United States v. Kelly

15 M.J. 1028
CourtU.S. Army Court of Military Review
DecidedApril 22, 1983
DocketCM 442587
StatusPublished

This text of 15 M.J. 1028 (United States v. Kelly) 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. Kelly, 15 M.J. 1028 (usarmymilrev 1983).

Opinion

OPINION OF THE COURT

MILLER, Senior Judge:

Appellant was tried by a military judge sitting as a general court-martial and, contrary to his pleas, convicted of carrying a concealed weapon, an air pistol (a violation of a lawful general regulation), assault, wrongful possession of heroin, possession of marihuana in the hashish form, and wrongful possession of secobarbitol, violations of Articles 92, 128, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 928, 934. The appellant’s sentence provides for a dishonorable discharge, confinement at hard labor for 3 years, total forfeitures, and reduction to Private E-l. On appeal several assignments of error are raised. We affirm.

I. The Search Authorization

Here, as at trial, appellant asserts error was committed by the military judge in failing to suppress a quantity of heroin, marihuana and hashish found in a search of appellant’s government quarters. Appellant attacks the lawfulness of the search on three grounds: (1) the search authorization was based on information from a United States Army Criminal Investigation Command (CID) agent who intentionally withheld material facts from the authorizing officer, Brigadier General Cromartie; (2) General Cromartie was not a “neutral and detached magistrate” as required by United States v. Ezell, 6 M.J. 307 (C.M.A.1979); and (3) the informant’s entry into the appellant’s quarters, which provided the basis for the probable cause to support the authorization to search, was itself an illegal search.

The controversy over the veracity of Special Agent (SA) McCleskey concerned the reliability of the confidential informant, Specialist Five Holmes. Holmes and the appellant were friends. On 6 September 1981, the two were involved in an incident where the appellant pulled a “BB” pistol and assaulted another soldier in an attempt to collect some money owed to the appellant. Later, the Government vehicle in which the appellant and Holmes were riding was stopped by military police, who found a pistol on the passenger seat. Marihuana was found in the appellant’s sock. SA McCleskey interviewed Holmes, who was driving the vehicle and he denied knowing anything about the marihuana found in the appellant’s sock. Holmes also denied any knowledge about the assault. McCleskey suspected that Holmes was lying to him to protect a friend.

On 18 December Holmes came to McCleskey’s office and volunteered that the preceding Monday (14 December), he had been in the appellant’s quarters and had observed a kilogram of hashish. Asked why [1026]*1026he was now coming forward with this information, Holmes replied that the appellant had been “bad-mouthing” him about the 6 September incident, blaming him for the appellant’s apprehension. McCleskey told Holmes this information was not “timely,” but “that if he happened to go to [appellant’s] quarters again and see any illicit drugs, that he should give [him] a call or come in and see [him] in a timely manner.” Later on that same day Holmes did so and this new information became the basis for the request to search appellant’s quarters.

Authorization was provided by Brigadier General Cromartie, the Mannheim Military Community Commander and United States Army Europe Provost Marshal. General Cromartie was informed by SA McCleskey that Holmes had observed that day, in appellant’s quarters, approximately ten grams of heroin wrapped in paper packages, foil packets containing hashish, and a plastic bag containing marihuana, all located in the appellant’s bedroom. Additionally, McCleskey related the details of appellant’s involvement in the 6 September incident, the informant’s prior friendship with the appellant, and the fact that he was now seeking “revenge” because of appellant’s “badmouthing.” However, McCleskey omitted telling General Cromartie about his feelings that Holmes had lied to him about the 6 September incident.

Appellant asserts McCleskey deliberately withheld from General Cromartie McCleskey’s intuitive feelings that Holmes had lied to him about the 6 September incident, citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Although Franks dealt with a situation in which an allegedly “false statement” was set out in the search warrant affidavit, the reasoning of the case logically extends to material omissions since the crucial inference-drawing powers of the authorizing official are equally hindered. United States v. Dennis, 625 F.2d 782 (8th Cir. 1980); United States v. Lefkowitz, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); United States v. Martin, 615 F.2d 318 (5th Cir. 1980). However, not every intentional omission of fact is material or objectionable.

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Related

Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
United States v. Flores Amaya
533 F.2d 188 (Fifth Circuit, 1976)
United States v. Donald Eugene Banks
539 F.2d 14 (Ninth Circuit, 1976)
United States v. John Martin
615 F.2d 318 (Fifth Circuit, 1980)
United States v. Albert M. Lefkowitz
618 F.2d 1313 (Ninth Circuit, 1980)
United States v. Willie H. Dennis
625 F.2d 782 (Eighth Circuit, 1980)
United States v. Rosado
2 M.J. 763 (U.S. Army Court of Military Review, 1976)
United States v. Ezell
6 M.J. 307 (United States Court of Military Appeals, 1979)
United States v. Stuckey
10 M.J. 347 (United States Court of Military Appeals, 1981)
United States v. Cook
12 M.J. 448 (United States Court of Military Appeals, 1982)
United States v. Wallace
14 M.J. 1019 (U.S. Army Court of Military Review, 1982)
United States v. Zurosky
614 F.2d 779 (First Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
15 M.J. 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelly-usarmymilrev-1983.