United States v. Eland

17 M.J. 596, 1983 CMR LEXIS 775
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedSeptember 15, 1983
DocketNMCM 82 5424
StatusPublished

This text of 17 M.J. 596 (United States v. Eland) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps 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. Eland, 17 M.J. 596, 1983 CMR LEXIS 775 (usnmcmilrev 1983).

Opinion

PER CURIAM:

Appellant was convicted contrary to his pleas before a general court-martial, military judge alone, of four specifications of unauthorized absence (totalling 69 days) in violation of Article 86, Uniform Code of Military Justice (UCMJ), and 52 specifications alleging violations of Article 92, UCMJ, 10 U.S.C. §§ 886, 892, including possession of drug paraphernalia; possession, sale, and transfer of Zxh pounds of marijuana and 3 ounces of psilocybin; and possession of various amounts of marijuana, cocaine, and methaqualone. Appellant was sentenced to be confined at hard labor for four years, to forfeit all pay and allowances, to be reduced to pay grade E-l, and to be discharged from the naval service with a dishonorable discharge. The convening authority approved the findings and sentence, suspending execution of any forfeitures of pay over $367.00 per month upon appellant’s release from confinement and for 12 months thereafter.

Appellant asserts twelve assignments of error before this Court. Our resolution of Assignments of Error I and VIII renders moot Assignments of Error II, III, X, XI, and XII. Finding no merit in the remaining assignments of error, we partially affirm and modify the findings and order a rehearing on sentence.

FACTS

Appellant began an unauthorized absence from his command on 22 May 1981, and on 20 June he was administratively declared a deserter. Pursuant to command policy, the Shore Patrol, aided by Master Chief B, appellant’s division officer, cut the lock on and emptied appellant’s locker to inventory his personal effects for storage. As Petty Officer H of the Shore Patrol removed items from the locker, he found a bag of marijuana and an extensive assortment of drug paraphernalia. The Naval Investigative Service (NIS) was contacted, and the inventory continued. Petty Officer H removed three spiral notebooks from appellant’s locker which he listed on his inventory and either placed with the previously inventoried items or handed to Master Chief B who began to look through the notebooks for no particular reason. He soon realized that these notebooks contained incriminating statements by appellant including an extensive log of 47 drug transactions over a six-month period which subsequently became the basis for specifications 3-143 under Charge II. Master Chief B turned these notebooks and the other incriminating evidence and contraband over to the NIS. At trial the military judge denied the defense motion to suppress these notebooks.

Petty Officer G, who happened to be in the area when Petty Officer H began the inventory, had lived with appellant and aided him in his drug dealings over the previ[598]*598ous six-month period. Aware of what was contained in the notebooks, Petty Officer G became afraid that Master Chief B would find his name in them and decided to confess to the NIS agent who was present. At trial he testified against appellant under a grant of immunity.

I

THE MILITARY JUDGE ERRED WHEN HE FAILED TO FIND THAT MASTER CHIEF B EXCEEDED THE LAWFUL SCOPE OF THE INVENTORY PROCEDURE WHEN HE PERUSED THE CONTENTS OF THE NOTEBOOKS.

To determine whether appellant has a sufficient expectation of privacy in the seized notebooks to trigger the protection of the fourth amendment of the United States Constitution, two questions must be addressed: (1) whether appellant exhibited an actual expectation of privacy in the items seized, and (2) whether appellant’s expectation of privacy is one society is prepared to recognize as reasonable under the circumstances. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). The military judge found that once appellant was administratively declared a deserter, he thereafter abandoned any expectation of privacy in his personal effects remaining within the Navy’s jurisdiction. As conceded by the defense, appellant had to expect that the government could make an inventory of his belongings once he was away from his command for a given period of time; however, regardless of the reason for his absence, he had a right to expect that the intrusion into his belongings would go no further than necessary to meet the purposes of the inventory: to protect personal property, to guard against future claims for lost or stolen property, to protect others in the area from property which may be or become a threat to their health and welfare, and to make the locker space available. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Edwards, 577 F.2d 883 (5th Cir.1978), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978). Contrary to the holding of the military judge, appellant also retained an expectation of privacy in any writings or documents he may have had among his personal belongings. United States v. Van Hoose, 11 M.J. 878 (A.F.C.M.R.), pet. denied, 12 M.J. 301 (C.M.A.1981).

The government must be allowed leeway to conduct as thorough an inventory procedure as necessary to accomplish the purposes of the inventory. An inventory is constitutionally permissible, however, only so long as it is reasonable in scope when weighed against the interests to be protected by the inventory. United States v. Edwards, supra. The inventory procedure may include steps to protect against a later claim that money or other valuables had been within or among any books or documents that were inventoried, United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967); Lowe v. Hopper, 501 F.2d 952 (5th Cir.1974), affirmed after rehearing, 520 F.2d 1405 (5th Cir.1975), but a general perusal of documents and books is permissible only if it is reasonable in light of the purposes to be served by that inventory, United States v. Strahan, 674 F.2d 96 (1st Cir.1982), cert. denied, 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306 (1982) (perusal of documents justified where one purpose of the inventory was to determine ownership of the vehicle in which they were found); United States v. Brown, 12 M.J. 420 (C.M.A.1982) (opening of folded papers found in a jacket was not justified during a health and welfare inspection).

During a thorough inventory and inspection of books and documents, a book or document may be seized as evidence under the plain view doctrine only if its criminality or character as evidence is immediately apparent. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Duckett, 583 F.2d 1309 (5th Cir.1978); United States v. Van Hoose, supra. For example, in Harris, supra, the defendant, suspected of a robbery, was arrested and his car impounded. During the routine inventory of the car, the police officer conducting the inventory noticed on the [599]*599metal plate under the door a registration card bearing the name of the robbery victim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harris v. United States
390 U.S. 234 (Supreme Court, 1968)
South Dakota v. Opperman
428 U.S. 364 (Supreme Court, 1976)
Smith v. Maryland
442 U.S. 735 (Supreme Court, 1979)
United States v. Thomas Edward Duckett
583 F.2d 1309 (Fifth Circuit, 1978)
United States v. Richard Strahan
674 F.2d 96 (First Circuit, 1982)
United States v. Estrada
7 C.M.A. 635 (United States Court of Military Appeals, 1957)
United States v. Kazmierczak
16 C.M.A. 594 (United States Court of Military Appeals, 1967)
United States v. Allen
20 C.M.A. 317 (United States Court of Military Appeals, 1971)
United States v. Van Hoose
11 M.J. 878 (U S Air Force Court of Military Review, 1981)
United States v. Brown
12 M.J. 420 (United States Court of Military Appeals, 1982)
United States v. Dobbins
12 M.J. 799 (U.S. Navy-Marine Corps Court of Military Review, 1981)
United States v. Grady
15 M.J. 275 (United States Court of Military Appeals, 1983)
United States v. Edwards
577 F.2d 883 (Fifth Circuit, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
17 M.J. 596, 1983 CMR LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eland-usnmcmilrev-1983.