N.-M.: “Health and welfare” check justification for search of off-base housing was shown in IAC claim to be subterfuge

Defense counsel was ineffective for not raising the issue that the “health and welfare” check justification for searching his off-base housing was really a subterfuge for a criminal search. United States v. McCall, 2021 CCA LEXIS 206 (N.-M. Ct. Crim. App. Apr. 29, 2021):

Based on the record before us, we conclude that raising a timely motion to suppress the evidence obtained from Appellant’s apartment would not have been meritless. The evidence would have shown this “health and welfare” check to be, at best, an improper intrusion into a private, off-base dwelling in which Appellant retained a reasonable expectation of privacy, and at worst, a mere subterfuge for an unlawful search for evidence of illegal drug-related misconduct. See United States v. Thatcher, 28 M.J. 20, 24 (C.M.A. 1989) (“[I]f an intrusion on privacy is really an ‘inspection’ and complies with MRE 313, no reasonable expectation of privacy has been violated; but if the purported inspection is only a subterfuge for a search or is not properly conducted, then a violation has occurred.”).

We reach the same conclusion even if we were to construe what occurred not as an inspection but as an “emergency search[ ] … of property conducted to save life or for related purposes” under MRE 314(i). In order for the emergency doctrine to apply, the search must be “conducted in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury.” Id. The focus of the inquiry is thus on the subjective belief of the individuals conducting the search. United States v. Muniz, 23 M.J. 201, 209 (C.M.A. 1987). Here, GySgt Hotel had seen Appellant, apparently healthy, the day before he secured the assistance of Ms. Helo and local police to successfully enter and search Appellant’s apartment; he subjectively disbelieved Appellant was suicidal; and he ultimately went inside the apartment, not in an effort to render immediate medical aid, to obtain information to assist in the rendering of such aid, or to prevent immediate or ongoing personal injury to Appellant, but at the invitation of the police to examine evidence of possible marijuana manufacture they had found, in a case where Appellant had a positive THC urinalysis and two weeks earlier had been caught introducing a large quantity of marijuana onto a military installation. This evidence does not satisfy the requirements of MRE 314(i). Cf. United States v. Korda, 36 M.J. 578, 582 (A.F. Ct. Crim. App. 1992) (finding MRE 314(i) applicable where entry into off-base apartment was to retrieve a suicide note, which the command member subjectively believed would assist in providing aid to the missing service member or preventing his suicide).