United States v. Barnard

23 C.M.A. 298
CourtUnited States Court of Military Appeals
DecidedJanuary 31, 1975
DocketNo. 28,421
StatusPublished

This text of 23 C.M.A. 298 (United States v. Barnard) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barnard, 23 C.M.A. 298 (cma 1975).

Opinion

OPINION OF THE COURT

Quinn, Judge:

A branch of the Marine Corps Exchange at the Marine Air Station, Iwa-kuni, Japan, was broken into and 70 pieces of jewelry were stolen. An authorized search of accused’s quarters produced evidence that was used against him at his trial for housebreaking and larceny. On this appeal, the accused contends that the authorization to search was illegal. The contention is predicated on two grounds: (1) that the matters presented to the officer who authorized the search were "so indefinite and vague as to be entitled to be of little or no weight” and did not, with reasonable probability, connect the accused to the offenses; and (2) even if the requisite connection was sufficiently indicated, the facts did not provide probable cause to believe that any evidence would be found in the accused’s room.

The break-in and loss were discovered on August 7, 1972. Agent Townsend of the Naval Investigative Service was assigned to the case, and the pawn shop detail of the service was notified. As a result of leads developed in the investigation, Agent Townsend applied, in writing, to the commanding officer of the air station for authorization to search the accused’s personal effects in his room and at his work site for jewelry and pawn shop tickets. In material part, the application recited the following:

The facts and circumstances known to me tending to establish the foregoing grounds for authorization to search and seize are as follows: during the hours of from 1700 on 6 Aug 1972 and 0830 hours on 7 Aug 1972, the Marine Corps Exchange store number one, MCAS Iwakuni, was forcibly entered by unidentified persons who committed larceny of US Government property while inside the building. Seventy items of jewelry were stolen from the jewelry section of the exchange. On 26 Aug 1972, SUBJ pawned one item of jewelry, a ring, and subsequently has pawned seven additional items of jewelry believed to be stolen from the exchange. On 2 Sep 1972, one ring that remained in the Angel Pawn shop after the other items had been redeemed, was taken to the exchange where it was identified as being the same stock number as one stolen at the time of the break-in. Exchange records show that no ring of the same stock number had been sold. Other items of jewelry which have been pawned since 2 Sep 1972 by SUBJ are believed to be additional items stolen from the exchange. Preliminary investigation of SUBJ has revealed that he does not live off base in private housing; therefore, it is believed that the remaining items of jewelry are being kept in spaces over which he maintains control.

Appellate defense counsel contends first that the affidavit contains no facts to support the two representations by Agent Townsend that items pawned by the accused in the Angel Pawn Shop were "believed” to be the same as some [300]*300of the jewelry stolen from the exchange.1 Counsel relies upon a number of civilian and military cases to support his argument; typical is United States v Lidle, 21 USCMA 455, 457, 45 CMR 229, 331 (1972) in which this Court said: "The authorizing official cannot rest on an unexplained conclusion of even the person seeking the authority.” Townsend’s statements of belief are not, however, the whole of the matter. Another statement in the affidavit indicates, with reasonable probability, that one of the stolen pieces of jewélry was pawned by the accused. That article is the ring Townsend said was taken from the pawn shop on September 2, and brought to the exchange, where it was "identified as being the same stock number as one stolen,” and shown by exchange records as not having been sold. True, the person who made the examination of the ring and the records was not identified, but the fair inference from the aver-ments is that the individual was familiar with the jewelry stock and sales records of the exchange, and was, therefore, competent to make the examinations and to report the results.2 Possession of one of several articles of recently stolen property supports an inference that the possessor has others. United States v Sparks, 21 USCMA 134, 136, 44 CMR 188, 190 (1971). The inference provides strong support for Townsend’s statements of belief that the other jewelry pawned by the accused was part of the stolen jewelry. But even if we give too much weight to the inference, possession of one item was alone sufficient to justify a search.

To escape the effect of the identification of the one ring, appellate defense counsel urges us to disregard this part of Agent Townsend’s affidavit on the ground that it is a "misstatement” of important facts and "highly misleading.”. See Morris v United States, 477 F2d 657 (2d Cir 1973). No such claim was made at trial. More importantly, one of the facts essential to the claim was not before the trial judge on the motion to suppress. Ordinarily these circumstances would justify disregard of the alleged misstatements on the ground that they are asserted too late, but in any event, the contention lacks merit.

Two facts in the crucial passage of the affidavit are challenged as materially misleading. The first is that the pawned ring "was identified as being the same stock number” as one of the stolen rings. At trial, Agent Townsend testified that the phrase meant the "model and style number” of the ring, as noted inside the ring and on exchange records. Apparently, appellate defense counsel assumes that the words "stock number” import a unique number assigned to an article which identifies it as being separate from all other articles of the same kind in a particular stock of goods. On that premise, he argues that the commanding officer of the air station could reasonably have been misled into believing that the ring was absolutely identified as one of the stolen items, whereas, model and style number identification is much less certain, and such identification could have been deemed by the commander to be insufficient to establish a probable connection between the pawned ring and one of the stolen rings. We doubt we can take judicial notice of the sort of merchandising implied by counsel, or even that the practice was followed by the [301]*301post exchange, but if we can, we perceive no manifest contradiction between Townsend’s affidavit and his testimony.

Assuming the words "stock number” have the meaning in retail establishments attributed to them by counsel, the affidavit, in our opinion, indicates they did not mean a unique identification number for a single item. The statement immediately following the initial reference, which notes the exchange records "show that no ring of the stock number had been sold,” makes clear that the stock number identified not a particular ring, but a class of rings. Thus, the words describe a group. In that regard, the description is not materially different from one to the effect that the pawned ring was of the same model and style number of a ring stolen from the exchange. Substantial similarity, not absolute identity, is implied in both descriptions. We do not, therefore, regard the phraseology, which Townsend apparently adopted from the exchange employee who examined the ring and records, as representing that the pawned ring bore a special number, on the order of a unique serial number, that matched a number used by the exchange to account for that merchandise in its inventory.

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Related

United States v. Clifford
19 C.M.A. 391 (United States Court of Military Appeals, 1970)
United States v. Sparks
21 C.M.A. 134 (United States Court of Military Appeals, 1971)
United States v. Lidle
21 C.M.A. 455 (United States Court of Military Appeals, 1972)

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Bluebook (online)
23 C.M.A. 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barnard-cma-1975.