United States v. Keefauver

• Decision Date: 12 June 2015
• Docket Number: 15-0029
• Parties: UNITED STATES, Appellee v. Levi A. KEEFAUVER, Specialist, U.S. Army, Appellant
• Court: United States Court of Appeals, Armed Forces Court of Appeals

74 M.J. 230

UNITED STATES, Appellee v. Levi A. KEEFAUVER, Specialist, U.S. Army, Appellant

No. 15-0029

United States Court of Appeals, Armed Forces

June 12, 2015

Argued April 15, 2015.

As Corrected June 17, 2015.

Crim App. Dkt. No. 20121026. Military Judges: Timothy Grammel and Steven Walburn.

For Appellant: Captain Patrick J. Scudieri (argued); Lieutenant Colonel Jonathan F. Potter, Colonel Kevin Boyle, and Major Amy E. Nieman (on brief).

For Appellee: Captain Benjamin W. Hogan (argued); Major A. G. Courie III and Colonel John P. Carrell (on brief); Major Daniel Derner.

Amicus Curiae for Appellant: Curtis J. Hinca (law student) (argued) Catherine E. White (law student) and Steven H. Wright, Esq. (supervising attorney) (on brief) - University of Wisconsin Law School.

Amicus Curiae for Appellee: Veronica Sustic (law student) (argued) Jake Blair (law student) and John A. Pray, Esq. (supervising attorney) (on brief) - University of Wisconsin Law School.

RYAN J., delivered the opinion of the Court, in which BAKER C.J., and ERDMANN, STUCKY, and OHLSON, JJ., joined.

OPINION

RYAN, Judge.

A military judge sitting as a general court-martial convicted Appellant, contrary to his pleas, of two specifications of violating of a lawful general regulation by wrongfully possessing drug paraphernalia and unregistered weapons on post, one specification of wrongful possession of marijuana, and one specification of child endangerment in violation of Articles 92, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 892, 912a, 934 (2006). Appellant was sentenced to a bad-conduct discharge, four years' confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence as adjudged.

The United States Army Court of Criminal Appeals (ACCA) reviewed the case pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (2012), and affirmed.^[1] United States v. Keefauver, 73 M.J. 846, 848, 858 (A. Ct. Crim. App. 2014). We granted Appellant's petition to review the following issue only:

WHETHER THE ARMY COURT ERRED IN FINDING THE PROTECTIVE SWEEP WAS APPROPRIATE IN TOTAL.

We hold that the military judge and ACCA erred in upholding the protective sweep. As both the evidence in support of the bulk of the charges and the entirety of the ACCA's opinion are inextricably intertwined with the protective sweep of Appellant's home, we reverse the ACCA and remand for further proceedings consistent with this opinion.

I. FACTS

On December 8, 2011, between 7:30 a.m. and 7:45 a.m., postal inspectors at the Louisville, Kentucky, postal processing center notified Inspector Steven Lamp in Bowling Green, Kentucky, that they had discovered a suspicious, heavily taped box that smelled of marijuana. They transported the package to Bowling Green, where Inspector Lamp determined, based on his training and experience, that the box, measuring fifteen inches by twelve inches by ten inches and weighing eight pounds, likely contained marijuana. He determined that no one by the sender's name, " B. Samuelson," currently resided at the California return address, but that Appellant and his wife, to whose joint residence the package was addressed, had previously claimed that California address as their own. Because the package was addressed to a Fort Campbell address, Inspector Lamp notified the Criminal Investigation Command (CID) office's Drug Suppression Team Chief, Special Agent (SA) Steven Roche. At SA Roche's request, Inspector Lamp and two other inspectors transported the package to Fort Campbell, joining SA Roche at CID by late morning.

At approximately 11:00 a.m., SA Roche obtained verbal authorization from Captain (CPT) Mark Robinson, the military magistrate, to conduct a " controlled delivery," whereby a postal inspector would pose as the regular mail carrier and agents would enter the house after the package was taken inside to seize the box and search the room or immediate area in which it was found.^[2] At approximately 1:00 p.m. at CID, a military working dog (MWD) " alerted on the box," confirming it likely contained a controlled substance. Agents took the package from CID to the Fort Campbell Post Office, where it was scanned as having arrived at 1:14 p.m. SA Roche then arranged for surveillance teams in front of and behind Appellant's house as well as down the street.

Agents knew four persons lived at the address -- Appellant; his wife; his sixteen-year-old stepson, TC-D; and his thirteen-year-old son, EK -- but that none had been seen entering or exiting since surveillance began. They also knew that no one at the address had a firearm registered in his or her name.

A postal investigator made the controlled delivery at 2:36 p.m., first knocking on the door, then, when no one answered, leaving the package on the porch next to the front door. The package remained on the porch until TC-D arrived home at 3:20 p.m. and took it inside. Shortly thereafter, CID agents and postal inspectors moved in, knocking on the front door. When TC-D answered the door, agents informed him that they would be conducting a search. In response, TC-D became verbally abusive. Agents asked TC-D to step outside, where they handcuffed him and seated him next to the garage. SA Roche entered the home and found the package in the hallway, ten feet from the entrance. He noticed a strong odor of marijuana in the house.^[3] SA Roche conducted what he characterized as a " security sweep" of the entire house. While sweeping the kitchen, SA Roche saw drug paraphernalia on the counter. On the second floor, SA Roche discovered a bag of what appeared to be marijuana as well as additional drug paraphernalia in TC-D's room, rifles in an unlocked walk-in closet off the hallway, and suspicious boxes in the master bedroom, all in plain view. Based on a misunderstanding of the verbal search authorization, agents then reentered the house and conducted a second, full search of the home with MWDs.

Before trial, Appellant moved to suppress all evidence other than the box of marijuana on the grounds that the search authorization to seize it was defective in relation to the search of his home. Appellant argued that the authorization to do anything other than seize the package inside his home was not based on probable cause, as the package was addressed to the residence rather than its residents, and, moreover, that the authorization failed to describe the place to be searched and things to be seized with requisite particularity. Applying a standard echoing Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the military judge denied the motion on the ground that the evidence resulting from " the continued search of the house . . . beyond what the magistrate had authorized" after the protective sweep " would have inevitably been discovered," as " there was overwhelming evidence to support a request for search authorization" based on the box's delivery plus the " marijuana, drug paraphernalia, and weapons in that residence" seen during the protective sweep. In his view, the protective sweep was proper because agents could reasonably have believed " an individual or individuals who posed a danger to the agents may have been hiding in the residence" given the quantity of marijuana present and the inference that residents were engaging in drug distribution, as " [i]t is common knowledge that drug trafficking involves violence, including the use of weapons." The military judge concluded that TC-D's hostile response to the agents' announced intent to enter the house and conduct a search supported this belief.

II. ACCA DECISION

The ACCA affirmed the ruling of the military judge that the protective sweep was valid under Buie based on the facts that the package containing marijuana was taken inside the home; Appellant, his wife, and their two sons lived there; agents' lack of information about the adults' whereabouts; and TC-D's reaction to the agents' presence. Keefauver, 73 M.J. at 853-54. Moreover, the ACCA determined that expert testimony on the suppression motion from Inspector Lamp asserting that " guns follow drugs," while it could not per se authorize a protective sweep, could be considered by the military judge in conjunction with the other facts. Id. at 853. The ACCA went on to hold that evidence from the later post-sweep search of Appellant's house using MWDs was properly admitted under the inevitable discovery doctrine because the drugs, weapons, and drug paraphernalia observed during the protective sweep provided agents with probable cause to seek a wider warrant. Id. at 854-57.

III. DISCUSSION

" When reviewing a decision of a Court of Criminal Appeals on a military judge's ruling, 'we typically have pierced through that intermediate level' and examined the military judge's ruling, then decided whether the Court of Criminal Appeals was right or wrong in its examination of the military judge's ruling." United States v Cabrera-Frattini, 65 M.J. 241, 246 (C.A.A.F. 2007) (quoting United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 2006)) (quoting United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996)) (internal quotation marks omitted). This Court reviews a military judge's decision to suppress evidence for an abuse of discretion. United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000) (citing United States v. Ayala, 43 M.J. 296, 298 (1995)). Fact-finding is reviewed under the clearly erroneous standard while conclusions of law are reviewed de novo. Id. " [W]e consider the evidence in the light most favorable to the prevailing party." United States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks omitted). Whether facts in toto justify a protective sweep is a question of...