United States v. Hessler

4 M.J. 303, 1978 CMA LEXIS 12155

• Court: United States Court of Military Appeals
• Decided: April 3, 1978
• Docket: No. 31,788; SPCM 10427
• Status: Published

Opinions

Opinion

COOK, Judge:

The Court granted review to consider two assignments of error in regard to accused’s conviction by a special court-martial for wrongful possession of marihuana, in violation of Army Regulation 600-50, change 2, April 19, 1973.

The accused’s first contention is that evidence obtained in a search of his person was improperly admitted by the trial judge over defense objection. We conclude the search was lawful.

The challenged evidence was obtained by Second Lieutenant T. W. Hunter while on duty as squadron duty officer for the 3rd Squadron, 8th Cavalry. At about 5:00 p. m., accompanied by the charge of quarters, Sergeant Dempsey, Hunter entered the billets of Troop C for the first of two “before midnight” checks to determine its general cleanliness, the presence of unauthorized visitors, the inordinately loud playing of music, “or anything illegal.” After the Lieutenant had inspected the latrine “to make sure it was clean,” he proceeded to the upstairs area. On the stairway, he detected an odor which, on the basis of previous experience, he concluded was “marihuana, hashish.” Moving along the upstairs hallway, the odor “became stronger,” until he reached a point where he “knew” the source was “in the area.” There were four rooms at this part of the hallway; the door of each was closed. Other relevant facts are set out under the separate headings of this opinion and in the following excerpt from appellate defense counsel’s brief:

[Hunter] knocked on one door and there was no answer (R. 16). He then moved to another room door, heard music coming from within it, and knocked on that door. A voice from inside said “Who is it?”, and Lieutenant Hunter then knocked again and said “Open the door”. After the voice from inside again asked “Who is it?”, Sergeant Dempsey identified himself as the CQ and the door was opened from the inside (R. 16). Lieutenant Hunter and Sergeant Dempsey then entered the room.

Hunter’s Entry Upon the Common Ways of the Billets.

Positioned in a place where he has a right to be, a Government agent is entitled to use his regular senses and to take cognizance of information gleaned from such use. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); United States v. Mathis, 16 U.S.C.M.A. 522, 37 C.M.R. 142 (1967). This concept is popularly described as the “plain view” doctrine. Here, the outside door to the troop billets was locked. Lieutenant Hunter gained entry by directing Sergeant Dempsey to open it with a “master” key. Hunter’s testimony indicates that written instructions, described as an “SOP” (Standard Operating Procedure) which defined the responsibilities of the squadron duty officer, required him to check the interior of the billets. The SOP was not introduced, and no information was presented as to its unavailability. As far as we have been able to ascertain, there is no official regulation or publication, subject to judicial notice, which specifies the responsibilities of a unit duty officer. The Dictionary of United States Army Terms, Army Regulation 310-25, June 1972, at 194, notes that a duty officer is one “detailed to be constantly available for call in emergencies during a specific period.” That definition does not indicate that the office carries authority to enter locked billets for non-emergency purposes. However, Hunter’s testimony clearly implies that his enumeration of the authority of the squadron duty officer was that contained in the SOP.

No defense objection was made to Hunter’s testimony as to the SOP on the ground that the writing was the best evidence of its content. In the absence of such objection, the testimony was competent to establish Hunter’s authority to enter the locked billets and, at least, move along the common areaways. United States v. Lowery, 2 U.S.C.M.A. 315, 8 C.M.R. 115 (1953). As he was lawfully at the places in the billets where he detected the odor of burning marihuana, he could legally take account of the information conveyed by his senses. Cf. United States v. Case, 435 F.2d 766 (7th Cir. 1970).

The Entry Into the Room in Which the Accused was Present

As noted earlier, Hunter testified he had previous experience with the odor of burning marihuana. Appellate defense counsel concede Hunter’s expertise was not contested at trial, and that he indeed “had probable cause to believe that an unlawful substance was being burned somewhere in the barracks that night.” However, counsel contend that Hunter’s actions after determining the likely source of the odor “were unreasonable and violative of the Fourth Amendment” because he acted without a warrant and in the absence of exigent circumstances.

The authority of a commissioned officer to apprehend another for a military offense is embraced within the same provisions of the Uniform Code of Military Justice and the Manual for Courts-Martial that confer authority to search upon persons performing police and criminal investigative duties. Article 7, Uniform Code of Military Justice, 10 U.S.C. § 807; paragraph 19a, Manual for Courts-Martial, United States, 1969 (Revised edition). The Uniform Code confers general authority to apprehend upon any person “authorized under regulations governing the armed forces”; the Manual, promulgated by the President for the “armed forces” in furtherance of “the authority vested” by the Code, provides the specific enumeration. In pertinent part, the Manual vests authority to apprehend in “[a]ll commissioned officers and, when in the execution of their . . . police duties, such persons as are designated ... to perform . . . police duties, including duties as criminal investigators.” Paragraph 19, Manual, supra. The authority is exercisable “upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Article 7, UCMJ. As a commissioned officer, therefore, Lieutenant Hunter had the equivalent authority of a police officer.

Relying upon Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the accused contends that Hunter should not have demanded entrance into the room without first obtaining authority to search. Perceiving the facts in this case as “parallel” to those in Johnson, the dissent accepts that contention. I view the facts differently and conclude that Johnson is inapposite.¹

In Johnson, a confidential informant reported to Lieutenant Belland, a Seattle police officer on narcotic detail, that unknown persons were smoking opium in a room at the Europe Hotel. The informant was taken back to the hotel to speak with the manager but he immediately returned to report he had detected the odor of burning opium in the hallway. Had Lieutenant Belland then and there sought entry into the room, Johnson would be more like this case than it is. What Belland did distinguishes this case, in my opinion, from Johnson.

Belland left the hotel. Between an hour and an hour and a half later, he returned with four federal agents; all “recognized at once a strong odor of burning opium.” Id. at 12, 68 S.Ct. at 368. An officer knocked on the door and received an immediate response asking who was there. Lieutenant Belland replied by stating his rank and name. A “slight delay” ensued, during which the officers heard “some ‘shuffling or noise’ ” in the room. Id. The door was opened by the defendant. Belland said he wanted to talk to her; as she stepped back, the officers entered. The Supreme Court acknowledged that circumstances exist “in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with” but it concluded the circumstances before it did not amount to “such a case.” Id. at 14-15, 68 S.Ct. at 369.

It seems to me that looking at what Belland did when first confronted with the odor of opium and considering the long interval of time between that evidence and his entry into the room, the Supreme Court had simply concluded that no exigent circumstances justified Belland’s belated demand for admission into the room on his own authority as a police officer. As I shall presently note, in this case there was no break in the chain of events and no break in the time between exposure to evidence of the probability of a crime in progress and the demand to be admitted to the room. To stake out the premises, as suggested by the accused, and delay entry until authorization to arrest and search could be obtained from a non-police official was “full of dangers” that were likely to frustrate “the police entry when it finally” came. United States v. Johnson, 182 U.S.App.D.C. 383, 561 F.2d 832, 844 (1977), cert. denied 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080 (1977). Here there was an uninterrupted progression of events providing probable cause to believe a crime was in progress, analogous to that of a police officer, who, while passing on the street hears a shout and a cry for help coming from a house; such circumstances, said the Supreme Court, sanction an immediate “demand [for] entrance in the name of the law.” McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 192, 93 L.Ed. 153 (1948).

Had Hunter, while in the hallway, come upon a serviceman smoking a cigarette which gave off the odor of marihuana, I have no doubt he could immediately have apprehended the individual. Hunter did not have direct visual perception of a wrongdoer; but, he was confronted with facts that established that marihuana was probably being burned in one of the three remaining rooms opening into the part of the hallway in which he stood. He knocked at one of the doors. That action was manifestly proper and within Hunter’s authority to investigate. The door was not opened for about a minute and a half. In the interval, Hunter heard the sound of a window being opened in the room. It seems to me the trial judge could properly find Lieutenant Hunter could reasonably anticipate that if the crime was being committed behind the door on which he had knocked, evidence of it was being disposed of. Plainly, immediate steps had to be taken to preserve that evidence. I am convinced, therefore, that Hunter’s entry into the room was reasonable and constitutionally valid.

The Search of the Accused’s Person.

Immediately upon entering the room, Lieutenant Hunter determined that the odor of burning marihuana “was quite obvious” and “much stronger” than it had been in the hallway. He also noted that a window in the far corner of the room was open. Six persons were present; one was a female, whose presence in the billets was “against squadron policy,” and two were known by Hunter to have been involved “in many drug-related incidents.” He “told everyone to freeze.” We need not decide whether this order constituted an apprehension, and, as such, might validate the subsequent search of the accused’s person as a search incident to lawful apprehension. Compare Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), with United States v. Kinane, 1 M.J. 309 (C.M.A. 1976). A police officer having probable cause to investigate the probable commission of a crime can use reasonable restraint “to maintain the status quo momentarily while obtaining more information.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); United States v. Purry, 178 U.S.App.D.C. 139, 545 F.2d 217 (1976). The degree of restraint imposed by the order “to freeze” was, in our opinion, justified by the circumstances.

Before the search of accused’s person, the accused had exhibited a reluctance to face the Lieutenant; and, when he moved, he kept his back toward the Lieutenant. Finally, when directed to turn around to face Hunter, he “made a gesture in his groin region” before he complied. Thereupon he was ordered to lower his trousers. After some evasiveness, he “reached” into the trousers and “handed over this plastic bag.” These actions by the accused must be taken into account in considering whether probable cause existed to search his person. United States v. Johnson, 148 U.S.App.D.C. 205, 207, 459 F.2d 1229, 1231 (1972); People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 387, 352 N.E.2d 562, 574 (1976). Viewing the totality of the circumstances that confronted Hunter, we are satisfied there was probable cause to search the accused and that the exigencies of the situation were such that authority from an official competent to authorize the search was not a necessary precondition.

In a second assignment of error the accused contends he was prejudiced by certain deficiencies in the staff judge advocate’s post-trial advice to the convening authority. We have examined the advice and considered the probable prejudicial effect of the alleged inadequacies and are satisfied that corrective action is not warranted.

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

1 . Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), was decided by a 5—4 vote. Although the result reached by the Court as regards the search of the room as incident to arrest of the occupant might be the same under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), I believe the opinion would not survive re-examination on the question of whether the arrest of the occupant was valid. As the majority acknowledged, the officers had probable cause to believe that a crime was in progress on the other side of the door that separated them from the scene. In that circumstance, I believe they could properly “demand entrance in the name of the law.” McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For purposes of this appeal, I accept Johnson as it is.