United States v. Dennis

16 M.J. 957, 1983 CMR LEXIS 780
CourtUnited States Court of Military Appeals
DecidedSeptember 1, 1983
DocketACM 23723
StatusPublished
Cited by6 cases

This text of 16 M.J. 957 (United States v. Dennis) 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. Dennis, 16 M.J. 957, 1983 CMR LEXIS 780 (cma 1983).

Opinion

DECISION

SNYDER, Judge:

After a vigorously contested trial, the accused was convicted by general court-martial of nine specifications of possession, use, and transfer of marihuana. His sentence extends to a dishonorable discharge, confinement at hard labor for two years, and reduction to airman basic. He has submitted six assignments of error for this Court’s consideration. Finding no error prejudicial to the substantive rights of the accused, we affirm with modification of the sentence.

I. LEGALITY OF SEARCH

The first issue we will discuss is the accused’s claim that the military judge erred in denying his motion to suppress prosecution exhibits 4 and 5, a tobacco tin which contained marihuana in the hashish form and paraphernalia, and seven 10 pound sterling notes.

The search of the accused’s off-base quarters was executed jointly by special agents of the Air Force Office of Special Investigations (AFOSI) and British police. Both the AFOSI and British police obtained search authorizations from their respective authorizing officials. However, the information used by the British police to apply for their warrant was provided by AFOSI. Consequently, the requirements of the [960]*960Fourth Amendment of the Constitution are applicable. United States v. Jones, 6 M.J. 226 (C.M.A.1979).

In an affidavit1 to the base commander, Special Agent C avowed that Airman R, a source of known reliability, had received a quantity of marihuana in the hashish form from the accused earlier in the day in question. Special Agent C related that he had field tested the marihuana, and that the accused had been told by R, as instructed, that he would pay the accused that evening at the accused’s quarters. The commander was also informed that R had observed the accused smoke marihuana on two prior occasions, and that on one of those occasions the accused had transferred a small quantity of marihuana to R. That quantity of marihuana was also surrendered to Special Agent C who field tested the marihuana. Both field tests were positive for the presence of marihuana.

Special Agent C orally informed the base commander that R had provided information on at least two British nationals which had resulted in their arrest by British authorities, and that previous information provided by R had been corroborated by another source. The affidavit stated that R would be thoroughly searched and provided with both an electronic signaling device and British currency with the serial numbers pre-recorded. Upon either observing drugs or paying the accused the money, R was to activate the signaling device and also initiate a visual signal using the light in the accused’s bathroom. After receiving either or both of those signals, the search of the accused’s quarters would occur.

After both prearranged signals were given, the accused’s quarters were entered and searched. British Detective Constable H (hereafter Detective) was the first investigator to enter the accused’s quarters. He observed the accused sitting by a table and a tobacco tin on the table. He seized the tin and observed what appeared to be hashish therein. Shortly thereafter, Special Agent C entered and confronted the accused, observing him to be in the same position as observed by Detective H. Special Agent C observed a wallet on the table in front of the accused with parts of British currency protruding therefrom. While the money was being removed from the wallet, the accused spontaneously stated, “What are you doing, that’s my money.” Special Agent C saw and recognized one note of currency from which he had previously memorized the serial number prior to giving it to R.

Probable cause exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. Mil. R. Evid. 315(f)(2). The military judge found that even if the information about drugs was too stale, probable cause existed to search the residence for the money as evidence of crime. We too find that there was sufficient information from which the base commander could conclude that the informant was reliable and his information credible. Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964).

The accused, however, attacks the search on three additional grounds. He contends that conditioning the search on observing the prearranged signals constituted an impermissible delegation of the authority to authorize a search. With this proposition we cannot agree.

In United States v. Ness, 13 U.S.C.M.A. 18, 32 C.M.R. 18 (1962), an informant of known reliability informed a special agent that two Caucasian males talked to a Korean national who was a known black marketeer and receiver of stolen Government property. The informant heard the parties discuss the sale of aircraft amplifiers. The Korean was to be picked up by the two Caucasians later that evening at an oil station on a named road. The informant advised that one of the Caucasians was a champion bowler at the air base, and provided the license plate number of the bowler’s automobile. The agent reviewed the [961]*961applicable records and ascertained that the automobile was registered to the accused, and that the accused worked at a bowling alley on the base. He decided to search the vehicle if the events, as related by the informant, transpired.

A search authorization was obtained. The anticipated events came to pass, and Ness was apprehended and his automobile impounded. A search disclosed the stolen amplifiers. At trial, the agent testified that if the Korean had not entered the vehicle, he “would have called the whole thing off.”

The Court held that conditioning a search authorization on the verification of a significant fact did not vitiate the authorization. United States v. Ness, supra.

It is noteworthy that the authorization in Ness was absolute; the Court inferred that the authorizing official conditioned the authorization on the verification of a significant event. In the case sub judice, the Government’s position is even more unassailable since the base commander chose to specify the condition on which he found probable cause. Rather than being indicative of impropriety, we find that his actions reflect due consideration of the information submitted to him. United States v. Ness, supra.

Alternatively, the accused contends that seizure of the tobacco tin was improper because it was beyond the scope of the search. The testimony at trial was disputed as to whether the tin’s top was slightly ajar or completely closed, thereby requiring one to open it in order to see inside. That issue need not detain us. Having determined that probable cause existed to search for the “marked” currency, the tobacco tin was a reasonable place to look for currency. This is supported by the fact that Detective H noted and seized the tin prior to anyone observing the accused’s wallet.

The final basis advanced to attack the search is that the affidavit contained statements that were either intentionally false or merely in reckless disregard of the truth. The affidavit stated that R had learned from another person that the accused had performed temporary duty in Morocco and obtained marihuana in the form of hashish oil while doing so.

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Bluebook (online)
16 M.J. 957, 1983 CMR LEXIS 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dennis-cma-1983.