Court of Appeals for the Armed Forces

United States v. Metz

A majority of the court, led by Judge Sparks addresses several questions of interest (with the Chief as sole dissenter): 

[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?

The majority's first point of law is that it is an objective test used to determine if someone is a suspect, to which Article 31 applies. That answer is based on a totality of the facts, and the military judge's ruling on a motion is reviewed for an abuse of discretion. But,

​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.

To which the Chief counters,

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). 

There are various dictionary definitions of "hunch."

• a strong intuitive feeling concerning especially a future event or result.
  
• a feeling or guess based on intuition rather than known facts.
  
• an idea that is based on feeling and for which there is no proof.
  
• an impression that something might be the case.

The Federal Law Enforcement Training Center (FLETC) says this:

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.

See also, Anthony J. Pinizzotto Ph.D.; Edward F. Davis M.A.; Charles E. Miller III, Intutive Policing: Emotional/Rational Decision Making in Law Enforcement. 73(2) Law Enforcement Bulletin, February 2004; Craig Lerner, Reasonable Suspicion and Mere Hunches. 59 Vanderbilt L. Rev. 407 (2006). You can see more here about what is sometimes referred to as a policeman's instinct.

These facts show how less than a hunch transitions to more than mere suspicion.

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.

It is interesting that the agents did not immediately seek a search authorization for the barracks room because they didn't think they had sufficient PC. Why not go to the base commander and the SJA anyway. They could still have staked out the barracks to see if he'd attempt to dispose of the shoes (an indicia of guilt) while waiting for the warrant. Once the Appellant showed up, they could still have asked for a PASS without telling him they had a warrant. True, they might then be facing a motion on the search authorization the granting of which would seem quite reasonable on the facts here and the Government could likely assert a good faith basis regarding the search authorization.

NMCCA decision.

​The other part of the problem here was a claim that the DC were ineffective for not making a motion to suppress.

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.

Because the court resolves the first issue in favor of the Government, there's no IAC.