Opposition Brief — Collyer v. United States

No. 87-492 YEC 22 98T

OCTOBER TERM, 1987

JAMES W.. COLLYER, II, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Lt. Col., OJAG, USAF

MARC VAN NUYS

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate Counsel Division

Headquarters, United States Air Force

Bolling Air Force Base .

Washington, D.C. 20332-6128

QUESTION PRESENTED

Whether petitioner voluntarily consented to a search of

his person and automobile.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ............. 8

Brewer v. Williams, 430 U.S. 387 (1977) .............. 8, 9, 10

California v. Beheler, 463 U.S. 1121 (1983) ............ 8

Edwards v. Arizona, 451 U.S. 477 (1981) .............. 6, 8, 9

Goodman v. Lukens Stee! Co., No. 85-1626 (June 19,

AS ea ee a 8

Miranda v. Arizona, 384 U.S. 436 (1966) ......... 6, 7, 8, 9, 10

Moran v. Burbine, 475 U.S. 412 (1986) ................ 9, 10

New York v. Quarles, 467 U.S. 649 (1984) ............. )

Oregon v. Mathiason, 429 U.S. 492 (1977) ............. 8-9

Rhode Island v. Innis, 446 U.S. 291 (1980) ............. Yy

Schmerber v. California, 384 U.S. 757 (1966) ........... 5

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ........ 6, 7

United States v. Doe, 465 U.S. 605 (1984) ............. 8

United States v. Gouveia, 467 U.S. 180 (1984) ......... 10

United States v. Harris, 7 M.J. 154(C.M.A. 1979) ..... 5

United States v. McOmber, 1 M.J. 380(C.M.A. 1976) .. 5

United States v. Mendenhall, 446 U.S. 544 (1980) ...... 7

United States v. Roa, 24M.J. 297 (C.M.A. 1987) ...... 5

United States v. Watson, 423 U.S. 411 (1976) .......... 7,9

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

1985), cert. denied, 477 U.S. 904 (1986) .............. 10

Washington v. Chrisman, 455 U.S. 1 (1982) ........... y

Constitution, statutes and rules:

U.S. Const.:

ag a A a 6, 7

Pe dg ane baa a Kee oe 8 5.6.7.9

ar are ge a aba yg no ea aw KS 5, 6, 9, 10

IV

Statutes and rules — Continued: Page

Uniform Code of Military Justice, 10 U.S.C. (& Supp. IV)

801 ef seq.:

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Fae Se I sk os k wind cca cusdcae vee bas

FR Ra es TI osc 6 dk dds nba vdacdsmseewa

Pe Se re

FURS Rs I I ik ke ca dad bednecssacaden

Manual for Courts Martial, United States — 1984 ........

Mil. R. Evid.:

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SFR etree easter aioe ee

I Se oan o's box s'c 6 oe bd a AR een

fa arr een ee arenes

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Rules for Courts-Martial:

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On

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1987

No. 87-492

JAMES W. COLLYER, II, PETITIONER

vi

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF MILITARY APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the Court of Military Appeals (Pet. App.

la) is reported at 24 M.J. 454. The order of the Air Force

Court of Military Review (Pet. App. 2a) is unreported.

JURISDICTION

The judgment of the Court of Military Appeals was

entered on July 28, 1987. The petition for a writ of cer-

tiorari was filed on September 25, 1987. The jurisdiction

of this Court is invoked under 28 U.S.C. (Supp. III)

1259(3).

STATEMENT

Following a general court-martial before a military

judge at the Royal Air Force Base at Lakenheath,

England, petitioner, a member of the United States Air

Force, was convicted of violating a lawful general regula-

(1)

2

tion, making false official statements, larceny, forgery,

and uttering a worthless check, in violation of Articles 92,

107, 121, 123, and 123a of the Uniform Code of Military

Justice (UCMJ), 10 U.S.C. 892, 907, 921, 923, and 923a.

He was sentenced to five years’ confinement, a dishonor-

able discharge, and ancillary penalties. The convening

authority dismissed one of the forgery counts and reduced

the sentence to confinement for four years, nine months,

but he approved the findings and sentence in all other

respects. The Air Force Court of Military Rev@iw sum-

marily affirmed the findings and sentence (Pet. App. 2a).

The Court of Military Appeals also summarily affirmed

(id. at la).

1. Onthe morning of November 6, 1984, the Air Force

Office of Special Investigations (OSI) at the Lakenheath

Base began an investigation into whether petitioner had

been maintaining checking accounts with the American

Express International Banking Corporation (AMEXCO)

under the aliases James J. Coll and James J. Colby in ad-

dition to his own name, and whether petitioner had used

those accounts to obtain a bank loan and to utter several

worthless checks in the amount of $500 each (Tr. 37-38,

40). An initial comparison of the handwriting on several

bank drafts written on those accounts indicated that they

were written by the same person (Tr. 37-40). That after-

noon, petitioner was located and brought to the Laken-

heath OSI offices for questioning (Tr. 40, 55). Before peti-

tioner was questioned, Special Agent Nathanael Lukens,

the investigator in charge of the case, received a telephone

call from Major Terence Curtin, the local area defense

counsel (Tr. 40-41). Major Curtin advised Agent Lukens

that he represented petitioner with respect to the investiga-

tion, and that he had already spoken with petitioner that

day. Major Curtin also asked to speak with petitioner

(ibid.). Petitioner then conferred privately with Major

Curtin for several minutes on the telephone (Tr. 41). At

the end of their conversation, Agent Lukens again spoke

with Major Curtin. Major Curtin told the agent that peti-

tioner “wasn’t going to answer questions or be

interviewed” and that petitioner “had nothing to say”

(ibid.). Major Curtin also said that he wanted to see peti-

tioner (ibid.).

Agent Lukens did not thereafter question petitioner

about the suspected offenses. The agent told petitioner

that he was represented by Major Curtin and that Major

Curtin wished to see him (Tr. 42). Before allowing peti-

tioner to go to Major Curtin’s office, however, the agent

asked petitioner if he would consent to a search of his per-

son, his automobile, and his residence (ibid.). Agent

Lukens told petitioner that he had the right to refuse con-

sent, and he read petitioner a consent-to-search form that

disclosed petitioner’s rights, the areas to be searched, the

purpose of the search, and the consequences if evidence

were found (Tr. 42, 58-59, 61-63; AX 11).' Petitioner

consented to a search of his person and automobile and

signed the consent form, but he declined to consent to a

search of his residence (Tr. 40, 42, 59; see AX 11).

' The form stated in relevant part (AX 11 (footnotes omitted)):

1, [petitioner], state that SA Nathanael G. Lukens was iden-

tified to me as a special agent AFOSI and advised me that the

nature of the offense(s) of which I am suspected (matters con-

cerning which I may have knowledge) is/are as follows:

{handwritten by SA Lukens and initialed by petitioner] Larceny

by fraud, obtaining monies by deceiption [sic], bad/worthless

checks, obtaining loans under fraudulent pretenses

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

search. I understand that, if | do conseni to a search, anything

found in the search-can be used against me in a criminal trial or in

any other disciplinary or administrative procedure. | also under-

stand that, if | do not consent, a search cannot be made without a

warrant or other authorization recognized in law.

With knowledge of the foregoing, | have decided to allow the per-

son identified above and whomever may be designated to assist

4

The search of petitioner’s person turned up a letter from

AMEXCO advising petitioner that his account was being

closed because of bad checks, $500 in cash, check

guarantee cards, a small photograph typically used on

military identification cards, and a book of gasoline ration

coupons (Tr. 42-43). Agent Lukens then placed petitioner

under apprehension (Tr. 43).? A search authorization for

petitioner’s car and residence was later obtained from the

base commander (Tr. 44; AX 10).3 Agent Lukens, along

with other OSI agents and local civilian authorities,

searched petitioner’s residence that day, and seized various

items of evidence, including a “chartpak” electronic mark-

ing kit, stencils in the name of James J. Colby (one of peti-

tioner’s suspected aliases), and a letter from a fur company

indicating that a debt of 4,795 pounds Ster-

to search the following place(s)/thing(s) in the daytime or night

time:

{handwritten by SA Lukens and initialed by petitioner] Person,

duty Section, privately owned vehicle, 77 Toyota AAD 9355

Before deciding to give my consent, I carefully considered this

matter. | am giving my consent voluntarily and of my own free

will, without having been subjected to any coercion, unlawful in-

fluence or unlawful inducement and without any promise of

reward, benefit, or immunity having been made to me. The in-

vestigators have my permission to take any letters, papers,

materials, articles or other property they consider to be evidence

of an offense, including contraband for use as evidence in any

criminal prosecution hereafter initiated. | have read and under-

stand this entire acknowledgement of my rights and grant of my

consent for search and seizure.

? “Apprehension” is the military term for arrest, and occurs when a

person is taken into custody. Art. 7(a), UCMJ, 10 U.S.C. 807(a).

> A search authorization is the military equivalent of a search war-

rant. It may only be issued upon probable cause by an impartial com-

mander, a military judge, or a military magistrate empowered by

regulation to issue search authorizations. Mil. R. Evid. 315(d). Peti-

tioner does not dispute that the base commander could authorize a

search.

ling, originally paid by a check dated October 13, 1984,

had subsequently been paid in cash on October 26, 1984

(Tr. 45-46; AX 11). A subsequent search of petitioner’s

car turned up $1,500 in cash, a checkbook, and an applica-

tion for a new checking account in petitioner’s name (Tr.

48-49).

2. Before entering his plea, petitioner moved to sup-

press the evidence that was obtained as a result of the

search of his person, his car, and his residence. Petitioner

claimed that his consent to the searches was involuntary

because it was obtained in violation of his Sixth Amend-

ment right to counsel (AX 3; Tr. 22, 95-96).4 After an

evidentiary hearing,’ the trial judge found that peti-

tioner’s consent to search was voluntary and denied the

suppression motion (Tr. 106). The Court of Military Ap-

peals summarily affirmed on the basis of its decision in

United States v. Roa, 24M.J. 297 (1987) (Pet. App. 1a).°

* Petitioner also claimed that the request for his consent to the

searches violated the rule stated in United States v. McOmber, 1 M.J.

380 (C.M.A. 1976), which requires investigators who know or should

know that a suspect is represented by counsel to notify counsel before

questioning the suspect. A failure to comply with the rule renders any

statement obtained thereby involuntary. See Mil. R. Evid. 305(e).

McOmber was not decided on constitutional grounds. McOmber, |

M.J. at 82-83; United States v. Harris, 7 M.J. 154, 156 (C.M.A.

1979). Petitioner does not reassert that claim in this Court.

> Petitioner did not testify at the hearing. The only witness who

testified on this issue was Agent Lukens.

¢ Roa produced three separate opinions. Judge Cox determined

(Pet. App. Sa-7a) that asking a suspect in custody for consent to

search did not implicate the Fifth Amendment privilege against com-

pulsory self-incrimination, because the request involved only nontesti-

monial evidence, as to which the privilege does not apply. See

Schmerber v. California, 384 U.S. 757 (1966). The request for consent

also did not implicate the Sixth Amendment, Judge Cox wrote, since

adversary criminal proceedings had not yet begun (Pet. App. 7a-8a).

Accordingly, Judge Cox concluded that the voluntariness of a

person’s consent must be tested under the totality of the circum-

6

ARGUMENT

Petitioner contends that his consent to search his person

and car was involuntary, because it was obtained in viola-

tion of his attorney’s instruction to the investigator not to

question petitioner about the suspected offenses. Peti-

tioner has waived that claim, however. In any event, peti-

tioner’s claim—which attempts to combine the Fifth

Amendment privilege against compulsory self-

incrimination and the Sixth Amendment right to counsel

with the Fourth Amendment protection against

unreasonable searches and seizures —finds no support in

the decisions of this Court.

Petitioner has presented the question (Pet. i) whether

the agent’s request for his consent to the searches violated

his Fifth Amendment privilege against compulsory self-

incrimination. Petitioner’s argument also rests primarily

on this Court’s decisions in Miranda v. Arizona, 384 U.S.

436 (1966), and its offspring, particularly Edwards v.

Arizona, 451 U.S. 477 (1981). Petitioner, however, has

clearly waived any such claim. The military rules of

criminal procedure require that suppression claims be

raised before the defendant enters his plea. The failure to

assert a suppression claim in a timely manner amounts toa

waiver of the claim absent “good cause” for the default.

Rules for Courts-Martial 905(b)(3) and 905(e), Manual for

Courts-Martial, United States— 1984; Mil. R. Evid.

103(a)(1), 311(a)(1), and 311(d)(2)(A). Petitioner did not

stances, as required by Schneckloth v. Bustamonte, 412 U.S. 218

(1973) (Pet. App. 9a). Chief Judge Everett concluded that asking a

suspect tO consent to a search does not amount to “interrogation”

unless the suspect is also asked to identify the property subject to the

search (/d. at 10a-lla). Judge Sullivan concluded that a request for

consent to a search violates Edwards v. Arizona, 451 U.S. 477 (1981),

which he interpreted as prohibiting all communications initiated by

the police after a suspect has invoked his right to counsel (Pet. App.

13a).

rely on either the Fifth Amendment or Miranda in his sup-

pression motion (AX 3; Tr. 95-96), and he does not main-

tain in his petition that there was good cause for his failure

to do so. Petitioner has therefore failed to preserve either

claim.

Petitioner also claims (Pet. i) that his consent was in-

voluntary under the Fourth Amendment. Petitioner also

did not rely on the Fourth Amendment at trial, however,

and he has therefore waived that claim as well.

In any event, petitioner’s consent was valid under well-

settled Fourth Amendment principles. The validity of a

person’s consent to search is a question of fact to be deter-

mined on the basis of the totality of circumstances. United

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

States v. Watson, 423 U.S. 411, 424 (1976); Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973). In this case, the

trial judge found that petitioner’s consent was voluntary,

and the evidence clearly supports that finding.’ Neither of

the military appellate courts disturbed the trial court’s

’ None of the earmarks of coercion is present in this case. Petitioner

was a non-commissioned officer in the Air Force with considerable

training and experience (see PX 34 (Airman Performance Reports

from 1973 to 1984)). He was 37 years of age and college educated (see

AF Form 65 (Transmittal of Court-Martial Charges, allied papers,

ROT)). Petitioner was not subjected to any form of physical or

psychological coercion, actual or implied, nor was he given any prom-

ises Or inducements to consent. Petitioner was specifically advised of

his right to refuse consent, both orally and in writing, which is a factor

that weighs heavily in favor of the determination that his consent was

voluntary. Mendenhall, 446 U.S. at 558-559 (opinion of Stewart, J.).

Petitioner gave his consent immediately after speaking with his at-

torney on the telephone, and he presumably would have been free to

contact his attorney again regarding the request for his consent to

search, if he had wished to do so. Finally, petitioner withheld his con-

sent to a search of his residence, which shows that he was both aware

of and able to exercise his right to refuse consent. These facts

demonstrate that petitioner’s consent was not only voluntary, but also

knowing and intelligent.

8

finding, and it does not warrant further review. See, e.g.,

Goodman v. Lukens Steel Co., No. 85-1626 (June 19,

1987), slip op. 7-8; United States v. Doe, 465 U.S. 605,

613-614 (1984).

Petitioner contends that a custodial regent for consent

to a search is sufficiently analogous to a custodial inter-

rogation that this Court should extend the rule of Edwards

v. Arizona, supra, and Brewer v. Williams, 430 U.S. 387

(1977), to render involuntary any consent to search that is

given in a custodial setting once a suspect is represented by

counsel. That claim lacks merit.

Edwards does not support petitioner’s claim, for several

reasons. To begin with, petitioner has not shown that he

was “in custody” for purposes of Miranda when Agent

Lukens asked him to consent to the searches.* The fact

that petitioner was at OSI headquarters when he was asked

for his consent is not dispositive, since a person who is

questioned at a police station is not necessarily “in

custody” under Miranda. California v. Beheler, 463 U.S.

1121 (1983) (suspect questioned at a police station held not

“in custody” under Miranda); Oregon v. Mathiason, 429

8 The trial judge made no-fimding on this issue, since petitioner did

not Object to the searches on Miranda grounds. In any event, it is

hardly clear from the record that petitioner was “in custody” for

Miranda purposes when he gave his consent. Petitioner was escorted

to OSI headquarters by two OSI agents (Tr. 40), but the record does

not reveal whether petitioner was ordered to accompany the agents or

voluntarily accompanied them. Although Agent Lukens testified that

petitioner was not free to leave at some point during the time that he

was at the OSI headquarters (Tr. 56), the agent also testified that he

was planning to release petitioner to see Major Curtin immediately

after he asked petitioner for consent to a search of his person and car.

He decided to arrest petitioner, however, once the search of petitioner

revealed evidence connecting him with the suspected offc ises (Tr. 42,

43). The agent’s subjective intent is also not dispositive of this ques-

tion. Berkemer v. McCarty, 468 U.S. 420, 442 & n.35 (1984). Peti-

tioner has therefore failed to establish the predicate for his reliance on

Miranda.

9

U.S. 492 (1977) (same). Petitioner also did not ask to

speak with Major Curtin while he was at OSI head-

quarters. Accordingly, the rule adopted in Edwards that a

Suspect may not be interrogated in the absence of counsel

once he asks to speak with an attorney (451 U.S. at 485)

does not apply here, even assuming that the agent’s request

for petitioner’s consent amounts to an “interrogation.”

But cf. Rhode Island v. Innis, 446 U.S. 291, 301 & n.5

(1980) (referring to “statements” in defining “interroga-

tion”). In addition, Miranda does not forbid police inter-

rogation of a person who has not invoked his right to

counsel even if his attorney attempts to speak with him.

Moran v. Burbine, 475 U.S. 412, 421-428 (1986). As the

Court made clear in Moran v. Burbine, 475 U.S. at 425, “a

rule that focuses on how the police treat an attorney —

conduct that has no relevance at all to the degree of com-

pulsion experienced by the defendant during interroga-

tion—would ignore both Miranda’s mission and its only

source of legitimacy.” Finally, a violation of Miranda

would not require that the physical evidence seized by the

OSI agents be suppressed at petitioner’s trial. New York v.

Quarles, 467 U.S. 649, 665-672 (1984) (opinion of O’Con-

nor, J.).!®

Petitioner’s reliance on Brewer v. Williams, supra, is

also misplaced. Brewer ordered the suppression of a

defendant’s confession that was obtained in violation of

his Sixth Amendment right to counsel. A defendant’s right

to counsel attaches only after adversary criminal proceed-

* In any event, even if petitioner was is in custody when he con-

sented, that fact does not render his consent involuntary as a matter of

law and is simply one factor to be considered in determining whether

his consent was voluntary. United States v. Watson, 423 U.S. 411, 424

(1976).

'© Petitioner’s act of giving consent was not a “testimonial! com-

munication” of the type protected by the Fifth Amendment. Cf.

Washington v. Chrisman, 455 U.S. 1, 6 n.3 (1982).

10

ings have been initiated against him. Moran v. Burbine,

475 U.S. at 428; United States v. Gouveia, 467 U.S. 180,

187 (1984). In the military, a defendant’s right to counsel

does not attach until the preferral of formal charges

(United States v. Wattenbarger, 21 M.J. 41, 43 (C.M.A.

1985), cert. denied, 477 U.S. 904 (1986)), and no formal

charges had been preferred against petitioner when Agent

Lukens asked petitioner for his consent. Brewer therefore

does not aid petitioner.

Taken in its most favorable light, petitioner’s argument

is no stronger than the one that this Court rejected in

Moran v. Burbine, supra. There, the police interrogated a

suspect after informing an attorney retained by a member

of the suspect’s family that the suspect would not be ques-

tioned in counsel’s absence. This Court held that the con-

fession subsequently obtained by the police was admissible

at trial, and it rejected claims that the interrogation of the

suspect violated Miranda and the Sixth Amendment. 475

U.S. at 421-432. Moran therefore makes clear that the

proper focus is on the actions the police take towards a

suspect, not the actions they take with respect to his

counsel. In fact, petitioner was in an even more favorable

position than the suspect in Moran, since petitioner had an

attorney, had already spoken with him, and could have

asked to speak with him again about consenting to the

searches.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOE R. LAMPORT

Col., OJAG, USAF

ROBERT E. GIOVAGNONI

Lt. Col., OJAG, USAF

MARC VAN Nuys

Capt., OJAG, USAF

Appellate Government Counsel

Government Trial and Appellate Counsel Division

DECEMBER 1987

83

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