This opinion is subject to administrative correction before final disposition.

Before 

CRISFIELD, GASTON, and STEWART

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

James A. HALE III

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

No. 201600015

Decided: 5 October 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: 

John L. Ferriter (arraignment)

Matthew J. Kent (motions and trial)

Sentence adjudged 14 November 2018 by a general court-martial convened at Elmendorf Air Force Base, Alaska, consisting of officer and 

enlisted members. Sentence approved by the convening authority: reduction to E-1, forfeiture of all pay and allowances, confinement for 25 

years, and a dishonorable discharge.

For Appellant: 

Lieutenant Commander Jeremy J. Wall, JAGC, USN

For Appellee: 

Lieutenant Kevin G. Edwards II, JAGC, USN

Lieutenant Commander Timothy C. Ceder, JAGC, USN

Senior Judge GASTON delivered the opinion of the Court, in which 

Chief Judge Emeritus CRISFIELD and Judge STEWART joined.
United States v. Hale, NMCCA No 201600015

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

GASTON, Senior Judge:

This case is before us a second time. At his first general court-martial, 

Appellant was found guilty of various offenses and sentenced to reduction to 

E-1, forfeiture of all pay and allowances, confinement for 26 years, and a 

dishonorable discharge. On appeal, we held that his trial defense counsel’s 

undisclosed conflicts of interest deprived him of the effective assistance of 

counsel, and we set aside the findings and sentence and authorized a rehearing. United States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017).

At his second trial, Appellant was found guilty, pursuant to his pleas, of 

violation of a lawful general order and wrongful use of an anabolic steroid in 

violation of Articles 92 and 112a, Uniform Code of Military Justice [UCMJ], 

10 U.S.C. §§ 892, 912a (2012). He was additionally found guilty, contrary to 

his pleas, of rape, aggravated assault, adultery, kidnapping, and indecent 

language in violation of Articles 120, 128, and 134, UCMJ. 

He now asserts two assignments of error [AOEs]: (1) the military judge 

erred by not suppressing evidence obtained from the search of Appellant’s 

gym bag and subsequent urinalysis; and (2) the evidence is factually insufficient to sustain Appellant’s convictions for the offenses to which he pleaded 

not guilty. We find no prejudicial error and affirm.

I. BACKGROUND

While assigned to recruiting duty in Anchorage, Alaska, Appellant became involved with a prostitute, Ms. “Kelly,”1 whom he met online, texted 

and talked with on the phone, and eventually met in person. Ms. Kelly 

provided the following testimony at trial. On an afternoon in late-August 

2013, Appellant picked her up in his truck and took her to buy illegal drugs—

i.e., painkillers—for him. He then dropped her off, and she used the money 

 

1 All names in this opinion, other than those of the judges and counsel, are pseudonyms.
United States v. Hale, NMCCA No 201600015

Opinion of the Court

3

she gained during the transaction to purchase and use crack cocaine. He 

picked her up again later that night and gave her money to buy more painkillers for him, but this time he was unhappy with the pills she brought back. 

When the dealer she bought them from was unwilling to provide a refund, 

Appellant became angry, pulled a black handgun out of the center-console 

area of his truck, pointed it at Ms. Kelly, and drove to a secluded area, where 

he had her empty her pockets and take her clothes off and forced her to 

perform oral sex on him. He then placed the gun on the dashboard and 

vaginally raped her across the front seats of his truck with her head toward 

the passenger door, such that she could feel the seatbelt buckler scraping

against her lower back. After he ejaculated, he had her put her clothes back 

on, put her out of the truck, said something to the effect of “Welcome to the 

HIV world, whore,” and then drove off, keeping her phone and identification.

Ms. Kelly ran to a nearby house, where, crying and disoriented, she told 

the residents she had been attacked by a sex client who hit her on the head 

with a gun, took her money and phone, and shoved her out of his vehicle. 

While she did not say she was raped or forced to have sex, she said he told 

her he had AIDS when he was penetrating her. The residents of the house 

helped her get a taxicab back to the women’s shelter where she had been 

living for over two years, having had her stay extended longer than the usual 

resident’s. Once there, she appeared visibly shaken as she reported to a staff 

member that she had been assaulted and raped. The staff member encouraged her to call the police.

The following day, Ms. Kelly reported what happened to the Anchorage

Police Department [APD], describing Appellant as a “buff” Marine named 

“Jay” with whom she had texted and talked on the phone before meeting in 

person. An admitted prostitute and drug user, Ms. Kelly testified at trial that 

she did not call the police immediately after the assault because they had not 

been helpful to her in the past. Not wanting to get herself in trouble, she did 

not initially mention the drug transactions in her account of Appellant 

kidnapping and raping her at gunpoint, which was otherwise substantially 

consistent with how she later testified at trial. After her police interview, she 

underwent a sexual assault forensic examination [SAFE], which noted no 

vaginal injuries but did document and photograph scratch marks on the 

lower left side of her back that were consistent with being scraped by a 

seatbelt buckler. Swabs collected from her vagina and cervix later tested 

positive for semen that was a match for Appellant’s DNA.

A month later, the APD identified Appellant through phone records and 

surveillance video from a store Ms. Kelly had visited with him, and apprehended him at a local gym. Before leaving the gym, Appellant notified the 

arresting officers about a gym bag he had placed in one of the gym lockers. 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

4

He requested that the officers access the bag and get his truck keys, so that 

the door locks to his truck would not be damaged when it was towed to the 

APD station. One of the officers retrieved the gym bag, got the truck keys out 

of it, and put it in the trunk of his patrol car without further searching it. 

Appellant was then taken to the APD station, where he was turned over to a 

police detective along with his truck keys, phone, and gym bag.

During his interrogation, after waiving his rights, Appellant gave the following account to the APD detective. He got in touch with Ms. Kelly through 

an online site listing her as a prostitute, and they texted a few times and

talked on the phone. When they eventually agreed to meet in person for sex, 

he picked her up in his truck and gave her the money, but she started talking 

about drugs and then said she was too busy to have sex and would have to 

meet him later, so he dropped her off. He picked her up again later that 

night, and she directed him to a location where they had sexual intercourse

across the front seats of his truck. As they were getting ready to have sex, he 

pulled a loaded .40-caliber Beretta handgun out from between the front seats

and moved it to the dashboard to get it out of the way. He did not point the 

gun at Ms. Kelly, threaten her with it, or force her to have sex, and had never 

pointed a weapon at anybody or done anything like that. When he ejaculated 

during intercourse, his condom broke, which upset Ms. Kelly and she tried to 

increase her fee. When he refused to pay her more money, she threatened to 

tell everyone at his recruiting office about what happened. At that point he 

told her to get out of his truck, drove off, and later threw her belongings out 

the window. Appellant stated that he occasionally used painkillers that were 

prescribed to him and previously used certain steroids before they became 

illegal, but not during his time in the Marine Corps.

After Appellant’s interrogation, the APD detective immediately went and 

obtained warrants from a local magistrate to search Appellant’s cellular

phone (for text messages and other evidence pertaining to Ms. Kelly), person 

(for his DNA and truck keys), and truck (for the gun, Ms. Kelly’s belongings, 

and evidence of sexual intercourse). The detective did not obtain a warrant to 

search Appellant’s gym bag. When the detective returned to the interrogation 

room, Appellant told him the cell phone he had used to communicate with 

Ms. Kelly was at his apartment. The detective then said he would need to get 

the phone from Appellant’s apartment and offered to give Appellant a ride 

there to retrieve the phone, which Appellant accepted.

The detective then returned Appellant’s gym bag to him. But because Appellant would be (a) waiting in the lobby until they left the police station and 

(b) riding in the detective’s car—with access to the gym bag—while on the 

way to Appellant’s apartment, for officer safety the detective searched the 

bag to check for guns or other weapons. As the detective was searching the 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

5

bag for weapons, he came across a depressed syringe, a needle, and an empty

drug-tablet “blister” packet. The detective did not seize these items, but 

photographed them as he believed they might be evidence of a crime under 

military law. He then returned the gym bag to Appellant and went to Appellant’s truck, where he retrieved Appellant’s apartment keys and found a 

loaded, black, .40-caliber Beretta handgun tucked between the front seats 

beneath the center console.

Appellant’s command was notified of the APD investigation, including 

what was found in Appellant’s gym bag. Based on this information and his 

own observations of Appellant’s rapid gain of muscle mass during the preceding weeks, Appellant’s commander found probable cause to order Appellant to 

undergo urinalysis. Appellant’s urine sample tested positive for a metabolite 

of an anabolic steroid called Boldenone, a Schedule III controlled substance.

See 21 U.S.C. § 812 (2012). Designed to help the body build muscle mass, 

Boldenone is formulated so that if injected into a large muscle group, it is 

gradually released into the body and can remain at a detectable level for as 

long as two to three months. The drug-tablet blister packet found in Appellant’s bag was labelled clomiphene citrate, a substance bodybuilders use to 

kick start the body’s natural production of testosterone after completion of a 

steroid cycle.

Upon referral of charges, the Government moved for an admissibility ruling regarding the evidence obtained from the gym bag and the urinalysis, 

which the Defense opposed. The military judge ruled admissible both the 

evidence obtained during the search of the gym bag and the derivative 

urinalysis evidence. Upon receiving this ruling, Appellant pleaded guilty 

unconditionally to wrongfully using Boldenone between 1 April and 1 October 

2013. During providency, he admitted using a syringe to inject himself 

intramuscularly with the steroid three times during this period at his apartment in Anchorage, Alaska, in order to increase his appetite and help him 

gain weight.

The Government introduced the evidence obtained from Appellant’s gym 

bag and subsequent urinalysis in its case-in-chief on the offenses to which 

Appellant pleaded not guilty. The Government used the evidence as proof of 

motive under Military Rule of Evidence 404(b) to support its theory that 

Appellant was experiencing “roid rage” during the kidnapping, assault, and 

rape of Ms. Kelly. Government experts testified to how Boldenone and clomiphene citrate work and opined that steroid use is known to cause irritability, 

verbal and physical aggressiveness, and increased sex drive, which can lead 

to an increased risk of sexually violent behavior.

The Government also introduced other evidence of Appellant’s prior drug 

use and assaultive conduct. Appellant’s first wife testified that in 2003, after 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

6

she rebuffed his sexual advances, he forcibly raped her anally. She also 

testified that in 2004, after accusing her of infidelity, he pointed an unloaded 

gun at her, pulled the trigger, and later strangled her and threatened to kill 

their daughter if she took her from him. Appellant’s ex-fiancée testified that 

during their relationship (2006-2012) she observed him using painkillers that 

he had obtained without a prescription; that she saw him with vials of what

he identified to be steroids; that he talked about using the steroids to help 

him build muscle mass; and that when she visited him in Alaska in May 2013

(three months before Ms. Kelly reported being raped by Appellant), she found 

a used syringe in a garbage can in his apartment.

At trial, Appellant testified in own defense as follows. He sent not just a 

few, but upwards of a hundred text messages to Ms. Kelly in which they 

discussed various topics, including her prostitution services. When they 

eventually met to have sex, she brought up the subject of drugs, but he did 

not have her buy any drugs for him. He paid her $40.00 for oral sex as they 

had agreed, and she had him drive her to a location where she disappeared 

around the corner of a building. After 15-20 minutes she returned happier

and more upbeat. He then told her he did not have time and had somewhere 

else to be. She said she no longer had the money Appellant had given her, but 

that they could meet later that night to finish their “date.” When he picked 

her up later that night, she convinced him to pay an additional $20.00 for 

vaginal sex, then had him take her to meet someone, after which she came 

back to the truck bubbly as before. She then had him drive to a secluded 

parking lot, where she pulled out a condom, put it on him, and they began 

having sex. She hit her wrist on the loaded handgun that he kept in “condition one”2 between his truck’s front seat and center console, so he put it up on 

the dashboard. They had sex in multiple sexual positions due to the confines 

of the truck’s front seat area, and the condom she gave him was too small and 

broke during ejaculation. This upset her, and she wanted him to pay an 

additional $50.00, which he refused to do. They argued about the fee increase

until she finally said to forget it and just take her home. Instead, he told her 

to get out of the truck and drove off. He later noticed her phone and identification cards in the truck, and threw them out the window.

Appellant also testified to being HIV-negative; to having unlawfully used

painkillers without a prescription; and to lying to the APD detective when he 

said he had only used steroids while out of the Marine Corps.

 

2 A handgun in “condition one” has a round in the chamber and can be fired immediately.
United States v. Hale, NMCCA No 201600015

Opinion of the Court

7

In response to Ms. Kelly’s testimony about her cocaine use, a Defense expert testified that cocaine users experience euphoria while using the drug 

and when they come down from this high, become frantic and paranoid. The 

expert also challenged the scientific foundation of the Government expert’s 

opinion that steroids like Boldenone cause users to be at increased risk for 

sexual violence.

II. DISCUSSION

A. Suppression Motion

Appellant asserts the military judge erred in failing to suppress the evidence obtained from the gym bag and the derivative urinalysis. We review 

such rulings by the trial court for an abuse of discretion. United States v. 

Baker, 70 M.J. 283, 287 (C.A.A.F. 2011) (citation omitted). “The abuse of 

discretion standard is a strict one, calling for more than a mere difference of 

opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 

2010) (citation and internal quotation marks omitted).

1. Waiver

As an initial matter, the Government argues Appellant waived the suppression issue when he pleaded guilty unconditionally to wrongful use of

Boldenone. “Whether an appellant has waived an issue is a legal question 

that this Court reviews de novo. Waiver is different from forfeiture. Whereas 

forfeiture is the failure to make the timely assertion of a right, waiver is the 

intentional relinquishment or abandonment of a known right.” United States 

v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (citation and internal quotation 

marks omitted).

“[An unconditional] plea of guilty to an offense that results in a finding of 

guilty waives all issues under the Fourth Amendment to the Constitution of 

the United States and Mil. R. Evid. 311-317 with respect to the offense, 

whether or not raised prior to plea.” Mil. R. Evid. 311(e) (emphasis added); 

see also R.C.M. 910(j) (“Except as provided in [the rule relating to conditional 

pleas],3 a plea of guilty which results in a finding of guilty waives any objec-

 

3 Conditional pleas are those into which an accused may enter “[w]ith the approval of the military judge and the consent of the Government . . . reserving the 

right, on further review or appeal, to review of the adverse determination of any 

specified pretrial motion. If the accused prevails on further review or appeal, the 

accused shall be allowed to withdraw the plea of guilty.” R.C.M. 910(a)(2).
United States v. Hale, NMCCA No 201600015

Opinion of the Court

8

tion, whether or not previously raised, insofar as the objection relates to the 

factual issue of guilt of the offense(s) to which the plea was made.”) (emphasis 

added). On the face of the rule, an unconditional plea of guilty waives any 

suppression issues with respect to the offense to which the accused pleads 

guilty; however, the rule’s language leaves open the question of whether the 

same suppression issues are waived with respect to any offenses to which the 

accused pleads not guilty. 

Our superior court has held that this issue “cannot simply be determined 

by [an] appellant’s pleas of not guilty” to one or more other offenses. United 

States v. Cooper, 32 M.J. 83, 86 (C.A.A.F. 1991). Rather, courts must examine 

whether the accused’s guilty plea has “judicially admitted the essential facts” 

that the evidence at issue would establish. United States v. Hamil, 35 C.M.R. 

82, 83 (C.M.A. 1964). The rationale for this principle is that

the right to be free from unreasonable search and seizure is not 

judicially recognized as a mere abstract principle, but is vindicated by keeping out of evidence the results of the search or 

seizure. If a fact is judicially admitted by the accused, no legal 

or practical purpose can be served by reviewing the propriety of 

the search which produced some evidence of the conceded fact.

Id. Thus, in this regard, “[a] voluntary and informed plea of guilty does not

necessarily preclude appellate review of the denial of the constitutionally 

protected right of an accused.” Id.

The examination for judicial admission essentially looks at whether “the 

defense [did or] did not act in a way which preserved appellant’s Fourth 

Amendment claim.” Cooper, 32 M.J. at 86. In Cooper, after the military judge 

denied a motion to suppress certain seized evidence connecting the victim 

and his vehicle to the crime scene, the appellant pleaded guilty unconditionally to adultery, but not guilty to rape. Id. at 84-85. The government admitted 

a laboratory report derived from the seized evidence in its case-in-chief to 

prove the victim’s presence in the appellant’s car, which was corroborated by 

other evidence not subject to the suppression motion. The appellant then 

elected to defend himself on grounds of consent, requested the members be 

informed of his guilty plea to adultery prior to the contested trial, stipulated

he had sex with the victim in his car during the incident in question (contrary 

to his pretrial statements denying that the victim was ever in his car at the 

crime scene), and testified that the sex they had was consensual. The appellant was convicted of rape, after which the military judge set aside the 

adultery conviction as a lesser-included offense. On appeal, the court held 

that Cooper’s plea of not guilty to rape did not preserve the suppression issue, 

in part because his “plea [to adultery] and the ensuing finding of guilty were 

to a lesser-included offense of the rape charge and extended to admission of 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

9

the precise element of proof for which the seized items were offered.” Id. at 

85.

In addition to considering facts established by an accused’s guilty plea, 

the examination for judicial admission also looks at “inferences to be drawn 

from his own freely given testimony concerning the fruits of the searches.” 

United States v. Woodruff, 29 C.M.R. 84, 86 (C.M.A. 1960). In Woodruff, the 

appellant, suspected of barracks theft, was asked to identify his baggage at a

train depot without being advised of his rights under Article 31, UCMJ. His 

bag was then searched and found to contain two stolen cameras. After his 

motion to suppress the search was denied, he pleaded not guilty to larceny. 

At trial, he took the stand in his own defense and testified he had no idea 

how the cameras got into his bag and that he must have put them there by 

mistake. Because the appellant’s testimony conceded that the stolen cameras 

were found in his bag, the court concluded that any error in the suppression 

ruling—which was focused precisely on the issue of whether the evidence was 

lawfully obtained from his bag—was “overcome by the accused’s later judicial 

declarations.” Id. at 86.

Here, the Article 112a offense to which Appellant pleaded guilty is not a 

lesser-included offense that effectively established an element of a contested 

offense. Rather, it is a completely different offense that was connected to the 

Appellant’s contested trial only by the Government’s use of the related 

evidence as proof of motive for the contested offenses. Unlike the appellant in 

Cooper, Appellant did not affirmatively incorporate the steroid evidence into 

his defense or in-court testimony. He did not request that the members be 

informed of his guilty plea prior to trial or otherwise seek to explain or 

expound upon his wrongful use of Boldenone. His defense was simply directed at confronting the Government’s evidence on the contested offenses, 

including attacking the scientific foundation of the Government expert’s

testimony about “roid rage.” 

Nor did Appellant concede during his trial testimony that the drugrelated evidence was found in his gym bag, such that we may conclude he 

judicially admitted possessing or using the items found therein. Unlike the 

appellant’s testimony in Woodruff, Appellant’s direct testimony was limited 

to addressing the Government’s evidence on the contested offenses, maintaining they did not happen, as opposed to offering an explanation for the evidence obtained during the contested search. Only during cross-examination 

did Appellant admit that he lied to the APD detective about not using steroids while on active duty, which we find insufficient to constitute a judicial 

admission as to the contested offenses. See United States v. Pruitt, 30 C.M.R. 

322, 331 (C.M.A. 1961) (Ferguson, J., concurring in part and dissenting in 

part) (where an accused’s direct testimony is properly limited to confronting a 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

10

particular charge, the rule regarding judicial admission / confession applies 

only that charge).

We conclude that Appellant’s unconditional guilty plea to wrongful use of 

Boldenone waived any and all suppression issues only with respect to that

offense. It did not waive such issues with respect to the evidence’s use under 

Military Rule of Evidence 404(b) as proof of motive for his commission of the

other offenses that he pleaded not guilty to and contested at trial.

2. Search Incident to Apprehension

Accordingly, we move to the substance of Appellant’s AOE regarding the

trial court’s suppression ruling. Evidence obtained as a result of an unlawful 

search or seizure by a governmental agent is generally inadmissible against 

an accused if:

(1) the accused makes a timely motion to suppress or an objection to the evidence under this rule; (2) the accused had a reasonable expectation of privacy in the person, place, or property 

searched; the accused had a legitimate interest in the property

or evidence seized when challenging a seizure; or the accused 

would otherwise have grounds to object to the search or seizure 

under the Constitution of the United States as applied to members of the Armed Forces; and (3) exclusion of the evidence results in appreciable deterrence of future unlawful searches or 

seizures and the benefits of such deterrence outweigh the costs 

to the justice system.

Mil. R. Evid. 311(a).

Here, the military judge ruled the evidence obtained from the gym bag 

admissible as the fruits of a lawful search and the urinalysis evidence admissible as derivative of that lawful search. He concluded that the search of the 

gym bag was lawful for several reasons: (1) as obtained within the scope of a 

valid search warrant based on probable cause; (2) as obtained during the 

APD detective’s good faith execution of a search warrant; and (3) as obtained 

during a search conducted for officer safety that was reasonable and necessary under the totality of circumstances.4 We focus our analysis on the 

military judge’s third rationale, that the evidence was found during a reasonable search conducted for purposes of officer safety. 

 

4 App. Ex. LXIX.
United States v. Hale, NMCCA No 201600015

Opinion of the Court

11

“Evidence is admissible if seized in a search of a person who has been lawfully apprehended or if seized as a result of a reasonable protective sweep.” 

Mil. R. Evid. 314(g)(1). Searches incident to apprehension 

include a search for weapons . . . in the area within the immediate control of a person who has been apprehended. “Immediate control” means that area in which the individual searching 

could reasonably believe that the person apprehended could 

reach with a sudden movement to obtain such property.

Mil. R. Evid. 314(g)(2). Searches incident to apprehension are “full” searches, 

as opposed to the more limited protective searches incident to investigatory 

stops under Terry v. Ohio, 392 U.S. 1 (1968), and they are not invalidated by 

even a substantial delay between the apprehension and the search. United 

States v. Curtis, 44 M.J. 106, 143 (C.A.A.F. 1996) (citing United States v. 

Robinson, 414 U.S. 218, 235 (1973); Gustafson v. Florida, 414 U.S. 260, 264 

(1973)). As the Supreme Court has explained,

Once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully 

be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and the 

subsequent administrative processing, on the one hand, and 

the taking of the property for use as evidence, on the other. . . . 

“While the legal arrest of a person should not destroy the privacy of his premises, it does—for at least a reasonable time and to 

a reasonable extent—take his own privacy out of the realm of 

protection from police interest in weapons, means of escape, and 

evidence.”

United States v. Edwards, 415 U.S. 800, 807 (1974) (quoting United States v. 

DeLeo, 422 F.2d 487, 493 (1st Cir. 1970)) (emphasis added) (finding 10-hour 

delay between apprehension and search reasonable under the circumstances).

Since Edwards, the Supreme Court has held that “warrantless searches of 

luggage or other property seized at the time of arrest cannot be justified as 

exigent to that arrest either if the search is remote in time or place from the 

arrest or if no exigency exists.” United States v. Chadwick, 433 U.S. 1, 15

(1977), abrogated on other grounds by California v. Acevedo, 500 U. S. 565, 

111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991) (citations and internal quotation 

marks omitted). In Chadwick, at the time the appellants were apprehended, 

a locked footlocker was seized from the trunk of their car and searched for 

evidence without a warrant an hour and a half later. The Supreme Court

held the search unlawful, reasoning that 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

12

[o]nce law enforcement officers have reduced luggage or other 

personal property not immediately associated with the person of 

the arrestee to their exclusive control, and there is no longer 

any danger that the arrestee might gain access to the property to 

seize a weapon or destroy evidence, a search of that property is 

no longer an incident of the arrest. 

Chadwick, 433 U.S. at 15 (emphasis added). 

On the facts presented here, we find the detective’s search of Appellant’s 

gym bag for weapons was lawfully conducted incident to Appellant’s apprehension. As the military judge properly found, the bag was in a gym locker at 

the time Appellant was apprehended. Appellant specifically notified the 

arresting officers of the bag and requested that they open it to retrieve his 

truck keys, to minimize any damage to his truck when it was towed to the 

APD station. Thus, at Appellant’s own request, the bag and its contents 

became “effects within his possession” at the place of detention, as opposed to 

closed baggage subject to the greater restrictions imposed under Chadwick.

This request effectively caused the bag to become “immediately associated 

with his person” at the time of his apprehension. 

In addition, there was a real danger that Appellant’s bag contained a 

weapon that he might access and use once the bag was returned to him at the 

APD station. Appellant had admitted that he owned and possessed a loaded 

.40-caliber handgun that he kept in condition one. Ms. Kelly had alleged that 

Appellant used the same sort of handgun while kidnapping and raping her 

only a month earlier. Under these circumstances, we find it would be extraordinarily unreasonable for the detective not to search the bag for weapons before returning it to Appellant within eight hours of his apprehension at 

the gym. 

We therefore conclude that under the circumstances the detective’s search 

for purposes of officer safety was reasonable in both time and extent under 

Edwards. As the search for weapons was lawful, the drug-related items that 

the detective came across during his search were properly subject to photographing under the doctrine of plain view, because “while in the course of 

otherwise lawful activity [the detective] observe[d] in a reasonable fashion 

[the items] that [he] ha[d] probable cause to seize.” Mil. R. Evid. 316(c)(5)(C).

We further agree with the military judge’s conclusion that the commanddirected urinalysis evidence was derivative of this lawful search of the gym 

bag. “Evidence obtained from reasonable searches conducted pursuant to a 

search warrant or search authorization . . . is admissible at trial when relevant and not otherwise inadmissible under these rules or the Constitution of 

the United States as applied to members of the Armed Forces.” Mil. R. Evid. 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

13

315(a). Such search authorizations must be based on probable cause, which 

means “a reasonable belief that the person, property, or evidence sought is 

located in the place or on the person to be searched.” Mil. R. Evid. 315(f)(2). 

Based on the evidence found in the gym bag and his own observation of 

Appellant’s rapid gain of muscle mass over the preceding weeks, the search 

authority for the urinalysis had ample basis for his probable cause determination.

Even assuming arguendo the detective’s search was unlawful, we conclude Appellant has failed to show that “exclusion of the evidence results in 

appreciable deterrence of future unlawful searches or seizures and the 

benefits of such deterrence outweigh the costs to the justice system.” Mil. R. 

Evid. 311(a)(3). In this case, the APD detective did precisely what the law 

contemplates in his handling of the gym bag. After Appellant’s truck keys 

had been retrieved from it—at Appellant’s specific request—the bag accompanied Appellant to the APD station along with other personal effects. The 

detective then interrogated Appellant and, based on the information he 

received, obtained warrants to search his phone, truck, and person. When it 

subsequently became apparent that Appellant would be riding with him to 

Appellant’s apartment to retrieve the phone, the detective had eminently 

sound reason to search the bag for a gun or other weapons before returning it 

to Appellant at the APD station. Conduct of this sort—directed at ensuring 

officer safety in a case involving an alleged assault with a loaded handgun 

that had not yet been found—is not what the exclusionary rule aims to deter. 

Nor would the benefits of deterring such conduct outweigh the costs to the 

justice system.

Accordingly, we find no abuse of discretion in the military judge’s suppression ruling.

B. Legal and Factual Sufficiency

Appellant asserts the evidence is legally and factually insufficient to support his convictions. We review such questions de novo. UCMJ, art. 66(c); 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). To determine 

legal sufficiency, we ask whether, considering the evidence in the light most 

favorable to the prosecution, a reasonable fact-finder could have found all the 

essential elements beyond a reasonable doubt. United States v. Turner, 25 

M.J. 324, 324-25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). In conducting this analysis, we must “draw every reasonable inference from the evidence of record in favor of the prosecution.” United States v. 

Gutierrez, 74 M.J. 61, 65 (C.A.A.F. 2015). 

In evaluating factual sufficiency, we determine whether, after weighing 

the evidence in the record of trial and making allowances for not having 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

14

observed the witnesses, we are convinced of the appellant’s guilt beyond a 

reasonable doubt. Turner, 25 M.J. at 325 (C.M.A. 1987). In conducting this 

unique appellate function, we take “a fresh, impartial look at the evidence,”

applying “neither a presumption of innocence nor a presumption of guilt” to 

“make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.”

Washington, 57 M.J. at 399. Proof beyond a “[r]easonable doubt, however, 

does not mean the evidence must be free from conflict.” United States v. 

Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006).

Here, Ms. Kelly’s testimony is corroborated by both real and testimonial 

evidence. Video footage from a local store supports her testimony about her

activity with Appellant prior to the assault. Her description of the handgun 

matches the handgun later found in Appellant’s truck that he admitted 

taking out and placing on the dashboard as she described. The scraping of 

her back against the seatbelt that she described feeling while being raped is a

precise match with both the scratch marks on her lower back photographed 

during the SAFE exam and the location of the seatbelt buckler in the front 

seat of Appellant’s truck. Both the residents of the house that she ran to and 

the staff of the women’s shelter testified that she was noticeably upset and 

shaken as she told them about what happened. The overall framework and 

timeline of her account to the APD the day following the assault is largely 

supported by Appellant’s own testimony. And the semen found in her vagina 

contains Appellant’s DNA.

Appellant’s account, by contrast, is often contradicted by other evidence, 

including his own prior statements to the APD detective. Telephone records 

support that prior to meeting with her in person, he communicated with Ms. 

Kelly far more often than he originally maintained, which he subsequently 

admitted at trial. Testimony from his ex-wife about his prior assaults against 

her contradicts his statement that he had never pointed a gun at anybody or 

done anything like what Ms. Kelly was alleging. His ex-fiancée’s testimony, 

along with the evidence from the gym bag and subsequent urinalysis, contradicts his claim to the detective that he had never used painkillers without a 

prescription or used steroids during his time in the Marine Corps, which he 

admitted lying about during his testimony.

These contradictions, in turn, increase the believability of Ms. Kelly’s account and outweigh her own credibility issues. The fact that, unbeknownst to 

her, Appellant had previously used illegal painkillers greatly strengthens her 

testimony that he twice gave her money to purchase that sort of illegal drugs, 

as opposed to money for her own prostitution services. By contrast, her own 

cocaine use, status as a prostitute living in a women’s shelter, and other 

credibility issues make more plausible her reaction to being assaulted, her 
United States v. Hale, NMCCA No 201600015

Opinion of the Court

15

initial unwillingness to go to the police, and her reason for not giving the full 

story to the APD during her initial interview. 

We find the evidence adduced at trial vastly more supportive of an armed 

bodybuilder kidnapping and sexually assaulting Ms. Kelly out of drug-fueled 

anger, than a cocaine-addicted prostitute concocting a detailed, false allegation for an unpaid $50.00 add-on fee or additional resident time at her women’s shelter. We find the evidence both legally and factually sufficient to 

sustain Appellant’s convictions.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the findings and sentence are correct in law and 

fact and that no error materially prejudicial to Appellant’s substantial rights 

occurred. UCMJ arts. 59, 66. The findings and sentence are AFFIRMED. 

Chief Judge Emeritus CRISFIELD and Judge STEWART concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court