United States v. Wallace

UNITED STATES, Appellee

v.

Jeremy R. WALLACE, Staff Sergeant
U.S. Air Force, Appellant

No. 07-0194
Crim. App. No. 36174

United States Court of Appeals for the Armed Forces

Argued October 17, 2007

Decided February 13, 2008

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

Counsel

For Appellant: Captain Vicki A. Belleau (argued); Lieutenant
Colonel Mark R. Strickland and Major John N. Page III (on
brief).

For Appellee: Captain Jason M. Kellhofer (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).

Military Judge: Anne L. Burman

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wallace, No. 07-0194/AF

Judge STUCKY delivered the opinion of the Court.

We granted Appellant’s petition to determine whether the

military judge erred when he denied a defense motion to suppress

the results of a search of Appellant’s computer. We hold that

the military judge correctly denied the motion and affirm the

decision of the United States Air Force Court of Criminal

Appeals.

I.

A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification each of carnal knowledge, sodomy with a child, and

possessing child pornography, in violation of Articles 120, 125,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

920, 925, 934 (2000), respectively. The sentence adjudged by

the court-martial, and approved by the convening authority,

consisted of a dishonorable discharge, confinement for six

months, and reduction to the lowest enlisted grade.

II.

Appellant’s conviction stems from the sexual relationship

he pursued with a fifteen-year-old female military dependent,

TND. In the course of pursuing their investigation, two special

agents of the Air Force Office of Special Investigations (AFOSI)

questioned Appellant on April 8, 2003. After being read his

Article 31, UCMJ, 10 U.S.C. § 831 (2000), rights, Appellant

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spoke with the agents, only to ultimately request a lawyer. He

agreed to proceed without a lawyer when investigators could not

make contact with the Area Defense Counsel. According to

Appellant’s testimony, the agents informed him that their

investigation would reveal enough evidence to sentence Appellant

to confinement for life and would require Appellant to register

as a sex offender. Since Appellant admitted that he

communicated with TND via e-mail and instant messenger, the

AFOSI agents explained that they wanted to search Appellant’s

personal computer for evidence. Appellant signed an AF Form

1364, entitled, “Consent for Search and Seizure,” and consented

to the general search of his home and computer.

After questioning Appellant, both AFOSI agents escorted him

back to his house, where the three met another agent (apparently

recruited to help disconnect and transport the computer),

Appellant’s first sergeant, and a chaplain. Appellant’s wife

arrived home shortly thereafter. Though he initially led the

agents to his computer, once Appellant and his wife noticed the

agents removing it, they objected. He testified that he told

the agents the following:

[The computer] has our life on it. It has our photo
albums on it. It’s got our banking on it. All of our
financial stuff is on there. You know, I use it to do
all of our bill paying and everything else. Our
online business is on there. I was like “You can’t
take it.” Then my wife even started going nuts at
that time.

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In making her findings of fact on consent to the computer’s

removal, the military judge apparently relied on the testimony

of the chaplain present at the search. He testified that

Appellant protested when the investigators began removing the

computer and that Appellant ultimately acquiesced –- stating,

“Well, okay” –- after the agents explained “they had to take

it.” That is, after Appellant expressed his displeasure with

the seizure of his computer, one of the investigators explained

that they had to take the computer as a matter of routine. Only

then, and in apparent resignation to the investigators’ actions

(according to the military judge) did Appellant acquiesce to the

seizure.

The investigators then removed the computer and transported

it to the laboratory. The day-long forensic analysis revealed

the e-mail and chat traffic between Appellant and TND, as well

as files containing child pornography. Following standard

practice, AFOSI agents copied the computer’s hard drive. A

judge advocate at the legal office telephoned investigators on

April 10, 2003 to report that Appellant had formally revoked his

consent. In response to this development, the agents obtained a

search authorization from a military magistrate. One of the

agents testified that even if Appellant had never provided

consent, or revoked the previously given consent, he would have

sought search authorization from the magistrate in any event.

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At trial, Appellant’s defense counsel made a motion to

suppress all evidence obtained from the search of Appellant’s

computer on the theory that Appellant involuntarily consented in

the first place or, alternatively, revoked consent when he told

agents not to take the computer. The military judge denied the

motion and concluded that Appellant had freely consented and

only withdrew consent on April 10, 2003 after child pornography

had been discovered on the computer. She also found that even

if Appellant had revoked his consent at the search site, the

Government would have inevitably discovered the images because

there was probable cause to search for e-mails and instant

messages related to Appellant’s relationship with TND. The Air

Force Court of Criminal Appeals affirmed those findings. United

States v. Wallace, 2006 CCA LEXIS 282, 2006 WL 3085641 (A.F. Ct.

Crim. App. Oct. 30, 2006) (unpublished).

III.

Appellant argues that the search of his home should have

been more limited in scope and, in any event, should have

stopped after he revoked his consent and merely acquiesced to

the color of authority. Under Appellant’s theory, the military

judge erred when she admitted the evidence of child pornography

from the computer’s hard drive.

We review that ruling for an abuse of discretion. United

States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004). Findings

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of fact and conclusions of law are reviewed under the clearly

erroneous and de novo standards, respectively. Id.

We find that even though Appellant initially consented to a

general search of his home and computer, his subsequent

exhortation to the AFOSI agents revoked any consent to seize the

computer. However, while Appellant’s ultimate acquiescence to

the seizure came under pressure from authority, we find no error

in the military judge’s denial of Appellant’s motion to suppress

because AFOSI would have inevitably discovered the child

pornography pursuant to a validly executed search authorization

based on probable cause.

A.

Military Rule of Evidence (M.R.E.) 314(e)(3) states that

consent to search “may be limited in any way by the person

granting consent, including limitations in terms of time, place,

or property and may be withdrawn at any time.” Appellant argues

that because he gave his consent to search while under the

impression that AFOSI agents would merely take copies of certain

e-mails, the agents’ decision to take the computer itself went

beyond the limits that he had imposed on the search in the first

place. M.R.E. 314(e)(3).

That argument does not fit the facts of this case.

Appellant’s signed “Consent for Search and Seizure” form shows

that he explicitly consented to a broad search that allowed

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AFOSI agents to search Appellant’s “residence –- 118-1 Maine St.

TAFB (Travis Air Force Base), CA; [and his] computer.” The form

expressly gives investigators permission to “take any letters,

papers, materials, articles or other property they consider to

be evidence of an offense.” It is the objective reasonableness

of the consent -- not Appellant’s supposed impression -- that

controls.

M.R.E. 314(e)(3) implements the limited scope rule of

Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973), which

requires investigators to account for any express or implied

limitations on a consent to search. Those limitations, however,

cannot be determined on the basis of the subjective intentions

of the consenting party. As the Supreme Court concluded in

Florida v. Jimeno, 500 U.S. 248 (1991), the standard is “that of

‘objective’ reasonableness -- what would the typical reasonable

person have understood by the exchange between the officer and

the suspect?” Id. at 251 (rejecting the accused’s attempt to

suppress evidence of cocaine possession by arguing that while he

consented to a general car search at a traffic stop, he believed

that consent did not permit the officer to open a closed bag

that ultimately contained cocaine). Clearly, a reasonable

person could conclude that an authorization permitting the

search and seizure of “my computer” would permit AFOSI

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investigators not only to search, but also to remove the

computer from the premises.

B.

Whatever the scope of his initial consent, Appellant argues

that the military judge erred when she denied Appellant’s motion

to suppress the evidence because Appellant clearly revoked that

consent when he stated “[y]ou can’t take [the computer].”

Appellant, however, conflates two separate concepts: the search

and the seizure. His exhortation may have revoked his consent

to seize the computer, but disapproval of the seizure cannot,

without more, affect the consent to search in the first place.

A seizure of property, for purposes of the Fourth

Amendment, occurs “when there is some meaningful interference

with an individual’s possessory interest in . . . property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984). As such, a

seizure can occur either with or without an attendant search.

See, e.g., Soldal v. Cook County, 506 U.S. 56, 62 (1992)

(holding that a police tow of tenant’s mobile home to dispossess

that tenant constituted a seizure under the Fourth Amendment

because the “Amendment protects property as well as privacy”).

In either case, the search and the seizure necessitate separate

analyses under the Fourth Amendment. See Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (noting that

the warrantless seizure of blood from railroad employees and the

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subsequent chemical analysis of that blood constituted separate

invasions of the employees’ privacy interests). If searches and

seizures are separate concepts, consent to one is not, without

more, consent to the other; similarly, revoking consent to one

does not of itself revoke consent to the other.

Appellant signed a “Consent for Search and Seizure” that

clearly gave AFOSI the right to search Appellant’s residence and

computer and to take away anything they considered evidence of

an offense. His objection –- “[y]ou can’t take it” –- clearly

embraced the seizure of the computer, and nothing more. As

such, while Appellant consented to both a search and any

attendant seizures, his pleas to investigators to leave the

computer revoked his consent to this particular seizure, but not

to the search.

C.

Appellant’s attempt, pursuant to Georgia v. Randolph, 547

U.S. 103 (2006), to pin evidence of consent revocation on his

wife’s objection to the computer’s seizure fails because

Randolph is inapplicable to this case. Randolph stands for the

narrow proposition that “a warrantless search of a shared

dwelling for evidence over the express refusal of consent by a

physically present resident cannot be justified as reasonable as

to him on the basis of consent given to the police by another

resident.” Id. at 120. Randolph would not permit a non-accused

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co-resident to supersede the wishes of the accused co-resident

because, after all, Fourth Amendment rights “are personal rights

which, like some other constitutional rights, may not be

vicariously asserted.” Alderman v. United States, 394 U.S. 165,

174 (1969).

D.

As soon as Appellant revoked his consent to the seizure,

AFOSI agents informed him that “they would have to take the

computer” as “a matter of routine.” Appellant acceded, but

argues that this second so-called consent amounted to mere

passive acquiescence to the color of authority in violation of

Schneckloth v. Bustamonte. We agree, and find that under the

totality of the circumstances, Appellant’s acquiescence did not

constitute free and voluntary consent to the computer’s seizure

after revocation of his initial consent to seize.

We determine voluntariness from all the circumstances.

Schneckloth, 412 U.S. at 226-27 (applying a totality-of-the-

circumstances analysis and citing cases in which the Supreme

Court has analyzed the facts for voluntariness on its own).

The Air Force court has laid out the following non-

exhaustive factors with respect to the voluntariness of consent:

(1) the degree to which the suspect’s liberty was restricted;

(2) the presence of coercion or intimidation; (3) the suspect’s

awareness of his right to refuse based on inferences of the

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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. United States v. Murphy, 36 M.J. 732, 734 (A.F.C.M.R.

1992); United States v. Baker, 45 M.J. 538, 541 (A.F. Ct. Crim.

App. 1996) (adopting the test from Murphy). Based on this test,

which we adopt, Appellant’s ultimate consent to the computer’s

seizure lacks sufficient indicia of voluntariness.

Appellant clearly faced restrictions on his liberty. The

military judge stated in her findings of fact that three

individuals escorted Appellant from the AFOSI building to his

home –- the two AFOSI agents who conducted the initial

interrogation and Appellant’s first sergeant, Master Sergeant

Kemp. Another AFOSI agent joined, along with a chaplain. That

Appellant was never technically under apprehension is not

dispositive; no court that has analyzed this prong has

considered apprehension determinative. See, e.g., United States

v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir. 1988) (noting

that the defendant was not free to leave the inspection area at

a Border Patrol checkpoint even though he was never technically

in custody or under arrest). Authority figures, one of whom was

Appellant’s first sergeant and thus responsible for unit

discipline, not only helped conduct the search, but also

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escorted Appellant from the AFOSI building to his home. If

Appellant faced no restrictions on his liberty, the escort would

have been unnecessary.

The facts of the escort and the presence of several

authority figures also created a coercive and intimidating

atmosphere that stifled Appellant’s inclination to refuse

consent to the computer’s seizure once the AFOSI agents informed

Appellant that they had to take the computer as a matter of

routine.

Furthermore, though Appellant was a twenty-six-year-old

staff sergeant with nearly eight years of service, it is

doubtful that he knew he could withdraw consent once given. The

signed consent form does not explicitly state that the signer

may withdraw consent; Article 31, UCMJ, warnings do not include

an addendum clarifying that consent, once given, can be

withdrawn; and none of the AFOSI agents testified that he

advised Appellant that he could withdraw his consent at any

time. What is more, when Appellant objected to the removal of

the computer, the seizing agent stated that they “would have to

take the computer” as a matter of routine procedure. Regardless

of his prior belief, Appellant likely believed that he could not

refuse consent given the agent’s assurance that seizure was a

routine requirement.

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Finally, Appellant never consulted counsel throughout his

questioning and the subsequent search. As such, since four of

the six Murphy factors weigh against a finding of voluntary

consent, we hold that Appellant’s ultimate consent to the

seizure of the computer was not a valid consent, but rather mere

acquiescence to the color of authority.

E.

Notwithstanding the validity of the seizure, the military

judge did not err when she denied Appellant’s motion to suppress

because, as she found, the evidence would have been inevitably

discovered pursuant to a validly executed warrant.

The doctrine of inevitable discovery creates an exception

to the exclusionary rule allowing admission of evidence that,

although obtained improperly, would have been obtained by

another lawful means. Nix v. Williams, 467 U.S. 431, 444

(1984). M.R.E. 311(b)(2) embodies this exception, stating that

“[e]vidence that was obtained as a result of an unlawful search

or seizure may be used when the evidence would have been

obtained even if such unlawful search or seizure had not been

made.” This Court explained the doctrine in United States v.

Kozak, 12 M.J. 389, 394 (C.M.A. 1982) and, more recently, in

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

Court upheld the legality of a warrantless search of the

appellant’s car and seizure of stolen stereo equipment because

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overwhelming probable cause and routine police procedure made

discovery of the evidence inevitable. Id. at 210-11.

In this case, the images of child pornography on

Appellant’s computer hard drive would similarly have inevitably

been discovered. As the military judge correctly concluded, had

Appellant not ultimately consented to the seizure of the

computer, the AFOSI investigators would have sought and obtained

a search authorization based on probable cause. After all,

during his interrogation, Appellant admitted to a sexual

relationship with a young girl with whom he communicated mostly

via e-mail and instant messenger. This alone encouraged

investigators to focus on the computer as a source of evidence

and created sufficient probable cause to allow AFOSI to obtain

an authorization to search for, and seize e-mails and messages

between Appellant and TND. Though the authorization would have

been limited to e-mails and messages, one of the AFOSI

investigators testified that the forensic software employed

would have skimmed the computer’s hard drive, recovering all

saved data. As the military judge concluded, investigators

would have had to sift through all the captured data to find

relevant e-mail traffic. As such, the files containing child

pornography would have been inevitably discovered through this

valid search. It should also be noted that although we have

ultimately concluded that the initial consent to seize had been

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terminated as a matter of law, the fact that the law enforcement

officers proceeded on the belief that they had consent

underscores that this is not a case involving a deliberate

intent to evade the warrant requirement.

IV.

We therefore find no error in the military judge’s denial

of Appellant’s motion to suppress and affirm the decision of the

United States Air Force Court of Criminal Appeals.

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BAKER, Judge (concurring in the result):

I concur with the result reached by the Court today, and

agree that Randolph v. Georgia, 547 U.S. 103 (2006), does not

apply to this case. However, I write separately to distinguish

my views regarding the inevitable discovery doctrine. The

majority’s approach parts from United States Supreme Court

precedent as well as one of the fundamental objectives of the

Fourth Amendment, which is to encourage, and in most cases,

compel the government to obtain a warrant (or in military

context command authorization) before conducting a search or

seizure encompassed within the Amendment’s scope. Further, I

would affirm this case on the ground that Appellant consented to

the subsequent seizure of his computer at his house. In this

respect, the military judge’s findings of fact are not clearly

erroneous.

I. Inevitable Discovery

The Court’s decision regarding the inevitability of the

discovery of the child pornography on Appellant’s computer is

predicated on at least three assumptions: first, the Court

assumes that, because questioning of Appellant and the victim

revealed that the two communicated over the Internet, AFOSI

agents would have used that information to show probable cause

in an application to search Appellant’s computer for e-mails and

instant messages; second, the Court assumes that a detached
United States v. Wallace, No. 07-0194/AF

magistrate would have granted a search warrant based on that

evidence; and third, it is assumed that, having received

authorization to search for e-mails and instant messages, AFOSI

would have inevitably also discovered the images of child

pornography on Appellant’s hard drive. This string of

assertions does not bear the indices of inevitability of

discovery found in cases such as Nix v. Williams, 467 U.S. 431

(1984), and the doctrine that evolved from that case. Rather,

the majority adopts in its place a “could have-would have”

approach to the warrant requirement.

First, there is no evidence in the record that AFOSI

actually attempted to obtain a search warrant.1 Instead, the

Court today essentially holds that the unadjudicated strength of

the prosecution’s case was sufficient to permit a violation of

Appellant’s right against unreasonable search and seizure. Such

an interpretation of the inevitable discovery doctrine is too

broad to be constitutionally tenable. As the Fourth Circuit has

held, the inevitable discovery doctrine “cannot rescue evidence

obtained via an unlawful search simply because probable cause

existed to obtain a warrant when the government presents no

evidence that the police would have obtained a warrant. Any

1
Had the AFOSI at least dispatched an agent to obtain a warrant,
the subsequent search could arguably have been admissible under
the inevitable discovery doctrine. See United States v. Lamas,
930 F.2d 1099, 1102 (5th Cir. 1991).

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other rule would emasculate the Fourth Amendment.” United

States v. Allen, 159 F.3d 832, 842 (4th Cir. 1998); see also

United States v. Cherry, 759 F.2d 1196, 1206 (5th Cir. 1985);

United States v. Johnson, 22 F.3d 674, 683 (6th Cir. 1994);

United States v. Mejia, 69 F.3d 309, 319 (9th Cir. 1995); United

States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). Today’s

holding creates an exception that swallows the rule, against

which Justice Harlan warned when he wrote, “[w]ere federal

officers free to search without a warrant merely upon probable

cause to believe that certain articles were within a home, the

provisions of the Fourth Amendment would become empty phrases,

and the protection it affords largely nullified.” Jones v.

United States, 357 U.S. 493, 498 (1958).

The Court today points to our previous holdings in United

States v. Kozak, 12 M.J. 389 (C.M.A. 1982), and United States v.

Owens, 51 M.J. 204 (C.A.A.F. 1999), for the proposition that the

inevitable discovery doctrine would permit the admission of

evidence obtained in violation of a defendant’s Fourth Amendment

rights. Neither of these cases is applicable here, however,

since in each case the admission of the evidence was justified

on grounds derived from a recognized exception to the warrant

requirement, and independent from the unlawful search. In

Kozak, the Court concluded that Criminal Investigation Division

(CID) agents who illegally opened a briefcase containing stolen

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goods would inevitably have discovered the same as part of a

search incident to the arrest of the suspect who later claimed

the briefcase. 12 M.J. at 393. Moreover, Owens concerned the

search of an automobile, a location that permits warrantless

searches, so long as probable cause can be shown. 51 M.J. at

209; see Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971).

In the present case, no similar exception to the warrant

requirement exists to independently justify the search of

Appellant’s computer. It bears repeating: in order for the

evidence to have been admissible under the inevitable discovery

doctrine, the Government would have to have shown that

investigators “possessed, or were actively pursuing, evidence or

leads” that independently “would have led to the discovery of

the evidence.” Kozak, 12 M.J. at 394. No such active,

independent line of investigation was being pursued in this case

before the issue of Appellant’s consent arose.

Second, assuming that AFOSI could have searched Appellant’s

computer for e-mails and instant message traffic, it does not

follow that discovery of the child pornography would have been

inevitable. That the search software at the time of the

examination of Appellant’s computer was too primitive to permit

a focused search for e-mails and instant messages does not

excuse the resulting violation of Appellant’s Fourth Amendment

rights.

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II. Consent to Seize and Search

Although I disagree with the majority’s application of

inevitable discovery, I would affirm this case. Like the

majority, I find the critical factual point to have occurred in

Appellant’s home. Having revoked his consent to the initial

search and seizure, Appellant either consented anew to the

seizure of his computer or merely acquiesced to that seizure in

the face of the law enforcement presence he encountered. I also

agree with the majority that the six-part factors approach in

United States v. Murphy, 36 M.J. 732, 734 (A.F.C.M.R. 1992), is

an appropriate mechanism with which to evaluate this issue.

However, while there are arguments on both sides, I balance the

factors differently than the majority and conclude that

Appellant did not merely acquiesce to authority in consenting to

the search of his computer.

The first factor is the degree to which the suspect’s

liberty was restricted (e.g., whether the suspect was under

escort, under arrest or apprehension, held in the office of law

enforcement agents, or called to the commander’s office).

Murphy, 36 M.J. at 734. This Court has adopted an objective

test as to whether one is in police custody. United States v.

Catrett, 55 M.J. 400, 409 (C.A.A.F. 2001). Furthermore, the

United States Supreme Court has stated that “[i]n determining

whether an individual was in custody, a court must examine all

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of the circumstances surrounding the interrogation, but the

ultimate inquiry is simply whether there [was] a formal arrest

or restraint on freedom of movement of the degree associated

with a formal arrest.” Stansbury v. California, 511 U.S. 318,

322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983)) (quotation marks omitted).

In this case, the record shows that Appellant was brought

neither to the AFOSI office nor his home under arrest.

Appellant did not feel he was free to leave, but he was neither

handcuffed nor restrained in any way. Thus, even if Appellant

subjectively believed that he was not free to leave, the

military judge objectively found otherwise. This ruling is not

clearly erroneous. United States v. Rader, 65 M.J. 30, 32

(C.A.A.F. 2007). Of course, had the military judge found that

Appellant was not free to leave, that factor alone would not

necessarily negate his consent, since none of the factors

identified in Murphy are necessarily determinative. 36 M.J. at

734.

The second factor concerns the presence of any coercion,

promises, direct orders, threats (including threats that if

consent to search is withheld, an authority to search will be

obtained), or other forms of intimidation or pressure. Id.

Here, the military judge specifically found that “Staff Sergeant

Wallace’s consent was not given under coercion, force or

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threats.” Again, there is nothing in the record that would show

that such a finding was clearly erroneous. The military judge’s

determination is supported in many respects by the presence of

the base chaplain during the search of Appellant’s home. First,

the presence of the chaplain tempers concern that Appellant was

in some manner coerced into consenting to an overbearing or

overwhelming law enforcement presence, because the chaplain was

someone to whom Appellant might have reached out if he was

feeling unduly pressured.

Second, the chaplain served as a neutral witness to the

proceedings. Thus, the military judge was not limited to

considering the statements of witnesses who might have had

biases one way or the other.

Finally, even considering the chaplain’s testimony in a

light most favorable to Appellant, the chaplain did not testify

to a coercive atmosphere. He stated:

I would not use the word “protest.” I would probably use
the word “resisted.” . . . . He initially said “Don’t
take the computer.” But then they said “Well it is just a
matter of routine. We’ve got to do this.” His response
was “Well, okay.” And then he seemed resigned to them
taking it at that particular point.

To me this does not describe consent “quickly and easily

given” as the military judge stated. But it does look more like

acceptance of the inevitable, with some resignation, rather than

“mere acquiescence” to a law enforcement presence. Therefore,

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in light of this testimony, and the military judge’s conclusions

drawn from it, I would conclude that the military judge’s

findings of fact were not clearly erroneous and that her

conclusions of law were correct.

Alternatively, if one discounts the effect of the presence

of the chaplain, the question of whether Appellant was coerced

into consenting would ultimately come down to Appellant’s word

against those of the AFOSI agents, and this is insufficient to

find clear factual error on the part of the military judge. As

the United States Supreme Court noted in Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985), “[w]here there are two

permissible views of the evidence, the fact finder’s choice

between them cannot be clearly erroneous.”

The third Murphy factor considers Appellant’s awareness of

his right to refuse consent. 36 M.J. at 732. The record

reflects that the consent form Appellant initially signed

included the acknowledgment, “I also understand that if I do not

consent, a search cannot be made without a warrant or other

authorization recognized in law.” However, Appellant was not

expressly advised he could refuse consent during the subsequent

search and seizure at this home. Neither does the record

reflect facts sufficient to infer such knowledge based on

Appellant’s age, intelligence, training and experience.

Arguably, the record favors a finding that Appellant was not

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aware that he could revoke his consent. Although Appellant was

a noncommissioned officer with almost eight years of military

service, this might be insufficient -- in light of the agents’

failure to inform him he could revoke consent -- to presume

Appellant was aware of the nuances of his Fourth Amendment

rights.

With respect to the fourth Murphy factor, 36 M.J. at 734,

it seems intuitive that an individual placed in Appellant’s

position -- accused of a crime, his house searched, and facing

the consequences of his alleged act on his family relations --

would be under considerable stress. However, such anxiety

cannot, by itself, serve to undermine consent. If the

alternative were true, every defendant accused of a crime would

be found to lack free will.

The fifth factor listed in Murphy is whether the suspect

had consulted with counsel. 36 M.J. at 734. The military judge

found that during questioning by AFOSI, Appellant requested

counsel, and was told by AFOSI agents that the Area Defense

Counsel was unavailable. However, it was Appellant who

subsequently reinitiated the line of questioning that led to the

search of Appellant’s home, and Appellant waived his right to

counsel before questioning resumed. Thus, Appellant is hard

pressed to argue that he was denied counsel.

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United States v. Wallace, No. 07-0194/AF

The line between true consent and mere acquiescence in the

presence of law enforcement can be quite ephemeral. At some

point, I imagine many accused persons who become aware that

their conduct has been discovered acquiesce to law enforcement

requests because they feel, in a descriptive sense, the

inevitable consequence of their actions. From the accused’s

standpoint, this would seem much closer to mere acquiescence

than meaningful choice and consent. The real question then is

not whether the accused merely acquiesced in the face of law

enforcement pressure or presence, but rather, whether or not he

was aware that he had a choice to consent or not. That is, of

course, different from concluding that as a result of the stress

of the situation, one has no real good choice but only bad

options that lead to the same result.

When the totality of the circumstances is considered in

this case, it becomes evident that four of the five Murphy

factors relevant to the case at hand argue for concluding that

Appellant fell into this latter category, and as a matter of

law, consented to AFOSI seizing and searching his computer.

Here, Appellant’s age, experience, intelligence, and military

grade are relevant. We are not dealing with a new enlistee.

Additionally, the presence of the chaplain and his testimony are

also central to this conclusion.

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United States v. Wallace, No. 07-0194/AF

Thus, while there is nothing inevitable about the discovery

of the child pornography on Appellant’s computer, his valid

consent rendered the evidence properly admissible. I therefore

concur in the result.

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United States v. Wallace, No. 07-0194/AF

RYAN, Judge (concurring in the result):

I agree with the reasoning undertaken in Part II of Judge

Baker’s separate opinion, join him in concluding that Appellant

consented to the search of his computer, and thus concur in the

result reached by the Court today.