United States v. Brabant

26 M.J. 899, 1988 WL 81077
CourtU S Air Force Court of Military Review
DecidedJuly 20, 1988
DocketACM 26547
StatusPublished
Cited by3 cases

This text of 26 M.J. 899 (United States v. Brabant) 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. Brabant, 26 M.J. 899, 1988 WL 81077 (usafctmilrev 1988).

Opinions

DECISION

MURDOCK, Judge:

This ease considers the delicate balance that must be maintained between responsibilities as a military supervisor and the provisions of Article 31, UCMJ, 10 U.S.C. § 831, and other limitations on questioning suspects. The appellant was found guilty of theft of a motorcycle and sentenced by a court-martial consisting of members, to a bad conduct discharge, confinement for two years, forfeiture of $100.00 per month for 10 months and reduction to airman basic. He asserts, as he did at trial, that the pretrial statement he made to his supervisor should have been suppressed. We agree.

The victim routinely parked his motorcycle in a lot near one of the base gates because he had not taken the safety course required for him to ride his vehicle on base. The motorcycle attracted the appellant’s attention and he began to make inquiries about who owned it. This may have been because he had recently purchased a nonworking motorcycle of essentially the same kind. Eventually, the motorcycle was stolen. Before the owner knew it was gone, the motorcycle had been taken, stripped, and the frame abandoned in an open field.

The abandoned frame was discovered and the California Highway Patrol (CHP) was notified. The CHP contacted the owner, an airman stationed at Norton Air Force Base, and, at their suggestion, he reported the theft to the base security police.

About ten days later a base security police investigator contacted the CHP and said they had a suspect (the appellant) in the motorcycle theft case. The CHP and security police investigators agreed to go to the appellant’s off-base apartment. When they arrived they sought and obtained his consent to search his carport including a large packing crate which contained a collection of parts. In the crate they found a motorcycle gas tank and a fairing that matched the description of those taken from the victim’s motorcycle. When the police returned to the base they had the victim test his gas cap key in the tank they had seized. It fit.

The appellant was a security policeman who normally worked the “midnight” shift. He was relieved of police duties as soon as he became a suspect in this case, but he was still required to report to security police headquarters and spend his normal shift. Sometime after he had been relieved, the appellant was questioned by the security police investigator. After the investigator read him his rights, the appellant exercised his right to remain silent and requested a lawyer. This occurred around 0200 during a normal duty period for the appellant.

The assertion of error concerns what happened next. The investigator ended the session as soon as the appellant requested a lawyer. Shortly after the session ended one of the security policemen who had helped the appellant take and strip the motorcycle submitted a sworn statement to the investigator explaining how he and another security policeman had helped the appellant. The investigator contacted Captain Michael Gathright, who was the squadron operations officer, acting commander, and appellant’s second level supervisor. Captain Gathright asked the investigator to have the appellant stand by in the police station and report to him at 0730.

The appellant reported to the captain as ordered. To understand the meeting being complained of, we turn to Captain Gathright’s testimony at the hearing on the motion. We include it to facilitate the discussion of this error and also to demonstrate how easily a situation like this can arise in a military setting where supervi[901]*901sors have both a supervisory and an Article 31, UCMJ, role:

A: As soon as he reported, I got the feeling that he wanted to make a comment and I understood from the investigator that he did want a lawyer and I says, “Say nothing.” And he says, “Yeah, but — ” I said “don’t say anything. You need to go see a lawyer.” And at that time he made a spontaneous comment.
Q: And what was the content of the comment that he made spontaneously? A: To the best of my memory, his comment was “What can I do to make this right? I’ll sign over my motorcycle; I’ll give him my pink slip, Article 15, lose a stripe, whatever.”
Q: And those are his words as best you can recall them?
A: Yes.
Q: Now, you indicated that you had interrupted him on one occasion and attempted to tell him to shut up essentially, is that correct?
A: To the best of my memory, it was actually twice.
Q: Now, in calling him in to your office, was it your intention to elicit some information from him?
A: Absolutely not. Usually when an investigation just begins, especially after the first interview, the accused and the witnesses really don't know what’s going on to the extent of the trouble they may be in or what the next step is and I just wanted to impress upon him that this was serious and he needed to go see a lawyer first thing in the morning.
Q: Did you ever state anything in the question format as to what sort of trouble he was in, anything of that nature? A: Not to my knowledge.
Q: Once he’d made the statement, wanting to make it right and that he would sign his motorcycle over, and so forth, what did you do at that point?
A: Again I says, you know, “Don’t say anything else until you go talk to your lawyer.” This was a very brief meeting. Q: What was the total length of the meeting?
A: It couldn’t have been more that a minute and a half, two minutes, long, just a quick report in and a returned salute, and then he left.

This meeting illustrates the difficult line we must follow when we apply civilian cases and concepts to the military environment. In this case the captain was squeezed between his responsibilities as a supervisor and the limitations placed on him by Article 31, UCMJ. Civilian supervisors are seldom in this bind because it is rare for their questioning to trigger the protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and their associated cases. However, even in a civilian situation, where the supervisor is a police officer, and the meeting takes place in the police station there is very little the supervisor can say to the worker after the worker has invoked his rights to silence and counsel. In the present case the captain was trapped by both his status as a person subject to the UCMJ (therefore triggering Article 31, UCMJ) and by his status as a law enforcement officer. These dual concerns outweighed his status as a supervisor and should have guided his actions.

Were it not for the prohibition of Edwards we would hold that the meeting had a benign purpose and did not taint the cryptic statement made by the appellant. In many ways the meeting can be viewed as merely a reinforcement of the rights warning given earlier by the investigator. What is important is whether the session was one the captain knew or should have known was likely to trigger an incriminating response.

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Related

United States v. Granda
29 M.J. 771 (U.S. Army Court of Military Review, 1989)
United States v. Brabant
29 M.J. 259 (United States Court of Military Appeals, 1989)

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Bluebook (online)
26 M.J. 899, 1988 WL 81077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brabant-usafctmilrev-1988.