United States v. Guerette

23 C.M.A. 281
CourtUnited States Court of Military Appeals
DecidedJanuary 17, 1975
DocketNo. 28,234
StatusPublished

This text of 23 C.M.A. 281 (United States v. Guerette) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guerette, 23 C.M.A. 281 (cma 1975).

Opinions

OPINION OF THE COURT

Cook, Judge:

Upon trial by special court-martial, the defendant was convicted of two counts of violating a general regulation by possessing marihuana and d-amphetamine. For these offenses, he was sentenced to a bad-conduct discharge and 6 months’ confinement at hard labor. Both the findings and sentence were approved and affirmed by intermediate reviewing authorities. However, while the case was pending before the Court of Military Review, the Commander, Lowry Technical Training Center, suspended the bad-conduct discharge and the remaining confinement for a stated period, with a provision for automatic remission.

The two substances supporting the charges were found during a search of an automobile that was being used by accused. This search and the incident seizure of the items are the basis for the single question now before the Court, namely, whether the military judge erred to accused’s prejudice by overruling the defense objection that the items were inadmissible as the product of an illegal search and seizure.

Two contentions must be dealt with in order to decide the matter in dispute. First is the claim that the search was authorized by a person who was not a "neutral and detached magistrate” and second, that there was not probable cause to support the granting of authority to make the search.

As to the defense contention that the search was authorized by a person who was disqualified because he was not "neutral and detached,” the recent opinion of United States v Staggs1 is controlling. There it was held that a station judge advocate did not have the requisite impartiality, neutrality and detachment to permit his issuance of the authority to search. Among other things, it was shown that not only had he previously become suspicious of the accused and ordered an investigation into his activities, but also had assisted the agent who sought authority to search in preparing the requisite affidavit and participated in designing a plan to produce a probable cause situation that would support the authority to search. It was shown, too, that after accused’s apprehension the same judge advocate was heard to say, "we’d been after him” for some time.

The same opinion, however, recognized that, standing alone and in the performance of official duties, the ordering of an investigation into suspected activity by an accused does not amount to participation in the process of investigation which would divest the authorizing officer of his lawful right to order a search upon probable cause. While emphasizing that the result was dictated by the peculiar facts found in Staggs, the Court added:2

We are well aware that a command[283]*283er’s responsibility for the maintenance of order and discipline in his command requires that he direct and sometimes participate in investigations into criminal activities. He is also the individual empowered to issue search authorizations on probable cause. Nothing in this decision is intended to invalidate this long-standing practice, as we are certain that, in the ordinary course of events, a commander is able to separate his responsibilities and maintain the requisite judicial attitude toward making determinations of the existence of probable cause.

Employing this standard as a template for the facts in the present case, we are of the view that Major Hoff, the commander who authorized the search, was not disqualified to do so. In his testimony, which covers the sole ground for urging that he was disqualified, Major Hoff indicated that during the 3-month period beginning in March 1973, when he assumed command, he received periodic briefings from Sergeant Mauriello, a security policeman on the air base, concerning the use of marihuana. This use, he said, instead of being only a problem "contained in the barracks or off base,” became more and more open. As a result, he admitted that he and Sergeant Mauriello started compiling names and data concerning marihuana use. He said they also learned of the possibility that "hard drugs” were being used. His testimony about what he did and reasons for so acting is as follows:

Finally the troops would start going to their supervisors and complaining that they could not go anywhere without being confronted with the use of marijuana. I felt it was time that we take action and call in the OSI. So, on the 18th of June, I called my OSI people at Pease Air Force Base, and they told me to prepare a case, find out who the users were and if I wanted their assistance they could come up within six hours notice. I called the Social Actions officer at ADC, my major command, he referred me to the Social Actions officer at Pease, my support base, and I kept hearing the same story, that we had to get names, we had to get an indication of who had marijuana in their possession before the police would move. So, the whole thing came to a head. After I talked to the OSI on the 18th I called Sergeant Mauriello and told him what I had done, that I was getting concerned, that it was no longer a hidden problem, the use of marijuana was coming out, the troops felt that they could not go anywhere without being confronted with marijuana, or being implicated by someone else using marijuana. So, at that time, the 19th, he prepared a letter for my signature, to him, requesting that certain individuals be investigated, be subject to confidential investigation, and on this list Sergeant Guerette’s name was placed. Prior to that, the 19th, we had a party, we had a squadron party at the NCO club, where there were some civilians that we felt brought marijuana into the NCO club, and they were in the company of Sergeant Guerette. So, I felt that it was time to move, as I say, I briefed Sergeant Mauriello, and he knew I was serious about having contacted the OSI. So, when he came to me the morning of the 21st stating that he had a confidential informant tell him about the marijuana in Sergeant Guerette’s car, based on the experience I had working with Sergeant Mauriello for the past four months, I had a reasonable feeling that he had, in fact, found marijuana and I authorized a search, signed the search warrant.

From examining the foregoing, it is obvious that Major Hoff did not abandon his impartiality in considering the request for authority to search. Furthermore, his testimony supports no conclusion or even inference that he became personally involved as an active participant in gathering evidence against accused. Rather, it establishes that he was exercising his responsibilities as a commander and maintained the necessary posture to enable him to properly assess the existence of probable cause. Consequently, he was not disqualified but was, in fact, well within his rights in issuing the authority to search if there be probable cause — the next question to be decided.

On this point, it is appropriate [284]*284to recall certain applicable norms and principles. First, the right to be secure in one’s person and property is protected against searches and seizures which are unreasonable. United States v Unrue, 22 USCMA 466, 47 CMR 556 (1973); United States v Torres, 22 USCMA 96, 46 CMR 96 (1973). Secondly, and putting aside any question of consent,3 when evaluating the showing of probable cause to support a search which is authorized, such showing "must be tested and interpreted ... in a common sense and realistic fashion.” United States v Ventresca, 380 US 102, 108 (1965); United States v Scarborough,

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

Related

Jones v. United States
362 U.S. 257 (Supreme Court, 1960)
Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
United States v. Ventresca
380 U.S. 102 (Supreme Court, 1965)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
United States v. Harris
403 U.S. 573 (Supreme Court, 1971)
United States v. Penman
16 C.M.A. 67 (United States Court of Military Appeals, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
23 C.M.A. 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guerette-cma-1975.