United States v. McMahon

UNITED STATES, Appellee

v.

Dennis MCMAHON, Staff Sergeant
U.S. Army, Appellant

No. 02-0876

Crim. App. No. 9901020

United States Court of Appeals for the Armed Forces

Argued April 9, 2003

Decided June 26, 2003

CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.

Counsel

For Appellant: Captain Kathy Martin (argued); Colonel Robert
D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr. and Major
Imogene M. Jamison (on brief); and Captain Brian Heslin.

For Appellee: Captain Tami L. Dillahunt (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and
Major Mark L. Johnson (on brief).

Military Judges: Nancy A. Higgins and Stephen V. Saynisch.

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. McMahon, No. 02-0876/AR

Chief Judge CRAWFORD delivered the opinion of the Court.

Pursuant to his pleas, Appellant was convicted of false

official statements, larceny of military property of a value

greater than $100, and wearing an unauthorized award, in

violation of Articles 107, 121, and 134, Uniform Code of

Military Justice, 10 U.S.C. §§ 907, 921, and 934 (2000).

Appellant was sentenced to a bad-conduct discharge, confinement

for eight months, total forfeitures, a reprimand, and reduction

to pay grade E-1. The convening authority approved the adjudged

sentence, and credited Appellant with 24 days of pretrial

confinement credit. The Army Court of Criminal Appeals affirmed

the findings and sentence in an unpublished per curiam opinion,

and we granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING
APPELLANT’S MOTION TO SUPPRESS EVIDENCE FROM
APPELLANT’S HOME AND STORAGE AREA WHERE, UNDER
THE TOTALITY OF THE CIRCUMSTANCES, APPELLANT DID
NOT VOLUNTARILY CONSENT TO THE SCOPE OF THE
SEARCH CONDUCTED.

II. WHETHER THE MILITARY JUDGE ERRED WHEN SHE FOUND
THE GOVERNMENT WOULD HAVE INEVITABLY DISCOVERED
THE EVIDENCE STOWED IN APPELLANT’S HOME AND
STORAGE AREA.

III. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION
WHEN SHE DENIED APPELLANT’S MOTION TO SUPPRESS
EVIDENCE FOUND BY THE CID AGENTS; EVIDENCE WHICH
WAS OUTSIDE THE SCOPE OF THE MILITARY
MAGISTRATE’S SEARCH AUTHORIZATION.

For the reasons set forth below, we affirm.

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FACTS

The military judge made the following findings of fact, on

which we rely in rendering our decision:

At approximately 0427 hours on 5 May 1999,
paramedics and an ambulance were sent to 5457 North
7th Street, Davis Hill Quarters Area, Fort Lewis,
Washington. Mrs. McMahon called “911” when she found
that Ms. Billie R. Etzel, her aunt[,] had apparently
died in her sleep on the living room couch. Military
police patrols also went to the quarters.

At approximately 0435 hours on 5 May 1999,
Special Agent (SA) Chaffee, United States Army
Criminal Investigation Division Command (CID)[,] was
called and informed of the death. SA Chaffee was the
duty agent. SA Chaffee and SA Hoter [] went to the
quarters. They arrived at the quarters between 0500
and 0530 hours.

Pursuant to CID Regulation 195-1, CID
investigates deaths on Army installations, even those
involving natural causes, because there is a
governmental interest involved.

The occupants of the government quarters were SSG
Dennis McMahon, Mrs. Kathy McMahon, their two children and
Ms. Billie R. Etzel, the deceased.

Upon his arrival, SA Chaffee spoke to the
Military Police Duty Officer who was coordinating with
SSG McMahon’s unit and arranging for lodging for the
family. Enroute [sic] to the quarters and while at
the quarters, SA Chaffee also coordinated by telephone
with his team chief, SA VanAllstyne.

SA McCarthy was also told to come to the death
scene. He stopped at the CID office and picked up
equipment before going to the scene.

. . . .

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At approximately 0540 hours, SA Hoter interviewed
Mrs. McMahon[,] who related that Ms. Etzel[,] her
aunt[,] had been living in the quarters for about a
month. Ms. Etzel had lost her job and her house. Ms.
Etzel’s health was declining. She was losing mobility
and needed help changing and moving around. Mrs.
McMahon and her aunt had argued about her aunt’s
drinking. Mrs. McMahon had taken a wine bottle from
Ms. Etzel. At some point, the agents were told that
the wine bottle had been placed in the storage shed.

SA Hoter told Mrs. McMahon that they would need
to gather evidence, take measurements, and look
around. Mrs. McMahon nodded affirmatively that she
understood. SA Hoter did not ask for consent for a
search of the house from Mrs. McMahon. Mrs. McMahon
was very upset and a decision was made to wait for SSG
McMahon. Mrs. McMahon had been told that arrangements
were being made for her and her children to leave the
house. She was worried about leaving her dog. The
interview lasted 15-20 minutes. SA Hoter[] would have
asked Mrs. McMahon for consent, if her husband had not
returned. Her testimony was credible.

SSG McMahon’s unit released him and he returned
to his quarters, at an unspecified time prior to 0600
hours, but after the CID agents had arrived on the
scene.

At some point, SA McCarthy saw SA Chaffee talk to
SSG McMahon. SA Chaffee identified himself to SSG
McMahon and told him that they have to conduct an
investigation and look through his house for
medications that Mrs. Etzel may have taken. SA
Chaffee told SSG McMahon that it would take several
hours and asked him for permission. SSG McMahon said
yes. SA Chaffee was clear that they needed to look in
the house. SSG McMahon did not ask any questions. He
was calm and concerned about his family. SA Chaffee
wanted to get the family out of the quarters and into
the Lodge.

SSG McMahon asked SA Chaffee how long they would
be gone. The response to this question was a few
hours. SSG McMahon told his wife that they would not
need to pack a suitcase. Mrs. McMahon stopped packing
the suitcase that she had been packing.

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Inside the quarters, at approximately 0558 hours,
SA Hoter introduced herself to SSG McMahon. SSG
McMahon admits that SA Hoter spoke to him after he
arrived at his quarters[,] that she told him that his
aunt was dead, wife was upset, that he could not enter
the living room because it was a crime “scene”.

SA Hoter spoke to SSG McMahon again before the
family left. She explained what CID and the military
police would be doing, e.g. taking photographs,
measurements, and collecting evidence. SA Hoter asked
SSG McMahon would it be okay to look around quarters,
and he replied [“]do what you have to do[”] or words
to that effect. SA Hoter said to SSG McMahon that
“foul play” was not suspected, but that [CID] must
investigate. She said that when the body was taken
away and work done that the family could come back.

SA Hoter also asked them for the keys to the
house. SSG McMahon and Mrs. McMahon gave her the keys
to the house. SA Hoter told them that they would use
the keys to secure the house, when they were finished.
SA Hoter asked them if anyone else had keys to the
house and SSG McMahon said that the only other keys
were in the housing office.

SSG McMahon and his wife had access to all rooms
of the house except the living room, at all times
during this sequence of events. Further, SSG McMahon
went into his yard to check his dog, into the bedroom
to check his wife, and spoke to at least five people
(SA Hoter, SA Chaffee, MP Duty Officer, SSG MP, and
his wife) from the time he arrived at his quarters
until he departed.

At approximately 0630 hours, SSG McMahon and his
family departed the quarters. At this time, SA
McCarthy, SA Hoter and SA Chaffee began inspecting the
house.

SA Hoter and SA Chaffee noted the quarters were
in disarray, piles of items including military
equipment, books, papers, computer items were sitting
on furniture and the floor throughout the quarters.
The quarters smelled of urine and feces. The floors

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were dirty and sticky, as if items had been spilled
and not cleaned up.[]

SA Hoter and SA Chaffee began their work in the
living room.

SA McCarthy began his work in the kitchen
conducting a visual survey and opening cupboards and
looking in them.

SA McCarthy wrote down the names of the
medicines, which were in a container on the kitchen
refrigerator. SA McCarthy went to the master bedroom.
He proceeded to go around in a circle looking at the
dresser, the desk tops and piles of items in the room.
SA McCarthy also opened a closet door in the hallway,
which he did not know was a closet at that time.

While working, SA Chaffee observed military
sleeping bags and blankets lying on the couch in the
living room. SA Chaffee checked a storage shed and
observed an inflatable boat with a National Stock
Number indicating it was military property in the
storage shed. SA McCarthy observed several Windows CD
ROMS with tapes and markings indicating that they were
property of the U.S. government, a CD ROMS [sic]
addressed to a Commander in the master bedroom and a
closet in the hallway containing enough military
equipment and field gear for eight people.

The equipment in the closet was stacked top to
bottom and visible by opening a door. The equipment
included containers for night vision goggles, and a
large quantity of chemical lights. The inflatable boat
was in a shed and was visible when the door of the shed
was opened. The CD ROMS were in the open (plain view)
sitting on a desktop.

The agents intended to complete their
investigation and leave the quarters as quickly as
possible. SA Chaffee noted the presence of the
inflatable boat as unusual and noted the items SA
McCarthy brought to his attention again as unusual. SA
Chaffee wanted SA McCarthy to stay focused on the death
investigation.

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The master bedroom closet contained SSG McMahon’s
and Mrs. McMahon’s clothing on hangers, a box
containing SSG McMahon’s boots and a cedar chest. The
cedar chest was 30 inches high; three ammunition cases
were stacked on top the cedar chest. Two cases were
stacked on top of each other bringing the combined
height of the cedar chest, ammunition boxes to about
four feet. The ammo cases are olive green with canary
yellow lettering over one inch high on the side.

As SA Chaffee approached the door to leave the
room after speaking to SA McCarthy about the CD ROMS,
he looked in the open closet door. A box caught his
eye, which had another National Stock Number on it.
Given all the “military equipment” they had observed,
another box caught SA Chaffee’s attention. As he
approached the closet to look he saw the ammunition
boxes. He reached in and pulled out the ammunition
boxes. At approximately that time, he exclaimed “what
the heck or hell”. SA Chaffee was concerned for
everyone’s safety and opened the boxes. SA Chaffee
observed TNT and other explosives in the boxes. He
directed everyone to leave the quarters.

After a telephonic briefing on 5 May 1999, Major
Kash, a part-time military magistrate[,] authorized a
search at 0806 for “items of explosive ordnance and
any associated hardware and any items of US government
property and TA-50.” (AE XXVII) Oral authorization
was given to search due to the presence of explosive
ordnance. The authorization and affidavit [were]
subsequently reduced to writing.

. . . .

During the search for explosives and US
government property, SA McCarthy noticed that SSG
McMahon had made some certificates on his printer and
had a collection of “clip art.” SA McCarthy saw a
letter, which stated that SSG McMahon was not awarded
a Bronze Star. SA McCarthy subsequently opened a
notebook/three ring binder on a shelf. The notebook
contained a certificate awarding a Bronze Star to SSG
McMahon.

At 1715 hours on 5 May 1999, SA Chaffee advised
SSG McMahon of his rights under Article 31, UCMJ and a

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Rights Waiver Warning Certificate was prepared and
signed. SSG McMahon waived his rights and admitted
that he falsified his records to reflect the award of
a Bronze Star.

At approximately 1315 hours on, [sic] 6 May 1999,
SA Rodriguez briefed Major Kash in person and a second
warrant was issued at 1420 hours for “personal home
computer equipment to include any storage media,
scanner, printer and Class A uniform with associated
awards and ribbons; and any other stolen government
property.”

Before trial, Appellant moved to suppress the evidence

seized from his home and storage area on the ground that it was

unlawfully obtained. The military judge denied the motion.

DISCUSSION

Appellant first argues that he did not consent to the

special agents’ initial search of the home. We disagree.

Because we hold that Appellant’s consent was valid, we need not

address the issue of inevitable discovery.

The military judge ruled that “[t]he evidence establishes

that there was consent not mere acquiescence” and that “[u]nder

the totality of the circumstances test, voluntary consent was

given.”

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. United States v. Reister,
44 MJ 409, 413 (1996). As we said in United States v.
Sullivan, 42 MJ 360, 363 (1995), “We will reverse for
an abuse of discretion if the military judge’s
findings of fact are clearly erroneous or if his

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decision is influenced by an erroneous view of the
law.”

United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999). The

evidence in the present case clearly supports the military

judge’s finding that Appellant validly consented to the initial

search.

The Fourth Amendment protects the “security of one’s

privacy against arbitrary intrusion by the police.” Schneckloth

v. Bustamonte, 412 U.S. 218, 242 (1973)(quoting Wolf v.

Colorado, 338 U.S. 25, 27 (1949)). 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. Id. at 219

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

Consent is valid only if it is "freely and voluntarily

given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

See also Military Rule of Evidence 314(e)(4)[hereinafter

M.R.E.]. The determination as to whether consent is voluntarily

given "is a question of fact to be determined from the totality

of all the circumstances." Schneckloth, 412 U.S. at 227. See

also United States v. Radvansky, 45 M.J. 226, 229 (C.A.A.F.

1996); M.R.E. 314(e)(4). Considerations include age,

intelligence, experience, length of military service, whether

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the environment was custodial or coercive, and knowledge of the

right to refuse consent. See United States v. Watson, 423 U.S.

411, 424-25 (1976); Schneckloth, 412 U.S. at 226-27; United

States v. Goudy, 32 M.J. 88, 91 (C.M.A. 1991); United States v.

Middleton, 10 M.J. 123, 133 (C.M.A. 1981); M.R.E. 314(e)(5).

Consent must be more than “acquiescence” to a claim of lawful

authority. Bumper, 391 U.S. at 549; United States v. McClain,

31 M.J. 130, 133 (C.M.A. 1990); M.R.E. 314(e)(4). The expressed

object of the search generally defines the scope of the consent.

Florida v. Jimeno, 500 U.S. 248, 251 (1991)(citing United States

v. Ross, 456 U.S. 798 (1982)).

The special agents clearly explained to Appellant their

intent to search the home for clues to Ms. Etzel’s death.

Special agent Hoter specifically described her plan to take

photographs and measurements and to collect evidence. Special

agent Chaffee was clear that finding medication was the primary

objective of their search. Moreover, Appellant was 34 years

old, a husband and father, and an experienced noncommissioned

officer with approximately 14 years of active duty service. The

military judge’s findings of fact indicate that when Appellant

interacted with the special agents, he was calm and did not ask

any questions. After speaking with the special agents,

Appellant handed them his keys, gathered his family and some

belongings, and departed the home. It was in this context that

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Appellant told the special agents to “do what you have to do,”

or words to that effect.

In light of the stated purpose of the search, Appellant’s

demeanor, and his apparent understanding of the special agents’

objectives, the military judge did not abuse her discretion in

finding Appellant’s consent to have been voluntary and valid.

While searching pursuant to Appellant’s valid consent, the

special agents found items indicative of criminal activity, but

unrelated to Ms. Etzel’s death and therefore beyond the scope of

Appellant’s consent. The special agents promptly stopped their

search and properly obtained a search authorization from a

military magistrate.

Nevertheless, Appellant claims that special agent

McCarthy’s search of the binder in which the falsified Bronze

Star certificate was found exceeded the scope of the

magistrate’s search authorization. We hold that the

magistrate’s first search warrant authorized special agent

McCarthy’s search of the binder. The search authorization was

for, among other things, government property, including

government CD ROMs. The special agent was justified in opening

the binder because it was a place where CD ROMs might reasonably

be kept. Once inside the binder, having observed what appeared

to be a falsified award certificate, special agent McCarthy was

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authorized under the plain view doctrine to seize the

certificate therein.

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.”

United States v. Fogg, 52 M.J. 144, 149 (C.A.A.F. 1999). The

touchstone of probable cause is the official’s “reasonable

ground for belief." United States v. Powell, 7 M.J. 435, 436

(C.M.A. 1979)(quoting Brinegar v. United States, 338 U.S. 160,

175-76 (1949)).

Special agent McCarthy lawfully entered Appellant’s bedroom

and began searching the binder for government property pursuant

to the terms of the first search authorization. Once lawfully

searching the binder, special agent McCarthy saw a Bronze Star

certificate that appeared -- in light of the clip art, computer-

generated certificates, and letter stating that Appellant was

not awarded a Bronze Star -- to have been falsified. This

discovery gave special agent McCarthy reasonable grounds to

believe -- in other words, probable cause -- that the

certificate may be evidence of a crime. In short because

special agent McCarthy was lawfully searching the binder, and

because he had probable cause to believe that the certificate

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therein was falsified, he was authorized under the plain view

doctrine to seize the certificate.

CONCLUSION

For these reasons, the military judge did not abuse her

discretion in denying the motion to suppress the evidence. The

decision of the United States Army Court of Criminal Appeals is

affirmed.

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