The Navy-Marine Corps Court of Criminal Appeals (NMCCA) recently decided the case of United States v. Armendariz. Master Sergeant Armendariz was a member of MWSS-373 in July 2016. The majority of the squadron, along with its Commanding Officer Lieutenant Colonel W, were deployed at the time and MSgt Armendariz was part of the Remain Behind Element (RBE). The squadron Executive Officer, Major B had been left in charge of the RBE. In July 2016 Sergeant N alleged that MSgt Armendariz had sexually assaulted her in his office. As part of its investigation, NCIS sought to search MSgt Armendariz’s office, vehicle, cell phones, and body for evidence. NCIS approached Major B to authorize these searches and she she did so. As a result of the searches, NCIS seized three cell phones and DNA evidence on MSgt Armendariz’s underwear matching that of Sgt N. The cell phones did not provide relevant evidence, but one phone was set to its factory settings, allowing the Government to argue that the MSgt had either purchased a new phone and hid or disposed of his old one in order to hide incriminating evidence.
At trial, the defense moved to suppress the evidence obtained through these search authorizations on the grounds that Major B was not allowed to grant such requests in her role as the Officer in Charge of the RBE. The military judge denied the defense motion and MSgt Armendariz was convicted of violating lawful general regulations, sexual assault, sexual contact, and adultery. He was sentenced to 18 months confinement and a dishonorable discharge.
On appeal, MSgt Armendariz again raised the issue of Major B’s capacity to grant search authorizations. NMCCA found that Major B was not properly appointed as a commander of a unit as defined in the UCMJ or pertinent regulations. The Court further found that command authority did not devolve to Major B in LtCol W’s absence because he remained in command of his unit, including those in the RBE. Because Major B was not a commander, she could not authorize searches.
The Court then looked to see whether exceptions to the rule that disallows the use of evidence obtained through illegal searches applied. They first looked at whether the good faith exception, discussed recently here, applied and found that it did not because Major B was never a person who could properly authorize searches and so the first prong of the good faith exception was not met. Second, the Court looked at whether the evidence would have inevitably been discovered and rejected the Government’s argument that NCIS would have gone to the MAG-11 Commanding Officer or MCAS Commander had they realized Major B could not authorize searches.
Finally, the Court examined whether the use of the evidence that should have been suppressed had prejudiced MSgt Armendariz at trial and found that the DNA collected from his clothing and his body produced evidence used to convict him of the sexual assault, the sexual contact, the adultery, and the violation of the general regulation prohibiting the use of government offices for sexual activity. The Court determined that the conviction for violation of the general regulation prohibiting fraternization was not impacted by the illegally obtained evidence because the text messages and other evidence of the unduly familiar relationship between MSgt Armendariz and Sgt N proved that specification without the DNA evidence.
NMCCA set aside all convictions except for the one violation of Article 92 related to fraternization and sent the record back for a retrial on the overturned offenses or a new sentencing on the Article 92 offense.
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