United States v. Alexander

32 M.J. 664, 1991 WL 33731
CourtU S Air Force Court of Military Review
DecidedJanuary 17, 1991
DocketACM 28455
StatusPublished
Cited by5 cases

This text of 32 M.J. 664 (United States v. Alexander) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alexander, 32 M.J. 664, 1991 WL 33731 (usafctmilrev 1991).

Opinion

OPINION OF THE COURT

RIVES, Judge:

Contrary to his pleas, Sergeant Lee Alexander was convicted of six specifications of drug offenses in violation of Article 112a, UCMJ, 10 U.S.C. § 912a: use of marijuana; introduction of marijuana onto a military installation with the intent to distribute the drug; possession of marijuana; possession of cocaine; possession of methamphetamine; and use of methamphetamine. His approved sentence is a bad conduct discharge, confinement for 21 months, forfeiture of $550.00 of his pay per month for 21 months, and reduction to airman basic.

Alexander entered into a confessional stipulation, admitting most of the charged misconduct while preserving his pre-plea motions. Assessing the first issue he now raises, we find that the evidence seized in the search of his dormitory room was lawfully obtained. We next hold that the charge of possession of cocaine was proven, but it should not have been alleged as a separate offense. Finally, we decline to find that the appellant was the victim of selective prosecution.

I

Alexander performed duties with a detached unit of about 50 people at a remote site. On 18 May 1989, the local sheriff [666]*666advised the unit commander that several unnamed military members had purchased illicit drugs. After determining that he did not have probable cause to order a search, the commander arranged for an inspection by a military working dog (MWD) team from a nearby Air Force base.

The MWD team arrived at the site on 22 May. After displaying their competency for the commander, the team began a walk-through inspection. While in a common area outside Alexander’s room,1 the dog alerted on the room. The commander was briefed; he found probable cause and orally authorized a search of the room. The MWD team was used in the subsequent search. A drinking straw was seized from Alexander’s dresser. It later tested positive for both cocaine and methamphetamine. Alexander consented to a search of his car, where marijuana was found. He also consented to provide a urine specimen, which tested positive for marijuana.

At trial, the defense moved to suppress all evidence seized in the search of Alexander’s room as well as all derivative evidence. The military judge denied the motion, finding the evidentiary items to have been seized as part of a legitimate morale, welfare and readiness inspection. On appeal, Alexander contends that the military judge erred in failing to apply the “clear and convincing evidence” standard of Mil.R.Evid. 313(b) to determine whether the inspection was valid.

When a purpose of an examination is to locate contraband and the examination is “directed immediately following a report of a specific offense in the unit,” the prosecution must “prove by clear and convincing evidence that the examination was an inspection ...” and not a subterfuge for a search that lacked probable cause. Mil.R. Evid. 313(b). In this case, the inspection was conducted four days after the report of drug abuse. This delay, however, resulted from the commander’s desire to use the MWD team to conduct the inspection, and the time it took to arrange the inspection at the unit’s remote location. Under these facts, we find that the commander ordered the inspection “immediately following” the report that drugs had been purchased by members of his command. Therefore, we agree with the appellant that the “clear and convincing evidence” standard was triggered. The military judge should have applied that standard to determine the admissibility of the items seized; we will apply it in our independent review of the facts. Article 66(c), UCMJ.

The commander testified that he directed the inspection to: (1) insure military fitness; (2) establish unit readiness and security; (3) protect the image of the military in the local community; and (4) determine whether a drug problem existed. These were legitimate grounds on which to conduct an inspection, and they were not superceded by the recent report of criminal activity that also provided a reason for the examination. See also United States v. Murphy, 28 M.J. 758, 761 (A.F.C.M.R.1989) (“a commander may have any variety of ‘immediate motives’ for directing an examination of his unit without running afoul of the ‘primary purpose’ language of Mil.R. Evid. 313(b)”). This Court has previously noted that “[w]e do not believe that the drafters of Mil.R.Evid. 313(b) ... intended to fashion a rule that a unit might not conduct a legitimate health-and-welfare inspection” simply because there also “exists some degree of command suspicion concerning the activities of any of its members.” United States v. Shepherd, 24 M.J. 596, 600 (A.F.C.M.R.1987), pet. denied 25 M.J. 238 (C.M.A.1987).

While the inspection here “immediately followed” the report of a crime, no specific individuals were “selected for examination” and no one was “subjected to substantially different intrusions” during the examination — situations which would also trigger the subterfuge rule of Mil.R.Evid. 313(b). See, e.g., United States v. Thatcher, 28 [667]*667M.J. 20 (C.M.A.1989); United States v. Pappas, 30 M.J. 513, 517 (A.F.C.M.R.1990); United States v. Parker, 27 M.J. 522 (A.F.C.M.R.1988). We are satisfied that the primary purpose of the examination here, shown by clear and convincing evidence, was a valid inspection. The resulting evidence against Alexander is admissible.

Finally, we note an alternate basis for the admission of the evidence.2 The drug dog alerted while in a common area outside Alexander’s room, an area in which the appellant had no cognizable expectation of privacy. The alert provided the commander with probable cause for the subsequent search of the room. United States v. Middleton, 10 M.J. 123 (C.M.A.1981); United States v. Grosskreutz, 5 M.J. 344 (C.M.A.1978); United States v. Guillen, 14 M.J. 518 (A.F.C.M.R.1982). The trial litigants did not focus on the fact that the search was properly conducted on this independent basis.3 The commander’s probable cause search authorization provides another valid basis for admission of the seized items.

II

The appellant next urges that the evidence is insufficient to support his conviction for possession of cocaine. Alexander testified that he had purchased some methamphetamine and inhaled it through the straw that was seized in the search of his room. He stipulated that laboratory tests correctly identified the residue in the straw as both methamphetamine and cocaine, but he denied any knowing use of cocaine. Other evidence showed that it was “not uncommon in the local area” to find methamphetamine mixed with cocaine.

Since Alexander was aware that he possessed a contraband substance, and since that substance did in fact contain cocaine, he was properly convicted of possessing cocaine. In order to prove the wrongful possession of cocaine, the government merely had to show that Alexander knowingly possessed a controlled substance; as the Court of Military Appeals has noted:

... it is not necessary that the accused have been aware of the precise identity of the controlled substance, so long as he is aware that it is a controlled substance.

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Related

United States v. Grant
38 M.J. 684 (U S Air Force Court of Military Review, 1993)
United States v. Evans
37 M.J. 867 (U S Air Force Court of Military Review, 1993)
United States v. Korda
36 M.J. 578 (U S Air Force Court of Military Review, 1992)
United States v. Alexander
34 M.J. 121 (United States Court of Military Appeals, 1992)

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Bluebook (online)
32 M.J. 664, 1991 WL 33731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alexander-usafctmilrev-1991.