N.-M.: Military def counsel ineffective for not making a suppression motion that would have been granted

Military defense counsel was ineffective for not challenging the command authorized inspection of his off-base private housing. The exigency justification proffered below had no factual basis for a search of defendant’s closet where a small grow operation was found. The exclusionary rule would have applied here. That particular conviction is set aside and the overall sentence is affirmed. United States v. McCall, 2021 CCA LEXIS 71 (N.-M. Ct. Crim. App. Feb. 19, 2021):

Accordingly, we conclude the entry into Appellant’s apartment was unlawful and would have been found so at trial. We further conclude that under the circumstances a timely motion to suppress would have shown that “exclusion of the evidence [would] result[ ] in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence [would] outweigh the costs to the justice system.” Mil. R. Evid. 311(a)(3). To hold otherwise on these facts would essentially grant military commands carte blanche to “inspect” the private, off-base homes of every command member who failed to show up to work for a period of time, which is precisely the sort of “broad military exception to the Fourth Amendment” our superior court has rejected. Irizarry, 72 M.J. at 107. And while we recognize that Mil. R. Evid. 314(i) may afford warrantless entry into private, off-base homes in cases of bona fide emergencies, we find insufficient basis to conclude that was the case here.

Finally, with respect to whether counsel’s deficiency resulted in prejudice, we conclude there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The evidence of the grow system found in Appellant’s apartment was the sine qua non for his conviction of possession of drug abuse paraphernalia under Sec’y of the Navy Inst. 5300.28E (May 23, 2011), in violation of Article 92, UCMJ. We therefore conclude we must set aside the finding of guilty for this specification and Charge II, which we accomplish in our decretal paragraph below.