No. 98-308
In the Supreme Court of the United States
OCTOBER TERM, 1998
MICHAEL L. CURRY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
KEVIN M. SANDKUHLER
Colonel, U.S. Marine Corps
Director, Appellate Government
Division
RUSSELL J.E. VERBY
Lieutenant, JAGC, U.S. Naval
Reserve
Appellate Government Division
Navy-Marine Corps Appellate
Review Activity
Washington, D.C. 20374
(202) 433-2230
QUESTIONS PRESENTED
1. Whether a military police officer who looked through the upper window
of petitioner's Marine barracks room conducted a Fourth Amendment search
interfering with petitioner's reasonable expectation of privacy.
2. Whether looking through the window, if a search, was unreasonable under
the circumstances.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-308
MICHAEL L. CURRY, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The per curiam opinion of the United States Court of Appeals for the Armed
Forces (Pet. App. 1a-4a) is reported at 48 M.J. 115. The opinion of the
United States Navy-Marine Corps Court of Criminal Appeals (Pet. App. 5a-28a)
is reported at 46 M.J. 733.
JURISDICTION
The United States Court of Appeals for the Armed Forces entered judgment
on May 27, 1998. The petition for a writ of certiorari was filed on August
20, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1259(3).
STATEMENT
Petitioner was convicted by a military judge, sitting as a general court-martial,
of conspiracy, premeditated murder, robbery, and kidnapping, in violation
of Articles 81, 118, 122, and 134 of the Uniform Code of Military Justice,
10 U.S.C. 881, 918, 922, and 934. He was sentenced to a dishonorable discharge,
confinement for life, forfeiture of all pay and allowances, and reduction
to the lowest enlisted grade. Pet. App. 1a-2a. That portion of the life
sentence in excess of 30 years was subsequently suspended. Id. at 6a.
1. In the early morning hours of April 3, 1992, an anonymous phone call
came into the military police station at the Marine Corps Base, Camp Lejeune,
North Carolina. The soft-spoken anonymous caller, later identified as petitioner,
offered information about two murders, if the military police officers (MPs)
arrived at his barracks room within the next 10 to 15 minutes. The MPs at
the time mistakenly understood the caller to say that murders would occur
in the next 10 to 15 minutes. Pet. App. 2a, 7a; Trial Tr. 45-46.
The MPs quickly went to the barracks building and room from which the anonymous
call had been made. The barracks building was a three-story structure. The
room from which the call had been made was on the ground floor and was accessible
from a common sidewalk. The MPs knocked repeatedly on the door but received
no answer. Although curtains covered the room's adjacent window, the MPs
noticed that the curtain was pulled back on a smaller window above the covered
main window. One MP, standing in the interlocked fingers of another to get
a higher vantage point, was able to see through the upper window. He observed
petitioner on a bed lying face up and motionless despite the MPs' repeated
knocks on the door. Pet. App. 2a, 7a; Trial Tr. 34-35, 46-47.
Concerned about petitioner's failure to respond, the MPs entered the room
with a pass key. Petitioner's wrists had been slashed. The MPs applied first
aid and called for an ambulance. They also found a razor blade and two apparent
suicide notes addressed "to whom it may concern" and "to
my loving family." In the notes petitioner admitted his involvement
in the murder of another Marine, Lance Corporal Rodney L. Page. Pet. App.
2a, 7a; Trial Tr. 50.
2. Petitioner was charged under the Uniform Code of Military Justice, 10
U.S.C. 801 et seq., with offenses arising from the murder of Lance Corporal
Page. Before trial, petitioner moved to suppress the suicide notes as the
fruits of an allegedly illegal search. The military judge ruled that looking
into the room from a public sidewalk was not a search, and that the MPs
lawfully entered the room and seized the notes to respond to a life-threatening
emergency. Pet. App. 7a. Petitioner was subsequently convicted by a military
judge of various violations of the Uniform Code of Military Justice, including
premeditated murder. Id. at 1a-2a.
3. The United States Navy-Marine Corps Court of Criminal Appeals affirmed.
Pet. App. 5a-28a. The court held that the MP's observation through the upper
window of petitioner's barracks room was not a Fourth Amendment search.
Id. at 16a-18a. The court explained that "reasonable expectations of
privacy within the military society will differ from those in the civilian
society." Id. at 16a. While not prepared "to say that there is
no circumstance under which a military member would have a reasonable expectation
of privacy in a military barracks room," the court concluded that petitioner
"had, at least, a reduced expectation of privacy in his barracks room."
Id. at 17a. The court therefore held that "the observation by the police
through the gap at the top of the curtains from a place where they had a
right to be and without physical intrusion was not a search within the meaning
of the Fourth Amendment." Id. at 18a.
The court further held that, after observing petitioner lying motionless
and unresponsive notwithstanding repeated knocks on the door, the MPs reasonably
entered the room with a pass key to render emergency assistance. Pet. App.
18a-19a. Finally, the court held that the MPs reasonably seized the suicide
notes in plain view and read them "to obtain information that would
assist in rendering immediate medical aid." Id. at 19a-20a.
A concurring judge agreed that petitioner's Fourth Amendment rights had
not been violated. Pet. App. 23a-28a (Lucas, J., concurring). The concurring
judge concluded that the observation through petitioner's window did not
invade petitioner's subjective expectation of privacy, because petitioner
had placed the anonymous call inviting the MPs to his barracks room.1 Id.
at 24a-25a. The concurring judge suggested that looking into the upper window
of petitioner's barracks room would otherwise have been a Fourth Amendment
search. Id. at 25a-27a.
4. The United States Court of Appeals for the Armed Forces affirmed. Pet.
App. 1a-4a. It explained that Fourth Amendment claims are reviewed de novo
and it noted some ambiguity in the lower court's opinion on that point.
Id. at 3a. It concluded, however, that it "need not decide whether
the court below applied the correct standard or remand for clarification
of the decision below, because we hold, having reviewed the military judge's
decision de novo, that the military judge did not err." Id. at 3a-4a.
ARGUMENT
Petitioner does not dispute that, based on the circumstances known to them
at the time they entered his barracks room, the MPs properly entered the
room to offer emergency assistance. Pet. 5. He argues, however, that the
entry was invalid because the prior observation through the upper window
of his barracks room was an illegal Fourth Amendment search. Pet. 5-8. The
courts below properly rejected that claim. Further review is not warranted.
1. a. The observation through petitioner's barracks room window was a Fourth
Amendment search only if it interfered with a privacy "expectation
that society is prepared to honor." California v. Ciraolo, 476 U.S.
207, 214 (1986); see generally Katz v. United States, 389 U.S. 347, 360-362
(1967) (Harlan, J., concurring). As the lower court properly concluded in
this case, "reasonable expectations of privacy within the military
society will differ from those in the civilian society." Pet. App.
16a.
The expectation of privacy is different in the military than it is in civilian
life. Military inspections have been traditionally accepted and are expected
by soldiers. From his first day in boot camp, the soldier has come to realize
that unlike his civilian counterpart he is subject to extensive regulation
by his military superiors. The soldier cannot reasonably expect the Army
barracks to be a sanctuary like his civilian home.
Committee for GI Rights v. Callaway, 518 F.2d 466, 477 (D.C. Cir. 1975)
(citation and internal quotation marks omitted); cf. Parker v. Levy, 417
U.S. 733, 758 (1974) ("The fundamental necessity for obedience, and
the consequent necessity for imposition of discipline, may render permissible
within the military that which would be constitutionally impermissible outside
it.") (rejecting First Amendment challenge to punishment of officer
for failing to obey lawful order).
Military rules and regulations allow inspections of barracks rooms that
would clearly be impermissible in the setting of civilians' private homes.
See Mil. R. Evid. 313(b) (allowing administrative inspections "to determine
and to ensure the security, military fitness, or good order and discipline
of the unit, organization, installation, vessel, aircraft, or vehicle").
Similarly, barracks rooms are specifically excluded from the military provision
requiring special authority for arrests in private dwellings. Rule for Courts-Martial
302(e)(2) ("'Private dwelling' does not include the following, whether
or not subdivided into individual units: living areas in military barracks.");
see, e.g., United States v. McCarthy, 38 M.J. 398, 400-403 (C.M.A. 1993)
(upholding warrantless entry into accused's barracks room to make arrest
even though Fourth Amendment ordinarily would require warrant to arrest
civilian in his home) (citing Payton v. New York, 445 U.S. 573 (1980)).
The courts in this case assumed that petitioner might have some reasonable
expectation of privacy in his barracks room. Pet. App. 17a; compare Hudson
v. Palmer, 468 U.S. 517, 522-530 (1984) (prisoners have no Fourth Amendment
privacy expectations in cells). Military rules, while allowing routine administrative
searches of barracks rooms, do not allow such searches to serve as subterfuges
for criminal investigation. Mil. R. Evid. 313(b) ("primary purpose"
of inspection must be administrative and an "examination made for the
primary purpose of obtaining evidence for use in a trial by court-martial
or in other disciplinary proceedings is not an inspection within the meaning
of this rule"); cf. United States v. Taylor, 41 M.J. 168, 171-172 (C.M.A.
1994) ("Mil. R. Evid. 313(b), which makes a distinction between administrative
inspections and inspections for prosecutorial purposes, is probably more
restrictive than it need be."), cert. denied, 513 U.S. 1153 (1995).
The courts below correctly concluded, however, that petitioner at best had
"a reduced expectation of privacy in his barracks room." Pet.
App. 17a.
b. Even if this case had involved a private residence, it would not have
been a search for the MPs to look through the upper window while standing
in a public place. The Fourth Amendment does "not forbid [police officers]
to observe" protected areas with their naked eyes so long as they make
their observations from an area outside the curtilage where members of the
public reasonably might do the same. United States v. Dunn, 480 U.S. 294,
304 (1987); accord Florida v. Riley, 488 U.S. 445, 449-452 (1989) (opinion
of White, J.) (observing curtilage of home from helicopters in public airspace
was not Fourth Amendment search); id. at 454 (O'Connor, J., concurring)
(relevant inquiry is "whether the helicopter was in the public airways
at an altitude at which members of the public travel with sufficient regularity");
Ciraolo, 476 at 213-214 (naked eye observation of protected curtilage from
unintrusive aerial viewpoint not Fourth Amendment search). See also Minnesota
v. Carter, No. 97-1147 (Dec. 1, 1998), slip op. 1-4 (Breyer, J., concurring)
(no search where officer looked from public vantage point through gap in
window blinds into garden apartment that was partly below ground).
It is of no moment that the upper window was above normal eye-level and
required the observing MP to be lifted up by another MP. In Dunn, for example,
the officers secured their vantage point only after entering the defendant's
property, crossing several fences, and shining a flashlight through the
gates of defendant's barn, which this Court assumed, without deciding, was
entitled to the same degree of constitutional protection as a residence.
480 U.S. at 297-298, 303-304. The Court nonetheless held there was no Fourth
Amendment search, because the officers' observations were made from open
fields without crossing into the curtilage. Id. at 304-305. See also Texas
v. Brown, 460 U.S. 730, 740 (1983) (opinion of Rehnquist, J.) (whether officer
"'changed [his] position,' and 'bent down at an angle so [he] could
see what was inside'" the car, is "irrelevant to Fourth Amendment
analysis"; there is no legitimate expectation of privacy in that which
can be viewed from outside by "inquisitive passersby or diligent police
officers").2
c. In any event, given the reduced expectation of privacy applicable to
military barracks rooms, petitioner cannot claim that his reasonable expectation
of privacy was invaded by the MPs' observation into his barracks room from
an elevated public vantage point. The lower court in this case properly
drew an analogy to this Court's decision in Dow Chemical Co. v. United States,
476 U.S. 227 (1986). See Pet. App. 17a-18a. Dow held that the Environmental
Protection Agency's use of a mapping camera to enhance aerial, naked-eye
views of a commercial complex did not constitute a Fourth Amendment search.
476 U.S. at 239. The Court recognized that the area at issue "can perhaps
be seen as falling somewhere between 'open fields' and curtilage, but lacking
some of the critical characteristics of both" and that "actual
physical entry by EPA into any enclosed area would raise significantly different
quesions." Id. at 236-237. While the industrial complex was not unprotected
by the Fourth Amendment, the lesser expectation of privacy there as compared
to a home was an important factor in finding there had been no search. Id.
at 237-238.
Thus, even assuming that an elevated view from a public vantage point into
a window of a private residence might constitute a Fourth Amendment search,
a different result would clearly be warranted in light of the reduced expectation
of privacy applicable to military barracks rooms. The cases cited by petitioner
(Pet. 7 nn. 4-5) are distinguishable because many involved views from protected
curtilage rather than a public vantage point, and none involved a visual
observation of a military barracks from a public place.
2. Even if looking through the upper window had constituted a "search,"
it would not have been an "unreasonable" one violative of the
Fourth Amendment. Cf. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) ("To
hold that the Fourth Amendment applies to searches conducted by school authorities
is only to begin the inquiry into the standards governing such searches.
* * * [W]hat is reasonable depends on the context within which a search
takes place."); cf. also O'Connor v. Ortega, 480 U.S. 709, 719 (1987)
(opinion of O'Connor, J.). This Court's "cases establish that where
a Fourth Amendment intrusion serves special governmental needs, beyond the
normal need for law enforcement, it is necessary to balance the individual's
privacy expectations against the Government's interests to determine whether
it is impractical to require a warrant or some level of individualized suspicion
in the particular context." National Treasury Employees Union v. Von
Raab, 489 U.S. 656, 665-666 (1989). The military setting clearly presents
"special governmental needs" justifying Fourth Amendment intrusions
that would not be permitted if private citizens and private homes were involved.
See, e.g., Callaway, 518 F.2d at 477; Taylor, 41 M.J. at 171-172; cf. Parker,
417 U.S. at 758.
Balancing the degree of intrusion against the justification for it, the
MPs acted reasonably by looking in the barracks room window. The intrusion,
assuming it was a search at all, clearly was a minimal one: "there
was no physical entry into the room, and the police made their observation
with the naked-eye * * * from a place, a public sidewalk, where they had
a right to be." Pet. App. 17a. On the other side of the scale, there
was an urgent need for action. The MPs at the time understood the caller
to say that murders would occur in a specific barracks room within the next
15 minutes. Even when petitioner's call is scrutinized with the benefit
of hindsight and the luxury of replay, it is an urgent invitation to the
MPs to come to petitioner's barracks room within the next 15 minutes to
discuss past murders. The MPs knew that the call had come from a specific
room, and they responded immediately. Yet the door was locked and no one
answered their repeated knocks. It was not unreasonable for them to look
in the window; to the contrary, it would have been unreasonable for them
not to have done so. In fact, even if this case had involved a private residence
rather than a military barracks, the MPs would have been justified in looking
through the upper window to determine whether there was someone inside in
need of immediate assistance. Cf. Mincey v. Arizona, 437 U.S. 385, 392 (1978)
(police may enter private residence without warrant if they reasonably believe
that someone inside is in need of immediate aid).3
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
KEVIN M. SANDKUHLER
Colonel, U.S. Marine Corps
Director, Appellate Government
Division
RUSSELL J.E. VERBY
Lieutenant, JAGC, U.S. Naval
Reserve
Appellate Government Division
Navy-Marine Corps Appellate
Review Activity
DECEMBER 1998
1 The majority did not rest its decision on the fact that petitioner had
made the call inviting the MPs to his barracks room, because that fact was
only established through petitioner's testimony at trial. In the majority's
view, there was a risk that petitioner's testimony on that point might have
been induced by the need to respond to the evidence of the suicide notes,
which had already been found to be admissible. Pet. App. 9a-11a.
2 In McDonald v. United States, 335 U.S. 451 (1948), the Court held that
officers violated a defendant's Fourth Amendment rights by forcibly entering
a rooming house and standing on a chair to look through the transom into
the defendant's bedroom. Justice Douglas's opinion for the Court did not
specify the particular act that violated the Fourth Amendment. Id. at 452-456.
In his concurring opinion, Justice Jackson explained that, in his view,
the only violation was the forcible entry: "If [officers lawfully inside
the house] peeped through the keyhole or climbed on a chair or on one another's
shoulders to look through the transom, I should see no grounds on which
the defendant could complain." Id. at 458.
3 Petitioner suggests (Pet. 8-9 n.6) that the courts have reached divergent
conclusions about the degree of probability required before the police may
properly make a warrantless entry into a residence in order to give immediate
aid to someone inside. Because this case arises in the unusual setting of
a military barracks, and because the MPs did not enter the barracks until
they had strong grounds to believe that petitioner was in need of immediate
assistance, this case would not be a suitable vehicle to address any such
divergence.