UNITED STATES, Appellee 

v. 

Rodolfo FLORES, Private First Class 

U.S. Marine Corps, Appellant 

No. 06-0675 

Crim. App. No. 200400701 

United States Court of Appeals for the Armed Forces

Argued February 12, 2007 

Decided April 23, 2007 

EFFRON, C.J., delivered the opinion of the Court, in which 

BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Lieutenant Anthony Yim, JAGC, USN (argued); 

Lieutenant Aimee M. Cooper, JAGC, USNR. 

For Appellee: Major Brian K. Keller, USMC (argued); Major Kevin 

C. Harris, USMC (on brief); Commander C. N. Purnell, JAGC, USN. 

Amicus Curiae for Appellant: Jaymeski Pullins-Gorham (law 

student) (argued); Donald W. North, Esq. (supervising attorney), 

Brandon Brown (law student), Karen Hayes (law student), and 

Katherine Pellegran (law student) (on brief) – for the Southern 

University Clinical Education Program, Southern University Law 

Center. 

Military Judge: R. S. Chester 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Flores, No. 06-0675/MC 

2

Chief Judge EFFRON delivered the opinion of the Court.1

At a general court-martial composed of a military judge 

sitting alone, Appellant faced charges of conspiracy to commit 

larceny and six specifications of larceny. See Articles 81 and 

121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 

921 (2000). Prior to entering pleas, Appellant filed a motion 

challenging the legality of a search that had produced 

significant evidence on the charged offenses. The military 

judge denied Appellant’s motion, ruling that Appellant lacked 

standing to challenge the legality of the search. Following 

denial of the motion, Appellant entered conditional guilty 

pleas, preserving his right to appeal the military judge’s 

ruling on the search. 

 After receiving Appellant’s pleas, the military judge found 

Appellant guilty of the charged offenses and adjudged a sentence 

that included a dishonorable discharge, confinement for six 

years, forfeiture of all pay and allowances, and reduction to 

the lowest enlisted grade. The convening authority approved the 

sentence, but suspended execution of that portion of the 

sentence adjudging confinement in excess of sixty months, for a 

 

1

 We heard oral argument in this case at the Southern University 

Law Center in Baton Rouge, Louisiana, as part of the 

Court’s “Project Outreach.” See United States v. Mahoney, 58 

M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed 

as part of a public awareness program to demonstrate the 

operation of a federal court of appeals and the military justice 
United States v. Flores, No. 06-0675/MC 

3

period of twelve months from the date of the convening 

authority’s action. The convening authority approved 

forfeitures of all pay and allowances only until such time as 

the approved confinement was lawfully terminated, and 

thereafter, approved forfeitures of two-thirds pay per month 

while Appellant remained in a pay status. The United States 

Navy-Marine Corps Court of Criminal Appeals affirmed. United 

States v. Flores, 63 M.J. 557 (N-M. Ct. Crim. App. 2006). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER THE LOWER COURT ERRED WHEN IT 

HELD THAT APPELLANT DID NOT HAVE STANDING IN 

ORDER TO CHALLENGE THE GOVERNMENT’S SEARCH. 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE 

CONCLUDED THAT THE GOVERNMENT WOULD HAVE 

“INEVITABLY DISCOVERED” APPELLANT’S 

CONFESSION. 

We hold that Appellant lacked standing to challenge the 

legality of the Government’s search. In light of our conclusion 

on standing under Issue I, we need not resolve Issue II. 

 

I. STANDING TO CHALLENGE THE LEGALITY OF A SEARCH 

Evidence obtained as a result of an unlawful search is 

inadmissible against an accused who makes a timely motion or 

objection establishing “a reasonable expectation of privacy in 

 

system.
United States v. Flores, No. 06-0675/MC 

4

the person, place or property searched.” Military Rule of 

Evidence (M.R.E.) 311(a)(2); see United States v. Daniels, 60 

M.J. 69, 70 (C.A.A.F. 2004). An accused bears the burden of 

demonstrating “a subjective expectation of privacy which is 

objectively reasonable.” United States v. Monroe, 52 M.J. 326, 

330 (C.A.A.F. 2000); see United States v. Miller, 13 M.J. 75, 77 

(C.M.A. 1982) (the accused “bears the burden of proving . . . 

that he had a legitimate expectation of privacy in the area 

being searched”) (citing Rawlings v. Kentucky, 448 U.S. 98 

(1980); Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978)); see 

also United States v. Freitas, 716 F.2d 1216, 1220 n.2 (9th Cir. 

1983) (concluding that when “a defendant fails to meet this 

burden in the suppression hearing, he cannot prevail on appeal 

even though the Government also did not establish the contrary, 

unless, of course, the record on appeal independently 

demonstrates the requisite standing”). 

An accused has no privacy interest in voluntarily abandoned 

property, and lacks standing to complain of the search or 

seizure of such property. See, e.g., California v. Hodari, 499 

U.S. 621, 629 (1991) (judge properly denied motion to suppress 

evidence of cocaine abandoned by defendant while fleeing from 

police); Miller, 13 M.J. at 78. If, however, a person 

“discard[s] articles in reaction to illegal police conduct,” 

such action does not deprive the individual “of the right to 
United States v. Flores, No. 06-0675/MC 

5

object to the illegitimacy of the police action” in searching or 

seizing those articles. United States v. Robinson, 6 M.J. 109, 

110 (C.M.A. 1979). 

II. EVIDENCE PRESENTED AT THE SUPPRESSION HEARING 

The challenged search took place on the date that 

Appellant’s platoon graduated from recruit training at the 

Marine Corps Recruit Depot at San Diego, California. 

On the evening before graduation, the commanding officer of 

Appellant’s platoon reported to his battalion commander that 

several recruits had discovered unauthorized automatic teller 

machine (ATM) withdrawals from their credit union accounts 

amounting to approximately $3,700. Appellant was one of the 

recruits reporting lost funds. 

Agents from the Criminal Investigation Division (CID) 

immediately launched an investigation into the apparent thefts, 

questioning each of the platoon’s approximately sixty recruits 

into the night in an attempt to identify a suspect. By the 

morning of graduation day, the investigation had not yet yielded 

a suspect, but had focused suspicion on the members of 

Appellant’s platoon. 

The schedule for graduation day called for the recruits to 

participate in a graduation ceremony. They would then depart 
United States v. Flores, No. 06-0675/MC 

6

immediately after the ceremony for ten days of leave before 

reporting for further training at the School of Infantry. 

On the morning of graduation day, the recruits placed their 

bags, already packed in anticipation of their expected 

departure, in a staging area. They then left the barracks to 

prepare for graduation. While the recruits were on the parade 

deck forming up for graduation, the CID and a credit union 

representative briefed the battalion commander on the status of 

the ongoing investigation. Taking note of the lack of suspects 

and imminent departure of the graduates, the battalion commander 

became concerned that any evidence would disappear once the 

recruits departed. He ordered a guard and a drill instructor to 

stand guard over the recruits’ bags, and ordered a search to be 

conducted after graduation. Although the recruits had been 

interviewed by the CID and were aware that an investigation was 

ongoing, the record is silent as to when they learned that their 

belongings would be searched. 

After graduation, the recruits collected their bags from 

the staging area and marched back to the squad bay. In the bay, 

they were ordered to line up with their bags. One by one, each 

recruit was ordered to empty his bags. After a drill instructor 

searched the contents of each bag, its owner was directed to 

repack it. 
United States v. Flores, No. 06-0675/MC 

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The bags carried by Appellant were searched and repacked 

without incident. As he was walking out the door, a drill 

instructor alerted the CID to the discovery of a substantial 

amount of cash in a bag that had been unpacked by Recruit S. 

When viewing the contents, Recruit S denied ownership of the 

bag, and expressed a belief that the bag had been switched when 

the newly graduated Marines had been escorted to their bags just 

before returning to the barracks for the search. 

The CID agents inspected the contents of the clothing bag 

unpacked by Recruit S and found a substantial amount of material 

pointing to Appellant as the owner of the bag, including 

photographs of Appellant, mail addressed to Appellant, and 

uniforms bearing Appellant’s name. At the same time, the 

clothing bag carried by Appellant was determined to be Recruit 

S’s bag, and was returned to Recruit S. Appellant was placed 

under arrest, and soon thereafter, he confessed to the conduct 

that subsequently resulted in his court-martial. After 

Appellant’s arrest, other members of the platoon discovered 

unauthorized withdrawals from their accounts. 

At trial, Appellant moved to suppress evidence obtained as 

a result of the search of his clothing bag, including his 

confession. At the hearing on the motion to suppress, the 

military judge heard testimony from the commanding officer who 

ordered the search, a CID agent who participated in the 
United States v. Flores, No. 06-0675/MC 

8

investigation, and the drill instructor who conducted the search 

that revealed the incriminating evidence in Appellant’s bag. 

In the course of ruling on the issue, the military judge 

entered findings of fact and conclusions of law. The military 

judge found that Appellant voluntarily abandoned his bag by 

switching bags with another recruit before the search was 

ordered. As matter of law, the military judge held that 

Appellant lacked standing to challenge the legality of the 

search of that bag, and denied the motion to suppress. 

III. DISCUSSION 

We review the military judge’s denial of the motion to 

suppress for abuse of discretion. United States v. Khamsouk, 57 

M.J. 282, 286 (C.A.A.F. 2002). Findings of fact are reviewed 

for clear error, while conclusions of law are reviewed de novo. 

Id. We view the evidence in the light most favorable to the 

prevailing party. United States v. Reister, 44 M.J. 409, 413 

(C.A.A.F. 1996). 

 Appellant contends that the military judge’s finding that 

the bags were switched before the search was ordered is 

unsupported by the record and therefore erroneous. According to 

Appellant, the evidence suggests that the bags were switched at 

the last minute in a hasty attempt to avoid detection during the 

search. Under Appellant’s theory, the bags were switched after 
United States v. Flores, No. 06-0675/MC 

9

he learned of an imminent, illegal search. In that context, 

according to Appellant, he did not voluntarily abandon his bag, 

and therefore did not lose standing to challenge the search. 

The motion hearing provided the military judge with scant 

evidence on the question of whether Appellant abandoned his 

clothing bag voluntarily or in response to the knowledge of the 

imminent search. The testimony established that on October 3, 

2002, Appellant reported that there had been unauthorized 

withdrawals from his credit union account. The military judge 

found that Appellant reported the withdrawals in an effort to 

shift suspicion away from himself. The military judge also 

found that no one was allowed access to the recruits’ bags from 

the time they were placed under guard until they were searched. 

He concluded as a matter of fact that Appellant intentionally 

switched clothing bags with Recruit S before the commanding 

officer posted guards over the bags and ordered a search. 

The testimony at the hearing established that Appellant, 

when asked to unpack his bag, presented Recruit S’s clothing bag 

to be searched, passed it off as his own, and repacked the 

contents of the bag after it had been searched. He then took 

Recruit S’s bag with him and walked out the door, without 

telling anyone that the bag was not his. The military judge 

found that the bags carried by Appellant were searched before 

Recruit S’s bags were searched, and that Appellant was walking 
United States v. Flores, No. 06-0675/MC 

10

out the door after having had his bags searched when money was 

found in Recruit S’s bag. 

The only direct evidence concerning when the bags were 

switched is the drill instructor’s testimony that Recruit S said 

he thought the bags were switched when the Marines returned to 

their gear after graduation. The defense did not object to the 

drill instructor’s hearsay testimony. Appellant could have 

testified regarding the circumstances of the search, including 

the issue of voluntary abandonment, without incriminating 

himself on the charged offenses. See M.R.E. 311(f). He did not 

testify, however. 

On appeal, Appellant bears the burden of showing a 

reasonable expectation of privacy in his clothing bag after it 

was switched with Recruit S’s bag. We view the evidence in the 

light most favorable to the Government, including Appellant’s 

steps to divert suspicion from himself before the search by 

reporting that he had been victimized by unauthorized 

withdrawals, the platoon’s limited access to the guarded bags 

immediately prior to the search, and the drill instructor’s 

hearsay testimony suggesting that Appellant may not have 

switched the bags until after the search was ordered. In that 

context, the military judge did not make a clearly erroneous 

finding of fact in concluding that the bags were switched before 

the commanding officer ordered the search. Because the military 
United States v. Flores, No. 06-0675/MC 

11

judge properly determined that Appellant abandoned his bag 

voluntarily and not in response to the allegedly illegal police 

conduct, we conclude that Appellant did not carry his burden at 

the motion hearing, and has not carried his burden on appeal, of 

demonstrating that he had a reasonable expectation of privacy in 

the bag. Accordingly, Appellant lacked standing to challenge 

the validity of the search or the admission of derivative 

evidence, including his confession. 

 

IV. CONCLUSION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.