United States v. Goldman

18 C.M.A. 516, 18 USCMA 516, 40 C.M.R. 228, 1969 CMA LEXIS 740, 1969 WL 6051

Opinions

Opinion of the Court

DARDEN, Judge:

Petitioning for reconsideration, the defense urges that the recent opinion of the Supreme Court in Chimel v California, 395 US 752, 23 L Ed 2d 685, 89 S Ct 2034 (1969), so narrows the law regarding searches incident to lawful arrest as to require a different result in this case. See United States v Goldman, 18 USCMA 389, 40 CMR 101. We disagree.

Not only was our decision not premised solely upon the legality of a search incident to an arrest but the search here involved was not so unlimited in scope and reasonableness as to offend against constitutional authority. The agents here acted both upon probable cause and necessity. It is one thing to construe the scope of police operations narrowly within the calm and orderly atmosphere of this nation, another to delimit them in a foreign and strife-torn city.

Moreover, the defense contention that the military may not try the accused for these offenses committed by him while on active overseas duty in a zone of conflict finds no support in O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969).

Therefore, we perceive no reason to reconsider our former opinion and thus adhere to the results contained therein.

Chief Judge Quinn concurs.