# Petition for Writ of Certiorari — Murphy v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 1019

## Text

Supreme Court, U.S.
ee a

94 685 OCT 17 19%

No.
OFFICE OF THE CLERK

Jn the Supreme Court of the United States
OCTOBER TERM, 1994

CATHLEEN L. MURPHY, STAFF SERGEANT,
UNITED STATES AIR FORCE, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THI
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

JAY LINDSEY COHEN
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

MARK JEFFREY SIMMS
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113

October 1994

eit NAS TIP a PET a th eh a Bote

QUESTION PRESENTED

Whether the failure of petitioner’s commander to advise
her of her rights under Article 31, U.C.M.J. (which rights
are coextensive with petitioner’s rights under the Fifth
Amendment to the United States Constitution) before
questioning her regarding allegations of drug use tainted
petitioner’s subsequent consent to a urinalysis so that the
results of the urinalysis should be excluded from evidence
under the Fourth Amendment to the United States Con-

stitution?

PABLE OF CONTENTS

Page
OP ae SE i vn Un ones beeen eee l
FAs EEE Wek Xo 0s sa ake eh cera 2
CONSTITUTIONAL PROVISIONS INVOLVE... 2
STATENGEICE OO Fite CMe oo a eek ook ck cccces: 2
REASON FOR GRANTING THE WRIT ........... 5
CIR A eee 5. ok ha ss Chih Bae eke a, 11
APPENDIX A (Opinion of the United States Court of
PN TR oo. bck oe es la
APPENDIX B (Opinion of the United States Air Force
Court OF BGRMAEY TROVEOWD o.oo anvaaeeseues sien: 9a
APPENDIX C (Opinion of the United States Court of
ROY FD gos és So 0x kc a eae oe 26a
APPENDIX D (Opinion of the United States Air Force
Court oF WEGMOTY TEVIOW? ..« os cco vn eucawensndenns 4la

ii

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Page
Brown vy. Illinois, 422 U.S. 590 (1975) ........... 6,9, 10
Bumper v. North Cerelina, 391 U.S. 543 (1968) .. 6
Dunaway v. New York, 442 U.S. 200 (1979) ...... 6, 10
Johnson v. Louisiana, 406 U.S. 356 (1972) ....... 6, 10
Oregon v. Elstad, 470 U.S. 298 (1985) ........... 6
Rawlings v. Kentucky, 448 U.S. 98 (1980) ........ 6,9
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .. 6
United States v. Ceccolini, 435 U.S. 268 (1978)... 6, 10
Wong Sun v. United States, 371 U.S. 471 (1963)... 6, 9,
9-10

MILITARY CASES:
United States v. Armstrong, 9 M.J. 374 (C.M.A.

ec cctasessakencee 6,9
United States v. Eggers, 3 U.S.C.M.A. 191, 11

I en, ee wwe c ces ccs eres veces 6
United States v. Frazier, 34 M.J. 135 (C.M.A.

See iw eekewaee ss 6
United States v. Gibson, 3 U.S.C.M.A. 746, 14

I ce ca ca scccacsasces 9
United States v. Goudy, 32 M.J. 88 (C.M.A.

UE a 6
United States v. Murphy, 39 M.J. 486 (C.M.A.

es BS I Ie ae ae te

United States v. Murphy, 36 M.J. 732
(A.F.C.M.R. 1992), aff'd, 39 M.J. 486 (C.M.A.

ko gaa 4 bao 62.0 « 2. a, & 3, 7.8, 9, 10
United States v. Murphy, 33 M.J. 323 (C.M.A.
' OS SETS a ee 2,4
‘ United States v. Murphy, 29 M.J. 573
; (A.F.C.M.R. 1989), vacated, 33 M.J. 323
LI 2,4
United States v. Ravenel, 26 M.J. 344 (C.M.A.
NO a ed 6
United States v. White, 27 M.J. 264 (C.M.A.
ves 9S Sr 6

CONSTITUTIONAL PROVISIONS: Page

EF iaa GA MI SS aa dk deur aude kaos y
Cre ee ghee aaen ye. eb

UNITED STATES STATUTE:
28 U.S.C.A. Section 1259(3) (West 1993) ........ 2

UNIFORM CODE OF MILITARY JUSTICE:

Article 31(b), 10 U.S.C. Section 831(b)(1988) .... 3, 5, 7

Article 67a, 10 U.S.C.A. Section 867a (West
Ea is 20 Pe se a Pe a anne 2

Article 112a, 10 U.S.C. Section 912a (1988) ...... 4

MILITARY RULES OF EVIDENCE:

Military Rule of Evidence 305(d)(1) ............. 5-6
Military Rule of Evidence 314(e)(4) ............. 6
Military Rule of Evidence 314(e)(5) ............. 6

OTHER AUTHORITY:

Klein, David A., When Is Evidence Which Is Ob-
tained After Unconstitutional Search or Seizure
Sufficiently Remote From Such Search Or
Seizure So As Not To Be Tainted By, And Not
To Be Inadmissible As Fruit Of, Such Search Or
Seizure— Supreme Court Cases, 109 L.Ed.2d

ce seek coo ca ee CUR eee ee eee eee as 6-7

787

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

CATHLEEN L. MURPHY, STAFF SERGEANT,
UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Cathleen L. Murphy, respectfully prays
that a writ of certiorari issue to review the order and judg-
ment of the United States Court of Military Appeals
entered in her case on 20 July 1994.

OPINIONS BELOW

The decision of the United States Court of Military Ap-
peals, United States v. Murphy, 39 MJ 486 (C.M.A. 1994)
is reprinted at Appendix A. The decision of the United
States Air Force Court of Military Review, United States
v. Murphy, 36 M.J. 732 (A.F.C.M.R. 1992), aff'd, 39
M.J. 486 (C.M.A. 1994) is reprinted at Appendix B. The
initial decision of the United States Court of Military

(1)

2

Appeals, United States v. Murphy, 33 M.J. 323 (1991) is
reprinted at Appendix C. The initial decision of the United
States Air Force Court of Military Review, United States
v. Murphy, 29 M.J. 573 (A.F.C.M.R. 1989), vacated,. 33
M.J. 323 (C.M.A. 1991) is reprinted at Appendix D.

JURISDICTION

The final order of the United States Court of Military
Appeals was entered on 20 July 1994. The jurisdiction of
this Court is invoked under 28 U.S.C.A. Section 1259(3)
(West 1993) and 10 U.S.C.A. Section 867a (West Supp.
1994).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment of the Constitution of the
United States provides, in pertinent part, “[t]he right of
the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures,
shall not be violated”. The Fifth Amendment of the Con-
stitution of the United States provides, in pertinent part,
“nor shall [any person] be compelled in any criminal case
to be a witness against himself.”

STATEMENT OF THE CASE

In August 1987, petitioner was a United States Air
Force security policewoman. Several months earlier peti-
tioner’s commander Captain Thomas had called petitioner
in his office to discuss an allegation that she was involved
with drugs. See United States v. Murphy, 36 M.J. 732, 733
n.4 (A.F.C.M.R. 1992), affd, 39 M.J. 486 (C.M.A.
1994). This allegation was apparently treated as unfound-
ed; petitioner continued with her law enforcement duties.
See Murphy, 36 M.J. at 733 n.4. On 17 August 1987, an
AFOSi (Air Force Office of Special Investigations) agent .

3

told the security police superintendent, Senior Master
Sergeant Spahr, that an informant had seen petitioner at
the Fast and Cool Club the previous Saturday night with a
civilian named Tonya or Tina and that petitioner had used
drugs. United States v. Murphy, 39 M.J. 486, 487
(C.M.A. 1994). The AFOSI requested petitioner’s com-
mander, Captain Thomas, to ask petitioner three ques-
tions about the alleged incident. Jd. Captain Thomas call-
ed petitioner at her home and left a message on her
answering machine asking her to call his office. /d. Peti-
tioner returned Captain Thomas’ call 19 August 1987 and
arranged to meet with him after drawing her weapon but
before reporting to duty on 20 August 1987. Jd. The
United States Air Force Court of Military Review deter-
mined that petitioner had a military duty to appear. See
Murphy, 36 M.J. at 734.

Petitioner reported formally, by standing at attention in
front of Captain Thomas’ desk and saluting. See id. Peti-
tioner’s supervisor, MSgt Holiman, was also present. See
Murphy, 36 M.J. at 733 and Murphy, 39 M.J. at 487.
Without warning petitioner of her rights pursuant to Arti-
cle 31(b), U.C.M.J. (Uniform Code of Military Justice),
10 U.S.C. Section 831(b) (1988), Captain Thomas inform-
ed her he was going to ask her some questions regarding
her whereabouts the previous Saturday night. See Mur-
phy, 39 M.J. at 487. Captain Thomas asked petitioner
where she was then, and she said at the Fast and Cool
Club. Jd. He then asked petitioner who she was with, and
she said Tonya or Tina. Jd. Captain Thomas asked who
Tonya or Tina was, and petitioner said a civilian whom
she had met. /d.

Captain Thomas then told petitioner there was an
allegation she had used drugs, and asked if she was willing
to give a urine sample. /d. Petitioner said she was willing
to give a sample and completed and signed a consent to

4

search form. /d. Master Sergeant Holiman accompanied
petitioner to the base hospital, where she provided a urine
sample which tested positive for cocaine. See Murphy, 36
M.J. at 733.

Petitioner was tried and convicted by a general court-

martial composed of officer members of wrongful use of
cocaine in violation of U.C.M.J. Article 112a, 10 U.S.C.
Section 912a (1988). Murphy, 36 M.J. at 732. She was
sentenced te a bad conduct discharge, confinement for
two years, and reduction to the lowest enlisted grade. /d.
The convening authority approved the sentence as adjudg-
ed. Id.
. The United States Air Force Court of Military Review
affirmed the findings and approved a sentence of a bad
conduct discharge, confinement for fifteen months, and
reduction to the lowest enlisted grade. United States v.
Murphy, 29 M.J. 573 (A.F.C.M.R. 1989), vacated, 33
M.J. 323 (C.M.A. 1991). On appeal to the United States
Court of Military Appeals, the Court returned the case to
the United States Air Force Court of Military Review for
determination of the instant issue. See United States v.
Murphy, 33 M.J. 323 (C.M.A. 1991).

On remand, the United States Air Force Court of
Military Review held that the failure of petitioner’s com-
mander to give her U.C.M.J. Article 31 warnings did not
affect the voluntariness of her consent to a urinalysis.
United States v. Murphy, 36 M.J. 732 (A.F.C.M.R. 1991),
aff'd 39 M.J. 486 (C.M.A. 1994). The court noted there is
no requirement that a suspect be informed of her Article
31 rights before being asked to consent to a search. See
Murphy, 36 M.J. at 735. The court further noted that
there was no evidence in the record to indicate that peti-
tioner’s decision to consent to the search was influenced by
her responses to petitioner’s questions. See id. at 735-736.

5

Senior Judge Leonard filed a dissent holding that peti-
tioner’s consent was not shown to be voluntary by clear
and convincing evidence. See United States v. Murphy, 36
M.J. 732, 736 (A.F.C.M.R. 1992) (Leonard J., dissent-
ing), aff'd, 39 M.J. 486 (C.M.A. 1994).

The United States Court of Military Appeals held that
there was “ ‘clear and convincing evidence’ ” that peti-
tioner consented to the urinalysis and that the Military
Judge did not err in admitting evidence of the urinalysis.
See United States v. Murphy, 39 M.J. 486, 489 (C.M.A.
1994). The court affirmed the decision of the United States
Air Force Court of Military Review on further review. See
id. at 489.

REASON FOR GRANTING THE WRIT

CONSIDERATION OF THIS CASE WILL GIVE
THIS HONORABLE COURT THE OPPORTUNI-
TY TO DEFINE WHEN A CONSENSUAL
SEARCH IS IRREMEDIABLY TAINTED BY THE
QUESTIONING OF A SUSPECT WITHOUT AD-
VISING HIM OF HIS RIGHTS UNDER THE
UNITED STATES CONSTITUTION, FIFTH
AMENDMENT.

“No person subject to this chapter may interrogate, or
request any statement from an accused or a person
suspected of an offense without first informing him of the
nature of the accusation and advising him that he does not
have to make any statement regarding the offense of
which he is accused or suspected and that any statement
made by him may be used as evidence against him in a trial
by court-martial.” U.C.M.J. Article 31(b), 10 U.S.C. Sec-
tion 831(b) (1988). The protections of U.C.M.J. Article 31
are coextensive with the protections of the Fifth Amend-
ment to the United States Constitution. See M.R.E.

6

(Military Rule of Evidence) 305(d)(1); United States v.
Ravenel, 26 M.J. 344 (C.M.A. 1988); United States v. Arm-
strong, 9 M.J. 374, 380 (C.M.A. 1980); and United States v.
Eggers, 3 U.S.C.M.A. 191, 195, 11 C.M.R. 191, 195 (1953).
“To be valid, consent must be given voluntarily. Voluntari-
ness is a question to be determined from all the circum-
stances .. . . Mere submission to the color of authority of
personnel performing law enforcement duties or acqul-
escence in an announced or indicated purpose to search is
not a voluntary consent.” Military Rule of Evidence
314(c)(4) (emphasis added). See also Bumper v. North Caro-
lina, 391 U.S. 543, 548 (1968) and United States v. White, 27
M.J. 264, 265 (C.M.A. 1988) (government must prove con-
sent freely and voluntarily given). “Consent must be shown
by clear and convincing evidence.” Military Rule of Evidence
314(c)(5). In determining whether consent is voluntary, this
Court should examine the totality of the circumstances. See
Schneckloth vy. Bustamonte, 412 U.S. 218, 227 (1973);
United States v. Frazier, 34 M.J. 135, 137 (C.M.A. 1992);
United States v. Goudy, 32 M.J. 88, 90 (C.M.A. 1991).
The goal of the exclusionary rule of the Fourth Amend-
ment to the United States Constitution “is to deter
unreasonable searches”. See Oregon vy. Elstad, 470 U.S.
298, 306 (1985). In determining whether evidence obtained
after an unconstitutional search and seizure is sufficiently
attenuated from the original delict to be admissible, this
Court has examined such factors as the lapse of time from
the original wrong (see Wong Sun v. United States, 371
U.S. 471 (1963); Brown v. Illinois, 422 U.S. 590 (1975), and
United States v. Ceccolini, 435 U.S. 268 (1978) ); strictness
of the custodial conditions (see Rawlings v. Kentucky, 488
U.S. 98 (1980) ); the presence of intervening events (see
Wong Sun v. United States; Brown v. Illinois; and Johnson
v. Louisiana, 406 U.S. 356 (1972) ); and the purpose and
flagrancy of the unconstitutional conduct (see Brown v. II-
linois; United States v. Ceccolini; and Dunaway v. New
York, 422 U.S. 200 (1979) ). See generally David A. Klein,

7

When Is Evidence Which Is Obtained After Unconstitional
Search or Seizure Sufficiently Remote From Such Search or
Seizure So As Not To Be Tainted By, And Not To Be Inad-
missible As Fruit Of, Such Search or Seizure—Supreme
Court Cases, 109 L.Ed.2d 787.

From the perspective of effectuating the goal of the
Fourth Amendment exclusionary rule (deterring unlawful
police conduct), the circumstances of this case are disturb-
ing. The Air Force Office of Special Investigations had
received information that petitioner had used drugs at a
particular time and place, and that petitioner had been with
a particular individual: The AFOSI asked petitioner’s com-
mander, the Security Police Commander, to ask petitioner
questions which might confirm the information they had
been given. Petitioner was asked to report to her com-
mander’s office. Captain Thomas testified that he con-
sidered the request to come and see him an order for ap-
pellant to report to his office. See United States v. Murphy,
36 M.J. 732, 736 (A.F.C.M.R. 1992)(Leonard J., dissent-
ing), aff'd, 39 M.J. 486 (C.M.A. 1994). Petitioner reported
directly before going on duty (no doubt, in uniform) by
saluting her commander and standing at attention in front
of his desk. Her supervisor was also present. Both her
supervisor and her commander outranked petitioner. Peti-
tioner knew she could not leave until allowed to leave by
her commander. See Murphy, 36 M.J. at 736 (Leonard J.,
dissenting). Without advising her of her rights under Arti-
cle 31, U.C.M.J., 10 U.S.C. Section 831 (1988), petitioner’s
commander then asked her questions which confirmed the
specifics of the allegation. These responses also affirmed
her commander’s continued suspicion of petitioner — Cap-
tain Thomas testified that if petitioner’s responses had not
confirmed the information he was given, he would not
have asked petitioner to consent to a urinalysis. See Mur-
phy, 36 M.J. at 738 (Leonard J., dissenting). Petitioner’s

commander then told petitioner there was an allegation
she had used drugs, and asked if she was willing to give a
urine sample. See United States v. Murphy, 39 M.J. 486,
487 (C.M.A. 1994). Neither Captain Thomas nor MSgt
Holiman told petitioner she could refuse to consent. See
Murphy, 36 M.J. at 739 (Leonard J., dissenting).

Consider petitioner’s state of mind when she was asked
to consent to the urinalysis. She had been ordered to
report to her commander’s office; present are her com-
mander (a Captain) and her supervisor (a Master
Sergeant). Contrary to her security police training, she has
been questioned . egarding allegations of drug use without
rights advisement by her security police commander,
which no doubt contradicted petitioner’s training and ex-
perience in police matters. This was the second time in
several months in which petitioner had been questioned
regarding allegations of drug involvement. Assuming, for
argument’s sake, that the allegation was true, her com-
mander had just asked questions which would have clearly
indicated to her that he had knowledge of facts cor-
roborating her drug use. It was likely abundantly clear to
petitioner that (1) her consent was immaterial under the
circumstances and (2) since her commander had failed to
follow police procedure and constitutional dictates in
questioning her without rights advisement, that the rules
regarding consent may have gone out the window as well.
If her security police commander and supervisor, the in-
dividuals responsible for petitioner’s training in proper
procedure, and the individuals responsible for ensuring
that proper procedures were followed, did not follow the
proper procedure in questioning her regarding the allega-
tions, what reason did petitioner have for believing that
the proper procedures for a consensual urinalysis would be
followed?

9

It is particularly important to consider that these evenis
took place in a military context, more specifically, a
security police squadron, in which the dictates of com-
mand and authority are even more important than in the
Air Force as a whole. “Because of the effect of superior
rank or official position upon one subject to military law,
the mere asking of a question under certain circumstances
is the equivalent of a command.” United States v. Gibson,
3 U.S.C.M.A. 746, 752, 14 C.M.R. 164, 170 (1954). Due
to military training, a member may feel compulsion to say
what he thinks his superior wishes her to say. See United
States v. Armstrong, 9 M.J. 374, 378 (C.M.A. 1980). This
rationale applies as well to a request to consent to a
urinalysis.

With regard to the factors upon which this Court has
focussed in analyzing the taint of fourth amendment viola-
tions, the United States cannot establish the voluntariness
of petitioner’s consent by clear and convincing evidence.
There was no lapse of time from the unwarned questioning
to the request for petitioner to consent to the urinalysis.
Cf. Brown v. Illinois, 422 U.S. 590 (1975)(two hours).
Contra United States v. Wong Sun, 371 U.S. 471
(1963)(several days from initial illegality until Wong Sun’s
statement). Petitioner had a military duty to appear before
her commander and could not leave until permitted by him
to do so. But cf. Rawlings v. Kentucky, 448 U.S. 98
(1980)(relaxed atmosphere; individuals joked with officers
and offered them coffee or water). The only event which
intervened between the unwarned questioning and the re-
quest for consent, the statement that someone had alleged
that petitioner had used drugs, aggravated rather than
lessened the coercive atmosphere. See United States v.
Murphy, 36 M.J. 732, 738 (A.F.C.M.R. 1992)(Leonard
J., dissenting), aff'd 39 M.J. 486 (C.M.A. 1994). But see

10

Wong Sun v. United States and Johnson v. Louisiana, 406
U.S. 356 (1972). Finally, the Fifth Amendment violation
in this case was purposeful (planned and premeditated)
and flagrant. See Brown vy. Illinois and Dunaway v. New
York, 442 U.S. 20 (1979). But see United States v. Cec-
colini, 435 U.S. 268 (1978).

A fair and objective review of the facts of this case
demonstrates that the United States has failed to produce
clear and convincing evidence of the voluntariness of peti-
tioner’s consent to the urinalysis. See United States v.
Murphy, 36 M.J. 732, 736 (A.F.C.M.R. 1992) (Leonard
J., dissenting), aff'd, 39 M.J. 486 (C.M.A. 1994). “To find
a free and voluntary consent we must be satisfied by clear
and convincing evidence that subtle and implicit pressures
of command have not overwhelmed the airman giving the
consent.” Murphy, 36 M.J. at 739 (Leonard J., dissenting)
(emphasis in original) (citations omitted). The United
States has failed to meet its burden of proof on this issue,
to the substantial prejudice of petitioner. See Murphy, 36
M.J. at 739 and 739 n.15 (Leonard J., dissenting) (other
evidence in case likely insufficient to establish petitioner’s
guilt beyond a reasonable doubt).

11

CONCLUSION

The taint arising from a Fifth Amendment violation as
it affects a consensual search is an issue on which this
Court and lower courts have had little to say. Requests for
consensual urinalyses are common in the United States Air
Force and positive urinalysis results often lead to a court-
martial for the member. Therefore the fact situation
presented by this case is relatively common (in its broad
outlines) and of significant impact. In terms of effec-
tuating the purposes of the Fourth Amendment exclu-
sionary rule, this is a notable case as it involved relatively
flagrant violations of a subordinate’s Fifth Amendment
rights by a security police commander. This case presents a
classic opportunity for this Court to outline the extent of
the taint arising from Fifth Amendment violations on re-
quests for consensual searches and to clearly and forceful-
ly indicate its disapproval of the purposeful and premedi-
tated Fifth Amendment violation while vindicating peti-
tioner’s Fifth Amendment protections.

Respectfully submitted,

JAY LINDSEY COHEN
Colonel, United States Air Force
Chief, Appellate Defense Division
Counsel of Record

MARK JEFFREY SIMMS
Captain, United States Air Force
Appellate Defense Counsel
Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY
Appellate Defense Division
172 Luke Avenue, Suite 208
Bolling AFB, DC 20332-5113

OCTOBER 1994

APPENDICES

APPENDIX A

U.S. COURT OF MILITARY APPEALS

No. 63,837.
CMR No. 27422.

UNITED STATES, APPELLEE,
Pa

CATHLEEN L. MURPHY, STAFF SERGEANT,
U.S. Air FORCE, APPELLANT.

Argued Feb. 1, 1994.
Decided July 20, 1994.

Accused was convicted by general court-martial,
Mildred L. Raichle, J., of use of cocaine. The United
States Air Force Court of Military Review, 29 M.J. 573,
affirmed. Review was granted. The United States Court of
Military Appeals, 33 M.J. 323, set aside and remanded.
On further review, the United States Air Force Court of
Military Review, 36 M.J. 732, held that commander’s
failure to give Article 31 warnings did not affect volun-
tariness of consent to search by urinalysis. The record was
returned to the Court of Military Appeals. The United
States Court of Military Appeals, Crawford, J., held that
unlawful questioning of accused without required Article
31 warning did not preclude admissibility of consensual
urinalysis results under the circumstances.

Affirmed.

(1a)

2a

For Appellant: Captain Robert A. Parks (argued); Col-
onel Jay L. Cohen (on brief); Lieutenant Colonel Frank J.
Spinner.

For Appellee: Lieutenant Colonel Thomas E. Schlegel
(argued); Colonel Jeffrey Infelise (on brief); Major Bar-
nard N. Madsen.

Opinion of the Court
CRAWFORD, Judge:

‘Contrary to her pleas, appellant was convicted of
wrongful use of cocaine, in violation of Article 112a,
Uniform Code of Military Justice, 10 U.S.C. § 912a. The
convening authority approved the sentence of a bad-
conduct discharge, 2 years’ confinement, and reduction to
the lowest enlisted grade. After the case was heard twice
by the Court of Military Review [29 MJ 573 (1989) and 36
MJ 732 (1992)] and once by this Court [33 MJ 323 (1991)],
the findings and sentence were affirmed. We specified the
following issue for review:

WHETHER THE [UNLAWFUL] QUESTIONING
OF APPELLANT WITHOUT THE REQUIRED
[ARTICLE 31] WARNING PRECLUDED AD-
MISSIBILITY OF THE [CONSENSUAL]
URINALYSIS RESULTS.

For the reasons stated herein, we hold that the results of
appellant’s urinalysis were properly admitted into
evidence.

FACTS

At the time of trial, appellant was a 30-year-old staff
sergeant, on active duty for over 10 years, and all of which
was in the security police field, including search and
seizure. She was a senior security police supervisor per-

3a

forming duties as a flight chief with responsibilities for
training other security police officers. A high school
graduate, appellant also took college level courses in law
enforcement procedures.

On August 17, 1987, an Air Force Office of Special In-
vestigations (OSI) agent told the security police
superintendent, Senior Master Sergeant Spahr, that an in-
formant had seen appellant at the Fast and Cool Club on
the previous Saturday night using illegal drugs and in the
company of a civilian woman named Tonya or Tina.

The OSI requested that appellant’s commander, Cap-
tain Thomas, ask her three questions about the incident
reported by the informant. Captain Thomas called ap-
pellant at home and left a message on her answering
machine requesting her to call his office. She returned his
call on August 19, 1987, and arranged to meet with Cap-
tain Thomas after drawing her weapon and before report-
ing for duty on the afternoon of August 20, 1987.

That afternoon she reported to Captain Thomas. Her
supervisor, Sergeant Holiman, was also present. Without
warning appellant pursuant to Article 31(b), UCMJ, 10
USC § 831, Captain Thomas informed her that he was go-
ing to ask her some questions regarding her whereabouts
on the previous Saturday night. Captain Thomas first
asked appellant where she was on Saturday night, and she
said at the Fast and Cool Club. He then asked who she was
with, and she said Tonya or Tina. Third, he asked who
Tonya or Tina was, and she said a civilian female whom
she had met.

After she answered the three questions, Captain
Thomas told her there was an allegation she had used
drugs, and he asked if she was “willing” to give a urine
sample. She replied, “Yes.” Because she was familiar with
the consent-to-search form, she did not hesitate filling that

4a

out. Appellant completed and signed a consent to vearch
form that contained the following:

I know that I have an absolute right to give my con-
sent to a search. I understand that, if I do consent toa
search, anything found in the search can be used
against me in a criminal trial. . . . 1 also understand
that, if | do not consent, a search cannot be made
without a warrant or other authorization recognized
in law.

Captain Thomas testified that there were “several
[similar] allegations made daily” in this “particular field,”
thus he did not warn her until he found “some validity” to
the allegations. Captain Thomas denied telling appellant,
“If you do not consent to it, you will be given a command-
directed urinalysis test.” Captain Thomas also testified
that she “was free” to “leave” the office.

We previously held that Captain Thomas was required
to give Article 31 warnings prior to asking the three ques-
tions. 33 MJ at 329. The question we must now address is
whether the consent to search was a fruit of the poisonous
tree.

DISCUSSION

The term “fruit of the poisonous tree” doctrine was first
used in Nardone v. United States, 308 U.S. 338, 341, 60
S.Ct. 266, 268, 84 L.Ed. 307 (1939). In Nardone, the
Court indicated that it is not enough to show “a causal
connection” between the original evidence and the
derivative evidence because “[a]s a matter of good sense
. . . such connection may have become so attenuated as to
dissipate the taint.” Jd. at 341, 60 S.Ct. at 268. See also
Mil.R.Evid. 304(e)(3), 311(a) and (e)(3), Manual for.
Courts-Martial, United States, 1984. The doctrine was
further refined in Wong Sun v. United States, 371 U.S.

Sa

471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963),
where the Supreme Court stated:

We need not hold that all evidence is “fruit of the
poisonous tree” simply because it would not have
come to light but for the illegal actions of the police.
Rather, the more apt question in such a case Is
“whether, granting establishment of the primary il-
legality, the evidence to which instant objection is
made has been come at by exploitation of that illegali-
ty or instead by means sufficiently distinguishable to
be purged of the primary taint.”
(Emphasis added.)

In Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285,
1291-92, 84 L.Ed.2d 222 (1985), the court stated: “The
Wong Sun doctrine applies as well when the fruit of the
Fourth Amendment violation is a confession.” Since the
standard as to consent is whether it was voluntary, we
shall examine the analysis of Elstad. Cf. United States v.
Gonzalez-Sandoval, 894 F.2d 1043, 1047-49 (9th Cir.
1990); United States v. Sangineto-Miranda, 859 F.2d
1501, 1515-19 (6th Cir. 1988). In Elstad the Supreme Court
declined to exclude an otherwise voluntary statement
following an inadmissible statement obtained by the
police. As the Court stated:

We must conclude that, absent deliberately coercive
or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of com-
pulsion. A subsequent administration of Miranda
warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to
remove the conditions that precluded admission of
the earlier statement. In such circumstances, the
finder of fact may reasonably conclude that the

6a

suspect made a rational and intelligent choice whether
to waive or invoke his rights.

470 U.S. at 314, 105 S.Ct. 1296.

As in Elstad, the crucial issue here is not whether the
consent was a fruit of the inadmissible statement but
rather, in Elstad’s terms, whether the “later confession”
was voluntary. The Court rejected the state court view
“that the unwarned remark compromised the volun-
tariness of [Elstad’s] later confession.” Jd. at 309, 105
S.Ct. at 1293.

The Court has refused to apply a “but for” test and has

also rejected the theory that the second confession would
be inadmissible under a “cat-out-of-the-bag” theory. /d. at
311, 105 S.Ct. at 1294. The Court went on to indicate that
any psychological compulsion that may flow from the un-
warned statement was too speculative and attenuated in
terms of its impact:
This Court has never held that the psychological impact of
voluntary disclosure of a guilty secret qualifies as state
compulsion or compromises the voluntariness of a subse-
quent informed waiver.

The Oregon court, by adopting this expansive view of
Fifth Amendment compulsion, effectively immunizes a
suspect who responds to pre-Miranda warning questions
from the consequences of his subsequent informed waiver
of the privilege of remaining silent... .

There is a vast difference between the direct consequences
flowing from coercion of a confession by physical violence
or other deliberate means calculated to break the suspect’s
will and the uncertain consequences of disclosure -of a
“guilty secret” freely given in response to an unwarned but
noncoercive question, as in this case. Justice Brennan’s
contention that it is impossible to perceive any causal
distinction between this case and one involving a con-

Ta

fession that is coerced by torture is wholly unper-
suasive. Certainly, in respondent’s case, the causal
connection between any psychological disadvantage
created by his admission and his ultimate decision to
cooperate is speculative and attenuated at best.

Id. at 312-14, 105 S.Ct. at 1294-96. See also United States
v. Gonzalez-Sandoval, 894 F.2d at 1047-49; United States
v. Sangineto-Miranda, 859 F.2d at 1515-19.

Next, we shall apply the El/stad analysis to the question
of the voluntariness of appellant’s consent. It is not
necessary for us to draw a distinction between a statement
made by an accused and physical evidence, although we
note that some courts have done so.* The legal standard as
to the existence of consent is as follows: “Thus, while
always viewing the facts in the light most favorable to the
Government . . . this Court has appropriately concerned
itself with whether those facts in any given case support
the conclusion of consent.” United States v. Middleton, \0
MJ 123, 133 (CMA 1981).

* As the Supreme Court of North Carolina has stated:

We do not see how the trustworthiness of the physical evidence
admitted in this case could be affected by its admission or exclu-
sion. Although the officers in this case violated the prophylactic
rule of Miranda as extended by Edwards [v. Arizona, 451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)], they did not violate
the defendant’s constitutional right not to incriminate himself. It
is important that all relevant evidence be submitted to the jury in
order for it to make the proper findings. This outweighs the need
to exclude evidence which was gathered as the result of a non-
coercive statement made in violation of the prophylactic
rule.

State v. May, 334.N.C. 609, 434 S.E.2d 180, 182 (N.C. 1993). See
also New York v. Quarles, 467 U.S. 649, 661-71, 104S.Ct. 2626,
2634-40, 81 L.Ed.2d 550 (1984) (O’Connor, J., concurring and
dissenting).

8a

Mil.R.Evid. 314(e)(4) and (5) provide that consent must
be voluntary and must be shown by “clear and convincing
evidence.” In determining whether consent is voluntary,
the Court should examine the totality of the cir-
cumstances. Schneckloth v. Bustamonte, 412 U.S. 218,
222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). See
United States v. Goudy, 32 MJ 88, 90 (CMA 1991). Ap-
plying this test, there are several factors that establish the
voluntariness of appellant’s consent: She is an experienced
law enforcement officer; she is knowledgeable about and
filled out the consent form without assistance; she was
allowed to set the time for the meeting with Capt.
Thomas; she was free to leave the meeting; she was not
frightened or confused; she was not evasive or un-
cooperative; she is 30 years old; she has some college
education; and there were no threats or orders. See United
States v. McClain, 31 MJ 130, 133 (CMA 1990); United
States v. White, 27 MJ 264, 266 (CMA 1988); United
States v. Middleton, 10 MJ at 132. Cf. United States v.
Sager, 36 MJ 137, 143 (CMA 1992).

We hold that there was “clear and convincing evidence”
of voluntary consent by this appellant.

The decision of the United States Air Force Court of
Military review on further review is affirmed.

Chief Judge SULLIVAN and Judges Cox, GIERKE, and
WISS concur.

9a

APPENDIX B

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 27422 (f rev).

UNITED STATES
Vv.

STAFF SERGEANT CATHLEEN L. MURPHY, FR476-76-3060,
| UNITED STATES Alz FORCE

Sentenced Adjudged 20 July 1988.
Decided 11 Dec. 1992.

Accused was convicted by general court-martial, Reese
Air Force Base, Mildred L. Raichle, J., of use of cocaine.
The United States Air Force Court of Military Review, 29
M.J. 573, affirmed. Review was granted. The United
States Court of Military Appeals, 33 M.J. 323, set aside
and remanded. Upon further review, the United States Air
Force Court of Military Review, Johnson, J., held that
commander’s failure to give Article 31 warnings did not
affect voluntariness of consent to search by urinalysis.

Record returned to Court of Military Appeals.

Leonard, Senior Judge, dissented and filed opinion.

Appellate Counsel for the Appellant: Colonel Jeffrey R.
Owens and Major Alice M. Kottmyer.

Appellate Counsel for the United States: Lieutenant
Colonel Brenda J. Hollis, Major Paul H. Blackwell, Jr.,
and Captain Thomas E. Wand.

10a

Before LEONARD, JAMES, and JOHNSON, Appellate
Military Judges.

OPINION OF THE COURT UPON FURTHER REVIEW
JOHNSON, Judge:

A general court-martial convicted Staff Sergeant Mur-
phy, contrary to her pleas, of one use of cociane. The
members sentenced her to a bad-conduct discharge, con-
finement for 2 years, and reduction to E-1. The convening
authority approved the adjudged sentence.

We previously reviewed four issues raised by appellant
and found them all without merit.' However, we found
appropriate only so much of the sentence as extended to a
bad-conduct discharge, confinement for 15 months, and
reduction to E-1. The Court of Military Appeals found ap-
pellant’s Article 31, 10 U.S.C. § 831, rights were violated
in an interview with her commander, at the conclusion of
which appellant consented to a urinalysis that produced
the primary evidence of her drug use.? Upon returning the
record for further review, the Court of Military Appeals
asked us to determine “whether the questioning of ap-
pellant without the required statutory warning precluded
admissibility of the urinalysis results.” United States v.
Murphy, 33 M.J. 323, 329 (C.M.A.1991). We have done
so, and we conclude the failure to warn appellant of her
Article 31 rights did not make the urinalysis results inad-
missible.

' United States v. Murphy, 29 M.J. 573 (A.F.C.M.R.1989).

2 The military judge found that Murphy was not a suspect at the
time her commander questioned her. The Court of Military Appeals
held she was a suspect, triggering the requirement for Article 31 warn-
ings. This Court’s previous decision upheld the military judge’s volun-
tary consent to search determination without examining the Article 31
issue.

lla

FACTS

In August 1987 appellant was a member of the security
police squadron at Reese Air Force Base, Texas. Captain
Thomas was her squadron commander and the chief of
security police. On 17 August 1987, and Air Force Office
of Special Investigations (OSI) agent told the security
police superintendent, Senior Master Sergeant Spahr, that
an informant had reported appellant had used drugs. The
agent also suggested specific questions to ask appellant.
On 18 August 1987, Sergeant Spahr and appellant’s super-
visor, Master Sergeant Holiman, told Captain Thomas of
the drug use allegation. They told him the informant
stated appellant was at the Fast and Cool Club with a
woman named Tonya or Tina on the previous Saturday
night, and appellant had used some illicit drug.

Captain Thomas directed that appellant be told to come
in to see him. She was off duty at the time, and a message
was left on her home answering machine to contact Cap-
tain Thomas’ office. She called 19 August 1987 and ar-
ranged to meet with Captain Thomas before reporting for
duty on the afternoon of 20 August 1987.

Appellant reported to Captain Thomas as scheduled.
Her supervisor, Sergeant Holiman, was also present. Cap-
tain Thomas told appellant he needed to ask her some
questions concerning here whereabouts on the previous
Saturday night. He then asked her if she had been at the
Fast and Cool Club. She answered, “Yes.” > He asked her
if she was with Tina, or Tonya. She again answered, “yes,
Tonya.” He then asked who Tonya was, and she said a
civilian female that she had met. These were the questions

3 Appellant testified that she was asked about her whereabouts on
Monday, 17 August 1987, rather than Saturday, 15 August 1987. This
variance between her recollection and that of Captain Thomas and
Sergeant Holiman is of no consequence to the issue before us.

12a

suggested by OSI. Having confirmed these details of the
informant’s story, Captain Thomas told appellant he had
received an allegation of drug use by her and asked if she
was willing to take a urine test. She agreed. Sergeant
Holiman accompanied appellant to the base hospital
where she provided a urine sample, which tested positive
for cocaine.

Captain Thomas did not advise appellant of her Article
31 rights at any time during this interview. Captain
Thomas testified he initially viewed the OSI’s allegation as
rumor or speculation and he did not suspect appellant of
any wrongdoing.‘ He said that if she had told him she was
on duty the night in question, she was not at the Fast and
Cool Club, or she did not know Tonya, he would not have
asked her to take a urinalysis. Also, if she has asked to
stop the interview and see a lawyer, he would have
stopped, advised her of her rights, and given her an oppor-
tunity to see a lawyer. He further stated appellant’s
answers confirming her presence in the Fast and Cool

4+ A few months earlier Captain Thomas had called appellant into
his office to discuss a previous report that she was involved with
drugs. The nature and extent of that conversation were not developed
in any detail at trial, but the allegation was apparently treated as un-
founded. Appellant was continued in her security police law enforce-
ment duties, and just before her urinalysis report was received she was
rated “outstanding” on a performance report. Appellant testified that
Captain Thomas referred to the prior allegation during the interview
in which she gave consent to search. Captain Thomas testified it was
not mentioned. This question was not addressed in Sergeant
Holiman’s testimony. In her findings at trial, the military judge ad-
dressed the contradictions between appellant’s testimony and that of
Captain Thomas and Sergeant Holiman. She found appellant’s
testimony on these issues to be “totally self-serving and opportune in
hindsight,” and found the testimony of the others to be “totally credi-
ble. . . forthright and definite.” We agree. We find that no menmtion
of the prior allegation was made.

l3a

Club with Tonya on Saturday night did not, in themselves,
confirm the allegation of drug use. Because of her ap-
parent lack of concern, he testified his attitude at the time
was, “as.far as I’m concerned, it’s still not true.”

LAW AND ANALYSIS

Military Rule of Evidence 314 (e)(5) requires clear and
convincing evidence of voluntariness for the admission of
evidence based on a consent to search. A consent to search
is valid if the totality of the circumstances show that the
consent was freely and voluntarily given. Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973); United States v. Frazier, 34 M.J. 135
(C.M.A.1992); United States v. Burns, 33 M.J. 316
(C.M.A.1991); United States v. Goudy, 32 M.J. 88
(C.M.A.1991); United States v. McClain, 31 M.J. 130
(C.M.A.1990); United States v. Roa, 24 M.J. 297
(C.M.A.1987).

No single factor was identified in these cases as being
decisive, but some of the circumstances mentioned have
included:

(1) The degree to which the suspect’s liberty was
restricted (under escort, under arrest or apprehen-
sion, held in the office of law enforcement agents,
called to the commander’s office, etc.)

(2) The presence of any coercion, promises, direct
orders, threats (including threats that if consent to
search is withheld, an authority to search will be ob-
tained or a command-directed urinalysis will be or-
dered), or other forms of intimidation or pressure.

(3) Awareness by the suspect that he or she had the
right to refuse to consent to the search (as established
by direct testimony or by oral or written warnings, in

l4a

the light of inferences drawn from the suspect’s age,
experience, education, training, and intelligence).

(4) The suspect’s demeanor and apparent mental state
(sober, calm, confident, cooperative, unconcerned;
or confused, intimidated, tired, intoxicated, reluc-
tant, anxious, etc.).

(5) Whether the suspect had consulted with counsel.

(6) The coercive effect of any prior violations of the
suspect’s constitutional or statutory rights (e.g., rights
to legal counsel, or rights against self-incrimination
under Article 31 or the Fifth Amendment).

We have examined the record of trial in appellant’s case
an weighed all the relevant facts and circumstances. Ap-
pellant was called to her commander’s office, and she had
a military duty to appear. She testified there were a variety
of possible reasons for being called there, including future
assignments or matters having to do with her subor-
dinates. She reported formally, by standing at attention in
front of his desk and saluting; he returned her salute and
told her to be seated. She had drawn her sidearm for per-
formance of her security police duties; she was not dis-
armed for the interview. The commander was not armed.
The commander spoke to her in a normal conversational
tone; there was nothing intimidating or coercive in his
manner.> No promises, direct orders, threats, or other

> In Goudy, supra, the Court of Military Appeals rejected an argu-
ment that any request for a consent to search made by a commander
to a subordinate who has reported formally in the commander’s office
should be presumed to be involuntary because the circumstances make
the request an “implied order.” While the court rejected any such
“bright-line rule,” it expressly considered the setting as part of the

totality of the circumstances.

lSa

forms of intimidation or pressure were used.® Captain
Thomas did not tell appellant expressly that she had the
right to refuse to consent to search but it was implicit in
the phrasing of his request that she had the right. Ap-
pellant helped complete the consent to search form, which
contains a warning that consent may be refused.’
Appellant was 30 years old. She had completed high
school and some college courses. She had been in the Air
Force for over 10 years. She spent her entire career in the
law enforcement career field and progressed well in the

6 Appellant testified Captain Thomas told her that if she did not
consent to a urinalysis, he would order a command-directed
urinalysis. Both Captain Thomas and Sergeant Holiman denied this
was said. In her findings at trial, the military judge addressed the con-
tradictions between appellant’s testimony and that of Captain Thomas
and Sergeant Holiman. She found appellant’s testimony to be “self-
serving and oppotune in hindsight,” and found the testimony of the
others to be “totally credible . . . forthright and definite.” We agree.
We have weighed the evidence carefully, and we find that no mention
ofa command-directed urinalysis was made.

7 The Air Force Form 1364 contained the following printed
language:

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 in a criminal trial or in
any other disciplinary or administrative procedure. I also under-
stand that, if I do not consent, a search cannot be made without a
warrant or other authorization recognized in law. . . . Before giv-
ing 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 inducement and without any
promise of reward, benefit, or immunity having been made to
me.

The first sentence of this form is certainly inartful, but read
together this warning makes it clear to anyone of reasonable in-
telligence that they have a right to refuse their consent.

l6a

career field. She was serving as a law enforcement flight
chief and had completed consent for search forms in the
course of her duties. She received training on search and
seizure and provided such training to her subordinates.
We find that appellant was well aware she had the right to
refuse her consent for search.

Throughout appellant’s interview with her commander
and her completion of the consent form, she asked no
questions and showed no hesitancy, uncertainty, or con-
cern. She did not ask to speak with counsel or anyone else.
Sergeant Holiman testified he accompanied appellant to
the hospital and remained with her for the | to 2 hours it
took to collect the urine sample. During that time, ap-
pellant voiced no concern or doubt about what she was do-
ing. She made no request to call anyone on the telephone
or to leave the hospital.

The primary remaining consideration is the effect of
Captain Thomas’ failure to give appellant a warning of her
rights under Article 31, UCMJ, before questioning her.
Her responses were in themselves not incriminating, but
they corroborated certain details of the OSI informant’s
report. They were part of the chain of events that led to
appellant’s urinalysis, since Captain Thomas testified that
he would not have asked her to consent to a urine test if
she had denied these aspects of the informant’s report.

There is no general requirement that a suspect be in-
formed of his of her Article 31 rights before being asked to
consent to search. Frazier, supra. Article 31 warnings
become an issue in consent searches only when a law en-
forcement agent of other person in authority has asked the
suspect questions without a proper Article 31 warning dur-
ing the events preceding the consent to search. In such
cases, the unwarned statements must be considered as part
of the totality of the circumstances in deciding whether the
suspect’s consent to search was voluntary.

17a

Appellant was a suspect, and she received no Article 31
warning before her commander asked her questions. The
fact that appellant made these unwarned statements dur-
ing the events leading up to her consent to search must be
weighed for their likely impact on that decision. On their
face, the facts she related were innocent. Captain Thomas
did not tell her that her responses matched the informant’s
report. Her only complaint is that if she had been told she
was suspected of an offense, or had been warned of her
Article 31 rights, she would have known she was under
suspicion and wouid not have consented to the search.
This position is contradicted by the undisputed fact that
Captain Thomas advised appellant before asking for her
consent to the search that he had received allegations of
drug use by her. There is nothing in the record that in-
dicates appellant’s decision to consent to the search was in-
fluenced in any way by the responses she made to her com-
mander’s questions. In the circumstances of this case we
find Captain Thomas’ failure to give Article 31 warnings
did not effect the voluntariness of appellant’s consent to
search. Weighing the totality of the circumstances, we find
her consent was voluntary, by clear and convincing
evidence.

We are mindful that evidence derived from violations of
Article 31 warning requirements is inadmissible. United
States v. Churnovic, 22 M.J. 401 (C.M.A.1986). In this
case, however, we find that appellant’s consent to search
was not “derived” from her responses to unwarned ques-
tioning. As just discussed, her responses did not affect the
voluntariness of her consent. No information she provided
was used to locate any evidence. There is no evidence as to
whether Captain Thomas would have asked appellant for
her consent if she had invoked her Article 31 rights
(although we infer he would have, since he testified he was
prepared to drop the inquiry only if she answered that she

18a

was not at the Fast and Cool Club at the time in issue, or
did not know Tonya). There is insufficient causal connec-
tion, on the specific facts of this case, to conclude that the
urine test was tainted by Captain Thomas’ failure to give
an Article 31 warning.

In accordance with the mandate of the Court of Military
Appeals, the record will be returned directly to that Court.

Judge JAMES concurs.
LEONARD, Senior Judge (dissenting);

| dissent from the majority’s holding finding the results
of appellant’s urinalysis admissible in her court-martial.
Using a totality of the circumstances rationale, I cannot
find clear and convincing evidence that appellant volun-
tarily consented to give the urine sample used for the
urinalysis.

In determining whether a consent to search is voluntary
or mere acquiescence to authority, the facts and cir-
cumstances surrounding the giving of the consent are
critical. Although I generally agree with the facts
presented in the majority opinion, I find some differences
that impact upon my application of a totality of the cir-
cumstances analysis.

First, appellant’s meeting with her commander to
discuss allegations of her drug use was clearly conducted
in terms of an enlisted person ordered to report to her
commander.® Appellant was notified by telephone to

8’ | agree with the majority that there is no presumption of involun-
tariness merely because a request for consent occurs following a sub-
ordinate reporting to a commander. However, the majority also cor-
rectly notes that the location and the circumstances leading up to a re-
quest for consent are part of the totality of the circumstances. United
States v. Goudy, 32 M.J. 88, 91 (C.M.A.1991). Under the cir-
cumstances of appellant’s case, I accord more weight to the

19a

come and see her commander immediately or as soon as
possible. Captain Thomas testified he considered the re-
quest to come and see him an order for appellant to report
to his office. Appellant walked into Captain Thomas’ of-
fice, saluted him, and remained at attention until he gave
her further direction. She reported to Captain Thomas
with her supervisor Master Sergeant Holiman. According
to the testimony of appellant and Holiman, appellant
could not leave until Captain Thomas dismissed her.

Second, although he hedged as to whether appellant’s
responses to his unwarned questioning verified the allega-
tion, Captain Thomas testified her responses confirmed
the alleged facts and circumstances of appellant’s drug use
as reported to the Air Force Office of Special Investiga-
tions (OSI) by an unknown informant.

Third, the majority finds implicit in the phrasing of
Captain Thomas’ request for the urinalysis a right to
refuse to consent. That finding stretches the evidence.
Captain Thomas ordered appellant to report to his office.
She reported in a formal manner and was not free to leave
until he dismissed her. Captain Thomas asked her specific
questions about her whereabouts on a particular evening.
Immediately after hearing her responses, he told her there
was an allegation she had used drugs and asked for her
consent to a urinalysis. Finding an implicit right to refuse
contained in this sequence of events is difficult.?

circumstances of appellant’s reporting to her commander than the ma-
jority.

9 In footnote 7, the majority sets forth printed language of Air
Force Form 1364 concerning the “absolute right to give my consent to
a search” afforded the person asked for a consent to search. The
wording of this form is not merely “inartful.” It is deliberately
misleading and should be changed without delay.

20a

The Court of Military Appeals found Murphy was a
suspect and should have been advised of her Article 31
rights before being questioned. Upon returning her record
for further review, they asked us to determine “whether
the consenual urinalysis was tainted by the violation of
Murphy’s Article 31 rights.” United States v. Murphy, 33
M.J. 323, 329 (C.M.A.1991).

Before Murphy, the law seemed well established that a
consent to search and seizure is valid if clear and convinc-
ing evidence of the totality of the circumstances show the
consent was freely and voluntarily given. Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854
(1973); United States v. Frazier, 34 M.J. 135
(C.M.A.1992); United States v. Burns, 33 M.J. 316
(C.M.A.1991); Goudy, 32 M.J. at 90; United States v.
McClain, 31 M.J. 130 (C.M.A.1990); Mil.R.Evid.
314(e)(5). The language of Murphy could be construed to
require a taint attenuation analysis as a step separate from
a totality determination.

In Frazier, Chief Judge Sullivan addressed an Article 31
violation in the context of consent to a search. He treated
the Article 31 violation in Frazier as “a factor to be con-
sidered in determining the voluntariness of appellant’s
later consent to search.” 34 M.J. at 138 (concurring in the
result.'° Although the facts of Frazier differ from those
before us, I believe the rationale of Chief Judge Sullivan’s
opinion applies. Frazier’s supervisor suspected Frazier of
having stolen some money from his roommate and the
supervisor asked Frazier whether he had stolen the money.

'0 Judge Cox wrote the lead opinion and found the viewing of the
contents of Frazier’s wallet was a lawful search since Frazier voluntari-
ly-gave up the wallet without any coercion. Judge Cox found there was
no interrogation of Frazier prior to the request to see the wallet. The
remaining members of the Court did not participate. ~

2la

He denied it. The supervisor then asked to see Frazier’s
wallet and Frazier gave his wallet to the supervisor. The
wallet contained large bills approximating the amount
allegedly stolen. In finding Frazier’s consent voluntary,
Chief Judge Sullivan’s analysis of the Article 31 “factor”
focused on the “non-incriminating non-coerced nature” of
Frazier’s responses. /d.

Following this rationale, I would examine any “taint”
from Murphy’s Article 31 violation as a factor bearing
upon the volunariness of appellant’s consent.'' In analyz-
ing this factor, I would focus on (1) the length of time be-
tween the violation and the consent, (2) the intervening cir-
cumstances, (3) the flagrance of the violation,'? (4) the

'' In Burns, Senior Judge Everett analyzed the relationship of the
Fourth, Fifth, and Sixth Amendment to a consent to search situation.
He noted that the Fifth and Sixth Amendments right to counsel and
Article 31 protections were not applicable to a request for consent to
search in the course of an initial investigation of an offense. Burns, 33
M.J. at 319, 320; United States v. Roa, 24 M.J. 297, 299
(C.M.A.1987). He found that the Fifth Amendment and Article 31
did not apply because consent was not a statement and a request for
consent was not interrogation. Burns, 33 M.J. 320. The Sixth Amend-
ment right to counsel was found inapplicable when the government
was still engaged in an initial investigation and had not made any for-
mal accusations of criminal conduct. United States v. Cronic, 466
U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984); Burns, 33
M.J. at 319; Roa, 24 M.J. at 299. Judge Everett concluded the only
real issue is a totality of circumstances analysis of whether the consent
to search was given freely and voluntarily. Burns, 33 M.J. at 320;
Mil.R.Evid. 314 (e)(4).

'2 These three factors have been considered by a number of courts
as circumstances bearing on a totality determination. See Brown vy. II-
linois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416
(1975) (illegal arrest preceded warned confessions); United States v.
Richardson, 949 F.2d 851, 858 (6th Cir.1991) (illegal arrest preceded
consent); United States v. Walker, 933 F.2d 812, 818 (10th Cir.1991),
reh’g denied 941 F.2d 1086 (10th Cir.1991), cert. denied ____ US.

22a

coercive nature of the unwarned questioning, and (5) the
incriminating nature of the responses. However, as the
majority correctly points out, consideration should not be
limited to the circumstances of the Article 31 violation.
This factor must be considered with all other relevant fac-
tors, including whether the consent was requested in a
custodial setting; whether the suspect was advised of her
right to refuse to consent; the tone of voice and demeanor
of the requestor; and the age, rank, education, and ex-
perience of the person giving the consent. Burns, 33 M.J.
at 320, 321; Goudy, 32 M.J. at 90-91.

In my view, the Article 31 violation and its cir-
cumstances injected an element of subtle coercion that
raised serious doubts about Murphy’s ability to give a free
and voluntarily consent. Captain Thomas ordered Mur-
phy to report to his office. Once she reported, he then con-
ducted a unwarned interrogation of specific questions
designed to-verify her drug involvement. As soon as her
answers confirmed the suspicions of the OSI, Captain
Thomas requested she consent to give a urine sample. No
break occurred in the sequence of events, and no one told
Murphy she had a right to refuse to give her consent. I find
4 direct nexus between Captain Thomas’ Article 31 viola-
tion and appellant’s consent to give the urine sample.

No intervening circumstances occurred to disrupt this
direct nexus. In fact, the only intervening circumstances
served to intensify the coercive atmosphere rather than
alleviate it. After Murphy’s responses, Captain Thomas
highlighted the incriminating nature of her unwarned
responses by immediately telling her someone had alleged
she had been involved with drugs. This sequence of events
placed Murphy in a situation where she could have reason-

__, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992) (illegal detention
preceded consent).

23a

ably felt compelled to defend herself against statements
just taken from her in violation of her Article 31 rights.
While Captain Thomas’ unlawful interrogation could be
an innocent technical violation, the circumstances seem to
indicate otherwise. I am particularly concerned that agents
of the Air Force Office of Special Invegtigations suggested
asking the specific unwarned questions. The government
did not provide any evidence concerning the purpose or
context of the suggested questions to dispel the suspicious
nature of this method of interrogation. Second, the
method of interrogation becomes even more suspicious
considering the questions were asked by a security police
squadron commander to investigate a second allegation of
drug involvement. Captain Thomas may have acted with
good intentions, but such an obvious disregard of Article
31 responsibilities is troubling.'? I would find violation of
appellant’s Article 31 rights intentional and flagrant.
The majority finds appellant’s responses to Captain
Thomas’ questions not incriminating. | do not agree. An
informant reported to the OSI that appellant had used co-
caine at the Fast and Cool Club with a civilian named Tina
or Tonya over the previous weekend. Captain Thomas
testified he asked appellant specific questions to verify this
allegation of illegal drug use. These questions were de-
signed to verify all the surrounding facts of the
informant’s report without directly asking appellant
whether she illegally used cocaine. Captain Thomas also
testified appellant’s responses verified the facts reported to
him of the circumstances of the allegation. Because of this
verification, he asked her consent for a urine sample. He
testified that, if her responses had not verified the facts
reported to him, he would not have asked for her to give a

'3 It is ironic that Captain Thomas testified he would have given her
rights advisement only after she had invoked her rights.

24a

sample. Appellant’s responses placed her at the scene of
the crime, at the time the crime reportedly occurred, and
with the person alleged to be her accomplice. Her
responses created an inference that she committed the
crime reported by the informant. Under these cir-
cumstances, I find the responses incriminating.

In addition to the coercion arising from the direct nexus
to Captain Thomas’ unwarned questioning. I find other
evidence of coercion present in the circumstances of ap-
pellant’s consent. First, the ordering of appellant to report
to her commander’s office with her supervisor for ques-
tioning set the stage for acquiescence rather than volun-
tary consent. Appellant and her supervisor knew she could
not leave until her commander released her. Second,
despite the obvious inference of coercion from such a set-
ting, neither Captain Thomas nor Master Sergeant
Holiman ever mentioned she could refuse to consent.
Alone this other evidence of coercion would not cause me
to find appellant’s consent involuntary. However, when it
is combined with the circumstances of Article 31 violation,
it further undermines the governmet’s position.

Usually, Murphy’s age, rank, and experience could help
support a finding of valid consent, Burns, 33 M.J. at 321;
Goudy, 32 M.J. at 91, but under the circumstances of this
case, these factors may have increased her compelling in-
terest in defending herself. What wrongly accused NCO
would refuse to cooperate with her commander and super-
visor and help clear her good name? How could a law en-
forcement NCO, who has already made statements to the
chief of security police verifying the circumstances of al-
leged drug use, reasonably believe that her denial of con-
sent would be perceived as anything other than an admis-
sion of guilt? This belief could be even stronger when the

25a

NCO has already faced the same commander concerning a
prior allegation. '4

There is no evidence that Captain Thomas or Master
Sergeant Holiman ordered Murphy to give consent, but a
totality of circumstances analysis of voluntariness goes
beyond an examination of explicit actions and statements.
The subtle and implicit pressures commanders can bring to
bear upon an airman are a proper matter for concern. To
find a free and voluntary consent we must be satisifed by
clear and convincing evidence that subtle and implicit
pressures of command have not overwhelmed the airman
giving the consent. United States v. Goudy, 32 M.J. 88, 91
(C.M.A.1991); United States v. Ward, 19 M.J. 505, 507
(A.F.C.M.R.1984); Mil.R.Evid. 314(e)(5). After consider-
ing all the circumstances and paying particular attention to
the background and effect of the unwarned interrogation,
I do not find clear and convincing evidence that Murphy’s
consent to the urinalysis was freely and voluntarily given.

Because the urinalysis results were the keystone of the
government’s case, appellant’s conviction cannot stand.'°

I would set aside the findings of guilty and the sentence.

'4 Although Captain Thomas testified he did not mention the prior
allegation of drug involvement by appellant, both he and appellant
were well aware this was the second time she had been called before
him to answer to drug related allegations.

'S With the exception of three brief witnesses, the government’s en-
tire case-in-chief involved the urinalysis.

These three witnesses testified about statements made by appellant
while the urinalysis results were pending. Her statements consisted of
concerns that she may have been given drug laced cigarettes and ques-
tions about the affect the lacing could have on the urinalysis. Tonya
Brooks was called as a witness in rebuttal and testified that she used
cocaine with appellant during the charged time period. The defense
was able to mount a substantial attack on Ms. Brooks credibility. In
my opinion, the testimony of Ms. Brooks would not establish ap-
pellant’s guilt beyond a reasonable doubt.

26a

APPENDIX C

U.S. COURT OF MILITARY APPEALS

No. 63,837.
ACM No. 27422.
UNITED STATES, APPELLEE,
Vv.

CATHLEEN L. MuRPHY, STAFF SERGEANT,
U.S. AiR FORCE, APPELLANT.

Argued Oct. 3, 1990.
Decided Sept. 30, 1991.

Accused, staff sergeant, United States Air Force, was
convicted by general court-martial, Reese Air Force Base,
Texas, Mildred L. Raichle, J., of wrongful use of cocaine.
The United States Air Force Court of Military Review, 29
M.J. 573, affirmed. Review was granted. The United
States Court of Military Appeals, Everett, Senior Judge,
held that: (1) the military judge did not commit prejudicial
error by failing to suppress the testimony of government
rebuttal witness where the Government had not signified
an intent to call that witness in response to discovery re-
quests, and (2) accused became a “suspect” entitled to
receive warnings after accused’s commander received
specific report that particular subordinate had committed
a crime and commander asked accused specific questions
suggested by law enforcement agents.

Set aside and remanded.
Sullivan, C.J., filed a concurring statement.

27a

For Appellant: Major George P. Clark (argued); Col-
onel Richard F. O’Hair (on brief).

For Appellee: Captain Thomas E. Ward (argued); Col-
onel Robert E. Giovagnoni, Major Paul Blackwell, Jr.,
Captain Morris D. Davis (on brief); Lieutenant Colonel
Brenda J. Hollis.

Opinion of the Court

EVERETT, Senior Judge:

A general court-martial with officer members tried Staff
Sergeant Cathleen L. Murphy in july 1988 at Reese Air
Force Base, Texas, on the single charge that, “within the
continental United States, sometime between 6 August
1987 and 20 August 1987, [she] wrongfully use[d]
cocaine,” in violation of Article 112a, Uniform Code of
Military Justice, 10 USC § 912a. Contrary to her pleas,
she was found guilty as charged and sentenced to a bad-
conduct discharge, confinement for 2 years, and reduction
to airman basic. After approval of the sentence by the con-
vening authority, the Court of Military Review affirmed
the findings and the sentence, except for reducing her con-
finement by 9 months. 29 MJ 573, 577 (1989).

We granted review on this specified issue:

WHETHER THE MIITARY JUDGE COMMIT-
TED PREJUDICIAL ERROR BY FAILING TO
SUPPRESS THE TESTIMONY OF A GOVERN-
MENT REBUTTAL WITNESS WHERE THE
GOVERNMENT HAD NOT SIGNIFIED AN IN-
TENT TO CALL THAT WITNESS IN RESPONSE
TO A DISCOVERY REQUEST.

The Air Force Office of Special Investigations (OSI)
received an informant’s report that Murphy, a security

28a

police flight chief, had been seen using drugs in the com-
pany of a woman named Tonya or Tina at the Fast and
Cool Club in Lubbock, Texas. After her squadron com-
mander, Captain Danny Thomas, had learned of this
report, he asked appellant to come in to see him. When she
reported to him on August 20, 1987, she responded to his
questions by saying that she had been at the Fast and Cool
Club in the company of a Tina or Tonya the preceding
weekend. Then he told her that she had been alleged to
have used cocaine, and he asked her to consent to a
urinalysis. She gave her consent, and the urinalysis tested
positive for cocaine.

At appellant’s trial, which began on July 12, 1988, the
prosecution’s case-in-chief relied heavily on the results of
the urinalysis. After a government expert had testified to
the drug-testing procedures that had been utilized, trial
counsel called Dr. Whiting, a defense consultant or expert,
“as an adverse witness” over vigorous defense objections.
He testified that, in view of Murphy’s reading of 507
nanograms per milliliter on the urinalysis test, she must
have felt the effects of the cocaine —no matter how it was
ingested. Three prosecution witnesses testified that Mur-
phy had told them that someone might have given her
laced cocaine cigarettes or put cocaine in her drink and
that she wanted to know if a urinalysis would be positive
under these circumstances.

The government rested its case about 9:00 a.m. on July
18, 1988. After about an hour recess, the court recon-
vened: and the defense began putting on its case. Ap-
pellant was called as the first defense witness; and she
testified that she had never “intentionally” or “knowingly
used cocaine between” August 6 and August 20, 1987. Ac-
cording to her, “every other day or so” in July and August
1987 she had drunk a lot of Peruvian tea, which she had
received from the girlfriend of her brother-in-law when

“aie linia tenis Matera oi

29a

she had been in California. Furthermore, she suggested in
her testimony that someone might have laced her drink or
Cigarette with cocaine, and this might have caused her
urine sample to test positive for cocaine.

On cross-examination, Murphy testified that the week
before her urinalysis, she had gone to several nightclubs
and on August 17, 1987, had visited the Fast and Cool
Club with a girl named Tonya. There, they “had been
drinking,” and she had received two or three Kool ciga-
rettes from Tonya. However, she did not know whether
Tonya had put anything in her cigarettes. According to ap-
pellant, someone might have put something in her drink at
the Fast and Cool Club when a couple of college students
came in and sat down with them. Murphy also recalled
that, about the time of the urinalysis, she was taking
medication for a shoulder injury and that she had taken
Tylenol, which had codeine.

On redirect examination, appellant admitted that she
had met Tonya previously at the Crystal Club and that
Tonya had called her on the afternoon of August 17 about
going out. “She gave me directions how to get down to her
apartment or whatever, and I picked her up at, I think
about 8 o’clock or so—8, 8:30.”

The defense recalled Dr. Whiting, a toxicologist, to
testify in its behalf. According to him, someone could
drink cocaine-laced tea without noticing any unusual ef-
fects or could unknowingly smoke a_ cocaine-laced
cigarette. However, he conceded on cross-examination,
that, if someone had seen Murphy snort cocaine up her
nose 3 days before her urinalysis, the hypothetical situa-
tion of unknowing ingestion which he had described were
“irrelevant.”

The defense rested its case at 3:44 p.m. on July 18, 1988.
Thereupon, the prosecution indicated that he intended to
call Ms. Tonya Brooks as a rebuttal witness; he proffered

30a

that she would “testify that she was with the accused” on
Monday evening, August 17, 1987, when they had “use[d]
cocaine . .. in an automobile outside the Cadillac Bar,
and” later inside a restroom at the Fast and Cool Club.
The defense promptly requested that they “be permitted to
interview her and do some checking on her.”

When the military judge then inquired why trial counsel
had not called Tonya Brooks as a witness during “the
Government’s case-in-chief,” the explanation offered was
that the OSI had not located the witness until the night
before the trial started. “The statement was received ap-
proximately 11 o’clock or 2300 hours, on the 11th, the day
prior to trial, by one of the OSI agents.” Furthermore, ac-
cording to assistant trial counsel, he had not received a
copy of Tonya’s statement until the afternoon of the next
day —after trial had begun at 8:30 a.m. on July 12. He fur-
ther explained that he had first talked to the witness about
15 minutes before the present session and that he had not
been “able to talk to her” until that time, and for this
reason had not used her earlier as a witness.

Defense counsel then noted that long before, on
January 22, 1988, he had served on the Government “—-
discovery request” for “copies of all statements made by
witnesses, and . . . this [had been] a continuing request.”
Therefore, because the Government had not complied
with this request by disclosing Tonya’s statement, she
should not be “allowed to testify.” Defense counsel then
states that, if the court “ruled against” his motion, the
defense should be provided a copy of the statement “and
also given an opportunity to interview” the witness.

After assuring herself that Tonya’s statement was not
“exculpatory,” the military judges ruled that she would
allow the witness to testify and that, after testimony on
direct, the defense would be given a recess SO that they
could interview Tonya before cross-examining her. The

3la

military judge acceded to a defense request that a copy of
the statement be provided after direct examination; that
the agent who had located Tonya be made available for an
interview during the recess; and that the defense have an
“opportunity to conduct a brief background check with
police agencies” to find out whether Tonya had any “prior
convictions.”

Tonya then testified as a prosecution witness that she
and Murphy had gone “out one Monday evening.” Ap-
pellant had come by and picked her up, and they had gone
to appellant’s “house to get some money.” Murphy then
came back and purchased some cocaine from Tonya’s
boyfriend; and she and Tonya snorted the cocaine through
a straw while they were inside the car which was parked at
the Cadillac Bar. After a beer or two there, they walked
next door to the Fast and Cool Club, where they drank
some more beer before going to a restroom and finishing
off the rest of the quarter of a gram of cocaine.

After this testimony on direct examination, the military
judge recessed the court from 4:10 p.m. on July 18 until
1:32 p.m. the next day. When trial resumed, defense
counsel cross-examined Tonya, who stated that she was
“testifying . . . under a grant of immunity from the State
of Texas.” The defense also presented evidence that Tonya
had a reputation as a liar and had been convicted of drunk
driving. On redirect, Tonya testified that if she had given
Murphy “a cocaine-laced cigarette ... she would have
known from the time she got it, with a cigarette that
doesn’t have the filter in it, that something’s in the
cigarette. Plus, if it’s cut in half you know something’s
wrong. And she would have tasted it . . . on her tongue,
on her mouth.”

According to Tonya, she had talked with appellant once
after they had gone out on August 17, 1987. This had been
a week or two later, when Tonya had called appellant

32a

to discuss plans they had made to go out again. During
that call, Murphy had told her that someone from the base
who had seen them together knew that Tonya was in-
volved “with drugs” and had told appellant “to stay away
from” her. Tonya also testified that later on the Monday
evening when she and appellant had gone out, she had re-
turned to her boyfriend’s apartment; but, after they had a
fight, she had moved back to her mother’s house. How-
ever, Murphy had known how to reach her, because she
had Tonya’s mother’s telephone number. Finally, Tonya
testified that she had given appellant a line of cocaine 3 or
4 days before they had gone out together on August 17,
1987.

On recross-examination, the witness testified that Mur-
phy had known about her moving back to her mother’s
house, because they talked about going out, and she had
given Murphy her mother’s telephone number. “I told her
if she came by Bobby’s [her boyfriend] and {| wasn’t there,
that I would be at my mom’s, and she could contact me
there. That was the reason for me giving her my mother’s
number.”

In surrebuttal, the defense offered evidence of Murphy’s
good military character. Moreover, they called as a wit-
ness Mr. Clifford May, who once had employed Tonya for
about 3 months. According to him, he would not “believe
her under oath,” and “one of [his] employees didn’t trust
her.”

Another defense surrebuttal witness was Thomas Bar-
ron who, along with Larry Shelby, Tonya, and Murphy,
had been at appellant’s apartment on Monday, August 17.
However, he had not seen Murphy use cocaine that even-
ing; and he had never known her to use the drug. He
would believe Murphy under oath; and he stated that “her
reputation for truthfulness” was “pretty good.”

33a

Before the Court of Military Review, Murphy contend-
ed that the military judge had committed error by allowing
Tonya Brooks to testify. In this connection, she com-
plained that the Government had not complied with RCM
701(a)(3)(A) and 701(d), Manual for Courts-Martial,
United States, 1984.

The court below concluded that, under our holding in
United States v. Trimper, 28 MJ 460 (CMA), cert. denied,
493 U.S. 965, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989), trial
counsel should have disclosed Tonya’s name to the defense
and provided the defense with a copy of her pretrial state-
ment because the prosecutor should have foreseen the like-
ly relevance of her testimony. However, the court was con-
vinced that the military judge had provided an adequate
remedy for this error.

In this appeal, as in the Court of Military Review, Mur-
phy contends that she was prevented from effectively de-
fending against the cocaine-use charge by the prosecutor’s

surprise eyewitness. She asserts that, despite their best ef-
forts and the continuance they were granted, the defense
team could not effectively challenge the rebuttal witness.
According to the defense, Tonya’s testimony was material
evidence; and the sanction imposed for withholding this
evidence should be its exclusion at trial. Thus, they argue,
the military judge’s failure to exciude the testimony was
prejudicial error.

In addition, the defense contends that, in view of the
prosecution’s tactics of ambush, the Government should
carry a heavier burden in order to sustain the conviction.
Appellant insists that the testimony of Tonya Brooks, who
was an alleged eyewitness of the crime, was not rebuttal
evidence in the usual sense; and so, if not offered in the
Government’s case-in-chief, it should be excluded.

34a

We agree with appellant and with the Court of Military
Review that Tonya’s statement should have been given to
the defense before the time that trial counsel was prepar-
ing to call her as a rebuttal witness. RCM 701(a)(1)(C) re-
quires trial counsel to “provide .. . to the defense ...
[aJny sworn or signed statement relating to an offense
charged in the case which is in the possession of the trial
counsel.” Furthermore, trial counsel is required to provide
the sworn or signed statement to the defense “fajs soon as
practicable after service of charges.” If that cannot be
done because “extraordinary circumstances make it im-
practicable,” trial counsel must then give the defense an
opportunity “to inspect” the statement.

Months before appellant’s trial, the defense had made a
continuing request for discovery of any witness’ state-
ments. Pursuant to that request and in accordance with
RCM 701(a)(1)(C), the prosecutor should have given a
copy of Ms. Brooks’ statement to the defense shortly after
receiving it from the OSI on July 12, 1988. Indeed, trial
counsel was in the same courtroom with defense counsel;
and it certainly would have taken little effort to hand a
copy of the statement over to the defense. Under no cir-
cumstances should it have taken the prosecutor a week to
disclose the statement to the defense. Contrary to trial
counsel’s apparent belief, the disclosure requirement
under RCM 701 does not depend in any way on whether
trial counsel has had an opportunity to read the witness’
statement or to talk to the witness.

RCM 701(a)(3)(A) requires: “Before the beginning of
trial on the merits the trial counsel should notify the
defense of the names and addresses of the witnesses the
trial counsel intends to call: (A) In the prosecution case-in-
chief; and (B) To rebut a defense of alibi or lack of mental
responsibility, when trial counsel has received timely

35a

notice under subsection (b)(1) or (2) of this rule.”' This
provision would have applied if trial counsel had intended
to call Tonya “in the prosecution case-in-chief.” However,
there is no evidence that contradicts the prosecutor’s
representations that he had never planned to call Tonya as
a witness in his case-in-chief and, indeed, that he had
neither received Tonya’s statement nor talked to her until
after the trial had started.

Ordinarily the evidence at trial is presented in this se-
quence:

(A) Presentation of evidence for the prosecution;
(B) Presentation of evidence for the defense;
(C) Presentation of prosecution evidence in

rebuttal;
(D) Presentation of defense evidence in surrebut-
tal;

(E) Additional rebuttal evidence in the discretion
of the military judge; and .

(F) Presentation of evidence requested by the
military judge or members.

RMC 913(c)(1). We do not interpret this provision to re-
quire that the Government use in its case-in-chief every
possible eyewitness or person with knowledge of the
crime. Instead, the prosecutor may decide, for instance,
that some of his evidence is cumulative and should not be
offered unless some need arises. Under those circum-
stances, RCM 701(a)(3)(A) does not apply; and the prose-
cutor need not disclose the names of the witnesses whom
he will not be calling in his case-in-chief.

However, a trial counsel who holds back material evi-
dence for possible use in rebuttal to ambush the defense
runs a risk. The military judge has the responsibility to

' RCM 701(b)(1) and (2) requires the defense to give the Government
notice that it intends to claim alibi or lack of mental responsibility.

36a

“exercise reasonable control over the proceedings to pro-
mote the purposes of” the Rules for Courts-Martial and
the Manual for Courts-Martial. RCM 801(a)(3); cf. RCM
102(a). In the exercise of that control, a military judge is
entitled to exclude prosecution evidence in rebuttal, if the
judge concludes that it should have been offered in the
prosecution case-in-chief and has not fulfilled the purpose
of rebuttal — namely, “to explain, repel, counteract, or dis-
prove the evidence introduced by the opposing party.” See
United States v. Cleveland, 29 MJ 361, 363 (CMA 1990).
Thus, the military judge, in her discretion, could have ex-
cluded the testimony of Tonya Brooks on the ground that
it was not proper rebuttal and should have been offered as
part of the prosecution case-in-chief.

Although we agree with the defense that trial counsel
violated RCM 701(a)(1)(C) by not giving Tonya’s state-
ment to the defense at an earlier time, we are not con-
vinced that exclusion of her testimony was necessary to
remedy the error. As we recently observed in United States
vy. Trimper, supra at 468, RCM 701(g)(3) allows the
military judge to choose among several remedies in order
“to redress a [government] failure to disclose evidence.”
These remedies include “ordering discovery, granting a
continuance, [and] excluding the evidence.”

Here the military judge granted appellant a continuance
for several hours; required trial counsel to deliver to
defense a copy of Tonya’s statement, and gave defense
counsel an opportunity to interview Tonya before cross-
examining her. The circumstance that, during the con-
tinuance, defense counsel were able to conduct a back-
ground investigation of the witness, obtain a certified copy
of her conviction for driving under the influence, and
locate a witness who testified in surrebuttal about Tonya’s
lack of truthfulness tends to show that the prosecution’s
omission could be remedied without excluding the witness’

37a

testimony. Indeed, in defense counsel’s reply to the staff
judge advocate’s post-trial recommendation to the conven-
ing authority, the only defense complaint was the lack of
sufficient time to obtain evidence about Tonya’s reputa-
tion and veracity.

Appellant has not shown us that she suffered any
specific prejudice from the delay in receiving a copy of thie
statement by Tonya Brooks; and we have discovered none
from our study of the record. Moreover, we conclude that
the testimony given by Tonya Brooks would have been
almost equally damaging to the defense even if it had been
presented as part of the government case-in-chief, rather
than in rebuttal. Most important, we are sure that the
defense had adequate opportunity to controvert the be-
latedly introduced evidence. Cf. United States v. Sadler,
488 F.2d 434, 435 (Sth Cir.), cert. denied, 417 U.S. 931, 94
S.Ct. 2642, 41 L.Ed.2d 234 (1974).

In Trimper, we observed that, if the military judge had
accepted the defense contention that nondisclosure was
part of a cunning prosecutor’s scheme to ambush appel-
lant, the grounds for excluding the evidence would be
stronger. Although in this case the prosecution used some
unorthodox tactics — at least one of which was criticized by
the court below? — we are unconvinced that the absence of

-. disclosure about Tonya and her statement was a trick by

the prosecution.

Furthermore, the defense should not have been sur-
prised that the Government might locate Tonya and use
her as a witness sometime during the trial. From the time
of the first report of Murphy’s cocaine use, the name of
Tonya was associated therewith. Indeed, appellant herself

2 The Court of Military Review expressed distaste for the prose-
cutor’s calling Dr. Whiting as a government witness during the prose-
cution case-in-chief. 29 MJ 573, 577 (1989).

38a

admitted to her squadron commander that she had asso-
ciated with “Tonya or Tina” at a club. At an earlier point,
Murphy had stated to a friend that a female companion
might have laced her drink or cigarette with cocaine; and
Murphy testified at trial that she had been with Tonya at a
club on the night of August 17, 1987. Thus, Tonya did not
spring “full blown from the head” of trial counsel, as ap-
pellate defense counsel seem to intimate.

The defense was aware of Tonya Brooks’ existence and
cannot really complain of foul play because the Govern-
ment managed to locate her. Indeed, it seems that Murphy
knew how to contact and locate Tonya all along, while the
Government was frantically trying to find her. Under
these circumstances, appellant deserves little judicial sym-
pathy.

Although we decide the granted issue against appellant,
our review of the record has revealed a matter which was
raised at trial and gives us great concern. Captain Danny
Thomas called Murphy in to see him after he had learned
of an informer’s report to the OSI that appellant had been
using cocaine with another woman. Apparently in coor-
dination with the OSI, he had prepared three questions to
ask her. When she reported in, Captain Thomas asked her
these questions; but he did so without giving her a warning
under Article 31(b), UCMJ, 10 USC § 831(b). In his view,
such a warning was not required because she had not yet
become a “suspect.”

Unfortunately, we have difficulty in accepting this litn-
ited construction of the term “suspect.” After a com-
mander or supervisor has received a specific report that a
particular subordinate has committed a crime and the
commander then prepares to ask specific questions sug-

3
4
4

39a

gested by law-enforcement agents, it is unrealistic to say
that the person to be questioned is not a “suspect.”

After answering three questions by Captain Thomas,
Murphy was asked to consent to a urinalysis. According to
Thomas, if her answers had been different, he would not
have ordered the urinalysis; but because in some way her
responses seemed to corroborate the report received by the
OSI, he decided to go forward with the urinalysis.

We recognize that consent to a urinalysis involves
Fourth Amendment—not Fifth or Sixth Amendment —
rights. Cf. United States v. Burns, 33 MJ 316 (CMA
1991); United States v. Roa, 24 MJ 297 (CMA 1987).
Also, the Sixth Amendment right to counsel is not in-
volved in the preliminary stage of a criminal investigation.
Nonetheless, in light of Thomas’ acknowledgment as to
the basis for his consent request, we believe it is appro-
priate to consider whether the consensual urinalysis was
tainted by the violation of Murphy’s Article 31 rights.
Moreover, initially the Court of Military Review should
deal with this issue.

IV

The decision of the United States Air Force Court of
Military Review is set aside. The record of trial is returned
to the Judge Advocate General of the Air Force for re-
mand to that court to determine whether the questioning
of appellant without the required statutory warning pre-
cluded admissibility of the urinalysis results. If the answer
is in the negative, the record will be returned directly to
this Court. Otherwise Article 67(a), UCMJ, 10 USC
§ 867(a) (1989), will apply.

Judge Cox concurs.

40a

SULLIVAN, Chief Judge (concurring):

I write only to note my separate opinions in United
States v. Burns, 33 MJ 316 (CMA 1991), and United States
v. Roa, 24 MJ 297, 302 (CMA 1987).

ye ae

Bilt iA scat cw kas Git ahd nea ee

4la
APPENDIX D

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM No. 27422.
UNITED STATES
Vv.

STAFF SERGEANT CATHLEEN L. Murpuy, FR 476-76-3060,
UNITED STATES AIR FORCE..

Sentence Adjudged 20 July 1988.
Decided 27 Sept. 1989.

Accused, staff sergeant, United States Air Force, was
convicted by general court-martial, Reese Air Force Base,
Texas, Mildred L. Raichle, J., of wrongful use of cocaine,
and she appealed. The United States Air Force Court of
Military Review, Kastl, Senior Judge, held that: (1) grant-
ing a continuance, rather than suppressing the testimony
of a rebuttal witness, was an adequate remedy for the
prosecutor’s failure to disclose the testimony; (2) testi-
mony of the accused’s commander about whether he would
like to have the accused back in his unit was a permissible
observation, not an impermissible recommendation that
the accused not be returned to duty any place in the Air
Force; and (3) the prosecutor should not have called a
defense consultant as a prosecution witness without clear
and convincing reasons, but no prejudice resulted.

Affirmed.

42a

Lewis, Senior Judge, concurred in part and dissented in
part with opinion.

Appellate Counsel for the Appellant: Mr. John J.C.
O’Shea, Lubbock, Texas; Colonel Richard F. O’Hair and
Major Frank J. Spinner.

Appellate Counsel for the United States: Colonel Joe R.
Lamport, Lieutenant Colonel Robert E. Giovagnoni, Ma-
jor Terry M. Petrie and Captain David G. Nix.

Before LEWIS, BLOMMERS and KASTL, Appellate Military
Judges.

DECISION

KASTL, Senior Judge:

Following a heavily-litigated trial which the prosecution
called a “war of attrition,” appellant Staff Sergeant Mur-
phy was found guilty by a general court-martial consisting
of members of wrongful use of cocaine, a violation of Ar-
ticle 112a, UCMJ, 10 U.S.C. § 912a. A significant portion
of the prosecution’s evidence consisted of the results of a
positive urinalysis indicating the presence of cocaine in the
appellant’s urine. Her sentence is a bad conduct discharge,
two years of confinement, and reduction to airman basic.
Before us, she raises four matters for our consideration.

Adequate Notice Under R.C.M. 701

The appellant first argues that the military judge erred
by failing to suppress the testimony of a government
rebuttal witness after the prosecution failed to follow the
dictates of R.C.M. 701. That witness, Ms. Tonya Brooks,
testified, over defense objection, as an accomplice and the
sole eyewitness to the cocaine offense charged.

43a

We disagree and find the recent decision of United
States v. Trimper, 28 M.J. 460 (C.M.A. 1989) dispositive.
The defense insisted at trial that Brooks’ name should have
been revealed in response to the defense’s routine dis-
closure request — or at least made known after the defense
moved that the Government particularize the specific loca-
tion at which the accused supposedly ingested cocaine.
After Brooks testified, the military judge permitted the
defense a continuance from the close of court the after-
noon of 18 July until the afternoon of 19 July; the defense
succeeded in ferreting out both a witness who testified that
Ms. Brooks had bad character and proof of a Texas con-
viction for driving while intoxicated.

Following the guidance of Trimper, we hold that the
prosecutor should have foreseen the likely relevance of
this witness’s testimony and disclosed it. See R.C.M.
701(a)(3) and 701(d) and United States v. Callara, 21 M.J.
259, 263 (C.M.A. 1986). Though we follow the reasoning
of the Court of Military Appeals in 7rimper and Callara
that failure to disclose was error, we find—as did the
Court of Military Appeals in those two cases—that ex-
cluding the testimony of the witness was unnecessary to
cure the dilemma. The military judge was free to fashion
other remedies. Here, she did so by granting a continu-
ance. See R.C.M. 701(g)(3).

One could argue that Trimper is distinguishable in that
the evidence there involved uncharged drug use which re-
butted Captain Trimper’s assertions of innocence; in the
present factual pattern, the testimony of Ms. Brooks went
directly to prove the offense charged and was admissible in
the government’s case-in-chief. We view this distinction as
offering no consolation to the appellant. In sum, we find

no error.

44a

The Consent Search

The appellant also argues that the military judge com-
mitted prejudicial error when she failed to suppress in-
criminating statements made by the appellant as well as
the results of a urinalysis subsequently obtained “without
the appellant’s voluntary consent.” We believe the appel-
lant’s assertion of error mixes Fourth Amendment oranges
with Fifth Amendment apples. The key to unraveling the
matter is not whether an Article 31, 10 U.S.C. § 831,
warning was needed but, under the Fourth Amendment,
whether the consent was voluntary. See Mil.R.Evid.
314(e)(4); United States v. Roa, 24 M.J. 297 (C.M.A.
1987); United States v. Simmons, 26 M.J. 666 (A.F.
C.M.R. 1988). See also Saltzburg, Schinasi & Schlueter,
Military Rules of Evidence Manual 254-255 (2d ed. 1986)
and LaFave, Search and Seizure, 214-217 (2d ed. 1987).
The trial judge’s conclusion of voluntary consent will not
be disturbed unless unsupported by the evidence of record
or clearly erroneous. United States v. Middleton, 10 M.J.
123, 133 (C.M.A. 1981) and cases cited. Premised on that
standard, we find the military judge ruled correctly.

Indivi. «il Defense Counsel

Our attention is invited to the defense claim that the ap-
pellant was improperly denied an individual military
counsel. We are satisfied that the military judge correctly
ruled that no attorney-client relationship had been estab-
lished with the judge advocate in question and that the in-
dividually requested defense counsel was unavailable.
United States v. Gnibus, 21 M.J. 1, 7 (C.M.A. 1985);
United States v. Wallace, 14 M.J. 1019, 1022 (A.C.M.R.
1982). See also United States v. Perry, 14 M.J. 856, 859
(A.C.M.R. 1982). In addition, our review of the record
convinces us that the accused received a vigorous, robust

RR RR T_T

45a

defense. See generally United States v. Kelly, 16 M.J. 244,
248 (C.M.A. 1983).

Testimony by Appellant’s Commander

Finally, Sergeant Murphy argues that the judge erred in
permitting her commander to testify in regard to
rehabilitation. Two separate matters worthy of analysis
arose during the testimony of the appellant’s squadron
commander. First, the commander was asked, “Would
you like to have Staff Sergeant Murphy . . . to come back
to work for you in the squadron?” The commander
responded in the negative. Second, the commander
specified that the reason for his negative answer was:

A. ... because of my [sic] animosity.
Q. Animosity in the squadron?
A. Yes, sir.

Based on this testimony, we first assess whether a com-
mander properly may indicate under United States y.
Ohrt, 28 M.J. 301 (C.M.A. 1989), whether he wants the
individual to come back into his squadron. We find this a
permissible observation. Here, the commander opined
that he didn’t want Sergeant Murphy back in his unit; this
is substantially different from an impermissible recom-
mendation that she should not be returned to duty any-
place in the Air Force. See United States v. Ohrt, 28 M.J.
at 305.

As for the other part of his remarks: As we read it, the
comment about “animosity” did not violate the caution of
United States v. Horner, 22 M.J. 294 (C.M.A. 1986); that
the commander must base his assessment upon this ap-
pellant’s character and potential, not simply upon the
severity of the offense. Reading this commander’s
remarks, we are convinced that he was not displaying
some sort of ineradicable personal “animosity” against the
appellant. To the contrary, he was simply noting that

46a

Sergeant Murphy had blotted her copybook badly in the
unit so that others now felt such “animosity” towards her.
Because of this, he did not want her returned to duty with
his unit. We find such testimony proper. See United States
vy. Beno, 24 M.J. 771 (A.F.C.M.R. 1987).

Order of Witnesses

Our review of this case surfaced another intriguing
issue. During the trial, Doctor John Whiting, a defense ex-
pert or consultant —the record is unclear as to his precise
status — was permitted to sit at the defense table during the
testimony of the government’s expert as to drug pro-
cedures at Brooks Air Force Base, Texas. After this
testimony, the prosecution sought to call Doctor Whiting
to the stand as its own witness over vigorous defense ob-
jections. The military judge granted the prosecution re-
quest.

In a very recent case, the Court of Military Appeals has
explained the correct procedures with experts in the two
categories of potential witness and consultant. See United
States v. Turner, 28 M.J. 487 (C.M.A. 1989). The Court
found there that although the prosecution erred in inter-
viewing the defense consultant, there was no reversible er-
ror. In the instant case, we cannot tell from the record
before us into which of the two categories Dr. Whiting
fell. If he was a witness, trial counsel could properly have
interviewed him. See United States v. Turner, 28 M.J. at
489, n.3. Yet if he was a consultant, trial counsel could not
speak with him without defense approval. Jd. at 488-489.

To be completely fair to the appellant, we will view Doc-
tor Whiting as a consultant —this places him in the most
favorable category for the appellant. In light of Turner
and the numerous cases cited therein, we find no error pre-
judicial to the rights of the accused. Furthermore, we have

A Ziabriiinwel

47a

carefully reviewed the testimony of Dr. Whiting and have
assured ourselves that there was nothing contained in it
which would not have come out in the ordinary course of
the court-martial. Accordingly, we find nothing here
which provides a basis for vacating the appellant’s convic-
tion.

Yet even if Doctor Whiting is seen as a witness who
would eventually take the stand for the defense, we view as
highly irregular the unorthodox approach of a “preemp-
tive strike” by the prosecutor in calling the witness to the
stand before the defense has its own chance to present
him. The prosecution claimed its purpose was simply to in-
terview Dr. Whiting under oath. Though we impute no
bad faith to the prosecutor, it strikes us that he thereby
conceded that he did not know what he might discover.
We surmise that a good objection would lie in terms of
relevancy and ineffective use of courtroom time. See
Mil.R.Evid. 611 and Saltzburg, Schinasi & Schlueter,
Military Rules of Evidence Manual 556-561 (2d ed. 1986)
and cases cited. See also Mil.R.Evid. 706 and Saltzburg &
Redden, Federal Rules of Evidence Manual (4th ed. 1986)
709. Finally, there are Constitutional dangers in interfer-
ing with the defense team’s decision making process. See
United States v. Turner, 28 M.J. at 489 and Lange v.
Young, 869 F.2d 1008 (7th Cir. 1989). Accordingly, we
suggest that military judges disallow such a “grandstand-
ing” departure from the ordinary and orderly presentation
of defense expert witnesses unless there is a clear, convinc-
ing need for such innovation.

Sentence Appropriateness

We note the members sentenced the appellant to a bad
conduct discharge, two years of confinement, and a
reduction to the lowest enlisted grade. We have carefully

48a

considered the numerous matters raised by Sergeant Mur-
phy in extenuation and mitigation both at trial and in post-
trial submissions, including the fact that two court
members have recommended clemency. We find appropri-
ate only so much of the sentence as extends to a bad con-
duct discharge, confinement for 15 months, and reduction
to airman basic.

We have carefully reviewed the record of trial. The find-
ings of guilty and the sentence, as modified, are correct in
law and fact. The findings of guilty and the sentence, as
modified, are

AFFIRMED.

Judge BLOMMERS concurs.

Senior Judge LEwis (concurring/dissenting in part):

! have considerable reservation about the manner in
which the issue concerning Tanya Brooks’ testimony was
handled. I concur in the way the majority has disposed of
the issue because I believe it to be consistent with the
Court of Military Appeals’ guidance in 7rimper. How we
feel about non-disclosure of evidence in Government
custody will be guided by how we characterize the underly-
ing issue. In this case, as in Trimper, we can take some
comfort from the fact that the appellant through her ap-
parently untruthful testimony on the merits set her own
trap and cannot now be heard to complain of prejudice.
However, there is another way of viewing this situation.
The Government, through its nondisclosure, has deprived
the appellant of the effective assistance and advice of
counsel. Our system contemplates that the defense will be
made aware of those evidentiary cards held by the prose-
cution which it might reasonably expect to play during the
course of trial. When material information is withheld,

49a

the defense attorney simply cannot provide adequate ad-
vice on the often critical matter of whether an accused
should testify on the merits or forego that opportunity in
the face of almost certain devastating impeachment or
rebuttal. Once an accused has committed to a course of ac-
tion destined to brand him or her as a liar before the triers
of fact, all the continuances in the world are not going to
provide any relief.

While I agree that apparent perjury should not be
rewarded, I would prefer that we craft a rule which would
more strongly reinforce full disclosure. I believe that
vigorous enforcement of such rule would discourage per-
jured testimony, which, in my view, is preferable to e€xpos-
ing it after the fact. Our trial advocates understand their
responsibility for attempting to prevent it before the fact. |
am-certain they will police the aspect of our practice to the
utmost of their ability.

I would not reduce the sentence imposed by the mem-
bers in this case. A short time ago I would have joined the
majority in this respect in light of the fact that the ap-
pellant stands convicted of a one time use of cocaine and
has presented truly impressive mitigation. The times are
changing. Trial counsel have spent a good portion of the
past decade urging members in drug-related cases to “send
a message.” This era has about receded into history. Those
who have failed to heed the message can expect to face a
new reality. I suggest that this case may represent one of
this Court’s final acts of grace in a cocaine abuse case for
some time to come.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0639%3A1. Public record. Not legal advice.