United States v. Dillard

8 M.J. 213, 1980 CMA LEXIS 13624

Opinions

OPINION OF THE COURT

per CURIAM:

Footnotes

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We must determine whether the appellant was entitled at trial to suppression of all illicit drugs and paraphernalia that had been found in her possession at her private, off-post quarters in Hauffstrasse, Salach, Germany. The evidence was discovered and seized pursuant to an oral search authorization that had not been reduced to writing by the commander, notwithstanding direction by paragraph 2-1(f) of USAREUR Supplement 1 to Army Regulation 190-22 that “[authorization to conduct searches and seizures described in the basic regulation and this supplement, except those searches authorized without a search warrant, will be executed in writing . . . ” (Emphasis added.)

This language plainly decrees the requirement that a search authorization be in writing. “It is well-settled that a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L. Ed. 681 (1954).” United States v. Russo, 1 M.J. 134,135 (C.M.A.1975) (footnote omitted). Whatever administrative benefit that accrues to the Government from proper application of this regulatory prescription, we have no doubt that it similarly benefits all of this nation’s young men and women serving in the United States Army in Europe. Exclusion of the evidence for failure to follow such a regulation commanding the procedure to be followed in conducting a search clearly is appropriate under these circumstances. United States v. Hood, 7 M. J. 128 (C.M.A.1979); see United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside and, in light of paucity of adequate independent evidence of guilt, the charges are dismissed.

Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.