United States v. Brouillette

3 M.J. 767, 1977 CMR LEXIS 769
CourtU S Air Force Court of Military Review
DecidedJune 28, 1977
DocketACM 22186
StatusPublished

This text of 3 M.J. 767 (United States v. Brouillette) 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. Brouillette, 3 M.J. 767, 1977 CMR LEXIS 769 (usafctmilrev 1977).

Opinion

DECISION

EARLY, Senior Judge:

Tried by general court-martial, military judge alone, the accused was convicted, despite his pleas, of wrongfully possessing marijuana in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. [768]*768§ 934. The approved sentence extends to confinement at hard labor for eight months, forfeiture of $150.00 per month for eight months and reduction to airman basic.1

This case has been forwarded for our review pursuant to Articles 66 and 69, Code, supra, by The Judge Advocate General who has directed our attention to two issues. In addition, appellate defense counsel have assigned one error.

In their assigned error appellate defense counsel assert:

THE FRUITS OF THE SEARCH OF THE ACCUSED’S ROOM WERE INADMISSIBLE BECAUSE OF THE ILLEGAL ENTRY BY GOVERNMENT AGENTS.

We disagree.

Pursuant to an authorization to search the accused’s room issued on probable cause by the base commander,2 two agents of the Air Force Office of Special Investigations (OSI), two security policemen and the accused’s squadron commander proceeded to the accused’s room in the barracks. After knocking on the door, the group waited “approximately three seconds”, and, upon receiving no response, opened the door with a passkey and entered. Inside they saw the accused standing next to the sink. After advising the accused of his rights under Article 31, Code, supra, a search was made of the room, and the marijuana, which is the basis of the specification herein, was found. The marijuana was contained in 26 small plastic bags.

Appellate defense counsel contend that the search was illegal because the agents did not identify themselves nor state the purpose of their visit prior to their entry. We note at the outset that such requirement has long existed in the common law and has been codified by the Federal Government for its civilian officers and by various states for similar officials. See generally Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); 18 U.S.C. § 3109. The purposes of such requirements are, on the one hand, to protect the sanctity of an individual’s home, and, on the other, to safeguard an officer who upon an unannounced intrusion into a home, might be mistaken for someone who had- no right to be there. Sabbath v. United States, supra, at 589, 88 S.Ct. 1755. However, although “military quarters have some aspects of a dwelling or a home and in those respects the military member may reasonably expect privacy protected by the Fourth Amendment,” United States v. Roberts, 2 M.J. 31, 36 (1976), “time and circumstance may require a balance to be struck at one point in the civilian community, but at another in the military.” United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967). Barracks rooms have never been accorded the sanctity of a civilian’s private home. Various intrusions, not precisely equatable to civilian models, have long been accepted as part of the peculiarities of military life. See United States v. Roberts, 50 C.M.R. 699 (A.F.C.M.R.1975) reversed, 2 M.J. 31 (1976), and cases cited therein; United States v. Thomas, 1 M.J. 397 (1976), concurring opinion of Chief Judge Fletcher; United States v. Drew, 15 U.S.C.M.A. 449, 35 C.M.R. 421 (1965); United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172 (1959). Thus, the expectation of privacy of a military man does not reach the limits of his civilian counterparts.

Likewise the second reason for such a requirement does not exist in the military situation for there is little likelihood that a barracks occupant would forcibly resist the entry of security police officers or other officials.

[769]*769Because of these and other manifest dissimilarities between the military and civilian milieus, we see no reason to extend the statute to situations beyond its purview. See United States v. Wallis, 44 C.M.R. 586 (A.F.C.M.R.1971), pet. denied, 44 C.M.R. 940 (1971).

Looking to the instant case, we note that the officers did knock and wait, albeit, but briefly, before using the passkey to enter. The fact that the time elapsed between knocking and entering — “approximately three seconds” — was brief is not dispositive.3 A barracks room is not like a home; it is but a single, small room, not a collection of many rooms. It is not unreasonable to expect that a person inside a barracks room would hear and answer a knock in a considerably shorter period than would a person in a private home who quite conceivably might be out of hearing of the knock or perhaps a considerable distance from the door. Thus, the officers might reasonably believe that the room was empty and that no further announcement was necessary. Bolstering this belief is the fact that the time was near the lunch hour, and the accused could be expected to be out. Under such circumstances, even if some form of announcement was required, the procedure followed here would not offend constitutional standards.4 “It goes without saying that in determining the lawfulness of entry ... we may concern ourselves only with what the officers had reason to believe at the time of their entry.” Ker v. California, supra, 374 U.S. at 41, n. 12, 83 S.Ct. at 1633.

We therefore hold that the entry of the accused’s room pursuant to a valid search authorization was legal.

The Judge Advocate General has requested that we consider two issues:

WAS THE MILITARY JUDGE CORRECT IN PROCEEDING TO TRIAL WITHOUT A NEW PRETRIAL ADVICE?

We hold that he was.

The operative facts show that the accused was originally charged with wrongful possession of marijuana “for the purpose of transfer.” At the Article 39(a), Code, supra, hearing, defense counsel contended that the addition of these words to the model specification created a new offense not recognized by the Code. See Manual for Courts-Martial, 1969 (Rev.), appendix 6, no. 144. The military judge responded:

Well, I am not one to plow ground at this stage of my judicial experience. .
I am going to direct the government to take whatever steps are necessary to amend the specification so that it conforms to the Code, to wit; delete the last five words.

Defense counsel then moved for a new pretrial advice on the grounds that the staff judge advocate had failed to bring to the attention of the convening authority the fact that the specification, as originally drafted, did not state a proper offense,5 and [770]*770that had he known of the possibility that the above words might be deleted, he might not have referred the case to a general court-martial.

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Related

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282 U.S. 344 (Supreme Court, 1931)
Ker v. California
374 U.S. 23 (Supreme Court, 1963)
Sabbath v. United States
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Melvin R. Laird, Secretary of Defense v. Arlo Tatum
409 U.S. 824 (Supreme Court, 1972)
United States v. Snyder
1 C.M.A. 423 (United States Court of Military Appeals, 1952)
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1 C.M.A. 665 (United States Court of Military Appeals, 1952)
United States v. Heaney
9 C.M.A. 6 (United States Court of Military Appeals, 1958)
United States v. Gebhart
10 C.M.A. 606 (United States Court of Military Appeals, 1959)
United States v. Foti
12 C.M.A. 303 (United States Court of Military Appeals, 1961)
United States v. Sadinsky
14 C.M.A. 563 (United States Court of Military Appeals, 1964)
United States v. Drew
15 C.M.A. 449 (United States Court of Military Appeals, 1965)
United States v. Kazmierczak
16 C.M.A. 594 (United States Court of Military Appeals, 1967)
United States v. Hendrix
21 C.M.A. 412 (United States Court of Military Appeals, 1972)
United States v. Engle
1 M.J. 387 (United States Court of Military Appeals, 1976)
United States v. Thomas
1 M.J. 397 (United States Court of Military Appeals, 1976)
United States v. Roberts
2 M.J. 31 (United States Court of Military Appeals, 1976)
United States v. Collins
3 M.J. 518 (U S Air Force Court of Military Review, 1977)

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Bluebook (online)
3 M.J. 767, 1977 CMR LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brouillette-usafctmilrev-1977.