Petition for Writ of Certiorari — Collyer v. United States

In n the Supreme Court of the United States

OCTOBER TERM, 1987

JAMES W. COLLYER, II, PETITIONER

U.

JNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

COLONEL LEO L. SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of The Air Force

Bolling AFB

Washington, DC 20332-6128

(202) 767-1562

Attorneys for Petitioner

QUESTION PRESENTED

Whether petitioner's Fourth and Fifth Amendment rights

were violated, in contravention of Brewer v. Williams, 480

U.S. 387 (1977) and Edwards v. Arizona, 451 U.S. 477

(1981), by an investigator’s unlawful solicitation of

petitioner’s consent to search his person and his automobile,

following instructions to that investigator by petitioner's

counsel to avoid further contact with petitioner, where pett-

tioner’s right to counsel had been exercised.

(i)

TABLE OF CONTENTS

Page

CRA TO oi is oo ob bse Fa ene se |

Ce a re re ep en re % l

Constitutional and Statutory Provisions ....... 1-2

Shan OE PO COUG «uno oi 5 eee ea ee 2

Ressons for (yranting WE «oo ones cine is caverns 3

re ne wer ere pee er Sag A ee: )

TABLE OF AUTHORITIES

Cases:

Brewer v. Williams, 430 U.S. 387 (1977) ....... (i), 7

Edwards v. Arizona, 451 U.S. 477 (1981) ....... passim

Escobedo v. Illinois, 378 U.S. 478 (1964) ........ 5

Kirby v. Illinois, 406 U.S. 682 (1972) .......... 6

Michigan v. Jackson, 475 U.S. 625 (1986) ....... 6

Michigan v. Mosley, 423 U.S. 96(1975) ......... 7

Miranda v. Arizona, 384 U.S. 486 (1966) ....... 5, 6,8

Moran v. Burbine, 475 U.S. 412 (1986) ......... 6

Oregon v. Bradshaw, 462 U.S. 1039 (1983) ...... 5

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . 5, 6

United States v. Applewhite, 23 M.J. 196 (C.M.A.

BOT ono od va coc eins saneeoaee eee 5

United States v. Collyer, _.M.J.__ (C.M-A. 1987) 4

United States v. Harris, 19 M.J. 331 (C.M.A.

SOON ck dee ed aves beeen 5

United States v. Mendenhall, 446 U.S. 544, (1980) 6

United States v. Roa, 24 M.J. 297 (C.M.A. 1987) . passim

United States v. Tempia, 16 U.S.C.M.A 629, 37

CMLR. S40 C1087) ccc coe ie eee 5, 6

United States v Watson, 423 U.S. 411 (1976) .... 6

United States v. Wattenberger, 21 M.J.41(C.M.A.

1966) 20065005 eee 6

(ii)

A Fee ee ©

Page

Constitutions and Statutes:

OE ae passim

ee passim

i 7

28 U.S.C. § 1259(3) (Supp. II] 1985) ........... l

Uniform Code of Military Justice:

Article 67(h), 10 U.S.C. § 867(h) (Supp. III 1985) . l

Miscellaneous:

Exec. Order No. 12473, 49 Fed. Reg. 17152

A SE een an 2

Manual! for Courts Martial, 1984

Oe 2

ne 2

8 2. &

re 6

(ili)

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

JAMES W. COLLYER, I], PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

James W. Collyer, II respectfully prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Military Appeals entered in his case on July 28,

1987.

Opinions Below

The decision of the United States Air Force Court of

Military Review was issued on August 19, 1985 and is

reproduced in the Appendix to this Petition. The decision of

the United States Court of Military Appeals is not yet

reported. The advance sheet is reproduced in the Appendix.

Jurisdiction

The jurisdiction of this Court is invoked under 10 U.S.C.

§ 867(h) (Supp. III 1985) and 28 U.S.C. § 1259(8) (Supp. II]

1985). The judgment of the Court of Military Appeals was

entered on July 28, 1987.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated .. .

(1)

2

The Fifth Amendment provides:

No person shall be . . . compelled in any criminal case to

be a witness against himself, nor be deprived of life, liber-

ty, or property, without due process of law . . .

Rule 305 of the Military Rules of Evidence, Manual for

Courts-Martial, 1984, Pt. II], Exec. Order No..12473, 49 Fed.

Reg. 17152 (1984), provides, in pertinent part:

Rule 305. Warnings About Rights

(a) General Rule. A statement obtained in violation of

this rule is involuntary and shall be treated under

Mil.R.Evid. 304.

” * .

(e) Notice to Counsel. When a person subject to the

code who is required to give warnings under subdivision

(c) intends to question an accused or person suspected of

an offense and knows or reasonably should know that

counsel either has been appointed for or retained by the

accused or suspect with respect to that offense, the

counsel must be notified of the intended interrogation

and given a reasonable time in which to attend before the

interrogation may proceed.

(f) Exercise of rights. If a person chooses to exercise

the privilege against self-incrimination or the right to

counsel under this rule, questioning must cease im-

mediately.

Statement of the Case

On 20 March 1985, petitioner was convicted by a general

court-martial at RAF (Royal Air Force) Lakenheath, Suffolk,

England, on charges of larceny, forgery, making and utter-

ing checks with insufficient funds to cover them, making

false official statements and violation of a lawful general

regulation. He entered mixed pleas but was convicted on all

charges and was sentenced to confinement for five years, a

dishonorable discharge and other accessory penalties.

At trial, the defense moved to suppress certain items of

physical evidence seized from petitioner pursuant to a search

of his person and automobile and a subsequent warrant search

3

of his residence. (R. 22; App. Exhibit III).! The evidence

seized during the searches had served in part to supply the

probable cause on which the search warrant (search author-

ization in military parlance) for petitioner’s residence was

based. (R. 42-44). The trial judge denied the defense motion.

(R. 106).

The essential facts giving rise to the motion to suppress

evidence began on November 6, 1984, when officials at the

RAF Lakenheath branch of the American Express Interna-

tional Banking Corporation (AMEXCO), at which petitioner

had a checking account, became suspicious that petitioner

and two other persons, James J. Coll and James J. Colby,

were all one and the same person. (R. 37). This conclusion

was based upon handwriting comparison of various bad

checks negotiated at that bank which bore those names in the

signature block with information from petitioner's account.

(R. 38-39). When suspicion focused on petitioner, he was

brought by base investigative authorities to their offices for

questioning. (R. 40).

Earlier that day, petitioner had visited the base area

defense counsel, the military analogue to a public defender,

one Major Curtin. (R. 41). Major Curtin and _ petitioner

entered into an attorney-client relationship at that time. (R.

41). When petitioner was brought to the Air Force Office of

Special Investigations (OSI) building for questioning, Major

Curtin was already on the phone waiting to speak to the ques-

tioning agents. (R. 40-41). While petitioner waited in an inter-

view room, the lead agent, Special Agent Lukens, tele-

phonically spoke to Major Curtin. Major Curtin advised

Special Agent Lukens that he represented petitioner, and

Major Curtin then had a private telephone conversation with

petitioner (R. 41). After this conversation, Major Curtin

again got on the phone with Special Agent Lukens. The agent

' Notwithstanding petitioner’s guilty pleas to most of the individual

counts against him, Rule for Court-Martial (R.C.M.) 910(aX2) provides for

conditional guilty pleas, in which and upon consent of the prosecution,

adverse determinations of specified pretrial motions are preserved for ap-

pellate review. Petitioner's pleas in this case were conditional. If an accused

prevails on appeal, the rule authorizes withdrawal of the previously entered

plea. (App. Exhibit XVII; R. 107-108).

4

was instructed that petitioner was not going to answer ques-

tions or be interviewed and that he “didn’t have anything to

say.” (R. 41). Major Curtin also told Special Agent Lukens to

send petitioner to his (Curtin’s) office. (R. 40). Before allow-

ing petitioner to leave the OSI office, however, Special Agent

Lukens asked for and received from petitioner consent to

search his person and his automobile. (R. 42).

The search of petitioner disclosed a letter from the

AMEXCO bank to petitioner (stating that he had written

over five thousand dollars in dishonored checks), five hun-

dred dollars in cash, credit cards, check guarantee cards, and

a gas ration book. (R. 42-43). Following this search, a warrant

was obtained to search petitioner’s-residence. (R. 43-44).

There, his car and his house were searched, and various items

of evidence, including a Chartpak electronic marking kit,

stencils in the name of James J. Colby, a checkbook, and an

authorized signature card, were seized. (R.45-46; App. Ex-

hibit LX).

On mandatory review before the Air Force Court of

Military Review, petitioner’s convictions and sentence were

summarily affirmed. The Court of Military Appeals granted

discretionary review on essentially the same issue presented

here. 22 M.J. 94 (C.M.A. 1986). That court ultimately af-

firmed, relying on its own precedent in the case of United

States v. Roa, 24 M.J. 297 (C.M.A. 1987).? Judge Sullivan

dissented, citing his concurring opinion in United States v.

Roa. In that case, he had suggested that a request of an ac-

cused for consent to search knowing the person to be

represented by counsel and after an assertion of the right

against self incrimination-violates the “bright line” rule of

Edwards v. Arizona, 451 U.S. 477 (1981) (quotation added).

24 M.J. at 303.

Reasons for Granting the Writ

The erroneous perspective employed below by the govern-

ment in its argument and by the Court of Military Appeals

centered about a Fifth Amendment analysis, addressing only

2 Each of the three judges of the Court of Military Appeals wrote a

separate opinion in the Roa case, highlighting the need for this Court to

resolve this issue. (Appendix C).

EE

—

o

the question of whether a request for (or the giving of) con-

sent to search involves an interrogation (or self-incrimi-

nation), United States v. Roa, supra. Such was not, and is not,

the claim made by petitioner. Petitioner asserts, instead,

that, having invoked his right to counsel, and having had his

counsel prohibit the police from engaying in any further ques-

tioning of petitioner for any purpose, the action of the police

in violating their agreement with petitioner’s counsel

rendered the obtaining of the “consent” to search involun-

tary. While we recognize and do not dispute the prior deci-

sions of this Court holding that a request for a consent to

search has no Fifth Amendment impact, see, e.g., Schneckloth

v. Bustamonte, 412 U.S. 218, 241-242 (1973), the cireumven-

tion by the police of a suspect’s attorney-client relationship

does, we submit, raise an issue which must be considered

under a traditional, Fourth Amendment, “voluntariness”

analysis, and it is in this context that certain Fifth Amend-

ment principles are applicable by analogy.

If an accused “indicates in any manner and at any stage of

the process that he wishes to consult with an attorney there

can be no questioning.” Miranda v. Arizona, 384 U.S. 436,

444-45 (1966); Mil.R.Evid. 305(f). Furthermore, “an accused

... having expressed his desire to deal with the police only

through counsel, is not subject to further interrogation by the

authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges or conversations with the police.” Edwards v.

Arizona, supra, at 484-85 (1981). See also, Oregon v. Brad-

shaw, 462 U.S. 1039 (1983); United States v. Applewhite, 23

M.J. 196 (C.M.A. 1987); United States v. Harris, 19 M.J. 331

(C.M.A. 1985). This rule recognizes that “when an accused

has invoked his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot be estab-

lished by showing only that he responded to further police-

initiated interrogation even if he has been advised of his

rights.” 451 U.S. at 484. See also, Escobedo v. Lllinois, 37%

U.S. 478 (1964). The purpose of the warnings mandated in

Miranda, and subsequently required in thé military in United

States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967) is

6

“to dissipate the compulsion inherent in custodial interroga-

tion and, in so doing, guard against abridgement of the

suspect’s Fifth Amendment rights.” Moran v. Burbine, 475

U.S. 412, 89 L.Ed.2d. 410, 423 (1986) (emphasis added). See

also, Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality

opinion). Thus, in custodial interrogation situations, the right

to counsel has been applied derivatively by the Supreme

Court as a component of the Fifth Amendment in order to

protect the suspect from coercive aspects of custodial inter-

rogations. See, Edwards and Miranda, both supra; see also,

United States v. Wattenberger, 21 M.J. 41, 43 n.1 (C.M.A.

1985).

In this case, the same fundamental considerations of volun-

tariness which have been applied to justify Fifth Amendment

protections in a custodial interrogation situation should be con-

sidered in evaluating petitioner’s “consent” to search. The

starting point in this analysis is this Court’s long standing

recognition that the validity of any consent to search, whether

obtained from one in custody or not, hinges on whether the

consent was voluntary under the totality of the circumstances.

United States v. Mendenhall, 446 U.S. 544, 557 (1980); United

States v. Watson, 423 U.S. 411 (1976); Schneckloth v.

Bustamonte, supra; see Mil.R.Evid. 314(e). Theoretically and

practically, there is no distinction in circumstance sufficient to

justify application of anything less than the Edwards v.

Arizona rule to requests for consent to search. If Hdwards

operates to foreclose interrogation once the rights embraced

by that case are asserted, it is semantic artifice to say that the

same rights should not be so applied in a Fourth Armendment

context. Cf, Michigan v. Jackson, 475 U.S. 625 (1986)

(holding that if police initiate interrogation after an accused

asserts his Sixth Amendment right to counsel, any waiver of

the right to counsel for that interrogation is invalid). For ex-

ampie, it would be ludicrous to contend that the typical

criminal suspect, a layman uneducated in the intricacies of

constitutional law, knows that by invoking his right to counsel,

he is only seeking legal advice in a Fifth Amendment context;

the suspect undoubtedly retains an attorney for assistance in

the preservation of all of his constitutional rights, including

those guaranteed by the Fourth Amendment. ~

7

The constitutional question here is not unlike that faced by

this Court in Brewer v. Williams, 430 U.S. 387 (1977). In that

case a police officer functionally interrogated the defendant

while driving him to Des Moines, Iowa despite having

previously agreed with his attorney not to question him.

Although analyzed in terms of the Sixth Amendment right to

counsel, the Court held that the defendant had effectively

asserted his right to counsel by having his attorneys, acting

in an agency capacity, make clear to the police that no inter-

rogation was to occur during the journey. 430 U.S. at 405.

The analysis of Brewer v. Williams is persuasive in peti-

tioner’s case. As in Brewer, Major Curtin’s direction to in-

vestigative agents not to question petitioner and that_peti-

tioner “had nothing to say,” underscores broad based

representation for all constitutional purposes — as a matter of

federal constitutional law—not for purposes limited to the

Fifth or any other particularized amendment. To say other-

wise would be to impute to petitioner and laymen like him the

foreknowledge of vague constitutional concepts and law and

a competency to distinguish among those principles that in

reality cannot fairly be said to exist. As Justice White said,

concurring in the result in Michigan v. Mosley, 423 U.S. 96

(1975):

“(T]he reasons to keep the lines of communication be-

tween the authorities and the accused open when the

accused has chosen to make his own decisions are not

present when he indicates instead that he wished legal

advice with respect thereto. The authorities may then

communicate with him through an attorney. More to the

point, the accused having expressed his own view that he

is not competent to deal with the authorities without

legal advice, a later decision at the authorities’ insistence

to make a statement without counsel’s presence may

properly be viewed with skepticism.”

423 U.S. at 110, n.2 (White, J., concurring in the result).

As a consequence of both the representation by counsel and

the invocation of constitutional rights, the critical transgres-

sion is the reinitiation of contact with the petitioner in viola-

tion of the sanctity of the assertion and instruction by counsel.

8

This violation undermines the values sought to be protected

by decisions like Miranda and Edwards. It was only through

a limited but clever violation of petitioner’s attorney-client

relationship by the police that the transgression here related

to a Fourth Amendment issue, and it is irrelevant whether

the information sought to be elicited was incriminatory. The

question is one of fundamental voluntariness and preserving

the protections guaranteed in that regard by the Fourth

Amendment. A custodial “consent” obtained through an in-

tentional disregarding of a suspect’s attorney’s instructions is

no more voluntary than is the “waiver” of a Fifth Amendment

right to remain silent which might be obtained in violation of

Edwards. The holding of the lower courts to the contrary are

anomalies which beg to be corrected. See, United States v.

Roa, supra.

This case demonstrates the need to apply the prophylactic

rule of Edwards in the limited context of those instances

where attorneys representing suspects unequivocally convey

to police an instruction not to further communicate with that

suspect. Such a rule is necessary to ensure scrupulous police

adherence to constitutional protections, and recognizes that,

regardless of how the right to counsel is involved, laymen

cannot be expected to (and do not) particularize their invoca-

tion of that right within the context of any other specific

amendment within the Bill of Rights. The suspect who asks

for assistance of counsel does so in order to avail himself of

that assistance for all purposes related to his case. The police

should not be allowed to frustrate that purpose.

9

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be granted.

Respectfully submitted.

COLONEL LEO L. SERGI

(Counsel of Record)

CAPTAIN HENRY J. SCHWEITER

Defense Services Division

Office of The Judge Advocate

General of The Air Force

Bolling AFB

Washington, DC 20332

(202) 767-1562

Attorneys for Petitioner

SEPTEMBER 1987

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 53914/AF

CMR Dkt. No. 24859

UNITED STATES, APPELLEE

v.

JAMES W. COLLYER, II (253-72-3821),

APPELLANT

ORDER

On consideration of the specified issue (22 M.J. 94) in light

of United States v. Roa, 24 M.J.297(C.M.A. 1987), it is by the

Court this 28th day of July, 1987.

ORDERED:

That the decision of the United States Air Force Court of

Military Review is affirmed...

For the Court,

/s/ JOHN A. CUTTS, II]

Deputy Clerk of the Court

SULLIVAN, Judge (dissenting):

I dissent. See my separate opinion in United States v. Roa,

24 M.J. 297, 302 (Sullivan, J., concurring in the result).

(iaj

2a

APPENDIX B

UNITED STATES AIR FORCE COURT OF

MILITARY REVIEW

ACM 24859

UNITED STATES

Vv.

STAFF SERGEANT JAMES W. COLLYER, II, FR 253-72-3821

UNITED STATES AIR FORCE

19 AUG 1985

Sentence adjudged 20 March 1985 by GCM convened at

Royal Air Force, Lakenheath, England. Military Judge: N.

Steven Linder (sitting alone).

Approve sentence: Dishonorable discharge, confinement for

four (4) years and nine (9) months, forfeiture of all pay and

allowances and reduction to airman basic.

Before

SESSOMS, CANELLOS and CARPARELLI

Appellate Military Judges

: DECISION

PER CURIAM:

The approved findings of guilty and the sentence are cor-

rect in law and fact and, on the basis of the entire record, are

affirmed.

OFFICIAL:

/s/ ELVA J. SMITH

ELVA J. SMITH

Documents Examiner

Court of Military Review

3a

APPENDIX C

UNITED STATES COURT OF

MILITARY APPEALS

No. 53,581.

ACM 24730.

UNITED STATES, APPELLEE,

VU.

MICHAEL A. ROA, SENIOR AIRMAN, U.S.

AIR FORCE, APPELLANT.

July 27, 1987

Accused, senior airman, United States Air Force, was con-

victed by military judge sitting as general court-martial of

three specifications of dereliction of duty, three specifications

of larceny, two specifications of burglary, housebreaking,

and false swearing. The United States Air Force Court of

Military Review, 20 M.J. 867, affirmed. Review was granted.

The United States Court of Military Appeals, Cox, J., held

that request for consent to search accused’s off-base storage

locker did not violate accused’s right to counsel under Fifth

or Sixth Amendments.

Affirmed.

Everett, C.J., and Sullivan, J., filed separate opinions con-

curring in result.

Opinion

COX, Judge:

After mixed pleas, appellant was convicted by a military

judge sitting as a genera! court-martial of dereliction of duty

(three specifications), larceny (three specifications), burglary

4a

(two specifications), housebreaking, and false swearing, in

violation of Articles 92, 121, 129, 130, and 134, Uniform Code

of Military Justice, 10 U.S.C. §§ 892, 921, 929, 930, and 934,

respectively. His sentence to confinement for 4 years, partial

forfeitures, reduction to E-1, and a dishonorable discharge

was approved by the convening authority. The Court of

Military Review affirmed. 20 M.J. 867 (1985).

We granted review of the following specified issue:

WHETHER THE EVIDENCE OBTAINED FROM

THE SEARCH OF THE ACCUSED’S OFF-BASE

STORAGE LOCKER WAS OBTAINED IN VIOLA-

TION OF HIS RIGHT TO COUNSEL.

I hold that the request for consent to search did not violate

appellant’s right to counsel under the Fifth or Sixth Amend-

ments of the United States Constitution; Article 27, UCMJ,

10 U.S.C. § 827; United States v. McOmber, 1 M.J. 380

(C.M.A. 1976); or Mil.R.Evid. 305(e), Manual for Courts-

Martial, United States, 1969 (Revised edition).

On March 17, 1984, appellant and Captain Dennis Reimer,

both stationed at Davis-Monthan Air Force Base, Arizona,

were arrested by Tucson police officers while fleeing the

scene of a burglary. Two days later, Agent Freddie L.

Myloyde of the Air Force Office of Special Investigations

(OSI) called appellant’s commander and asked that appellant

report to the OSI office. Agent Myloyde planned to question

appellant about other burglaries that he was investigating.

After being advised of his rights, appellant stated that he

wanted to talk with his civilian attorney. No attempt was

made to interrogate appellant, but Agent Myloyde asked ap-

pellant to return to the OSI office after consulting with his

lawyer.

That same morning the Tucson police detective working on

appellant’s case stopped by the OSI office and briefed Agent

Myloyde on his independent investigation. Among other

things, he informed Agent Myloyde that he had received a

phone call from the manager of Kolb Road Self-Storage,

reporting that both appellant and Captain Reimer had rented

units at his self-storage facility. The manager recognized

their names from a newspaper account of the arrest.

—

da

Later that afternoon, Agent Myloyde ascertained that ap-

pellant had not returned to the OSI office. He called ap-

pellant’s commander and asked that appellant again report to

the OSI office. Appellant arrived shortly thereafter and was

asked if he had talked to his lawyer yet. Appellant replied

that he had and that he was “advised . . . not to discuss the in-

vestigation.” Agent Myloyde then asked appellant for con-

sent to search his locker at Kolb Road Self-Storage, his car,

and his house. Appellant indicated he would consent but

stated that he wanted to talk to his lawyer prior to signing

the consent form. Agent Myloyde advised appellant he could

refuse to consent, but appellant “still indicated that he would

be willing to consent.” For 25-to-30 minutes, appellant tried

calling his lawyer but was unable to get in touch with him.

Appellant then told Agent Myloyde “that he would go ahead

and sign the [consent-to-search] form and” inform his lawyer

of this later.

The consent-to-search form provided, in part:

I know that I have an absolute right to give my consent to

a search. I understand that, if I do consent to a search,

anything found in the search can be used against me ina

criminal trial or in any other disciplinary or ad-

ministrative procedure. I also understand that, if I de not

consent, a search cannot be made without a warrant or

other authorization recognized in law.

A search of the storage locker revealed a cache of property

later determined to be stolen. Appellant subsequently

withdrew his consent, so his house and car were not searched

on the basis of consent. :

The defense made a timely motion at trial to suppress the

results of the search, contending that appellant’s consent to

search was obtained in violation of his right to counsel. The

military judge and the Court of Military Review concluded

otherwise, however, recognizing the fundamental difference

between waiver of the Fourth-Amendment right against

unreasonable searches and the Fifth-Amendment right

against compelled self-incrimination.

The Fourth Amendment protects one’s privacy against

unreasonable searches and seizures by the police. A constitu-

ba

tionally valid basis for a reasonable search is consent. Unlike

the per se rules applicable to admissibility of a statement ob-

tained in a custodial interrogation, the validity of a consent to

search, whether obtained from one in custody Or not, hinges

on whether the consent was voluntary under the totality of

the circumstances. United States v. Watson, 423 U.S. 411, 96

S.Ct. 820, 46 L.Ed.2d 598 (1976); Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See

Mii.R.Evid. 314(e). No one factor is dispositive.

A limited Fifth-Amendment right to appointment and

presence of counsel at a custodial interrogation has evolved

“to dissipate the compulsion inherent in custodial interroga-

tion, and, in so doing, guard against abridgment of the

suspect’s Fifth Amendment Rights” Moran v. Burbine, 475

U.S. 412, 106 S.Ct. 1135, 1148, 89 L.Ed.2d 410 (1986).

Counsel’s presence at a custodial interrogation is believed to

assure “that statements made in the government-established

atmosphere are not the product of compulsion,” thereby

enhancing “the integrity of the fact-finding processes in

court.” Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct.

1602, 1623, 16 L.Ed.2d 694 (1966). On the other hand,

Fourth-Amendment protections have “nothing whatever to

do with promoting the fair ascertainment of truth at a

criminal trial.” Schneckloth v. Bustamonte, supra 412 U.S. at

242, 93 S.Ct. at 2055.

To safeguard the Fifth Amendment’s privilege against

compelled self-incrimination, the prophylactic rule of Ed-

wards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d

378 (1981), requires that when an accused invokes his right to

have counsel present during custodial interrogation, ques-

tioning must cease “until counsel has been made available to

him, unless the accused himself initiates further communica-

tion, exchanges, or conversations with the police.” /d. at

484-85, 101 S.Ct. at 1884-85. See United States v. Applewhite,

23 M.J. 196 (C.M.A. 1987). However, the privilege against

self-incrimination protects only testimonial evidence, not

physical evidence. Schmerber v. California, 384 U.S. 757, 86

S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Lloyd, 10

M.J. 172 (C.M.A. 1981). See Mil.R.Evid. 305(d)\(1). Neither

7a

Article 31, UCMJ, 10 U.S.C. § 831, nor Fifth-Amendment

safeguards are infringed in a request for consent to search,

as such a request is not interrogation, and the consent

thereby given is not a statement. United States v. Morris, 1

M.J. 352, 354 (C.M.A. 1976); United States v. Rushing, 17

U.S.C.M.A. 298, 38 C.M.R. 96 (1967); United States v.

Insani, 10 U.S.C.M.A. 519, 28 C.M.R. 85 (1989); United

States v. Thompson, 12 M.J. 993, 996 (A.F.C.M.R. 1982);

United States v. Rice, 3 M.J. 1094, 1102-1103 (N.C.M.R.), pet.

denied, 4 M.J. 163 (1977). See United States v. Stoecker, 17

M.J. 158 (C.M.A. 1984).

“The fact that consent was given is neutral and has no

tendency to show that the accused was guilty of any offense.”

United States v Spivey, 10 M.J. 7, 10(C.M.A. 1980) (Everett,

C.J., concurring in the result). Consent is not in itself in-

criminating; it merely provides a legal basis to conduct a

search which “obviates recourse by the Government to other

alternatives of lawful action that may be open to it.” United

States v. Rushing, 17 U.S.C.M.A. at 303, 38 C.M.R. at 101.

Cy. United States v. Nowling, 9 U.S.C.M.A. 100, 25 C.M.R.

362 (1958) (accused was suspected of pass violation, so

policeman should have given Article 31 warnings before

asking him to display pass); United States v. Taylor, 5

U.S.C.M.A. 178, 17 C.M.R. 178 (1954) (suspect should have

been warned under Article 31(b) before being asked to iden-

tify his clothing).

Because he was already represented by counsel, a fact well

known to investigators, appellant maintains that his consent

to search was obtained in violation of his Sixth-Amendment

right to counsel. I reject the notion that the Sixth-

Amendment right to counsel attaches at the point of inter-

rogation merely because the suspect has retained counsel.

The Supreme Court has explicitly addressed this argument,

stating:

(T]he suggestion that the existence of an attorney-client

relationship itself triggers the protections of the Sixth

Amendment misconceives the underlying purposes of the

right to counsel. The Sixth Amendment’s intended func-

tion is not to wrap a protective cloak around the

8a

attorney-client relationship for its own sake any more

than it is to protect a suspect from the consequences of

his own candor. Its purpose, rather, is to assure that in

any “criminal prosecutio[n]},” U.S. Const., Amdt. 6, the

accused shall not be left to his own devices in facing the

“prosecutorial forces of organized society.’” Maine v.

Moulton, . . . [474 U.S. 159] 106 S.Ct. [477] at 484 [S23

L.Ed.2d 481], (quoting Kirby v. Illinois, 406 U.S. [682] at

689 [92 S.Ct. 1877, at 1882, 32 L.Ed.2d 411], . . .). By its

very terms, it becomes applicable only when the govern-

ment’s role shifts from investigation to accusation. For it

is only then that the assistance of one versed in the “in-

tricacies ... of law,” ibid., is needed to assure that the

prosecutor’s case encounters “the crucible of meaningful

adversarial testing.” United States v. Cronic, 466 U.S.

648, 656 [104 S.Ct. 2039, 2045, 80 L.Ed.2d 647]...

(1984).

Moran v. Burbine, 106 S.Ct. at 1146.

Appellant also contends that the rule in United States v.

McOmber, supra, was violated by the investigator’s failure to

notify counsel when he requested appellant’s consent to

search. Relying on Article 27, rather than constitutional

grounds, we held in McOmber that

[o]nce an investigator is on notice that an attorney has

undertaken to represent an individual in a military

criminal investigation, futher questioning of the accused

without affording counsel reasonable opportunity to be

present renders any statement obtained involuntary

under Article 31(d) of the Uniform Code.

1 M.J. at 383 (emphasis added). The purpose of McOmber and

its progeny is to protect the right to counsel under Article 27

by assuring counsel a reasonable opportunity to be present at

any interrogation of the accused. United States v. Dowell, 10

M.J. 36, 40 (C.M.A. 1980). The notice-to-counsel requirement

of McOmber has been incorporated into Mil.R.Evid. 305(e).

By its terms, McOmber, as well as Mil.R.Evid. 305(e), is inap-

plicable to a request for consent to search, as such a request

is not questioning in the sense of “interrogation,” and consent

obtained is not a “statement” under Article 31. United States

Ya

v. Rushing, United States v. Insani, and United States v.

Rice, all supra. See United Slates v. Stoecker, 17 M.J. at

161-62.

“Consent to a search, like consent to the taking of a sample

of blood or fingerprints, is not subject to manipulative condi-

tions which endanger or derogate from the accused’s right to

a fair trial.” United States v. Rushing, 17 U.S.C.M.A. at 308,

38 C.M.R. at 101. Thus, there is no compelling need to create

yet another prophylactic rule by expanding McOmber to re-

quire that counsel be given an opportunity to monitor search

requests. I am not persuaded that this is necessary to assure

effective legal representation or to promote the truth-finding

process. Whether consent to search was freely and voluntari-

ly given can properly “be determined from the totality of all

the circumstances.” Schneckloth v. Bustamonte, supra 412

U.S. at 227, 93 S.Ct. at 2047. See United States v. Wallace, 11

M.J. 445 (C.M.A. 1981).

If the investigators had refused appeilant the opportunity

to contact his counsel or neglected to advise him that he could

refuse to consent to the search, that would weigh heavily

against a determination that the consent was voluntary. It is

undisputed, however, that appellant was given the opportuni-

ty to contact his lawyer. When he was unable to reach him,

appellant did not request a postponement until he could con-

sult with his lawyer. Instead, he suggested proceeding with

the search and informing his lawyer later. It is also clear that

appellant was aware that he did not have to consent to the

search and that anything discovered thereby could be used

against him. The determination by the military judge that ap-

pellant voluntarily consented to the search of his storage

locker is fully supported by the evidence. *

* Although | agree with Chief Judge Everett's concern reyarding use of a

communication to establish a proprietary interest in the item searched,

that is not a problem here. Certainly, it was not viewed as such by defense

counsel, who did not object on that basis at trial. Furthermore, as ap-

pellant’s “communication” was not introduced into evidence on the merits,

it does not appear that it was used by the factfinder in determining guilt.

| disagree with Judge Sullivan that the concept of inevitable discovery

under Nix vo Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377

10a

The decision of the United States Air Force Court of

Military Review is affirmed.

EVERETT, Chief Judge (concurring in the result):

The lead opinion points out that Edwards v. Arizona, 451

U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is intended

to protect the privilege against self-incrimination guaranteed

by the Fifth Amendment. Article 31, Uniform Code of

Military Justice, 10 U.S.C. § 831, has a similar purpose.

United States v. Howard, 5 U.S.C.M.A. 186, 17 C.M.R. 186

(1954); United States v. Eggers, 3 U.S.C.M.A. 191, 11 C.M.R.

191 (1953). Their concern is with interrogation, rather than

with unreasonable searches and seizures.

United States v. MeOmber, 1 M.J. 380, 382 (C.M.A. 1976),

established requirements to which military investigators are

subject “when they wish to question the suspect.” (Emphasis

added.) Likewise, Mil.R.Evid. 305(e) calls for notice to

counsel if investigators intend “to question” a suspect. In this

context, questioning is far different from requesting consent

to a search.

Indeed, interrogation is for the purpose of eliciting from a

suspect communications about the matter under investiga-

tion. However, a consent to search does not of itself com-

municate any information about the investigated crime; and

it is not a statement regarding an offense, see Art. 31(b).

Therefore, requesting consent to search property in which a

suspect has an interest is not prohibited by his prior request

(1984), is applicable under the facts of this case. The police detective

testified that there was no move underway to obtain a search warrant at

the time consent to search appellant’s locker was requested, as they had no

probable cause. The day after the consent search, a warrant was obtained

to search the locker. The detective testified, however, that absent the intor-

mation obtained from the consent search of the locker, they would not have

had probable cause to obtain a search warrant at that time. Neither the

military judge nor the Court of Military Review made any findings re-

garding inevitable discovery. Thus, I am not convinced that the evidence in

the locker would have ultimately and inevitably been discovered by lawful

means absent the consent search. Cf) United Stutes v. Silvestri, 787 F.2d

736 (ist Cir. 1986); United States v. Cherry, 759 F.2d 1196 (Sth Cir. 1985);

United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984), cert. denied, 471

U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985).

lla

for counsel, because Hdwards provides protection only as to

interrogation. Denial of a suspect’s request for counsel, along

with other circumstances, is to be considered in determining

whether his consent was given voluntarily, but it is not a

decisive fact. Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973). Thus, the request for

counsel did not preclude the military judge from ruling that

Roa’s consent to search his locker was voluntary.

A distinction must be made, however, between granting

consent to search property which already has been identified

by law-enforcement agents and identifying property for

those agents. Thus, in United States v. Taylor, 5 U.S.C.M.A.

178 17 C.M.R. 178 (1954), this Court ruled that Article 31(b)

had been violated when, in response to a request that he point

out his clothing, the suspect identified an overcoat in which

two marijuana cigarettes were found.

- The Supreme Court has recognized that authentication or

identification of documents may constitute a testimonial ut-

terance. Cf. United States v. Doe, 465 U.S. 605, 104 S.Ct.

1237, 79 L.Ed.2d 552 (1984); Fisher v. United States, 425

U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). As observed

by the Court in Fisher:

The act of producing evidence in response to a sub-

poena nevertheless has communicative aspects of its

own, wholly aside from the contents of the papers pro-

duced. Complaince with the subpoena tacitly. concedes

the existence of the papers demanded and their posses-

sion or control by the taxpayer. It also would indicate the

taxpayer’s belief that the papers are those described in

the subpoena.

Id. at 410, 96 S.Ct. at 1580. Therefore, Edwards precludes an

investigator from asking a suspect to communicate any infor-

mation as to the location of his property after he has made a

request for counsel.

According to the testimony of Dennis J. Morgan, a detec-

tive with the Tucson, Arizona, Police Department, the police

had received a phone call from Mr. Riesing, the manager of a

local self-storage facility, who “had read in the paper of the

arrest involving the Air Force personnel. He advised that he

12a

recognized both names as customers of his who had storage

facilities at his business.” Morgan furnished this information

to OSI Agent Myloyde, who was participating in the in-

vestigation of several burglaries of which Roa was suspected.

Myloyde then asked appellant “if he would sign a consent to

search form for his residence, for his storage facility”, and for

his vehicle. Ultimately Roa executed this form; and the three

men proceeded to the self-storage facility, where they met

Riesing. “We went to the facility that Airman Roa advised us

was his storage facility. Airman Roa took a key and unlocked

the lock and opened the door.” (Emphasis added.)

In my view, when Roa “advised” the two investigators

which locker was his, Hdwards was violated. Cf. United

States v. Applewhite, 23 M.J. 196 (C.M.A.1987). This viola-

tion of Roa’s Fifth-Amendment rights did not vitiate the con-

sent to search which he had already given. However, it

precluded use of any tacit or express communication by ap-

pellant to link him to the locker in which untimately the con-

traband was found.

Although it appears to me that apellant’s communication

was used by the factfinder to establish his proprietary in-

terest in the locker where the stolen property was found, |

conclude that this error was not prejudicial. Riesing, the

manager of the self-storage facility, had originally informed

the police that Roa and a confederate, Captain Reimer, each

had a locker there. Riesing was present when the two in-

vestigators brought appellant to the facility; and he pos-

sessed the contracts which Roa and Reimer had signed for

their respective lockers. Each of these contracts was shown

to the investigators before they left the facility; and each con-

tained the name of the renter and the number of his locker.

If Roa had not identified his locker, its location could have

been determined by the investigators quite readily. They

could simply have checked the number on the lease signed by

Roa. Under the circumstances, I would apply a variant of the

doctrine of inevitable discovery. Cf. Nix v. Whiteside, 475

U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); United States

v. Kozak, 12 M.J. 389 (C.M.A.1982). Even if investigators ini-

tially determined the location of Roa’s locker in an imper-

l3a

missible manner—namely, by asking him—and even if this

identification was part of the government evidence at trial,

appellant was not prejudiced. His lease, the contents of which

were available to the investigators at the time and later were

available to the court-nartial, provided all the information

necessary to determine which was Roa’s locker.

Furthermore, at trial, the defense did not raise any objec-

tion that, since he had identified a particular locker, Roa’s

privilege against self-incrimination was violated. If a specific

objection had been made concerning admissibility of the

locker identification, the Government could readily have

presented other evidence to establish which locker had been

rented by appellant.

Even though here we have a basis for affirming, this case

demonstrates the problems that may arise if, despite a re-

quest for counsel, an investigator asks a suspect for consent

to search his property. In the first place, the absence of

counsel may tend to make the voluntariness of the consent

more questionable. Even more importantly, it may be dif-

ficult to obtain consent without eliciting some incriminating

admissions— especially in the form of authentication or iden-

tification of evidence. Thus, after a request for counsel, the

safest course is for the investigator to deal with the suspect’s

attorney, rather than to rely on the distinction between con-

sent and communication.

SULLIVAN, Judge (concurring in the result):

The only aspect of this case that troubles me is the ques-

tioning of appellant while in custody. In my view, all question-

ing should have ceased since appellant was in custody, had

secured counsel, and had unequivocally asserted his rights

under Article 31, Uniform Code of Military Justice, 10 U.S.C.

§ 831. Cf. Connecticut v. Barrett, _____ U.S. , 107 S.Ct.

828, 93 L.Ed.2d 920 (1987). After informing the OSI in-

vestigators that he had counsel and that counsel had in-

structed “him not to discuss the investigation” with the OSI,

appellant was further asked for consent to search his off-base

rented storage locker. This was one question too many. See

generally Arizona v. Mauro, U.S. __., 107 8.Ct. 1931,

i |

14a

95 L.Ed.2d 458 (1987). Asking appellant’s consent to search

was a violation of the bright-line rule of Edwards v. Arizona,

451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Therefore, normally it would be error to admit any evidence

found as a result of such a violation. See generally Colorado v.

Spring, ___ U.S. ___, 107 S.Ct. 851, 856, 98 L.Ed.2d 954

(1987); Nix v. Williams, 467 U.S. 481, 442, 104 S.Ct. 2501,

2508, 81 L.Ed.2d 377 (1984). Cf Michigan v. Tucker, 417

U.S. 438, 445-47, 94 S.Ct. 2357, 2364-65, 41 L.Ed.2d 182

(1974).

However, the exclusionary rule does not require suppres-

sion of the evidence found in appellant’s storage locker. See

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

The record is clear that law-enforcement officials employing

proper procedures would have inevitably discovered all rele-

vant evidence in this locker even if appellant had refused to

consent to the search. At the time the OSI asked appellant for

his consent, the Tucson police and the OSI both knew:

1. There was a string of similar but unsolved burglaries

involving the theft of many items prior to March 17, 1984.

2. On March 17, 1984, appellant and Captain Reimer were

arrested in the process of commiting a burglary off-base.

3. Appellant had confessed to the Tucson police about his

participation with Captain Reimer in committing that

burglary as well as a number of other burglaries in the Tuc-

son area.

4. The owner of the rental storage locker warehouse,

after reading a newspaper account of appellant’s and Captain

Reimer’s participation in the March 17 burglary, informed

the police that both appellant and Reimer had rented storage

lockers in his warehouse.

5. The types of items taken in the burglaries were items

that could be concealed in a rental storage locker.

With this knowledge, the Tucson police could,* and in my

view should, have obtained a warrant from a local judge

* The police officer’s opinion to the contrary (R. 217) is not controlling.

See Florida v. Royer, 460 U.S. 491, 507, 103 S.Ct. 1819, 1829, 75 L.Ed.2d

229 (1983) (plurality opinion).

15a

authorizing a search of appellant’s rental storage locker. Thus,

even without appellant’s consent, the police, using proper pro-

cedures, would have inevitably discovered the items in the

locker. As the Supreme Court said in Nix v. Williams, 467

U.S. at 444, 104 S.Ct. at 2509:

If the prosecution can establish by a preponderance of

the evidence that the information ultimately or inevitably

would have been discovered by lawful means. . . then the

deterrence rationale has so little basis that the evidence

should be received.

(Footnote omitted.) In the instant case, the doctrine of in-

evitable discovery removes any taint to the evidence obtained

as a result of the improper questioning of appellant. These

words of the Supreme Court in Niz are especially applicable

here: “The purpose of the inevitable discovery rule is to block

setting aside convictions that would have been obtained

without police misconduct.” Jd. at 443 n. 4, 104 S.Ct. at 2509

n. 4.

I join in affirming appellant’s conviction.

US. GOVERNMENT PRINTING OFFICE: 1987— 193-105/62001