United States v. Jasper

20 M.J. 112, 1985 CMA LEXIS 17810
CourtUnited States Court of Military Appeals
DecidedMay 28, 1985
DocketNo. 47,530; CM 441979
StatusPublished
Cited by6 cases

This text of 20 M.J. 112 (United States v. Jasper) 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. Jasper, 20 M.J. 112, 1985 CMA LEXIS 17810 (cma 1985).

Opinions

Opinion of the Court

COX, Judge:

Contrary to his pleas, a general court-martial composed of officer members convicted appellant of desertion and stealing $95,000 in currency and also stealing, on another occasion, a gold necklace, in violation of Articles 85 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 885 and 921, respectively. His sentence to a dishonorable discharge, confinement at hard labor for 8 years and 6 months, forfeiture of all pay and allowances, and reduction to E-l, was approved by the convening authority. The Court of Military Review affirmed the findings and sentence. 16 M.J. 786 (1983).

[113]*113This Court granted review of the following issue:1

WHETHER THE MILITARY JUDGE AND THE ARMY COURT OF MILITARY REVIEW ERRED BY FINDING THAT THE INVENTORY OF THE APPELLANT’S ROOM DID NOT CONSTITUTE AN ILLEGAL SEARCH AND THAT SERGEANT KOS DID NOT EXCEED THE SCOPE OF THE SEARCH BY LOOKING INSIDE AN ENVELOPE AND READING A LETTER IT CONTAINED.

We hold that they did not and affirm. While appellant was working as a mail clerk in February 1980 at Kelly Barracks, Federal Republic of Germany, a package containing $95,000 in American Express funds was stolen from the mails. Appellant was questioned concerning the theft and consented to a search of his off-post apartment. No evidence incriminating appellant was found at that time.

In early June, appellant was informed that charges were pending against him for adultery; he had been living with Private First Class Gwendolyn Battle, a female soldier who was not his wife. Although he apparently was still a suspect in the theft from the mails, he was not then charged with larceny. On June 11, 1980, appellant went on ordinary leave, flying by commercial airline to the United States to “work on a divorce.” He failed to return to his unit upon termination of his leave on June 24, 1980.

On July 25, 1980, appellant’s unit commander sent Staff Sergeant Bennie Kos, the unit supply sergeant, with an inventory team to appellant’s off-post apartment to inventory his effects, to box them up, and to transport them to the unit for storage and safekeeping. They obtained a key to the apartment from another soldier with whom appellant had left a key when he went on leave.

While at the apartment, Sergeant Kos found an opened envelope addressed to Major John V. Lewin from Captain and Mrs. David V. Olson. On the face of the envelope was an insured sticker and a customs tag with a notation that the envelope contained a chain. Sergeant Kos looked inside the envelope and read the enclosed letter, which indicated that a gold necklace had been forwarded in the envelope. No necklace was then in the envelope. Sergeant Kos took the letter and envelope to the unit and turned them over to the authorities. On the motion to suppress the letter and envelope, Sergeant Kos testified, in part, as follows:

When we first went in, we went in there and weren’t quite positive whether the stuff belonged to him or the landlord. What we done was we started with all the clothing and this type of stuff first, and went through and inventoried the majority of all the small stuff and later on went back and picked up the large items after we confirmed it with the landlady of what stuff was hers.
* * * * * *
... I found the letter in the bedroom. It was laying on the floor, right next to the closet. I was pulling something out of the closet and there were other papers laying on the bottom of the closet, and as I slid it out these papers came out, and when I reached down and finished picking up the rest of the papers and stuff I noticed it laying there. I picked it up and inspected it and found out that the item was registered and it was not addressed to Jasper or Battle.

Staff Sergeant Kos then read the letter:

Because I was curious to find out what reasoning would he have of having the mail there, and that’s when I found that it contained the necklace — or was to contain the necklace.
* * * * tit *
I was not instructed to search for anything. We were sent there to inventory his personal effects by regulation.

The military judge denied the motion to suppress, finding that the evidence was lawfully obtained as a result of a reason[114]*114able inventory. The United States Army Court of Military Review held that the “commander has a legitimate interest in conducting an inventory of” a servicemember’s personal property located in an off-post apartment outside the United States when the “servicemember ... is dropped from the rolls due to” unauthorized absence. The court below concluded that “[u]nder the facts of this case ... the inventory,” including the reading of the letter, “was reasonable and did not exceed the scope of the command authority.” 16 M.J. at 788. We agree with this conclusion.

Evidence of a crime discovered during the course of a lawful inventory is admissible as a well-recognized exception to the warrant requirement. Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The standard is reasonableness under all the facts and circumstances. See also Mil.R.Evid. 313(c); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). This Court has had occasion to uphold admission of evidence seized as a result of the inventory of effects of an absent servicemember who was reassigned unexpectedly, United States v. Law, 17 M.J. 229 (C.M.A. 1984), and as a result of the inventory of personal effects of servicemembers who were placed in pretrial confinement, United States v. Barnett, 18 M.J. 166 (G.M.A. 1984); United States v. Kazmierczak, 16 U.S.C.M.A. 594, 37 C.M.R. 214 (1967). In each of these cases, the inventory was in accordance with service regulations and customs, which provides some assurance that the inventory is not a mere pretext for a prosecutorial motive. Cf. United States v. Dulus, 16 M.J. 324 (C.M.A. 1983) (in absence of procedural regulation, military administrative need justified inventorying and securing valuable property in automobile parked on military base when owner was in pretrial confinement).

The regulations on which trial counsel relied in this case2 required the unit commander to inventory the personal effects, clothing, and government property of a servicemember dropped from the rolls of the unit. Although the current Army regulation specifically provides that the inventory procedures apply only if the absent service-member resides in government quarters,3 this limitation was not in effect at the time appellant was dropped from the rolls of his unit.

Sergeani Kos testified that he had conducted several inventories of personal effects while in the unit.

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20 M.J. 112, 1985 CMA LEXIS 17810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jasper-cma-1985.