United States v. Bray

12 M.J. 553
CourtU S Air Force Court of Military Review
DecidedAugust 21, 1981
DocketACM S25217
StatusPublished
Cited by4 cases

This text of 12 M.J. 553 (United States v. Bray) 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. Bray, 12 M.J. 553 (usafctmilrev 1981).

Opinion

DECISION

POWELL, Senior Judge:

Contrary to his pleas, the accused was convicted by general court-martial, military judge alone, of possession of methaqualone, a violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. His sentence is a bad conduct discharge, confinement at hard labor for four months, forfeiture of $200.00 per month for four months and reduction to airman basic.

We decide that the accused was lawfully apprehended and that the methaqualone found on his person during a strip-search was admissible against him. We also conclude that the military judge’s inquiry prior to accepting a “confessional stipulation” was inadequate and direct proceedings in revision to correct the deficiency.

I

The accused was a passenger in the back seat of an automobile which was stopped for a random vehicle inspection upon entering Dyess Air Force Base, Texas. The driver, another passenger and the accused departed the vehicle and stood in a group about 10 feet from it. There, they discussed with one of the security policemen the fact that the accused was to be married and that they were in the process of having a bachelor party. When a gate guard discovered what he thought were marijuana seeds on the front passenger seat of the ear, he phoned the law enforcement desk. The accused and the passenger were then escorted by a security policeman to the visitors’ control building. As the accused rounded a fence which was between the group and the building, he tripped over something on the ground and fell. At that point, a security police supervisor, Lieutenant S, arrived on the scene and saw the accused on the ground. Shortly thereafter, Lieutenant S told the security policemen in the building to detain the accused and the passenger, have them empty their pockets and conduct a pat-down search. When Lieutenant S saw that nothing was found, he left the room.

Outside meanwhile, the driver of the automobile took a box containing marijuana from his shirt pocket and gave it to a security police investigator. A more thorough search of the car revealed a “roach clip” and marijuana residue in the glove box and an “herb shaker” under the front passenger seat of the car. Lieutenant S returned to the visitors’ control building and ordered the passenger and the accused apprehended for suspected use and/or possession of drugs. His decision to apprehend the accused was based upon the marijuana and paraphernalia found in the car and the accused’s physical behavior, specifically, his slurred speech and lack of coordination. The accused was strip-searched and methaqualone pills were found in a plastic bag which was lodged beneath his scrotum.

The trial defense counsel contended that: (a) the apprehension was illegal because not based on probable cause; and (b) even if found to be legal, the search conducted incident thereto exceeded the permissible scope of a search for weapons or destructible evidence. The military judge denied the motion to suppress the methaqualone pills.

In asserting that the military judge’s ruling was erroneous, appellate defense counsel adopt the argument of the trial defense counsel and also urge that an apprehension [555]*555occurred at the precise time the accused was ordered to be taken to the visitors’ control building. They claim that because there was no probable cause to apprehend the accused at that time, the apprehension was unlawful and the subsequent observation of the accused’s physical condition was the fruit of that illegality and could not provide probable cause for the later apprehension and the search incident thereto. We resolve these contentions adversely to the accused.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized that policemen engaged in the investigation of criminal activity may detain a person without having probable cause to arrest that person so long as the police action is otherwise reasonable under the Fourth Amendment. The Court held that a “seizure” of a person occurs when a policeman, by means of physical force or show of authority, restrains the freedom of that person to leave or walk away. To justify any curtailment of the person’s liberty, the policeman must have a reasonable and articulable suspicion, based on objective facts, that the person seized is engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Terry v. Ohio, supra.

Under the facts of this case, we find that a Terry stop and “seizure” of the accused occurred on two occasions before his apprehension. The first was when he was initially taken to the visitors’ control building and the second was when he was detained in the building and subjected to a pat-down search. Moreover, we conclude that on each event, the “seizure” of the accused’s person was legally permissible since specific and articulable facts known to the security policemen made their actions reasonable.

The accused and his friends were legitimately stopped when they sought entry onto the military reservation in an automobile. United States v. Harris, 5 M.J. 44 (C.M.A.1978); United States v. Bowles, 7 M.J. 735 (A.F.C.M.R.1979). To facilitate an inspection of the vehicle, it was reasonable to request the group to get out of the car. The discovery of suspected marijuana seeds on the passenger seat and the knowledge that the individuals were partying as a group, supported a reasonable suspicion that some criminal activity was afoot and justified taking the individuals to the visitors’ control building while an investigation ensued. These same facts, with the added observation of the accused’s fall to the ground and his physical appearance, further justified his later detention and subjection to a pat-down search. These limited stops were investigative in nature and were essential parts of a reasonable effort to control the introduction of contraband onto the Air Force base. United States v. Blade, 49 C.M.R. 646 (A.F.C.M.R.1974), pet. denied 23 U.S.C.M.A. 663, 50 C.M.R. 903 (1975).

Having concluded that no unlawful actions occurred which would require excluding evidence from consideration,1 we reach the issue of the legality of the apprehension to which we must apply the probable cause standard. United States v. Ness, 13 U.S.C.M.A. 18, 32 C.M.R. 18 (1962); Article 7, Code, 10 U.S.C. § 807, supra.

The security policemen knew that the accused was part of a group of friends who were partying together. The accused was an occupant of an automobile transporting the group in which marijuana and paraphernalia associated with its use were found. His speech was slurred and he displayed poor physical coordination. These factors, considered together, provided a reasonable belief that an offense was being or had been committed and that the accused was a perpetrator.

The defense relies heavily on this Court’s decision in United States v. Pope, 3 M.J.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Tallon
28 M.J. 635 (U S Air Force Court of Military Review, 1989)
United States v. Shepherd
24 M.J. 596 (U S Air Force Court of Military Review, 1987)
United States v. Curry
15 M.J. 701 (U.S. Army Court of Military Review, 1983)
United States v. Fortney
12 M.J. 987 (U S Air Force Court of Military Review, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
12 M.J. 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bray-usafctmilrev-1981.