This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Bradley M. METZ, Corporal

United States Marine Corps, Appellant

No. 23-0165

Crim. App. No. 201900089

Argued February 27, 2024—Decided June 20, 2024

Military Judge: John L. Ferriter

For Appellant: Major Colin W. Hotard, USMC 

(argued).

For Appellee: Major Candace G. White, USMC (argued); Colonel Joseph M. Jennings, USMC, Lieutenant Colonel James A. Burkart, USMC, and Brian K. 

Keller, Esq. (on brief).

Judge SPARKS delivered the opinion of the Court, 

in which Judge MAGGS, Judge HARDY, and Judge 

JOHNSON joined. Chief Judge OHLSON filed a separate dissenting opinion.

_______________
United States v. Metz, No. 23-0165/MC

Opinion of the Court

2

Judge SPARKS delivered the opinion of the Court.

Corporal (E-4) Bradley M. Metz (Appellant) was convicted by members, contrary to his pleas, of one specification of arson, one specification of housebreaking, and one 

specification of unlawful entry in violation of Articles 126, 

130, and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 926, 930, 934 (2012 & Supp IV 2013-2017).1 He 

was sentenced to a bad-conduct discharge, one year of confinement, forfeiture of all pay and allowances, and reduction to grade E-1. The United States Navy-Marine Corps 

Court of Criminal Appeals (CCA) approved the findings 

and sentence. Metz, 2023 CCA LEXIS 117, at *47, 2023 WL 

2336107 at *16.

This Court granted Appellant’s initial petition on appeal and, in a summary disposition, set aside the CCA’s decision. United States v. Metz, 82 M.J. 45 (C.A.A.F. 2021). 

We remanded the case to the lower court, instructing them 

to “conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975), in examining the effects of an 

unlawful apprehension upon a subsequent search.” Id. We 

also instructed the lower court to order affidavits or a factfinding hearing, if necessary. Id. at 46. Without conducting 

any further factfinding, the lower court reconsidered the 

case in light of this Court’s guidance and again approved 

the findings and sentence. Metz, 2023 CCA LEXIS 117, at 

*47, 2023 WL 2336107, at *16.

Appellant now asks this Court to decide two questions. 

First, was Appellant a suspect when first interviewed by 

Naval Criminal Investigative Service (NCIS) agents, triggering a requirement for Article 31(b), UCMJ, 10 U.S.C. 

§ 831(b) (2012), warnings? Second, did the lower court err 

1 The military judge conditionally dismissed, to ripen into 

prejudice upon completion of appellate review, the Article 134, 

UCMJ, charge and its sole specification, as an unreasonable 

multiplication of charges with the Article 130, UCMJ, charge 

and its sole specification. United States v. Metz, No. 201900089, 

2023 CCA LEXIS 117, at *1 n.1, 2023 WL 2336107, at *1 n.1

(N-M. Ct. Crim. App. Mar. 3, 2023) (unpublished).
United States v. Metz, No. 23-0165/MC

Opinion of the Court

3

in its application of Brown and its subsequent finding that 

trial defense counsel was not ineffective when he failed to 

move to suppress evidence derived after an illegal apprehension?2 For the reasons outlined below, we answer both 

questions in the negative and affirm the CCA’s decision. 

I. Background

Early in the morning of Sunday, May 20, 2018, a fire 

broke out at a facilities maintenance building at Camp 

Pendleton in California. When firefighters arrived, they 

found no signs of forced entry and suspected the fire had 

been intentionally set. They informed the NCIS, who 

opened an investigation. NCIS agents CP and KT interviewed the noncommissioned officer (NCO) in charge of the 

building, Staff Sergeant (SSgt) JS. He told the investigators that Appellant and another Marine both had keys to 

the facility but he could not definitively say who else might 

have had keys and indicated the keys could be passed 

around. SSgt JS also had keys to the facility. Agent CP 

asked SSgt JS about a helmet and logbook that appeared 

to have been intentionally burned and he indicated they 

belonged to a sergeant who had recently counseled Appellant. SSgt JS referred to Appellant as a “problem child” and 

Agent KT noted that he said Appellant “has [a] bad 

grudge.” He told agents that “if anyone was going to start 

the fire it would have been [Appellant].” SSgt JS’s interest 

in the fire raised suspicions about his possible involvement, 

and he was later brought in for an interview as a potential 

suspect.

2 The Court granted review on the following issues:

I. Was Appellant a suspect, triggering Article 

31(b), UCMJ[,] warnings?

II. Despite finding Appellant was illegally apprehended, did the lower court erroneously apply Brown v. Illinois, 422 U.S. 590 (1975), and 

find the trial defense counsel’s admitted failure to move to suppress evidence derived after 

the apprehension was not ineffective? 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

4

The agents went to the barracks that housed several 

persons who held keys to the maintenance building. They 

knocked first on a door that was ajar without knowing that 

Appellant occupied the room. The agents told Appellant 

they were investigating an incident at his workplace and 

asked if they could come inside to speak with him. Appellant agreed to talk and invited them in. The agents did not 

deliver Article 31(b), UCMJ, warnings. Appellant told the 

agents he did not know anything about the incident at the 

maintenance building and had not left the barracks area 

that morning. He said he had lent his key to someone, indicating that it could be lost, and that he had reported the 

missing key to his command.

As Agent CP was scanning the room to ensure no one 

else was present, he noticed some shoes inside the bathroom that appeared to be wet, as if they had been laid out 

to dry. They were hanging on towel hooks and the insoles 

were nearby, propped on the toilet paper holder. Agent CP 

asked Appellant, “Hey are those Nikes?” Appellant said 

yes. Agent CP then asked, “Do you mind if I go and take a 

look at them?” and Appellant replied that he could.

Agent CP testified that he entered the bathroom and, 

as he got closer to the shoes, he detected an overwhelming 

odor of gasoline, possibly jet fuel or diesel. Agent CP and 

Agent KT immediately ended their interview with Appellant and left his room. The agents returned to their vehicle 

and remained outside the barracks hoping to spot Appellant if he attempted to dispose of the shoes. They returned 

to Appellant’s room after approximately twenty minutes 

and noted that he had moved the shoes to the ledge of the

door, presumably to continue drying. Appellant was not in 

his room. Agent CP testified that they were worried they 

might have “spooked” him and that “something bad” might 

be happening. He went to look for Appellant and found him 

coming out of a breezeway near the smoke pit.

The exact order of the events that followed is unclear. 

Agent CP testified that he asked Appellant to remove his 

hands from his pockets. Appellant was slow to comply. He 

hesitated “[l]ong enough for [Agent CP] to feel 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

5

uncomfortable” and Agent CP “just didn’t like his behavior 

at that point.” Agent CP said that he told Appellant, “‘Hey, 

you’re making me real nervous right now, and we want to 

talk to you some more.’ ” He frisked and handcuffed Appellant. Agent CP and Appellant disagree about whether the 

frisking happened before or after the handcuffing. Agent 

CP “asked [Appellant] if he’d be willing to come up and talk 

to us back at the room, at which time, we went back up to 

the room and he was released. I explained to him why I did 

that and we went from there.”

Agent CP and Appellant, still handcuffed, returned to 

his room where Agent KT was waiting. Agent CP testified 

that the walk took a minute at most. The agents did not 

give Appellant an Article 31(b), UCMJ, warning. Agent CP 

removed the handcuffs either just before or just after Agent 

KT asked Appellant for consent to search his room. Appellant gave his consent. He read and signed a Permissive Authorization for Search and Seizure (PASS) form that stated 

the agents were investigating arson. The PASS required 

Appellant to initial in eight different places, sign, and date, 

and informed him that he had the right to refuse the search 

of his room. The lower court characterized the apprehension as “brief and without incident.” Metz, 2023 CCA 

LEXIS 117, at *43, 2023 WL 2336107, at *15.

The lower court described the search and subsequent 

interview:

 While in the room, the special agents did not 

ask Appellant any questions about the fire, but 

they did seize several items. Among them were 

the wet shoes and insoles that smelled of gasoline; 

a pair of black pants, a charcoal grey t-shirt, a 

white t-shirt, and a pair of boxer shorts, which 

were all inside a laundry bag; a blue lighter; and 

a silver key (that turned out not to be the facilities 

maintenance building key) found in Appellants 

dresser drawer. The shoes and clothes were specially packaged for forensic testing. 

 The agents then drove Appellant to the NCIS 

office for an interview. Along the way, they discussed mostly food, but based on the later video of 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

6

the interrogation it appears there was also some 

discussion about Appellant’s dissatisfaction with 

the Marine Corps. When they arrived at the NCIS 

office, Appellant read and signed an Article 31(b) 

rights advisement warning. 

Id. at *7-8, 2023 WL 2336107, at *3. They placed Appellant 

in handcuffs during the thirty-minute drive to the NCIS 

office and removed them when they arrived.

The next day, Appellant signed another PASS and 

NCIS agents conducted a second search of his room. They 

found the key to the maintenance building hidden inside a 

tissue box. They also seized a pair of black gloves that 

smelled like fuel.

Trial

In a pretrial motion, defense counsel asked the military 

judge to suppress every statement made by Appellant to 

NCIS and all derivative statements and evidence because 

Appellant was a suspect when they interviewed him at his 

barracks room and should have been given Article 31(b), 

UCMJ, warnings. The military judge denied the motion. 

He ruled that the agents “did not believe and should not 

have reasonably believed that [Appellant] committed an offense” when they interviewed him in his room. The investigation was still “in its infancy” and contacting Appellant 

was “a logical early step.” He also stated that the agents 

did not discover any evidence directly as a result of Appellant’s statements during that interview. In addition, he determined that Appellant’s voluntary consent to search his 

room would have attenuated the seizure of anything from 

the room. Appellant was convicted by members of all 

charges.

United States Navy-Marine Corps Court

of Criminal Appeals

In its initial opinion, the CCA affirmed the findings and 

sentence. United States v. Metz, No. 201900089, 2020 CCA 

LEXIS 334 at *43, 2020 WL 5652868 at *15 (N-M. Ct. Crim. 

App. September 23, 2020) (unpublished). On remand, the 

lower court again affirmed. Metz, 2023 CCA LEXIS 117, at 

*47, 2023 WL 2336107, at *16. It found that law 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

7

enforcement did not view Appellant as a suspect in their 

initial interview and that there was no evidence they reasonably should have viewed him as a suspect. Id. at *24-

25, 2023 WL 2336107, at *8. It examined this Court’s holdings in United States v. Muirhead, 51 M.J. 94 (C.A.A.F. 

1999), and United States v. Davis, 36 M.J. 337 (C.A.A.F. 

1993), and determined that Appellant remained merely a 

person of interest until Agent CP encountered the wet 

shoes smelling like fuel, at which point the agents terminated the interview and left. Id. at *19-23, 2023 WL 

2336107, at *7-8. Therefore, the agents did not improperly 

fail to provide Appellant with his Article 31(b), UCMJ,

rights. 

The lower court also found that defense counsel was not 

ineffective in failing to move to suppress evidence derivative of an unlawful apprehension. Id. at *44, 2023 WL 

2336107, at *15. It determined that Agent CP’s extended 

holding of Appellant was unlawful and, under this Court’s 

instruction, assessed the impact of the illegal apprehension 

using the Brown factors. Id. at *38, 2023 WL 2336107, at 

*13. As an initial matter, it found that Appellant’s consent 

was voluntary with no evidence of coercion or that Appellant did not understand his right to refuse consent. Id. at 

*39-40, 2023 WL 2336107, at *13. Moving on to the Brown

factors and whether Appellant’s consent was an act of independent free will, it concluded that Appellant’s consent 

to search was in close temporal proximity to his illegal apprehension. Id. at *41, 2023 WL 2336107, at *14. However, 

signing the PASS form qualified as an intervening circumstance that could purge the taint. Id. at *42, 2023 WL 

2336107, at *14. In addition, there was no indication Appellant’s brief detention was for improper purposes or manifested any flagrant form of misconduct. Id. at *44, 2023 

WL 2336107, at *15. Therefore, the Brown factors favored 

the Government, any motion to suppress would have been 

unsuccessful, and defense counsel was not ineffective in 

failing to raise such a motion. 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

8

II. Discussion 

Article 31(b), UCMJ, Rights

Article 31(b), UCMJ, states that: 

No person subject to this chapter may interrogate, 

or request any statement from, an accused or person suspected of an offense without first informing 

him of the nature of the accusation and advising 

him that he does not have to make any statement 

regarding the offense of which he is accused or 

suspected and that any statement made by him 

may be used as evidence against him in a trial by 

court-martial.

Such warnings are required when “(1) a person subject 

to the UCMJ, (2) interrogates or requests any statement, 

(3) from an accused or person suspected of an offense, and 

(4) the statements regard the offense of which the person 

questioned is accused or suspected.” United States v. Jones, 

73 M.J. 357, 361 (C.A.A.F. 2014) (citing United States v. 

Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006)). “Whether a person 

is a suspect is an objective question that is answered by 

considering all the facts and circumstances at the time of 

the interview to determine whether the military questioner 

believed or reasonably should have believed that the servicemember committed an offense.” United States v. Swift, 

53 M.J. 439, 446 (C.A.A.F. 2000) (internal quotation marks 

omitted) (quoting United States v. Good, 32 M.J. 105, 108 

(C.M.A. 1991)). At times it can also be appropriate to consider the subjective view, looking at “what the investigator, 

in fact, believed, and . . . decid[ing] if the investigator considered the interrogated person to be a suspect.” Muirhead, 

51 M.J. at 96. Designating someone a suspect for Article 

31(b), UCMJ, purposes requires more than merely a 

“hunch.” Swift, 53 M.J. at 447.

We review a military judge’s ruling on a motion to suppress for an abuse of discretion. United States v. Ayala, 43 

M.J. 296, 298 (C.A.A.F. 1995). “[A] military judge abuses 

his discretion if his findings of fact are clearly erroneous or 

his conclusions of law are incorrect.” Id. “When there is a 

motion to suppress a statement on the ground that rights’ 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

9

warnings were not given, we review the military judge’s 

findings of fact on a clearly-erroneous standard, and we review conclusions of law de novo.” United States v. Ramos, 

76 M.J. 372, 375 (C.A.A.F. 2017) (internal quotation marks 

omitted) (quoting Swift, 53 M.J. at 446). 

Appellant argues that both the military judge and the 

lower court improperly determined that he was not a suspect when he was first questioned by investigators. However, the military judge’s finding of fact that law enforcement did not believe Appellant was a suspect on their 

initial visit to his barracks room is not clearly erroneous, 

and we agree that the facts and circumstances do not indicate that law enforcement believed or reasonably should 

have believed Appellant was a suspect. Appellant did possess a key to the facilities maintenance building, but the 

agents were informed that multiple people had keys to the 

facility and that those keys were known to be passed 

around. SSgt JS told investigators that Appellant could be 

troublesome and a “problem child” with a grudge. However, 

it is a long leap from having an attitude to burning down 

the building. There was no indication Appellant had 

threatened to damage the building or do any sort of violence. In addition, all the negative character information 

Agent CP and Agent KT received about Appellant came 

from a single source, SSgt JS, who was still under suspicion 

himself. Agent KT stated in her testimony at the suppression hearing that, “[o]ther people don’t run our investigations, and just because someone may have a problem with 

Corporal Metz does not mean that we do.” Appellant invited the agents into his room and was cooperative while 

talking to them, giving them no added reason to suspect 

him of the offense. Subjectively, both agents testified that 

they did not consider Appellant a suspect at the time and 

were merely conducting screening interviews.3 It was only 

3 Both Agent CP and Agent KT testified that they thought 

they needed probable cause to consider Appellant a suspect, not 

the proper standard of reasonable suspicion. Though it is troubling that both agents were not aware of the correct standard for 

determining whether someone is a suspect, even under the 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

10

when Agent CP detected that gasoline odor coming directly 

from the shoes that the balance shifted, at which point the 

agents ended the interaction and departed. 

Appellant also argues that Agent CP’s questions about 

his shoes should have triggered Article 31(b), UCMJ. However, looking at the facts and circumstances, just the drying shoes themselves would not be enough to make Appellant a suspect. Shoes could be hanging up to dry for many 

innocent reasons from rain to mud to washing your car. Appellant did not show any concern about the shoes and immediately agreed that Agent CP could look at them. It was 

not until Agent CP got close enough to smell the gasoline 

coming from the shoes that he became suspicious. At that 

point, agents ceased their questions and left the room.4

It is helpful to compare the circumstances in this case 

to this Court’s decision in Davis. In Davis, the victim was 

found dead behind the base commissary after a night of 

playing pool and the wounds were consistent with wounds

inflicted with a pool cue. 36 M.J. at 338. The appellant had 

been at the pool hall that night. Id. He had previously 

voiced a desire to shoot a police officer and was undergoing 

mental health evaluation. Id. He had also been overheard 

making comments about the murder victim being “jabbed 

with a pool stick,” though this was not common knowledge.

Id. at 339 (internal quotation marks omitted). When the 

appellant was initially interviewed, he was not provided 

with his Article 31(b), UCMJ, rights. Id. This Court concluded that the appellant was not a suspect at the time of 

proper reasonable suspicion standard Appellant was not yet a 

suspect at the time of the initial interview. 

4 In his investigation report, Agent CP stated that he smelled 

a faint odor of fuel prior to asking to see the shoes and the military judge included this in his findings of fact. However, Agent 

CP testified at trial that he did not smell gasoline until he got 

into the bathroom. Defense counsel cross-examined Agent CP 

about this inconsistency and he testified that the investigation 

report was incorrect. In light of that testimony, the lower court’s 

finding that Agent CP did not smell fuel until he approached the 

shoes was not clearly erroneous. 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

11

the initial questioning because he was one of several patrons who had their own pool cues and his comments and 

mental health status were not directly related to the incident being investigated. Id. at 340-41. 

As in Davis, when Appellant was initially interviewed 

he was one of multiple people who possessed keys to the 

building and had potential knowledge of the crime. His 

behavioral problems were general in nature, with no 

threats to commit arson or anything else that would 

directly tie him to the incident. See also United States v. 

Miller, 48 M.J. 49, 54 (C.A.A.F. 1998) (finding that “[b]ased 

on the evidence available to [law enforcement] the 

investigation had not sufficiently narrowed to make 

appellant a suspect” and therefore Article 31(b), UCMJ,

warnings were not required).

Nothing that occurred before and during the initial interview with Appellant made him a suspect for Article 

31(b), UCMJ, purposes. The objective facts and circumstances support the agents’ testimony that they were conducting screening interviews. Therefore, the military judge 

did not abuse his discretion when he concluded a rights

warning was not required. 

Ineffectiveness of Counsel

The Supreme Court has distinguished two components 

essential for establishing ineffectiveness of counsel. First, 

an appellant must show that counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

“This requires showing that counsel made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, 

an appellant must show that counsel’s deficient performance resulted in prejudice. Id. “This requires showing 

that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

An appellant must prove that defense counsel’s performance “fell below an objective standard of reasonableness.” 

Id. at 688. “In any case presenting an ineffectiveness claim, 

the performance inquiry must be whether counsel’s 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

12

assistance was reasonable considering all the circumstances.” Id. Scrutiny of counsel’s performance should be 

highly deferential. Id. at 689. The court must assess “the 

reasonableness of counsel’s challenged conduct on the facts 

of the particular case, viewed as of the time of counsel’s 

conduct.” Id. at 690. 

We have consistently held that “[w]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant 

must show that there is a reasonable probability that such 

a motion would have been meritorious.” United States v. 

Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (alteration 

in original) (internal quotation marks omitted) (citation 

omitted); United States v. McConnell, 55 M.J. 479, 482 

(C.A.A.F. 2001); United States v. Napoleon, 46 M.J. 279, 

284 (C.A.A.F. 1997). Similarly, if deficient performance is 

established, to demonstrate prejudice, “[t]he defendant 

must show that there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.” Strickland, 466 U.S. at 694. Thus:

Where defense counsel’s failure to litigate a 

Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant 

must also prove that his Fourth Amendment 

claim is meritorious and that there is a reasonable 

probability that the verdict would have been different absent the excludable evidence in order to 

demonstrate actual prejudice.

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Finally, 

“[i]n reviewing for ineffectiveness, th[is] Court looks at 

questions of deficient performance and prejudice de novo.” 

United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) 

(internal quotation marks omitted) (quoting United States 

v. Gutierrez, 66 M.J. 329, 330-31 (C.A.A.F. 2008)).

Appellant claims that his defense counsel was ineffective in failing to make a motion to suppress evidence derived from his illegal apprehension. In an affidavit 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

13

provided to the lower court, defense counsel stated that 

“there was no strategic purpose in avoiding citation to the 

‘Fourth Amendment issue’ other than having not considered it as a valid basis to rely upon.” However, even if there 

was no strategic purpose in failing to raise the issue, such 

a motion to suppress would not have been meritorious and 

therefore there was no ineffective assistance. 

Appellant argues that the lower court improperly applied the Brown factors in assessing the impact of his illegal apprehension by placing too much emphasis on the voluntariness of Appellant’s consent. We disagree. The lower 

court did discuss voluntariness but also examined each of 

the three Brown factors, concluding correctly that analysis 

of those factors indicated any motion to suppress based on 

the illegal apprehension was without a reasonable probability of success. Metz, 2023 CCA LEXIS 117, at *44, 2023 

WL 2336107, at *15.

We concur with the lower court’s finding that there was 

an illegal apprehension. In Terry v. Ohio, the Supreme 

Court established that law enforcement may conduct a limited search of a person when there is reasonable fear for 

their own or others’ safety without violating the Fourth 

Amendment. 392 U.S. 1, 30-31 (1968). “[I]n determining 

whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and 

unparticularized suspicion or ‘hunch,’ but to specific reasonable inferences which he is entitled to draw from the 

facts in light of his experiences.” Id. at 27. Here, even if 

Agent CP’s initial suspicions about Appellant keeping his 

hands in his pockets allowed for a Terry stop, he kept Appellant handcuffed beyond the time necessary to establish 

he was not armed and presented no physical danger. There 

is no indication of any “specific reasonable inferences” that 

suggested Appellant should have been handcuffed while he 

was led up to his room. 

Given that an illegal apprehension did occur, we then 

consider whether a motion by defense counsel to suppress 

evidence based on this apprehension would have been meritorious and whether there is a reasonable probability that 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

14

the verdict would have been different absent any excludable evidence. Under the attenuation doctrine, “[e]vidence is 

admissible when the connection between unconstitutional 

police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the 

interest protected by the constitutional guarantee that has 

been violated would not be served by suppression of the evidence obtained.” Utah v. Strieff, 579 U.S. 232, 238 (2016) 

(internal quotation marks omitted) (quoting Hudson v. 

Michigan, 547 U.S. 586, 593 (2006)). “The critical inquiry 

is whether appellant’s consent to search was sufficiently an 

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

[act].” United States v Khamsouk, 57 M.J. 282, 290 

(C.A.A.F. 2002) (internal quotation marks omitted) (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).

We look at whether the objected-to evidence was obtained 

by exploitation of the initial illegality or in a manner that 

is sufficiently distinguishable as to cleanse it of the primary taint. Id. “Whether consent to a search is valid is 

measured by whether the consent was freely and voluntarily given as determined by the totality of the circumstances.” United States v Frazier, 34 M.J. 135, 137 

(C.A.A.F. 1992) (internal quotation marks omitted) (citations omitted). 

In Khamsouk, this Court favored adopting the factors 

laid out in Brown “to address issues of attenuation in the 

context of consent.” 57 M.J. at 291. As later articulated in 

United States v Conklin, Brown concluded that:

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 flagrancy 

of the initial misconduct.

63 M.J. 333, 338-39 (C.A.A.F. 2006) (internal quotation 

marks omitted) (quoting United States v. Hernandez, 279 

F.3d 302, 307 (5th Cir. 2002)). The burden of proving 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

15

admissibility lies with the prosecution. Brown, 422 U.S. 

at 604. 

Here, the first Brown factor favors Appellant. The illegal apprehension took place within minutes of the request 

for consent to search his room. There was no meaningful 

temporal break at all. The second Brown factor is a closer 

call. The primary intervening circumstance between the illegal apprehension and the search was uncuffing Appellant 

to sign the PASS. Though it is certainly good that agents 

followed proper procedure in having Appellant sign the single-page PASS document, this advisement of his rights is 

not significant enough on its own to purge any taint. See

Khamsouk, 57 M.J. at 292 (concluding that the administration of Article 31(b), UCMJ, rights and a signed acknowledgment of the right to refuse consent “is not dispositive of 

the issue of whether appellant’s consent is sufficiently attenuated from the taint of the unlawful entry”). However, 

though the order of events is disputed and somewhat unclear, at some point after the illegal apprehension Agent 

CP also explained to Appellant that he had been handcuffed for officer safety reasons and Agents CP and KT informed Appellant that they wanted to search his room because they were looking into arson. In addition, we see no 

direct causal connection linking the illegal apprehension to 

the consent to search. The agents’ desire to search Appellant’s room was not a direct result of the illegal apprehension. Rather, it stemmed from the earlier and entirely 

proper interview in Appellant’s room. In contrast, in 

Conklin this Court determined the second factor favored 

the appellant in part because there was a causal connection 

between the illegal action (an earlier illegal search of the 

appellant’s computer) and the request for consent to search 

his room. 63 M.J. at 338-39. 

The third Brown factor favors exclusion “only when the 

police misconduct is most in need of deterrence—that is, 

when it is purposeful or flagrant.” Strieff, 579 U.S. at 241. 

“The Supreme Court has identified this third factor as particularly important, presumably because it comes closest to 

satisfying the deterrence rationale for applying the 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

16

exclusionary rule. In fact, given the exclusionary rule’s purpose of deterring police misconduct, the factor may be the 

most important factor.” Khamsouk, 57 M.J. at 291 (internal 

quotation marks omitted) (citations omitted). Assessing 

the third Brown factor involves determining whether the 

law enforcement conduct is the sort that the exclusionary 

rule was intended to deter. Id. at 293. This Court has determined that law enforcement behavior need not be outrageous or display bad motive or intent for the third Brown

factor to apply. United States v. Darnall, 76 M.J. 326, 331 

(C.A.A.F. 2017). In Conklin, we decided that it was sufficient that law enforcement’s actions were “unwise, avoidable, and unlawful” and that agents subsequently exploited 

the original illegality. 63 M.J. at 339. 

The third Brown factor is dispositive here. Appellant 

was illegally held for a few minutes at the most, as he 

walked from the breezeway near the smoke pit to his room. 

Agent CP’s testimony and actions indicate that the illegal 

apprehension stemmed from overall nervousness and 

uncertainty about Appellant’s state of mind. Agent CP 

testified that, because Appellant was slow to remove his 

hands from his pockets, he became nervous, placed 

Appellant in handcuffs, and frisked him for weapons. There 

is no evidence that the agents had concocted a plan to 

further their investigation by pressuring Appellant to 

make admissions or consent to a search of his room. 

Appellant’s assertion that this was the purpose behind the 

illegal apprehension is purely speculative. The agents did 

not know that Appellant would not be in his room when 

they returned. See Brown, 422 U.S. at 605 (finding, in 

contrast, no attenuation when the actions of law 

enforcement “had a quality of purposefulness” and the 

detectives “repeatedly acknowledged, in their testimony, 

that the purpose of their actions was ‘for investigation’ or 

for ‘questioning’ ” indicating an “expedition for evidence in 

the hope that something might turn up”).

Nothing in Agent CP’s behavior or testimony indicates 

the level of flagrancy or purpose and intent needed to trigger the exclusionary rule. In a declaration attached to the 
United States v. Metz, No. 23-0165/MC

Opinion of the Court

17

record on appeal, Appellant claimed that he was still handcuffed when the agents asked to search his room, but even 

if this was the case, he was uncuffed a moment later to sign 

the PASS. In addition, the agents’ decision to provide the 

written PASS form indicates good faith and an attempt to 

follow proper procedure. See Khamsouk, 57 M.J. at 292 

(stating that the fact that agents “provided the [written 

consent] form with its warning mitigates against a conclusion that the police engaged in flagrant or purposeful conduct to exploit the illegal entry”). This Court in Khamsouk

also determined that law enforcement’s concerns about officer safety, even if not rising to the level of “exigent circumstances,” provided further evidence that their conduct 

was not flagrant for the purpose of evaluating the third 

Brown factor. Id. at 293. A similar logic would follow here. 

All these considerations indicate that any misconduct on 

the part of law enforcement was minor, that there was no 

intent or attempt to exploit the illegal apprehension, and 

that it is simply not the kind of behavior the exclusionary 

rule was designed to prevent. 

Application of the Brown factors convinces us that 

Appellant’s consent to search was sufficiently attenuated 

from his illegal apprehension. We, therefore, conclude that 

Appellant has not carried his burden to show that there 

was a reasonable probability any motion to suppress 

evidence due to the illegal apprehension would have 

succeeded. 

III. Decision

The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed. 
United States v. Metz, No. 23-0165/MC

Chief Judge OHLSON, dissenting.

The key question arising in the instant case is whether 

“a reasonable person” would have considered Appellant to 

be “a suspect” at the time military law enforcement officials

questioned him about the crime they were investigating. 

United States v. Meeks, 41 M.J. 150, 161 (C.M.A. 1994). If 

so, Appellant was entitled to be informed of his rights under Article 31(b), Uniform Code of Military Justice 

(UCMJ).1 In deciding this issue, it is essential to note that 

a “mere suspicion . . . triggers the obligation to inform [a] 

suspect of his Article 31” rights. United States v. Schneider, 

14 M.J. 189, 193-94 (C.M.A. 1982) (emphasis added). Moreover, only a “relatively low quantum of evidence” is necessary in order for the rights advisement requirement to be 

triggered. United States v. Swift, 53 M.J. 439, 447 (C.A.A.F.

2000) (emphasis added). 

In my view, the following facts are determinative of the 

issue before us:

• A fire broke out inside a facilities maintenance 

building at Camp Pendleton. The Naval Criminal Investigative Service (NCIS) agents assigned to the 

case suspected arson and concluded that because 

there was no sign of forced entry, whoever started 

the fire inside the building had a key. The NCIS 

agents were told that Appellant was one of only a 

relatively small number of people who possessed 

such a key.

• The agents were told that Appellant had “a grudge” 

against the shop and had been recently counseled by 

his command. 

• The agents learned that the logbook and personal 

hard hat of Appellant’s sergeant had been placed on 

top of a stack of lumber that was set on fire in the 

building.

• The agents knew that Appellant was considered “a 

problem child” by others in his unit.

1 10 U.S.C. § 831(b) (2012).
United States v. Metz, No. 23-0165/MC

Chief Judge OHLSON, dissenting

2

• The agents were told by Appellant’s sergeant that “if 

anyone was likely to have started the fire in the 

building, it would have been [Appellant].”

Thus, at the time they began questioning Appellant, the 

NCIS agents knew that Appellant had been identified by 

his sergeant as the likely culprit, and they knew that Appellant had the means, the motive, and the seeming proclivity to commit an act of this nature. Under these circumstances, and in accordance with our precedent pertaining 

to this area of the law, it is evident to me that at the time 

the NCIS agents questioned Appellant a “reasonable person” would have concluded that Appellant was “a suspect.”2

As a consequence, the NCIS agents were required to give 

Appellant an Article 31(b) warning before questioning him 

about the arson. See United States v. Harpole, 77 M.J. 231, 

236 (C.A.A.F. 2018) (requiring Article 31(b) warnings 

when, in relevant part, a servicemember is suspected of an 

offense and a person subject to the UCMJ questions the 

servicemember about this offense). Their failure to do so 

rendered Appellant’s statements involuntary and therefore 

inadmissible at trial. Military Rule of Evidence (M.R.E.) 

304(a) (2016 ed.); M.R.E. 305(a) (2016 ed.); see also Article 

2 The majority is properly “troubl[ed]” that the NCIS “agents 

were not aware of the correct standard for determining whether 

someone is a suspect” for Article 31 purposes. United States v. 

Metz, __ M.J. __, __ (9 n.3) (C.A.A.F. 2024); see also Oral 

Argument at 27:49-27:58, United States v. Metz (C.A.A.F. Feb. 

27, 2024) (No. 23-0165) (The Government conceded at oral 

argument that “at one point in the record [the agents] were not” 

using the correct legal standard for determining whether an 

individual was a suspect.). Unlike the majority, however, I 

cannot wave away the agents’ misunderstanding of the law. As 

discussed above, Appellant was a suspect under the proper

standard—if the agents had applied it. Additionally, I note that 

the agents’ statements during their interrogation of Appellant—

the agents acknowledged that they went to Appellant’s room 

because he was “our guy,” and they pointed out that there was a 

reason they “showed up” at Appellant’s door—undermine their 

claim that they did not view Appellant as a suspect, despite the 

Government’s attempt to dismiss these statements as merely 

being part of an interrogation technique.
United States v. Metz, No. 23-0165/MC

Chief Judge OHLSON, dissenting

3

31(d), UCMJ. Because the majority holds to the contrary, I 

respectfully dissent.3

3 Although it is not necessary for the majority to reach this 

issue, I further conclude that evidence derived from Appellant’s 

unwarned statements to the NCIS agents was inadmissible. 

This evidence included: Appellant giving alibi evidence that 

could be contradicted; Appellant lying about not having a key to 

the burned building; NCIS spotting Appellant’s incriminating 

shoes that smelled like accelerant and then questioning 

Appellant about the shoes, causing him to implicitly 

acknowledge that the shoes belonged to him; NCIS locking 

Appellant into his story by asking him such questions as where 

he had been the night before and then leveraging his answers 

against him; and, during Appellant’s subsequent consensual 

interrogation, NCIS repeatedly referencing Appellant’s earlier 

unwarned statements to elicit additional damning information 

from Appellant. Some examples of NCIS referring to Appellant’s 

earlier statements are as follows: “So I know last night you said 

that you went and hung out with a friend”; “And even when we 

came to your room, you were like yeah, I’m kind of a fuckup 

Marine”; “You even told us that you were [disgruntled about 

your job]”; “You even told us [that] you want to make money”;

and “I asked you earlier and you said you hadn’t” reported the 

keys missing. Moreover, the Government exploited Appellant’s 

unwarned statements and derivative evidence at trial, 

referencing Appellant’s false alibi and Appellant’s false claim 

that he did not possess a key to the burned building. In addition, 

Appellant’s unwarned statements, and evidence derived from 

these statements, harmed Appellant’s case by prompting the 

military judge to give a “[f]alse exculpatory statement” 

instruction at trial. Because the evidence from the unwarned 

statements so pervasively infected NCIS’s later investigatory 

steps as well the Government’s presentation to the panel 

members, there is no reliable means of assessing the strength of 

the Government’s case absent the unwarned statements. 

Therefore, in my view the Government has not met its burden of 

demonstrating that the result of the trial would have been the 

same if the NCIS agents had correctly advised Appellant of his 

Article 31(b) rights and Appellant had invoked his right to 

remain silent. Accordingly, I conclude that the decision of the 

lower court should be reversed. See United States v. Frost, 79 

M.J. 104, 111-12 (C.A.A.F. 2019) (reversing where the 

government failed to meet its burden of demonstrating that 

improperly admitted evidence did not have a substantial 

influence on the findings). Given my conclusion that the proper 
United States v. Metz, No. 23-0165/MC

resolution of Issue I results in reversible error, I need not reach 

Issue II.