United States v. Fimmano

8 M.J. 197, 1980 CMA LEXIS 13762

Opinions

Opinion of the Court

PERRY, Judge:

*

In this case, we examine the requirement contained in the Fourth Amendment to the Constitution that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . .” (emphasis supplied) and its applicability to searches and seizures in the military services. This Court has previously held that information presented to the official who authorizes searches and seizures need not be under oath or affirmation. United States v. Penman, 16 U.S.C.M.A. 67, 36 C.M.R. 223 (1966); United States v. Hartsook, 15 U.S. C.M.A. 291, 35 C.M.R. 263 (1965). See also United States v. King, 36 C.M.R. 929 (A.F.B.R.1966), pet. denied 16 U.S.C.M.A. 656, 36 C.M.R. 541 (1966); United States v. Wallis, 44 C.M.R. 586 (A.F.C.M.R.1971), pet. denied, 21 U.S.C.M.A. 618, 44 C.M.R. 940 (1971).

Those holdings, however, are at variance with the Constitutional mandate that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” (Emphasis supplied). Accordingly, we hold that with respect to investigations and/or prosecutions contemplated by the Uniform Code of Military Justice, warrants and authorizations to search for and to seize evidence for presentation in courts-martial shall not issue but upon probable cause supported by oath or affirmation.

I

The appellant was convicted by general court-martial of possession of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a bad-conduct discharge, imprisonment for a period of one year and reduction to the lowest enlisted grade. The United States Army Court of Military Review has affirmed. We granted review to consider the appellant’s contention that evidence presented at his trial which led to his conviction was discovered and seized in violation of the Fourth Amendment to the Constitution of the United States.¹

II

The record discloses that on April 9,1975, Captain Collins, the appellant’s company commander, overheard Sergeant Wheeler and the First Sergeant discussing a tip which Sergeant Wheeler had received from an informant. The informant, according to Wheeler, had stated that he had seen drugs under a wall locker of a room occupied by the appellant and his roommate Palmer a few days after the preceding pay day which was March 31. Continuing, Wheeler said that his informant, during a second tip that same morning, told him that a “pot party” was held in the same room the night before and that drugs were in a stereo speaker to which access was gained by removing the front of the speaker.² Upon overhearing the conversation, Captain Collins asked Sergeant Wheeler for the name of the informant. Wheeler told him that it was Private First Class Trombley. No information was given Captain Collins concerning Trombley’s reliability. However, Captain Collins knew Trombley and considered him reliable.³ Upon the basis of the foregoing information, Captain Collins called Lieutenant Santos and directed him to search the room.⁴

The search was conducted by Lieutenant Santos and a sergeant. When they arrived at the room, Palmer also arrived and was personally searched. Nothing relevant here was found. However, during the search of the room, a “bulb and screen” for hashish were found in Palmer’s wall locker; hashish was found in a shirt and a pair of jeans in the same locker; and a white powder was found in another shirt in the same locker. A search of the speakers revealed narcotics paraphernalia and heroin. These items were seized and delivered to Captain Collins, who gave them to agents of the United States Army Criminal Investigations Division (CID).

During the hearing on the motion to suppress at the appellant’s trial, Captain Collins, Lieutenant Santos, Sergeant Wheeler and Private First Class Trombley testified. Material differences appear in the testimony of Trombley and Wheeler.⁵ However, the military judge found that Trombley was an untruthful witness and resolved all testimonial differences in Sergeant Wheeler’s favor. The judge, therefore, rejected the motion to suppress. He found that the information which Captain Collins had overheard was sufficient to constitute probable cause to believe that narcotic drugs were located within the room occupied by the appellant and Palmer. He also rejected the contention that Wheeler had deliberately falsified the information which he related to the First Sergeant and which was overheard by Captain Collins. The evidence, accordingly, was admitted during the course of the trial.

During the trial of the merits,⁶ both Palmer and Trombley testified as witnesses for the prosecution. Palmer testified, inter alia, that the heroin discovered in the stereo speaker belonged to the appellant.⁷ Tromb-ley stated that he had been in the room several times and that he had seen the appellant remove the front attachment from the stereo speakers and remove something from its interior. Upon the basis of all the evidence, the military judge found the appellant guilty of possession of the heroin found within the stereo speakers.

Ill

The protections of the Fourth Amendment are applicable to members of the armed services of the United States. United States v. Ezell, 6 M.J. 307 (C.M.A.1979). It is, of course, true that the concept of “military necessity” has led to holdings that the Fourth Amendment was not applicable in some instances because of the exigencies shown to exist. See United States v. Hessler, 7 M.J. 9 (C.M.A.1979); United States v. Hessler, 4 M.J. 303 (C.M.A.1978) (Fletcher, C. J., concurring in the result); United States v. Unrue, 22 U.S.C.M.A. 466, 47 C.M.R. 556 (1973); United States v. Poundstone, 22 U.S.C.M.A. 277, 46 C.M.R. 277 (1973); United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967); United States v. Brown, 10 U.S.C.M.A. 482, 28 C.M.R. 48 (1959); United States v. Gaddis, 41 C.M.R. 629 (A.C.M.R.1969). However, where exigent circumstances which invoke the concept of military necessity are not shown to exist, “the Fourth Amendment applies with equal force within the military as it does in the civilian community.” United States v. Ezell, supra at 315; United States v. Grosskreutz, 5 M.J. 344 (C.M.A.1978); United States v. Harris, 5 M.J. 44 (C.M.A.1978); United States v. Roberts, 2 M.J. 31 (C.M.A.1976); Courtney v. Williams, 1 M.J. 267 (C.M.A.1976); United States v. Jordan, 1 M.J. 334 (C.M.A.1976); United States v. Kinane, 1 M.J. 309 (C.M.A.1976); United States v. Guerette, 23 U.S.C. M.A. 281, 49 C.M.R. 530 (1975); United States v. Staggs, 23 U.S.C.M.A. 111, 48 C.M.R. 672 (1974); United States v. Unrue, supra; United States v. Glenn, 22 U.S.C. M.A. 295, 46 C.M.R. 295 (1973); United States v. Simmons, 22 U.S.C.M.A. 288, 46 C.M.R. 288 (1973); United States v. Poundstone, supra; United States v. Sam, 22 U.S. C.M.A. 124, 46 C.M.R. 124 (1973); United States v. Lange, 15 U.S.C.M.A. 486, 35 C.M.R. 458 (1965); United States v. Hartsook, supra; United States v. Davenport, 14 U.S.C.M.A. 152, 33 C.M.R. 364 (1963); United States v. Battista, 14 U.S.C.M.A. 70, 33 C.M.R. 282 (1963); United States v. Ness, 13 U.S.C.M.A. 18, 32 C.M.R. 18 (1962).

Under paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition), the “commanding officer [or] officer in charge, having control over the place where the property or person searched is situated or found,” may, upon probable cause, authorize searches and seizures of evidence.⁸ This Court has held that, with respect to the finding of probable cause and of authorizing searches, the commanding officer stands in the same position as his civilian counterpart, the federal magistrate, and that when exercising the search authority conferred by paragraph 152 of the Manual, he must proceed with a “judicial” rather than a “police” attitude. United States v. Ezell, supra.

This Court has held, however, that information upon which the finding of probable cause is based is not required to be given under oath. See United States v. Penman, supra, and United States v. Hartsook, supra. See also United States v. King, supra; United States v. Wallis, supra; United States v. McCarthy, 1 M.J. 993 (N.C.M.R.1976). It is this holding with which the appellant now takes issue.⁹

IV

The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¹⁰

The Supreme Court teaches that “[t]he warrant clause of the Fourth Amendment is not dead language. Rather, it has been ‘a valued part of our constitutional law for decades, and it has determined the result in scores ... of cases in courts all over this country.’ ” United States v. United

States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 2136, 32 L.Ed.2d 752 (1972). The command that a warrant should issue only upon probable cause directs “that baseless searches shall not” be made. Id. at 316. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Moreover, “[u]nder the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation.” Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). Accord, Aguilar v. Texas, supra; Spinelli v. United States, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Therefore, no warrant can issue lawfully in the absence of a showing of probable cause supported by oath or affirmation. See United States v. Harrick, 582 F.2d 329 (4th Cir. 1978); United States v. Acosta, 501 F.2d 1330 (5th Cir. 1974);¹¹ United States v. Wroblewski, 105 F.2d 444 (7th Cir. 1939). Indeed “[a] bare unsworn assertion for which the informing officer takes no moral or legal responsibility is . not sufficient.” Frazier v. Roberts, 441 F.2d 1224, 1228 (8th Cir. 1971). See Miller v. Sigler, 353 F.2d 424 (8th Cir. 1965), cert, denied 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966).

Moreover, civilian federal courts impose the requirement that the supporting affidavits which contain the information upon which probable cause is based and the warrant itself be in writing.¹² Explaining the rationale for the requirement, the United States Court of Appeals for the Fifth Circuit has observed that the requirement that all evidence be included as a part of the affidavit ensures: (1) “that the magistrate has all the information necessary to arrive at a decision,” and (2) “that the record is preserved for later review in such a way that new information, either newly discovered or remembered, cannot be used to validate a warrant after it has been issued.” United States v. Acosta, 501 F.2d at 1334. See also Aguilar v. Texas, supra, and Spi-nelli v. United States, supra. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Court underscored the importance of the affidavit upon which the finding of probable cause is based when it held that a defendant may challenge deliberately falsified statements included within the affidavit. Said the Court:¹³

It is established law, see Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. [11] 13, 78 L.Ed. 159 (1933); Giordenello v. United States, 357 U.S. 480, 485—486, 78 S.Ct. [1245] 1249-1250, 2 L.Ed.2d 1503 (1958); Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. [1509] 1513-1514, 12 L.Ed.2d 723 (1964), that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant’s tip is the source of information, the affidavit must recite “some of the underlying circumstances from which the informant concluded” that relevant evidence might be discovered, and “some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . ., was ‘credible’ or his information was ‘reliable.’” Id., at 114, 84 S.Ct. [1509] at 1514, 12 L.Ed.2d 723. Because it is the magistrate who must determine independently whether there is probable cause, Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. [367] 368-369, 92 L.Ed. 436 (1948); Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. [725] 735-736, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or reckless false statement, were to stand beyond impeachment.

As the above authorities indicate, it is axiomatic that under the Fourth Amendment, the finding of probable cause must be based upon information supported by oath or affirmation. Where the information is not given under oath or affirmation, probable cause may not lawfully be found based thereon. This Court’s prior holdings that probable cause can be found upon information which is not supported by oath or affirmation are, therefore, at variance with the Fourth Amendment’s command that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” No justification for a different rule in the military appears in any of this Court’s prior holdings, nor has any justification been urged by the Government here. Indeed, the most frequent objection to the procedural requirements here mentioned (that often there is not enough time) is met by the recognized exceptions to the warrant requirement permitting warrantless searches under certain exigent circumstances (see Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) and by the military necessity concept. See United States v. Hessler, supra; United States v. Unrue, supra. That many commanding officers contemplated by paragraph 152 of the Manual are not empowered to administer oaths should not deter the process. We assume the power of the President to clothe the officials who exercise the warrant authority of the Fourth Amendment with requisite authority to administer oaths.

Accordingly, we hold that the Fourth Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” applies with equal force to cases contemplated for prosecution under the Uniform Code of Military Justice, as in the federal civilian courts.

We also commend for consideration by proper authority the procedure set forth in Rule 41(c), Federal Rules of Criminal Procedure, for making and preserving a record of the application for search authority and the issuance of the authority itself. Such a procedure would insure that the information supporting a finding of probable cause and the search authorization itself will be made a matter of record which will facilitate review by the trial court and all reviewing courts when necessary to a determination of issues arising from searches and seizures authorized upon the basis of such information. See United States v. Acosta, supra. Indeed, such a record may constitute the only manner in which the finding of probable cause may be later shown to have been established and by which the scope of the authorization may later be determined. See Franks v. Delaware, supra.

V

Applying the above principles to this case, it is readily apparent that the information upon which Captain Collins acted when he directed a search of the appellant’s room was not given under oath or affirmation. Sergeant Wheeler’s statement concerning information given him by Private Trombley was a bare unsworn assertion for which he took no moral or legal responsibility and was, therefore, not sufficient. Nathanson v. United States, supra; Frazier v. Roberts, supra.

As the authorities herein cited will attest, the requirement of oath or affirmation in support of the information on which the finding of probable cause is based is not new. However, this Court’s prior case law has never imposed the requirement on cases contemplated by the Uniform Code of Military Justice. Therefore, in the interest of the orderly administration of justice, the requirement we announce today shall apply only to all searches conducted after the date on which this opinion is published.

Thus, the decision of the United States Army Court of Military Review is affirmed.

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.

1 . Specifically, the appellant contends (1) that the facts presented to the commanding officer were insufficient to support a finding of probable cause; (2) that the company commander was per se disqualified to authorize the search; and (3) that an oral request and an oral authorization to search are constitutionally impermissible. The contention that the search authorization was based upon insufficient facts to support a finding of probable cause is deemed sufficient to invoke consideration of the requirement 'that probable cause be based upon sworn information. See n.9, supra.

3 . Captain Collins testified that Trombley had been no trouble in the unit and that he had been chosen to be a truck driver. Trombley had on one occasion been nominated to be soldier of the month. Captain Collins did not personally interview Trombley prior to authorizing the search of the room.

4 . The specific language of the order to search does not appear in the record. Lieutenant Santos testified, however, that he was told to search the lockers and stereo speakers, as well as the rest of the room.

2 . The speakers belonged to Palmer.

5 . Sergeant Wheeler testified that Trombley had talked to him on two prior occasions and that he, in turn, had relayed the information to the First Sergeant. But Wheeler acknowledged that, while Trombley had told him that he, Trombley, had been in the appellant’s room for “pot parties,” this information was not imparted to the First Sergeant or to Captain Collins until after the search. On the other hand, Trombley testified that while it was true that he had been at a pot party in the appellant’s room, he denied ever mentioning this to Sergeant Wheeler.

6 . The trial commenced as a joint trial of Palmer and the appellant. However, because of antagonistic defenses, the military judge severed Palmer’s trial and prosecution of the appellant proceeded. After disposal of the motion to suppress during the appellant’s trial, Palmer was separately tried and convicted by the same judge.

7 . Upon cross-examination Palmer acknowledged that the speakers belonged to him; that the contraband found in the speakers was enclosed in Marlboro cigarette packages; that he (Palmer) smoked Marlboro cigarettes; and that the appellant did not smoke. Palmer also acknowledged that all the narcotic items found within his locker and clothing belonged to him.

8 . Paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition) provides, inter alia, that:

[a legal search is a] search of any of the following three kinds which has been authorized upon probable cause by a commanding officer, including an officer in charge, having control over the place where the property or person searched is situated or found or, if that place is not under military control, having control over persons subject to military law or the law of war in that place:

(1) A search of property owned, used, or occupied by, or in the possession of, a person subject to military law or the law of war, the property being situated in a military installation, encampment or vessel or some other place under military control or situated in occupied territory or a foreign country.

(2) A search of the person of anyone subject to military law or the law of war who is found in any such place, territory, or country.

(3) A search of military property of the United States, or of property of nonappropri-ated fund activities of an armed force of the United States.

9 . The appellant’s contention that the search authorization in this case was issued without probable cause or written application is sufficiently broad to invoke our consideration of the validity of this Court’s prior holdings with respect to the requirement that the finding of probable cause be based upon oath or affirmation. Moreover, during the oral arguments before us, counsel for the parties fully argued the question of whether this provision of the Fourth Amendment is binding. Accordingly, we hold that the question is properly before this Court for consideration.

10 . U.S.Const. Amend. IV.

11 . On rehearing en banc the Court affirmed the District Court by an equally divided vote on the search issue. 509 F.2d 539 (1975).

12 . See Fed.R.Crim.P. 41.

13 . Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 2682, 57 L.Ed.2d 667 (1978).