United States v. Gladdis

11 M.J. 845, 1981 CMR LEXIS 681
CourtU.S. Army Court of Military Review
DecidedJuly 24, 1981
DocketSPCM 14924
StatusPublished
Cited by4 cases

This text of 11 M.J. 845 (United States v. Gladdis) is published on Counsel Stack Legal Research, covering U.S. Army 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. Gladdis, 11 M.J. 845, 1981 CMR LEXIS 681 (usarmymilrev 1981).

Opinion

OPINION OF THE COURT

GARN, Judge:

The appellant was tried by a military judge sitting as a special court-martial with authority to adjudge a bad-conduct discharge, at Schweinfurt, Federal Republic of Germany on 7 March 1980. Contrary to his pleas, he was convicted of violating a lawful general regulation by possessing a hypodermic syringe and needle, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and of possession of heroin, and use 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, confinement at hard labor for three months, and reduction to the grade of Private E-l.

On the evening of 29 December 1979, two uniformed military policemen, Specialists Murrow and Keever, were dispatched to assist an American serviceman who was having difficulty breathing. Upon arrival at the reported location, they found the appellant being placed in a German ambulance. Specialist Murrow rode in the ambulance with the appellant to the U. S. Army dispensary at Ledward Barracks in Schweinfurt. During this ride Specialist [847]*847Murrow made no attempt to search or pat down the appellant.

Upon arrival at the dispensary the appellant was examined by Chief Warrant Officer Schick, the duty physician’s assistant. Mr. Schick, based on his examination of the appellant formed the opinion that the appellant was suffering from a “heroin-type overdose.” He conveyed this opinion to Specialist Murrow who was standing by to give medical assistance if needed. The appellant was treated with injections of narcane, an opiate-specific antidote, to which he responded rapidly. Appellant was also prepared for injections of an intravenous solution. This preparation involved cutting away the clothing from his upper body, including his coat.

As the coat was being cut and pulled away from the appellant’s body, the lapel of the coat opened up so that Specialist Murrow was able to see about two inches of the handle of what he thought to be a spoon in a pocket of the coat. Initially, Specialist Murrow testified that he extracted the spoon from the appellant’s pocket because “it looked like a government spoon”. Ultimately, however, he testified to the effect that the reason he removed the spoon was that Mr. Schick had told him the appellant’s condition was a result of an overdose of heroin. It is also apparent from his testimony that Specialist Murrow knew that spoons are commonly used to prepare heroin for injection.

After he removed the spoon from the coat pocket, Specialist Murrow noted that the bottom of the bowl was blackened and the inside of the bowl contained a residue which he thought could have been heroin or some type of drug. Specialist Murrow then searched the pockets of the coat and found a hypodermic needle and syringe. Laboratory analysis later revealed the residue in the bowl of the spoon to be heroin.

At his trial, and before this Court, the appellant has argued that prosecution exhibit 3 (the laboratory report) and the testimony of Specialist Murrow pertaining to the hypodermic needle and syringe taken from his pocket were not admissible because there was no probable cause to justify Specialist Murrow’s actions and, in any event, there were no exigent circumstances justifying the search without the military analogue of a warrant.

I

The first issue to be resolved is whether Specialist Murrow’s seizure of the spoon was lawful. When a police official is at a place he has a right to be and it is “immediately apparent” to him that something he sees is evidence of a crime, his seizure of that evidence without a warrant is justified under the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Clearly Specialist Murrow was where he had a right, if not a duty, to be when he saw the handle of the spoon protruding from the pocket of the appellant’s jacket.

Although the entire spoon was not observable before it was removed from the appellant’s pocket, Specialist Murrow’s seeing the handle of what appeared to him to be a spoon after being told by a physician’s assistant that the appellant was unconscious as a result of an overdose of heroin, coupled with Specialist Murrow’s apparent knowledge that spoons commonly are used to prepare heroin for injection, provides a substantive basis for our concluding that it was “immediately apparent” to Specialist Murrow that what he saw was evidence of a crime. Cf. United States v. Woods, 560 F.2d 660 (5th Cir. 1977) (admission of sawed off shotgun upheld under “plain view” doctrine even though only end of barrel could be observed before policeman removed it from cabinet). Additionally, Specialist Murrow’s removal of the spoon and looking at the bowl, whether characterized as a seizure, or a search, or both, or neither, constituted no more than a slight invasion of the appellant’s protected property and privacy interests. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (“search” and “seizure” not talismans governing determination of reasonableness; scope of search relevant to reasonableness).

[848]*848Because the intrusiveness was limited, cf. Michigan v. Summers, - U.S. -, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (“character of the official intrusion” relevant to determination that seizure of person without probable cause was reasonable), and because at least the handle of the spoon was in plain view before it was removed from the pocket of the appellant’s jacket, we are satisfied that Specialist Murrow’s removing the spoon and looking at it were reasonable within the meaning of the Fourth Amendment. Once Specialist Murrow saw that the bowl of the spoon was blackened and contained what appeared to be residue of a drug, his retention of the spoon as evidence, which undoubtedly constituted a seizure, was clearly justified under the “plain view” doctrine.

II

The ensuing search of the pocket of the appellant’s jacket involved a more substantial invasion of his protected privacy interests. A search without a warrant generally is unreasonable unless there is an exigent circumstance or other reasonable justification for conducting the search without a warrant. See, e. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

A commonly recognized reasonable justification for a search without a warrant is a search conducted incident to an arrest. After Specialist Murrow had extracted the spoon and observed the condition of the bowl, he clearly had a justifiable basis for apprehending the appellant and conducting a search incident to that apprehension.1 Apparently, and not surprisingly, it did not occur to Specialist Murrow that he should formally apprehend the appellant. Such a formality would have been ridiculous, if not impossible, under the circumstances. The appellant was either unconscious or semiconscious and obviously was within the control of the police and medical authorities.

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Related

United States v. Dillon
17 M.J. 501 (U S Air Force Court of Military Review, 1983)
United States v. Garrett
15 M.J. 601 (U.S. Navy-Marine Corps Court of Military Review, 1982)
United States v. Pechefsky
13 M.J. 814 (U S Air Force Court of Military Review, 1982)
United States v. Gladdis
12 M.J. 1005 (U.S. Army Court of Military Review, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
11 M.J. 845, 1981 CMR LEXIS 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gladdis-usarmymilrev-1981.