United States v. Drew

15 C.M.A. 449, 15 USCMA 449, 35 C.M.R. 421, 1965 CMA LEXIS 172, 1965 WL 4700

• Court: United States Court of Military Appeals
• Decided: July 2, 1965
• Docket: No. 18,377
• Status: Published

Opinions

Opinion of the Court

Kilday, Judge:

Appellant was tried by special court-martial, convened in Taiwan, on six specifications of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. Contrary to his plea, he was found guilty of all specifications. He was sentenced to a bad-conduct discharge, forfeitures for six months, and confinement at hard labor for six months. The convening authority and the officer exercising general court-martial jurisdiction approved the sentence. A board of review in the office of The Judge Advocate General of the Air Force modified the findings as to one specification and affirmed the sentence.

This Court granted review on two specified issues as follows:

“1. Whether there was probable cause to authorize the search of Barracks 132.

“2. Whether it was legal for the Commander of the Air Station to delegate the authority to authorize searches to his Executive Officer.”

There had been a series of barracks larcenies at Shu Linkou Air Station, Taiwan, that had been going on over the six-month period prior to the trial. At first the thefts centered on Barracks S-234, then the thefts transferred to Barracks S-132. The appellant had lived in barracks 234 but he was transferred to barracks 132 with some other air policemen. After the transfer, the thefts stopped in barracks 234 and started in barracks 132.

On January 4, 1964, shortly after midnight, a barracks mate, Royster, met appellant at Linkou Club, downtown. Appellant was under the influence of alcohol and his barrácks mate prevailed upon him to drink several cups of coffee. Appellant and his companion returned to the air station on the 1:15 a.m. bus. Appellant at one point asked his companion whether he could borrow some money and was told to talk to him after he was sober. Royster, upon reaching the barracks, proceeded to his bunk area, took off his clothes and placed his wallet, containing $20.00 United States money and an amount of local currency, in the drawer of a bedstand beside his bed, went to bed and to sleep. Early that same morning, upon awakening, Royster found that the $20.00 United States money was missing from his wallet but the local currency had not been disturbed. Royster then went to the provost marshal’s office and reported the loss.

On the night of the day preceding the above occurrence, Airman Gilkinson who was quartered in the same barracks with appellant, placed his watch on the bedstand beside his bed and went to sleep. The next morning a barracks mate complained that he was missing an amount of local currency. Thereupon Gilkinson checked and found that his watch was missing. Gilkinson was scheduled for an early tour that morning and upon returning that evening from the tour reported the loss of his watch to the air police.

January 4th was a Saturday and January 6th a Monday. Early on Monday, the Security and Law Enforcement Officer (Provost Marshal) had a conference with Major Keller, Executive Officer of appellant’s unit, to whom the commanding officer had, in writing, delegated “authority to order periodical searches of vehicles, government and civilian, and any other searches that I am authorized to order, at his discretion.” At that conference the executive officer was briefed by the provost marshal about the barracks larcenies of the weekend. There had been an established procedure under which the provost marshal briefed the executive officer as to serious incidents “the first thing in the morning any time it happens.” Permission to search was not requested at that conference. However, that same afternoon the provost marshal telephoned the executive officer:

“Q: And at this time did you recall to him your previous conversations during the past months ?

“A: I recalled to him these matters of the barracks thefts and I asked permission to search at that time with regard to these barracks thefts.

“Q: And as to items?

“A: Not specific items, no, sir.

“Q: As to the items that were taken over the week end [sic] ?

“A: I didn’t specifically mention these items.

“Q: How did you express it to him?

“A: I told him with regard to these barracks thefts, and especially the one over the weekend, I would like permission to search barracks 132.”

The executive officer appeared as a witness and confirmed that the conference had been held with the provost marshal and that he granted permission to search barracks 132. He testified that over the past 30 or 45 days there had been a series of thefts as well as other infractions in the air police barracks. Some of the air policemen were moved into barracks 132. Thereupon, the thefts apparently ceased in the air police barracks and started immediately in barracks 132. On January 6th the provost marshal discussed with him other thefts and objects which had been stolen in “the last 24 hours.”

The provost marshal, accompanied by three air police sergeants, began a search of barracks 132. Having searched the personal effects of three of the occupants of that barracks, they began a search of the effects of the appellant. Airman Royster, whose effects had already been searched, was present and observing the search of appellant’s locker. Royster saw in appellant’s locker what he believed to be a lens filter case and lens shade of his own camera. He immediately informed the provost marshal he believed the items were his. He also observed in appellant’s locker an address book which belonged to him. Royster had missed his camera, lens filter case, and lens shade some months prior, but not knowing whether the same had been stolen, lost or mislaid, he had not reported the articles missing. Royster had lived in both barracks 234 and 132 with the appellant.

Upon the discovery of these items claimed by Royster, the search terminated. The provost marshal and his associates took the items mentioned and escorted appellant to the air police office. There, after warning under Article 31, appellant made a statement admitting the theft of the camera. That statement was reduced to writing and the appellant signed the same.

The following day, appellant was again interviewed by the air police investigators, was advised of his rights under Article 31, supra, and made another statement in writing in which he confessed to the commission of the offenses alleged in the specifications.

I

It appears to be logical that we first consider the second specified issue. That issue inquires whether it was legal for the lieutenant colonel commanding the air station to delegate the authority to authorize searches to his executive officer, a major.

Article 36(a), Uniform Code of Military Justice, 10 USC § 836, reads in part, as follows:

“The procedure, including modes of proof, in cases before courts-martial . . . may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.”

Article 140 of the Uniform Code of Military Justice, 10 USC § 940, reads as follows:

“The President may delegate any authority vested in him under this chapter, and provide for the subdele-gation of any such authority.”

The last subparagraph of paragraph 152, Manual for Courts-Martial, United States, 1951, reads as follows:

“A search of property which is owned or controlled by the United States and is under the control of an armed force, or of property which is located within a military installation or in a foreign country or in occupied territory and is owned, used, or occupied by persons subject to military law or to the law of war, which search has been authorized by a commanding officer (including an officer in charge) having jurisdiction over the place where the property is situated or, if the property'is in a foreign country or in occupied territory, over personnel subject to military law or to the law of war in the place where the property is situated. .The commanding officer may delegate the general authority to order searches to persons of his command. This example of authorized searches is not intended to preclude the legality of searches made by military personnel in the areas outlined above when made in accordance with military custom.”

The lieutenant colonel commanding the air station had delegated his authority to order searches by an instrument in writing, reading as follows:

“Pursuant to the authority vested [in] the Commanding Officer by Para 152, page 288 of the Manual for Courts Martial, U. S. 1951, regarding the search of property under his command, I hereby delegate to the Executive Officer, 6987th Security Group, authority to order periodical searches of vehicles, government and civilian, and any other searches that I am authorized to order, at his discretion.”

During all of the time herein concerned, Major George R. Keller was the executive officer of the above-mentioned group.

We have previously held that Article 36 of the Code, supra, is a valid delegation to the President of the power by regulation to provide the procedure and modes of proof before courts-martial and that such regulations have the force of law. United States v Smith, 13 USCMA 105, 32 CMR 105.

In United States v Doyle, 1 USCMA 545, 547, 4 CMR 137, a case arising under the Articles for the Government of the Navy, prior to the- effective date of the Uniform Code of Military Justice, supra, this Court said:

“There has long existed in the services a rule to the .effect that a military commanding officer has the power to search military property within his jurisdiction. . . . This rule and the reasons for it have been expressly recognized and approved by the Federal courts. United States v Best, 76 F Supp 857; Richardson v Zuppann, 81 F Supp 809. . . .

“Implied in the power of a commanding officer to order a search of military property is necessarily included the right to delegate this power.”

Paragraph 152, Manual for Courts-Martial, supra, contains the express provision, “The commanding officer may delegate the general authority to order searches to persons of his command.” United States v Weaver, 9 USCMA 13, 25 CMR 275.

Notwithstanding Articles 36 and 140, Uniform Code of Military Justice, supra, and paragraph 152, Manual for Courts-Martial, supra, it is contended that there can be no lawful delegation of the authority to order a search and seizure; that the power to authorize such acts is purely judicial and must, therefore, be personally exercised by the commander. United States v Allen, 5 USCMA 626, 18 CMR 250, is cited in support of the contention.

We find nothing in United States v Allen, supra, to sustain the present contention. Indeed, we feel that the case constitutes persuasive authority to the contrary. Allen involved the composition of a court-martial. It there appeared that one-half of the individuals named in the order convening the court were excused from attendance by action of the staff judge advocate, his executive officer, or some official other than the convening authority. It appears the situation grew out of a practice for the convening authority to include in his order convening a general court-martial a large number of officers with the understanding that only a much smaller number would actually be called to serve in an individual case, thus rotating the court-martial duty and burden to a larger number of officers of the command. We point out that Article 22 of the Code, 10 USC § 822, provides who may convene general courts-martial. There is no provision of the Manual affecting the subject. Reserving opinion as to whether the convening of a court is fundamental and substantive, rather than procedural, we point out that Article 22 is detailed and specific in its terms and any deviation therefrom would be contrary to and inconsistent with the Code. On the other hand the Code is entirely silent on the question of searches and seizures and the Manual is quite specific on that subject, including the designation of the commanding officer as the person authorized to order searches and the equally specific authority that the commanding officer may delegate this authority. This is clearly a procedural matter committed to the President by Article 36 of the Code, supra.

In United States v Ness, 13 USCMA 18, 32 CMR 18, we had before us a case in which the commanding officer had delegated to the air base provost marshal general authority to order searches and seizures. A majority of the Court found it unnecessary to explore the issue because of the particular facts of that case. They did, however, issue a caveat, in a footnote, that there may be a substantial question as to the propriety of a blanket delegation of authority to order searches to a police officer such as the provost marshal. That caveat was based upon Johnson v United States, 333 US 10, 92 L ed 436, 68 S Ct 367 (1948). In the latter case, the Supreme Court laid stress upon the fact that the fundamental idea behind the requirement that there be authorization to search separate from that of the police officer is that the official to whom the request is made brings “judicial” rather than a “police” attitude to the examination of the operative facts. The effect of the language of the footnote is to constitute a caveat that the commanding officer’s power of delegation is not an absolute and unreasoning one, but is to be exercised reasonably and impartially.¹

In United States v Hartsook, 15 USCMA 291, 35 CMR 263, we held that in the exercise of his power to authorize a search, a commanding officer stands in the same position as a Federal magistrate issuing a search warrant. See also United States v Davenport, 14 USCMA 152, 33 CMR 364. There is nothing in either of those opinions which could in anywise be construed as an expression of opinion that the power granted, in paragraph 152, Manual, supra, to the commanding officer to delegate his power to authorize searches, does not exist or that such delegation is unlawful.

The Fourth Amendment to the Constitution provides, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” It is silent as to who may issue such warrants and make the determination as to the existence of probable cause or the reasonableness of the search. Neither does it contain any provision as to the person or official before whom such oath or affirmation shall be made. These necessary ingredients have been provided by statute, judicial pronouncements, or rules of court. Currently, in the Federal civilian system, such matters have been committed, by the Congress, to the Supreme Court with power to formulate rules on the subject. Act of June 29, 1940, 54 Stat 688, Title 18, United States Code, Section 3771. Under that delegation, the Supreme Court has formulated Rule 41, Federal Rules of Criminal Procedure. By that rule the Supreme Court has seen fit to provide that a search warrant “may be issued by a judge of the United States or of a state, commonwealth or territorial court of record or by a United States Commissioner within the district wherein the property sought is located.”

We have heretofore commented:

“We also believe that paragraph 140a, Manual for Courts-Martial, supra, is an exercise of the power delegated to the President by Article 36 of the Code, similar to, or identical with the Rules of Criminal Procedure for the United States District Courts, adopted by the Supreme Court under the legislative authority above granted. . . .” [United States v Smith, supra, 13 USCMA, at page 119.]

Rule 41 utilizes existing judges, commissioners (or magistrates). There is no exact counterpart of such officials within the military system. By paragraph 152, the President has placed the power of authorization of searches in the commanding officer, or such person as he may delegate for that purpose. Under the paragraph such power becomes an incident of command with power of delegation. Of course, the President knew that in the event of absence of, or casualty to, a commanding officer his command would descend to others in well-established sequence. Therefore it is clear that, apart from such succession, the Presidential intention was to provide an alternate officer to exercise this detail of command.

In the case before us, we find it impossible to perceive in what manner the delegation by a lieutenant colonel commander of this power to his executive officer, a major, could be construed as being contrary to any provision of law applicable within the military. The power to authorize searches is indeed a “judicial function.” However, within the military it is not exercised, nor could it be, by a strictly “judicial officer”; it is an incident of command. There is nothing in this case to indicate that the executive officer was less capable of exercising a “judicial” rather than a “police” attitude to the examination of the operative facts.

We. therefore conclude that it was legal for the commander of the air station to delegate the authority to authorize searches to his executive officer.

II

,We now turn to the consideration of the first issue specified by this Court. The issue inquires: “Whether there was probable cause to authorize the search of Barracks 132.”

First, it is to be noted that the authority granted was to search barracks 132, rather than any person or the personal effects of any individual.

Very importantly, we observe that we are not here concerned with the reasonableness of a police officer’s action in conducting a search on his own volition. In this instance, we have before us the military counterpart of the case in which the police officer submits to a civilian magistrate the evidence from which that official is to determine the existence of probable cause. This latter state of case has very recently received the attention of the Supreme Court in United States v Ventresca, 380 US 102, 13 L ed 2d 684, 687, 85 S Ct 741 (1965). The reason, stated in the opinion, for granting cer-tiorari is important, because it reveals that the Supreme Court was laying down guidelines for reviewing courts. Mr. Justice Goldberg stated:

“. . . We granted certiorari to consider the standards by which a reviewing court should approach the interpretation of affidavits supporting warrants which have been duly issued by examining magistrates.”

Continuing, the Supreme Court said:

“. . . We begin our analysis of this constitutional rule mindful of the fact that in this case a search was made pursuant to a search warrant. In discussing the Fourth Amendment policy against unnecessary invasions of privacy, we stated in Aguilar v Texas, 378 US 108, 12 L ed 2d 723, 84 S Ct 1509:

‘An evaluation of the constitutionality of a search warrant should begin with the rule that “the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.” United States v Lefkowitz, 285 US 452, 464, (76 L ed 877, 882, 52 S Ct 420, 82 ALR 775). The reasons for this rule go to the foundations of the Fourth Amendment.’ 378 US, at 110-111, 12 L ed 2d at 726.

“In Jones v United States, 362 US 257, 270, 4 L ed 2d 697, 707, 80 S Ct 725, 78 ALR2d 233, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.”

In Aguilar v Texas, 378 US 108, 12 L ed 2d 723, 84 S Ct 1509, the Supreme Court had also said:

“. . . Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,’ ibid., and will sustain the judicial determination so long as ‘there was substantial basis for (the magistrate) to conclude that the narcotics were probably present. . . .’ Id., at 271, 4 L ed 2d at 708.” [The quotations within the above quotation are from Jones v United States, 362 US 257, 4 L ed 2d 697, 80 S Ct 725.]

Reviewing the evidence in this case in the light of the recent cases in the Supreme Court, previous decisions of this Court and other Federal courts, we are convinced that the record reflects that there was probable cause to search the barracks.

Without unnecessary repetition, we observe that over a period of some forty-five days there had been a series of larcenies in the military police barracks. As to each of these larcenies, the executive officer who ultimately granted authority to search was briefed in detail as to each offense and was kept currently informed with reference thereto. Several of the men in the military police barracks were transferred to barracks 132. Immediately larcenies in the military police barracks ceased but larcenies began in barracks 132, the details of all of which were made known to the executive officer. On Saturday morning apparently three larcenies committed during the previous night were discovered and at least two were properly reported. On Monday, the first duty day thereafter, the executive officer was briefed as to the details thereof. Later the same day the attention of the executive officer was again called to the series of larcenies during a period of forty-five days, with specific reference being made to the larcenies over the weekend. He was asked to and did authorize search of the barracks. No matter whom the provost marshal may have suspected as the guilty party, there is no basis in this record for fastening suspicion on any one of those suspected over a number of other individuals. One of the larcenies of the weekend was of a watch, one of a specified amount of United States currency, and one of a specified amount of local currency. It was entirely reasonable to search the barracks for the articles so recently the object of larceny. Brinegar v United States, 338 US 160, 93 L ed 1879, 69 S Ct 1302 (1949) ; United States v Summers, 13 USCMA 573, 33 CMR 105; United States v Schafer, 13 USCMA 83, 32 CMR 83, and cases therein cited.

It should not be necessary to point out the major and very evident distinctions between this case and the cases of United States v Hartsook, 15 USCMA 291, 35 CMR 263, and United States v Davenport, 14 USCMA 152, 33 CMR 364. In this case the officer authorizing the search was kept currently informed of the details of each larceny and especially the one which shortly preceded the authority to search, while in those cases the officer authorizing the search had no such detailed information.

The search here authorized was for the fruits of a crime and not for merely evidence thereof. The official authorizing the search was fully aware of the items sought by the searchers. The search authorized was of the barracks and not the effects of any one man. The information possessed by the executive officer was sufficient to serve as a basis upon which he could distinguish between matters of evidence and the fruits of crime; and the basis for inferring and believing that the fruits of crime might be in the barracks. Upon the basis thus available to him he could determine the existence of probable cause, which issue he determined by authorizing the search of the barracks. United States v Ventresca, supra.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.

1 A short time after our decision in United States v Ness, 13 USCMA 18, 32 CMR 18, the Air Force issued instructions implementing that decision and directing that the power to authorize searches and seizures should never be delegated to individuals primarily engaged in criminal investigations or police work. The instructions also provide that delegation should be limited to those persons whose rank, experience, duties and responsibilities, and temperament are such as to insure a dispassionate and impartial “judicial” determination. We believe that the Air Force instruction properly evaluates the effect of our decision in United States v Ness, supra.