What is voluntary in the context of a continuum of

ordinary law enforcement tactics will vary and thus is measured

by the totality of the circumstances. Wallace, 66 M.J. at 9

(citing Schneckloth, 412 U.S. at 226-27). In this case, those

circumstances include the obfuscation by law enforcement

officers as to whether Appellant was a suspect at the time she

was asked for consent while in the Air Force Office of Special

Investigations (AFOSI) control.

However, the totality of the circumstances includes four

other facts as well. Appellant knew, or should have known, she

was a potential suspect. Special Agent Burch testified that

Appellant told him during the cigarette break that she was “well

aware of the things we [law enforcement] say and how we word

things to get people to do what we want.” She signed a form

indicating she did not have to consent. The military judge

observed and found Appellant to be a person of sufficient age,

experience, and intelligence to understand and adapt to the

circumstances with which she was confronted. Finally, while

Appellant may have felt some pressure to consent while under

AFOSI control, in contrast to many such scenarios, Appellant was

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then given the opportunity to drive alone in her car for forty

minutes while guiding AFOSI to her residence, and did so without

wavering in her decision to consent. In my view, Appellant’s

consent not only was not coerced, it was voluntary. Therefore I

concur.

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