United States v. Ironhawk

United States v. K. Davis

United States v. Metz

[W]as Appellant a suspect when first interviewed by Naval Criminal Investigative Service (NCIS) agents, triggering a requirement for Article 31(b) warnings? Second, did the lower court err in its application of Brown and its subsequent finding that trial defense counsel was not ineffective when he failed to move to suppress evidence derived after an illegal apprehension?

​At times it can also be appropriate to consider the subjective view, looking at “what the investigator, in fact, believed, and . . . decid[ing] if the investigator considered the interrogated person to be a suspect.” Muirhead, 51 M.J. at 96. Designating someone a suspect for Article 31(b), UCMJ, purposes requires more than merely a “hunch.” Swift, 53 M.J. at 447.

In deciding this issue, it is essential to note that a “mere suspicion . . . triggers the obligation to inform [a] suspect of his Article 31” rights. United States v. Schneider, 14 M.J. 189, 193-94 (C.M.A. 1982) (emphasis added). Moreover, only a “relatively low quantum of evidence” is necessary in order for the rights advisement requirement to be triggered. United States v. Swift, 53 M.J. 439, 447 (C.A.A.F. 2000) (emphasis added). 

Mere Suspicion: A “gut” hunch that criminal activity is afoot. There are no “facts” a law enforcement officer can use to explain or justify his or her “feeling.” This standard will legally justify a voluntary stop only.

The agents went to the barracks that housed several persons who held keys to the maintenance building. They knocked first on a door that was ajar without knowing that Appellant occupied the room. The agents told Appellant they were investigating an incident at his workplace and asked if they could come inside to speak with him. Appellant agreed to talk and invited them in. The agents did not deliver Article 31(b), UCMJ, warnings. Appellant told the agents he did not know anything about the incident at the maintenance building and had not left the barracks area that morning. He said he had lent his key to someone, indicating that it could be lost, and that he had reported the missing key to his command. As Agent CP was scanning the room to ensure no one else was present, he noticed some shoes inside the bathroom that appeared to be wet, as if they had been laid out to dry. They were hanging on towel hooks and the insoles were nearby, propped on the toilet paper holder. Agent CP asked Appellant, “Hey are those Nikes?” Appellant said yes.

Agent CP then asked, “Do you mind if I go and take a look at them?” and Appellant replied that he could. Agent CP testified that he entered the bathroom and, as he got closer to the shoes, he detected an overwhelming odor of gasoline, possibly jet fuel or diesel. Agent CP and Agent KT immediately ended their interview with Appellant and left his room. The agents returned to their vehicle and remained outside the barracks hoping to spot Appellant if he attempted to dispose of the shoes. They returned to Appellant’s room after approximately twenty minutes and noted that he had moved the shoes to the ledge of the door, presumably to continue drying. Appellant was not in his room. Agent CP testified that they were worried they might have “spooked” him and that “something bad” might be happening. He went to look for Appellant and found him coming out of a breezeway near the smoke pit.

We have consistently held that “[w]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious.” United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (alteration in original) (internal quotation marks omitted) (citation omitted); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001); United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997). Similarly, if deficient performance is established, to demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.