United States v. Carter

1 M.J. 318, 1976 CMA LEXIS 5829

• Court: United States Court of Military Appeals
• Decided: February 20, 1976
• Docket: No. 30,181
• Status: Published

Opinions

OPINION OF THE COURT

FLETCHER, Chief Judge:

Upon observing a “full” paper bag which had been stapled closed and which was similar in appearance to an unstapled bag from which he previously had seen the appellant remove a sandwich, Sergeant Davis removed the bag from the top shelf of a coatrack in his office in the Aero Mail Terminal to examine its contents. When he discovered what appeared to be stolen mail matter, Sergeant Davis resealed the bag and immediately contacted his supervisor who, in turn, requested the assistance of the Air Force Office of Special Investigations. Special Agent Wood subsequently instructed Sergeant Davis to await the appellant’s departure from the mail terminal before attempting to “check” the bag. As the appellant exited from the building, Sergeant Davis confronted him and asked to examine the contents of the stapled bag he was carrying. The sergeant testified that the appellant “just started pulling out the things and telling me what he had in it. He said he had a letter from his wife or something, and he had a calendar, and last he said, T have a package that doesn’t belong to me.’ ”

The fruits of the sergeant’s search together with the appellant’s incriminating statement paved the way for a series of subsequent interrogations which yielded further admissions as well as the discovery of additional damaging evidence in a search of the appellant’s residence during the followup investigation conducted by Special Agent Wood. Appellant now contends that the trial judge erred by sanctioning Sergeant Davis’ initial examination of the stapled bag and, in addition, urges that the subsequently discovered evidence including his admissions should have been excluded by the trial judge as fruit of the poisonous tree.

Challenging appellant’s initial contention, the Government relies upon United States v. Torres, 22 U.S.C.M.A. 96, 46 C.M.R. 96 (1973), in asserting that Sergeant Davis’ search of the paper bag he removed from the coatrack was both reasonable and properly authorized. In Torres, the commanding officer of a postal company noticed a package with the accused’s return address and no postage lying on a table in the work area of the post office in violation of pertinent regulations. The commanding officer ordered the accused to open the package, and the contents later were proven to be property stolen from the mails.

We first observed in Torres that the Fourth Amendment bars only unreasonable searches and seizures. United States v. Maglito, 20 U.S.C.M.A. 456, 43 C.M.R. 296 (1971); United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967). Because it was established that Torres’ package was not lawfully in the postal facility, we concluded that he had no “reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Additionally, we were satisfied that the officer who ordered the package opened had the requisite authority in military law to search without a warrant. See paragraph 152, Manual for Courts-Martial, United States, 1969 (Rev.). See also United States v. Staggs, 23 U.S.C.M.A. 111, 48 C.M.R. 672 (1974); United States v. Sam, 22 U.S.C.M.A. 124, 46 C.M.R. 124 (1973). Thus, in affirming the accused’s conviction, we necessarily concluded that the search was both reasonable and properly authorized.

The situation presented in the case at bar differs materially from that sanctioned in Torres. Here, there has been no showing that the appellant’s paper bag was unlawfully within the confines of the postal facility.¹ Nor is there evidence that either a portion or all of the postal facility was a secured area with access limited to employees and their inspected possessions.²

Even had a valid public interest justified an intrusion under the circumstances presented in this case, the absence of an authorization to search issued by one possessing the requisite authority was fatal.³ See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). See also Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). It is constitutionally impermissible to saddle noncommissioned officers not only with determining the necessity for inspections or searches but also with the responsibility for implementing appropriate inspection or search procedures. See United States v. Ness, 13 U.S.C.M.A. 18, 26, 32 C.M.R. 18, 26 (1962) (dissenting opinion); cf. United States v. Drew, 15 U.S.C.M.A. 449, 35 C.M.R. 421 (1965). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).⁴ Those duties more appropriately fall upon individuals who have the requisite authority to initiate a search.

Inasmuch as the remaining evidence and appellant’s subsequent admissions were obtained as a direct result of the initial unlawful search, those items of evidence also should have been excluded by the trial judge. United States v. Moore, 19 U.S.C.M.A. 586, 42 C.M.R. 188 (1970); see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See also Wong Sun v. United States, 371 , 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Armstrong, 22 U.S.C.M.A. 438, 47 C.M.R. 479 (1973); United States v. Hundley, 21 U.S.C.M.A. 320, 45 C.M.R. 94 (1972).

The decision of the United States Air Force Court of Military Review is reversed. The record of trial is remanded to the Judge Advocate General of the Air Force for action not inconsistent with this opinion.

Senior Judge FERGUSON concurs.

1 . Sergeant Davis’ testimony implies that the appellant’s bag was lawfully within the mail terminal for he readily acknowledged that his office was utilized for the storage of personal items and, in addition, admitted that personnel other than the appellant routinely brought in sandwich bags. Thus, it was the appearance of the appellant’s bag rather than its mere existence which triggered Sergeant Davis’ concern.

2 . While a directive from the regional commander urged local supervisors to insure “that a basically secure working environment exists,” no evidence was presented to establish that the commander on the local level had formulated a systematic inspection procedure to implement the regional commander’s directive. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972).

3 . In urging the contrary, the Government points to a letter from the regional commander of the postal service to his district postal supervisors entitled “Actions Required When Theft is Observed or Suspected.” We do not view the letter as a delegation of authority to conduct searches or inspections. United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172 (1959). To the contrary, the letter instructs supervisors who observe or suspect an act of mail theft to “detain the individual and the evidence and contact the OSI immediately. Do not question or search the individual. Leave that to the investigators.”

The dissenting judge’s reliance upon United States v. Biswell, supra, and Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), to support a warrantless inspection theory is similarly misplaced for, as Mr. Justice White made clear in Biswell, where “regulatory inspections further urgent federal interest, and the possibilities of abuse and the threat to privacy are not of impressive dimensions, the inspection may proceed without a warrant where specifically authorized by statute.” Id., 406 U.S. at 317, 92 S.Ct. at 1597 (emphasis added). Much the same view was expressed in Wyman. There the Supreme Court stressed that the warrantless inspection procedure was not utilized to ferret out criminal violations and was expressly authorized by New York statute and welfare regulations. No such statute or regulation was offered into evidence at trial in the present case. United States v. Bethea, 22 U.S.C.M.A. 223, 46 C.M.R. 223 (1973), nor was the purpose of Sergeant Davis’ “inspection” purely administrative. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), which is cited by the dissenting judge as authority for conducting a warrantless inspection without statutory authorization, actually deals with the scope of a search incident to a lawful arrest, a concept wholly different from that with which we are faced here. No one has urged nor does the record support the conclusion that the accused was under custodial arrest at the time his paper bag was “inspected.”

4 . To the extent that our decision in United States v. Swanson, 3 U.S.C.M.A. 671, 14 C.M.R. 89 (1954), is contrary to the views expressed herein, it is overruled and no longer represents the law of this Court.