United States v. Conklin

UNITED STATES, Appellee v. Steven L. CONKLIN, Airman First Class U.S. Air Force, Appellant No. 05-0220 Crim. App. No. 35217 United States Court of Appeals for the Armed Forces Argued November 8, 2005 Decided July 27, 2006

GIERKE, C.J., delivered the opinion of the Court, in which EFFRON and ERDMANN, JJ., joined. BAKER, J., filed a dissent in which CRAWFORD, J., joined.

Counsel

For Appellant: Captain Anthony D. Ortiz (argued); Colonel Carlos L. McDade, Lieutenant Colonel Craig S. Cook, and Major Sandra K. Whittington (on brief); Captain L. Martin Powell.

For Appellee: Major Mathew Ward (argued); Lieutenant Colonel Gary F. Spencer, Major Michelle M. McCluer, Major John C. Johnson, and Captain C. Taylor Smith (on brief).

Military Judge: Sharon A. Shaffer This opinion is subject to revision before final publication. United States v. Conklin, No. 05-0220/AF Chief Judge GIERKE delivered the opinion of the Court.

Evidence derivative of an unlawful search, seizure, or

interrogation is commonly referred to as the “fruit of the

poisonous tree” and is generally not admissible at trial.1 In

this case we address the question of whether consent to a

subsequent search is the antidote to the poison created by an

earlier unlawful search.2 Although the subsequent consent may be

a good treatment for the poison, it is not a panacea. Here, we

hold that Appellant’s consent did not purge the taint of the

earlier unlawful search.

We granted review of two issues presented by Appellant.3

Because of our resolution of Issue I (unlawful search and

seizure), it is unnecessary to address Issue II (the legal

sufficiency of evidence).

1 Nardone v. United States, 308 U.S. 338, 341 (1939). 2 See Wong Sun v. United States, 371 U.S. 471, 488 (1963) (defining the question as whether the derivative evidence, “‘has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint’” (quoting John MacArthur Maguire, Evidence of Guilt 221 (1959))). 3 This Court granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE AT TRIAL THAT WAS OBTAINED AS A DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT’S PERSONAL COMPUTER.

II. WHETHER THE EVIDENCE PRESENTED BY THE PROSECUTION AT TRIAL WAS LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR POSSESSING CHILD PORNOGRAPHY.

2 United States v. Conklin, No. 05-0220/AF Appellant was a nineteen-year-old Airman First Class who

was assigned as a student at Keesler Air Force Base,

Mississippi. He was a trainee whose room was subject to

routine, random inspections by the Military Training Leaders

(MTLs) assigned as supervisors of the students. On April 26,

2001, Staff Sergeant (SSgt) Roy, an MTL, was conducting

inspections. SSgt Roy testified that, as a “Phase IV” trainee,

Appellant was subject only to inspections designed to ensure

that his room was neat and orderly and maintained in compliance

with regulations.4 In conducting the “neat and orderly

inspection” of Appellant’s room, she inadvertently disturbed the

keyboard of Appellant’s personal computer causing the monitor to

activate. The “wallpaper” that was then displayed on the

computer screen contained a photograph of an actress wearing a

fishnet top through which her breasts were visible. A Keesler

Air Force Base Instruction5 prohibited the “open display of

pictures, statues, or posters which display the nude or

partially nude human body.” SSgt Roy testified that such a

picture could result in a minor “write up” for violating the

base regulation.

4 See Air Education and Training Command, Instr. 36-2216, Technical Training Administration of Military Standards and Discipline Training Table A2.2.14 (May 2, 2000). 5 Keesler Air Force Base Instr. 32-6003, Dormitory Security and Living Standards for Non-Prior Service Airmen 4.2.3 (Aug. 30, 2003) [hereinafter KAFBI 32-6003].

3 United States v. Conklin, No. 05-0220/AF Not sure what she should do, SSgt Roy contacted a senior

noncommissioned officer, Technical Sergeant (TSgt) Schlegel.

TSgt Schlegel had previously been involved in an inspection

where he found child pornography on a computer. TSgt Schlegel

testified that he had consulted with the Air Force Office of

Special Investigations (AFOSI) and had been informed that it was

“legal according to [the] Military Rules of Evidence” for him to

examine files on a computer if he found pornography openly

displayed on the computer. Following that previous guidance,

TSgt Schlegel went to Appellant’s room and opened and examined

other files in his computer. In so doing, he found files on the

hard drive showing nude pictures of females that TSgt Schlegel

estimated to be between fifteen and nineteen years of age.

Eventually he found a folder labeled “porn.” Opening that

folder, he found another folder called “Teen” that contained

files of nude young females.

TSgt Schlegel and SSgt Roy then reported the results of

their efforts to their commander who told them to contact the

AFOSI. After being briefed by the MTLs, two AFOSI agents

located Appellant at the dining facility, identified themselves

to him, and asked for his consent to search his room and his

computer for child pornography. Appellant gave his consent and,

not surprisingly, the agents located the various images

discovered earlier in the day by TSgt Schlegel. In a subsequent 4 United States v. Conklin, No. 05-0220/AF

interview with the AFOSI agents, Appellant explained that he had

copied several discs which he had received from another airman.

Most of the images on the discs were of adults, but some did

appear to be of girls between the ages of thirteen and

seventeen. He stated that he intended to delete those images,

but had failed to do so.

At trial, Appellant moved to suppress the images discovered

and his statements to the AFOSI agents. He argued that SSgt Roy

and TSgt Schlegel went beyond the bounds of an inspection and

that the actions of TSgt Schlegel were actually a subterfuge for

a search. The military judge denied the motion holding that the

unique training environment at Keesler Air Force Base justified

more intrusive “inspections” than would be allowable in a non-

training environment.

Appellant was subsequently convicted, contrary to his

pleas, of possession of child pornography in violation of the

Child Pornography Prevention Act of 1996 (CPPA).6 He was

sentenced to a bad-conduct discharge, reduction to the lowest

enlisted paygrade, and confinement for six months.7 In its review of the case pursuant to Article 66,

6 18 U.S.C. § 2252A (2000). 7 The convening authority remitted the punitive discharge pursuant to a decision of the Air Force Clemency and Parole Board.

5 United States v. Conklin, No. 05-0220/AF

Uniform Code of Military Justice (UCMJ),8 the Air Force Court of

Criminal Appeals disagreed with the military judge’s conclusion

that the activities of the MTLS were legitimate military

inspections.9 The court below found that, although the

observance of the partially nude image on the “wallpaper” was

the result of a proper inspection, the subsequent examination of

files located on Appellant’s hard drive went beyond the scope of

the inspection and became a search into an area where Appellant

had a reasonable expectation of privacy.10 Nevertheless, the

Court of Criminal Appeals determined that Appellant’s subsequent

consent to the search by the AFOSI agents waived his privacy

interest and legitimized the subsequent search and seizure of

the computer by those agents.11 The case now comes to us for review. We agree with the

court below that the originally lawful and proper inspection

became an unlawful search when TSgt Schlegel began examining

files on the computer that were not in plain view. We next

consider whether the subsequent consent overcame the taint of

the previously unlawful Government conduct. Here, we part

company with the lower court and hold that subsequent consent to

search is just one of the factors that goes into the analysis.

8

10 U.S.C. § 866 (2000). 9 United States v. Conklin, No. ACM J5217, 2004 CCA LEXIS 290 , at *13-*15, 2005 WL 11587 , at *3-*6 (A.F. Ct. Crim. App. Dec. 30, 2004) (unpublished). 10

2004 CCA LEXIS 290 , at *15, 2005 WL 11587 , at *5. 11

2004 CCA LEXIS 290 , at *15-*16, 2005 WL 11587 , at *5.

6 United States v. Conklin, No. 05-0220/AF

As we examine all the relevant factors and the circumstances

surrounding the law enforcement activity in this case, we

conclude that the taint of the unlawful inspection is not

sufficiently attenuated by Appellant’s subsequent consent to

search provided to the AFOSI agents.

I. The Inspection The initial entry into Appellant’s room by SSgt Roy was a

valid military inspection conducted in accordance with the

applicable base regulations and the Military Rules of Evidence

(M.R.E.). The base inspection program was comprehensive and

reasonably directed at ensuring unit fitness and proper

standards.12 The image of the scantily clad female on

Appellant’s “wallpaper” was in plain view when discovered by the

inspector. At this point it would have been appropriate for the

inspector to secure the computer as evidence13 of an apparent

violation of the base regulation prohibiting the display of the

“nude or partially nude human body.”14 It was certainly appropriate for SSgt Roy to contact a

senior, more experienced MTL for advice on how best to proceed

after her discovery of the image. However, we agree with the

Air Force Court of Criminal Appeals that the actions of the more

12 See M.R.E. 313(b). 13

Id. (“Unlawful weapons, contraband, or other evidence of crime located during an inspection may be seized.”). 14 KAFBI 32-6003 para 4.2.3.

7 United States v. Conklin, No. 05-0220/AF

experienced MTL exceeded the authorized scope and purpose of the

proper inspection.15 SSgt Roy was acting pursuant to applicable base regulations

that required the inspection of dormitory rooms at least once a

week to “ensure standards of cleanliness, order, decor, safety

and security are maintained”16 when she inadvertently activated

Appellant’s computer and noticed the wallpaper that appeared on

the screen. The regulations deal with the “plain view”

situation by requiring that unauthorized items, including

unauthorized pornography, “be confiscated [and] brought to the

attention of the Chief MTL/MTF [Military Training Facility]

Commander.17 The image of the partially nude woman that SSgt Roy

observed was “in plain view.”18 Her decision to report her

discovery up the chain of command was fully in accordance with

the inspection regime.

TSgt Schlegel determined, based on his discussions with

AFOSI in a similar situation, that it was proper to open the

files on the computer that was left on and that was not

protected by a password. In that similar situation, TSgt

Schlegel concluded that he should treat the contents of a

15 Conklin, 2004 CCA LEXIS 290 , at *15, 2005 WL 11587 , at *5. 16 Dep’t of the Air Force, 81 TRG Pamphlet 36-2201, Military Training, at 9 (July 5, 1999) [hereinafter 81 TRG Pamphlet 36- 2201]. 17

Id.

18 M.R.E. 316(d)(4)(C).

8 United States v. Conklin, No. 05-0220/AF

computer as if they were in a desk drawer and he felt free to

open the files on the computer.

The desk drawer analogy is troublesome for two reasons.

First, the inspection is a “neat and orderly” inspection

designed to ensure standards of cleanliness, order, decor,

safety and security. Opening desk drawers could be appropriate

under such an inspection scheme to ensure, for example, that

hazardous or unsanitary materials were not being improperly

stored. It is difficult to understand, however, how opening

files on a computer could serve a similar “neat and orderly”

purpose. Second, even if the drawer analogy was appropriate,

the regulation discusses how drawers are to be inspected. It

states:

When inspecting drawers (dresser, nightstand, desk, etc.), MTLs will check for clutter. If there is a non-transparent plastic container in a drawer or anywhere in the dorm room with small items within, it will not be opened and searched unless the owner is present. If the container is transparent and unauthorized items can be observed by sight, the container is inspectable, i.e., if a wall locker key is observed in a transparent container, a security violation has occurred.19 If we assume that the computer is to be treated as a

drawer, we must then decide how a file on the computer is to be

treated. The contents of the file are not viewable without

opening the file. Indeed, the existence of the file is not

viewable without taking several steps beyond the “wallpaper”

19 81 TRG Pamphlet 36-2201, at 10.

9 United States v. Conklin, No. 05-0220/AF

that was in plain view. Accordingly, we conclude that, even if

the drawer analogy was appropriate, the files on the computer

should have been treated as the contents of a non-transparent

container. Taking the drawer analogy to its logical result

leads us to the conclusion that TSgt Schlegel’s actions in

opening the files went beyond what was authorized for non-

transparent containers.

The fact that the inspection exceeded its authorized

purpose and scope would not be determinative if Appellant had no

reasonable expectation of privacy in the files on his personal

computer located in his dormitory room. In dealing with the

computer privacy question, we have held that a servicemember has

an expectation of privacy in the contents of a personal computer

in his or her home.20 On the other hand, we have concluded that

there is a more limited expectation of privacy in a government

computer located in a government office environment.21 We have

not addressed the privacy interests involved on these precise

facts: a personally owned computer located on base in a

dormitory room that was shared with another individual.

Although we have recognized a privacy interest in assigned

20 United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996). 21 United States v. Tanksley, 54 M.J. 169, 172 (C.A.A.F 2000), overruled in part on other grounds by United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003).

10 United States v. Conklin, No. 05-0220/AF

military dwellings,22 we have held that “the threshold of a

barracks/dormitory room does not provide the same sanctuary as

the threshold of a private home.”23 Justice Harlan, in his concurring opinion in Katz v. United

States,24 articulated what has become the test used in evaluating

the question of a reasonable expectation of privacy. He

concluded that there “is a twofold requirement, first that a

person have exhibited an actual (subjective) expectation of

privacy and, second, that the expectation be one that society is

prepared to recognize as ‘reasonable.’”25 In applying that standard to this case, we conclude that

Appellant did have a subjective expectation of privacy in the

files stored on the hard drive of his computer and that military

society would recognize such an expectation as reasonable. We

therefore agree with the Court of Criminal Appeals that an

individual sharing a two-person dormitory room has a reasonable

expectation of privacy in the files kept on a personally owned

22 United States v. Middleton, 10 M.J. 123, 132 (C.M.A. 1981) (a locked wall locker is in a zone of privacy protected by the Fourth Amendment). 23 United States v. McCarthy, 38 M.J. 398, 403 (C.M.A. 1993) (barracks room does not afford the same protections from arrest as a private home). 24

389 U.S. 347, 360 (1967) (Harlan, J., concurring). 25

Id. at 361 ; see also United States v. Monroe, 52 M.J. 326, 330

(C.A.A.F. 2000) (citing Minnesota v. Olson, 495 U.S. 91, 95

(1990)).

11 United States v. Conklin, No. 05-0220/AF

computer.26 We next turn to that court’s conclusion that,

despite the unlawful inspection, the evidence seized by the

AFOSI agents was admissible as the result of Appellant’s

voluntary consent to the search of his room and computer.27 II. The Consent Search and Attenuation of Taint After TSgt Schlegel completed his unauthorized search of

Appellant’s computer and its files, the MTLs contacted their

commander who told them to inform the AFOSI. After talking with

the MTLs, two AFOSI agents and SSgt Wilcox, a third MTL present

during the inspection, found Appellant at the dining hall.28

Without telling him of the results of TSgt Schlegel’s

examination of his computer, they requested his permission to

search his room and his computer. He granted consent and signed

a form to that effect. Based on this consent, the Court of

Criminal Appeals held that:

Once the appellant gave his consent to search his room and his computer, he waived any reasonable

26 Conklin, 2004 CCA LEXIS 290 , at *12, 2005 WL 1157 at *4. We note that the base regulations which are the basis for the inspections in this case are silent about personal computers. Accordingly, we voice no opinion today regarding a situation where regulations dealing with personal computers, barracks use, and privacy interests might exist. 27 Conklin, 2004 CCA LEXIS 290 , at *16, 2005 WL 1157 at *5. 28 The timing of events is not clear from the record. The AFOSI agent testified that he recalled being contacted between 0900 and 0930. That is contradicted by TSgt Schlegel’s testimony in which he recalled getting involved between 1045 and 1050. Appellant executed the consent to search form at 1230. Accordingly, it is apparent that something less than three hours elapsed from the time of the inspection to the time that Appellant was contacted by AFOSI.

12 United States v. Conklin, No. 05-0220/AF expectation of privacy he might have enjoyed. Thus, although we reach our conclusion by a different route than the military judge, we agree that the appellant was not entitled to have the evidence suppressed.29 Therefore, the question for this Court is whether

Appellant’s consent to search cured the earlier violation. The

granting of consent to search may sufficiently attenuate the

taint of a prior violation. For example, we have held that the

voluntary consent to a urinalysis was not tainted by an earlier,

unwarned interrogation.30 On the other hand, the granting of

consent to search does not cure all ills. “If appellant’s

consent, albeit voluntary, is determined to have been obtained

through exploitation of the illegal entry, it can not be said to

be sufficiently attenuated from the taint of that entry.”31 The voluntariness of Appellant’s consent is not at issue.

The only question facing us is whether Appellant’s consent was

an independent act of free will. In Brown v. Illinois32 the

Supreme Court analyzed three factors to determine if Miranda33

warnings were sufficient to remove the taint of an unlawful

search and allow the admission of a subsequent confession. The

Court held that the question of whether such a confession is an

act of free will must be answered on the facts of each case

looking at the temporal proximity of the unlawful police

29 Conklin, 2004 CCA LEXIS 290 , at *16-*17, 2005 WL 11587 , at *5. 30 United States v. Murphy, 39 M.J. 486, 489 (C.M.A. 1994). 31 United States v. Khamsouk, 57 M.J. 282, 290 (C.A.A.F. 2002). 32

422 U.S. 590, 603-04 (1975). 33 Miranda v. Arizona, 384 U.S. 436 (1966).

13 United States v. Conklin, No. 05-0220/AF

activity and the subsequent confession, the presence of

intervening circumstances, and the purpose and flagrancy of the

official misconduct.34 In Khamsouk,35 we were unanimous in

adopting the Brown three-pronged approach in examining the

effects of an unlawful arrest upon a subsequent search, although

our application of that approach was less than unanimous.36 The Fifth Circuit, in a case almost identical to the case

we face, followed the Brown test. “To determine whether the

defendant’s consent was an independent act of free will,

breaking the causal chain between the consent and the

constitutional violation, we must consider three factors: (1)

the temporal proximity of the illegal conduct and the consent;

(2) the presence of intervening circumstances; and (3) the

purpose and the flagrancy of the initial misconduct.”37 Applying this three-prong test to the facts at hand, we

determine that all three favor Appellant. First, in terms of

the temporal proximity of the illegal conduct and the consent,

less than three hours elapsed between the time that TSgt

Schlegel began opening files on Appellant’s computer and the

time that Appellant consented to the search. Indeed, it appears

that everything happened on a single day before lunch.

34 Brown, 422 U.S. at 603-04 . 35 Khamsouk, 57 M.J. at 282 . 36 Indeed, the Khamsouk opinion resulted in something exceptionally unusual in this Court’s jurisprudence -- five separate opinions. Id. at 283-307 . 37 United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002).

14 United States v. Conklin, No. 05-0220/AF Second, there were no intervening circumstances sufficient

to remove the taint from the initial illegal search. Yes,

different agents were involved, but they were fully briefed by

the MTLs who conducted the inspection/search. Additionally, one

of the MTLs involved in the initial visit to Appellant’s room

accompanied the AFOSI agents in their search for Appellant.

Simply stated, the AFOSI agents would not have been interested

in talking to Appellant but for the information relayed to them

as a direct result of the unlawful search that had just taken

place. There were no intervening events or circumstances that

would sever the causal connection between the two searches.

Turning to the third factor in our analysis of the

independent nature of the two searches, we examine the

Government’s conduct. Although we find no bad motive or intent

on behalf of the Government agents in this case, we do find that

their actions were unnecessary and unwise. TSgt Schlegel chose

to expand the scope of a legitimate inspection into private

files stored on a personal computer. There were a variety of

legitimate options open to him. He might have secured the room

and the computer and charged Appellant for the open display of

the nude image. He might have presented the facts to his

commander and sought search authorization or other guidance. He

might have asked the advice of a staff judge advocate.

15 United States v. Conklin, No. 05-0220/AF Although we are hesitant to call TSgt Schlegel’s actions

“flagrant,” they were certainly unwise, avoidable, and

unlawful.38 The actions of the AFOSI agents exploited the

original illegality. Upon being informed of the material found

on Appellant’s computer, they did nothing in the way of

independent investigation. Instead, they immediately sought out

Appellant. Finding him in the on-base dining facility at the

noon meal, they escorted him outside and requested his consent

to search.

In applying the Brown factors to the facts of this case, we

return to the Fifth Circuit’s analysis. In Hernandez, a police

officer felt the bag of a passenger who had boarded a bus, while

the bag was in the luggage compartment underneath the bus.39

Feeling something suspicious, he then boarded the bus and asked

the passenger for permission to search the bag.40 She gave

consent, and he opened the bag discovering drugs inside.41 The

Fifth Circuit noted that the first two factors of the Brown test

weighed in favor of the defendant, because the consent was

38 In evaluating the nature of the senior MTL’s conduct in this case, we are mindful of the fact that his inspection of a personal computer on a different occasion has been the subject of appellate criticism. See United States v. Astley-Teixera, No. ACM 35161, 2003 CCA LEXIS 246 , at *27, 2003 WL 22495794 , at *10 (A.F. Ct. Crim. App. Oct. 21, 2003) (a different panel of the Air Force Court facing facts virtually identical to those presented here, found the inspection unlawful and reversed). 39

279 F.3d at 305 . 40

Id.

41

Id.

16 United States v. Conklin, No. 05-0220/AF

obtained immediately following the illegal manipulation of the

bag and there were no intervening circumstances.42 It concluded

that the officer’s conduct in manipulating the bag was not

flagrant, noting that it might not have been considered a search

under Fifth Circuit precedent at the time of the officer’s

action, but it concluded that the drugs seized were inadmissible

because “the causal connection between the violation and the

consent was not broken.”43 We are confronted with a very similar situation here, and

like the Fifth Circuit, we conclude that there was a causal

connection between the illegal search and the act of obtaining

consent. The illegal search is the only factor that led

directly to the request for consent from Appellant and the

subsequent search of his computer. The exploitation of the

information obtained from the illegal search was flagrant even

if the search itself was not. Since Appellant’s consent was

“obtained through exploitation of the illegal [search], it can

not be said to be sufficiently attenuated from the taint of that

[search].”44 Appellant’s consent was not “an independent act of

free will”45 sufficient to cure the poisonous effects of the

unlawful search.

42

Id. at 308-09 . 43

Id. at 309 . 44 Khamsouk, 57 M.J. at 290 . 45 Hernandez, 279 F.3d at 307 .

17 United States v. Conklin, No. 05-0220/AF III. The Exclusionary Rule The fundamental purpose of the exclusionary rule is to

deter improper law enforcement conduct. Were we to hold that

Appellant’s consent to search requested by agents as a direct

result of, and almost immediately after, an unlawful search was

sufficient to dissipate the taint of the unlawful conduct, we

might well be encouraging unlawful conduct rather than deterring

it. We have not discovered, nor has the Government argued, any

exception to the exclusionary rule that applies to the facts of

this case. Accordingly, we conclude that the military judge

erred in not granting Appellant’s motion to suppress.

The decision of the United States Air Force Court of

Criminal Appeals is reversed. The findings of guilty and

sentence are set aside. The record is returned to the Judge

Advocate General of the Air Force. A rehearing may be ordered.

18 United States v. Conklin, No. 05-0220/AF BAKER, Judge, with whom CRAWFORD, Judge, joins

(dissenting):

The question presented is whether the consent Appellant

gave to Air Force Office of Special Investigations (AFOSI)

agents to search his computer vitiated the taint of the initial

unlawful search of the same computer.

The exclusionary rule is a “judicially prescribed remedial

measure” that is not intended to apply in all instances where

evidence is acquired following an illegal search. Segura v.

United States, 468 U.S. 796, 804 (1984). The rule recognizes

that while government agents should not profit from illegal

searches, they should also not “‘be placed in a worse position

than [they] would otherwise have occupied.’” United States v.

Haynes, 301 F.3d 669, 681-82 (6th Cir. 2002) (quoting Murray v.

United States, 487 U.S. 533, 542 (1988)).

The rule should not apply in circumstances where the

connection between a first unlawful search and the discovery of

evidence in a second search is “‘so attenuated as to dissipate

the taint’” of earlier government misconduct. Segura, 468 U.S.

at 805 (quoting Nardone v. United States, 308 U.S. 338, 341

(1939)). A second search is sufficiently attenuated from a

prior unlawful search if the government can show “‘there was

some significant intervening time, space, or event’” between the United States v. Conklin, No. 05-0220/AF

two searches. Haynes, 301 F.3d at 682 (quoting United States v.

Buchanan, 904 F.2d 349, 356 (6th Cir. 1990)) (citation omitted).

A suspect’s voluntary consent to a second search by law

enforcement may be an attenuating event that removes the taint

of a prior illegal search, so long as the consent is

“sufficiently an act of free will to purge the primary taint of

the unlawful invasion.” Brown v. Illinois, 422 U.S. 590, 599

(1975) (citation and quotation marks omitted); see also United

States v. Beason, 220 F.3d 964, 967 (8th Cir. 2000) (consent to

a search is a sufficient act of free will to purge the primary

taint). In United States v. Khamsouk, this Court, borrowing

from Brown, applied a three-factor analysis to determine whether

an appellant’s consent to search his bags was an act of free

will and sufficiently attenuated from a prior illegality. 57

M.J. 282, 291-94 (C.A.A.F. 2002). These factors included:

“‘the temporal proximity of the arrest and the confession,

particularly, the presence of intervening circumstances, and the

purpose and flagrancy of the official misconduct.’” Id. at 291

(quoting Brown, 422 U.S. at 604 ).

Applying the Brown factors to the specific circumstances of

the initial search in this case, I conclude that the second

search was sufficiently attenuated and Appellant’s consent

vitiated the taint of the first unlawful search. Therefore, I

respectfully dissent.

2 United States v. Conklin, No. 05-0220/AF

Temporal Proximity The government bears the burden of demonstrating that an

act of subsequent consent was voluntary and sufficiently a

product of free will to purge the primary taint of the unlawful

invasion. Khamsouk, 57 M.J. at 291 . Courts look to a variety

of factors in addressing this question, including the

characteristics of the accused, whether the accused understands

his or her right to refuse consent, the accused’s knowledge of

the prior illegality, and the nature of the detention, if any.

See United States v. Jones, 234 F.3d 234, 242-43 (5th Cir.

2000); Haynes, 301 F.3d at 682-84 . No factor is dispositive and

each case must be addressed on its own merits and facts.

Khamsouk, 57 M.J. at 290-91 .

In this case, the record reflects that Appellant was not

privy to the initial unlawful search, and that he was instead

approached in the dining facility by two AFOSI agents about

three hours later. Appellant was not in custody. The agents

were aware of the prior search and the evidence identified

during the search but they did not conduct the first search

themselves. Significantly, the record does not reflect that

Appellant was informed of the prior search and its result before

he gave consent to a second search.

Thus, unlike the circumstances in United States v.

Hernandez, 279 F.3d 302, 305 (5th Cir. 2002), the request for 3 United States v. Conklin, No. 05-0220/AF

consent by the AFOSI agents did not immediately follow the

Fourth Amendment violation. Appellant did not know of the prior

unlawful act, and thus did not face “the sense of futility” and

psychological disadvantages that might arise if the individual

concludes that the “‘cat is already out of the bag[.]’”

Commonwealth v. Peleeki, 818 N.E. 2d 596 600 (Mass. App. Ct.

2004) (quoting Darwin v. Connecticut, 391 U.S. 346, 351 (1968)

(Harlan, J., concurring in part and dissenting in part)).

Further, Appellant was advised that the purpose of the

search was to look for child pornography, and thus, he was aware

of the context of the consent request. In addition, he was

advised of his right to withhold consent and he acknowledged his

understanding of this right in writing. Based on these

circumstances, I conclude this factor weighs heavily in favor of

the Government. See United States v. McGill, 125 F.3d 642, 644

(8th Cir. 1997) (consent an act of free will where suspect was

informed and understood his right to withhold consent); see also

United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)

(taint from initial unlawful search purged when suspect gave

consent after given oral and written instruction that he did not

have to provide consent).

4 United States v. Conklin, No. 05-0220/AF

Intervening Circumstances I agree with the majority that there were no intervening

circumstances between the unlawful search and Appellant’s

subsequent consent to the second search.

Purpose and Flagrancy The third “purpose and flagrancy” factor identified in

Brown presents a closer question and is the key to this case.

As this Court has recognized, the third Brown factor is

particularly important because it comes closest to the

exclusionary rule’s primary purpose: “‘the deterrence of police

conduct that violates Fourth Amendment rights.’” Khamsouk, 57

M.J. 291 -92 (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)).

The exclusionary rule has “never been interpreted to

proscribe the introduction of illegally seized evidence in all

proceedings or against all persons.” Stone, 428 U.S. at 486 .

Rather, the Supreme Court has sought to strike a balance between

society’s interest in the “‘determination of truth at trial’”

and the “‘incremental contribution that might [be] made to the

protection of Fourth Amendment values’” through application of

the rule. Khamsouk, 57 M.J. at 292 (quoting Stone, 428 U.S. at

488 ). These values, of course, protect society as a whole and

not just those brought before the bar of justice.

The Supreme Court has sought to find this proportionality

by distinguishing between cases where police intentionally 5 United States v. Conklin, No. 05-0220/AF

violate what they know to be a constitutional command, and

evidence that is a product of good faith misunderstanding of the

relevant constitutional requirements, as well as technical,

trivial, or inadvertent violations. Brown, 422 U.S. at 610-12

(Powell, J., joined by Rehnquist, J., concurring in part). As

Justice White summarized:

[D]eserving of exclusionary treatment are searches and seizures perpetrated in intentional and flagrant disregard of Fourth Amendment principles. But the question of exclusion must be viewed through a different lens when a Fourth Amendment violation occurs because the police have reasonably erred in assessing the facts, mistakenly conducted a search authorized under a presumably valid statute, or relied in good faith upon a warrant not supported by probable cause.

Illinois v. Gates, 462 U.S. 213 , 261 n.14 (1983)(White, J.,

concurring in the judgment).

In short, the rule is best applied when its “‘remedial

objectives are thought most efficaciously served.’” Khamsouk, 57 M.J. at 292 (quoting Penn. Board of Probation and Parole v.

Scott, 524 U.S. 357, 363 (1998) (quoting Stone, 428 U.S. at 486 ;

United States v. Calandra, 414 U.S. 338, 348 (1974))).

In my view, the conduct of the dorm inspectors and AFOSI

agents in this case falls somewhere between the exclusionary

extremes; it represents neither flagrant conduct nor a merely

technical or trivial violation of the Fourth Amendment. On the

one hand, the dorm inspectors conducting the initial unlawful

search, Technical Sergeant (TSgt) Schlegel, Staff Sergeant 6 United States v. Conklin, No. 05-0220/AF

(SSgt) Roy, and SSgt Wilcox, were lawfully within the dorm room

conducting a health and welfare inspection. The search was

precipitated by their identification of adult pornography in

plain view. Significantly, TSgt Schlegel previously sought

legal advice from AFOSI in a similar incident, and he relied

upon this advice before searching Appellant’s computer. The

advice was erroneous, but neither TSgt Schlegel nor the AFOSI

agents pursued a purposeful policy of violating rights with the

intention of later obtaining cleansing consents. Rather, the

unlawful search in this case was not part of a policy to

circumvent servicemembers’ rights. Moreover, the search did not

occur in the home, where the Fourth Amendment comes closest to

black letter law, but rather in the context of a military

barracks and an inspection search where case law reveals

evolving principles of privacy and careful contextual

applications of Fourth Amendment principle. See, e.g., United

States v. Jackson, 48 M.J. 292, 293-94 (C.A.A.F. 1998).

Based on these circumstances, I conclude that Appellant’s

voluntary consent, given without knowledge of the prior search,

vitiated the taint of the unlawful search, even if the AFOSI

agents’ motive in requesting Appellant’s consent was supplied by

the prior unlawful search. Further, applying the concepts of

proportionality essential to justice embodied in the

exclusionary rule, the legal policy purposes of the exclusionary 7 United States v. Conklin, No. 05-0220/AF

rule would not otherwise be served through application of the

rule in this case.

8