BEN C. DAWKINS, JR., Chief Judge.
Raised by a motion to suppress
certain evidence held by the Government, we have for consideration here the validity of the search and seizure by which the evidence was obtained, admittedly without a warrant of any kind.
A hearing on the motion has been held, from which the facts are found to be as follows:
Defendant James D. Kidd, twenty years old, is an Airman Second Class in the United States Air Force. On December 17, 1956, he was stationed at Barks-
dale Air Force Base, in Bossier Parish, Louisiana. During the afternoon of that date, he was ordered to his Squadron Commander’s 'office where he was questioned about certain items of missing clothing. A “T” shirt and a sport shirt which were not his had been found in the bottom of his locker in the barracks. Other clothing, including a certain gray civilian suit, belonging to one of his fellow Airmen, also was missing, and was the principal object of the inquiry.
Kidd denied having stolen the articles found in his locker, which he contended were placed there by someone else without his knowledge. He also denied having taken any other clothing, particularly the suit, and insisted that he, too, was a victim of petty larceny, some of his own things being missing.
At this point his commanding officer called in the Base Air Police, who dispatched Staff Sergeant Bobert S. Weber and Technical Sergeant Darden T. Thompson to the office. Upon the commanding officer’s instructions, they immediately arrested
Kidd and took him to Air Police Headquarters for questioning. No formal charges were filed. He was held under restraint simply for “suspicion of larceny” or “investigation of larceny.”
After first reading to Kidd Article 31 of the Military Code, 10 U.S.C. § 831,
Sergeant Thompson proceeded to question him about the missing clothing. He steadfastly denied any knowledge about it and continued to contend that some of his own property had been purloined. Thompson knew that Kidd owned an automobile and told him he wanted to search it. Because Kidd did not have a Base pass for the car, he kept it parked at the home of his friend, the other defendant, Harry Eugene Rogers, also twenty years old, who resided at 618 Herndon Avenue in Shreveport, Louisiana, across Red River from the Air Base. Thompson instructed Kidd to call Rogers to drive the ear to the Air Base in order that it might be searched; but it developed that Rogers did not have a key, so this was not possible. Thompson then told Kidd he would go to his own quarters on the Base, eat supper, change clothes and come back for Kidd in his car, in which they would proceed together to the Herndon Avenue address.
Kidd was permitted to have supper in his squadron mess hall, but was kept under guard at all times. In about two hours, Thompson returned to Air Police Headquarters, picked up Kidd, and drove him to the Herndon Avenue address in Shreveport. There he had Kidd unlock his car doors and Thompson searched inside, finding nothing of significance. He then told Kidd he Wanted to search the trunk, which the latter unlocked and opened for inspection, but none of the missing clothing was found.
Thompson then observed, at the back of the trunk, a beach blanket wrapped about something and asked Kidd what it was. Kidd picked up the blanket, which was thrown over a small metal waste basket, unwrapped it, and upon looking in the basket, Thompson observed a sheet of photostat or photograph paper bearing the likeness of several United States $10 bills. He commented that this appeared to be “counterfeit” money and asked Kidd about it. The latter replied that he and Rogers, apparently as a prank, had photostated or photographed the bills at an advertising agency in Shreveport where Rogers worked part-time. This was done in about September or October of 1956.
Thompson thereupon took the photostat or photograph with him, told Kidd he was free from arrest on the “suspicion of larceny” matter, left Kidd at the scene, and drove to Shreveport Police Headquarters, where he reported what he had found. City Detectives then went to the Herndon Avenue address and arrested both Kidd and Rogers, the latter having arrived there after Thompson had left, not having been present at any of the discussions between Kidd and Thompson.
Secret Service officers in New Orleans were notified, came to Shreveport shortly afterward, made an investigation, took charge of the evidence, and, on December 20, 1956, filed separate Commissioner’s complaints against Kidd and Rogers, charging the latter with photographing the bills (18 U.S.C. § 474) and the former with possessing and concealing them (18 U.S.C. § 472). They immediately made bond and were released. On February 19, 1957, their attorney filed this motion to suppress, which was heard on March 16, 1957. Following later transcription of the testimony, the respective attorneys briefed the case and it is now under submission for decision.
As stated, the search and seizure admittedly were made without a warrant of any kind. The Government contends, however, that this was done, not only with Kidd’s consent, but virtually upon his insistence. Since Kidd admits that he verbally consented, under military compulsion and in trying to clear himself of “suspicion of larceny”, we must determine, upon consideration of all the circumstances, whether his consent actually was freely and intelligently given, without pressure; or whether it was, indeed, a coerced and limited consent which must be condemned as a violation of his rights under the Fourth Amendment to the Constitution.
Moreover, since Rogers was not present at any time when Thompson was conducting the search and seizure, and admittedly did not consent to it, we also must decide whether the evidence may be used against him.
In resolving these matters, since Rogers was a civilian, of course his rights must be judged by the rules applicable to ordinary citizens; and it is our view that Kidd is entitled to the same constitutional safeguards, notwithstanding he was an enlisted member of the Air Force when the search and seizure took place. Any doubt that this is so is resolved, we think, by virtue of its having been conducted on non-military territory, although we do not believe that really makes any difference. The cloak of constitutional protection against unreasonable searches and seizures is available to all citizens, at all times and places, civilian or military, within the jurisdiction of the United States.
It is fundamental, in the absence of a valid warrant, either of arrest
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BEN C. DAWKINS, JR., Chief Judge.
Raised by a motion to suppress
certain evidence held by the Government, we have for consideration here the validity of the search and seizure by which the evidence was obtained, admittedly without a warrant of any kind.
A hearing on the motion has been held, from which the facts are found to be as follows:
Defendant James D. Kidd, twenty years old, is an Airman Second Class in the United States Air Force. On December 17, 1956, he was stationed at Barks-
dale Air Force Base, in Bossier Parish, Louisiana. During the afternoon of that date, he was ordered to his Squadron Commander’s 'office where he was questioned about certain items of missing clothing. A “T” shirt and a sport shirt which were not his had been found in the bottom of his locker in the barracks. Other clothing, including a certain gray civilian suit, belonging to one of his fellow Airmen, also was missing, and was the principal object of the inquiry.
Kidd denied having stolen the articles found in his locker, which he contended were placed there by someone else without his knowledge. He also denied having taken any other clothing, particularly the suit, and insisted that he, too, was a victim of petty larceny, some of his own things being missing.
At this point his commanding officer called in the Base Air Police, who dispatched Staff Sergeant Bobert S. Weber and Technical Sergeant Darden T. Thompson to the office. Upon the commanding officer’s instructions, they immediately arrested
Kidd and took him to Air Police Headquarters for questioning. No formal charges were filed. He was held under restraint simply for “suspicion of larceny” or “investigation of larceny.”
After first reading to Kidd Article 31 of the Military Code, 10 U.S.C. § 831,
Sergeant Thompson proceeded to question him about the missing clothing. He steadfastly denied any knowledge about it and continued to contend that some of his own property had been purloined. Thompson knew that Kidd owned an automobile and told him he wanted to search it. Because Kidd did not have a Base pass for the car, he kept it parked at the home of his friend, the other defendant, Harry Eugene Rogers, also twenty years old, who resided at 618 Herndon Avenue in Shreveport, Louisiana, across Red River from the Air Base. Thompson instructed Kidd to call Rogers to drive the ear to the Air Base in order that it might be searched; but it developed that Rogers did not have a key, so this was not possible. Thompson then told Kidd he would go to his own quarters on the Base, eat supper, change clothes and come back for Kidd in his car, in which they would proceed together to the Herndon Avenue address.
Kidd was permitted to have supper in his squadron mess hall, but was kept under guard at all times. In about two hours, Thompson returned to Air Police Headquarters, picked up Kidd, and drove him to the Herndon Avenue address in Shreveport. There he had Kidd unlock his car doors and Thompson searched inside, finding nothing of significance. He then told Kidd he Wanted to search the trunk, which the latter unlocked and opened for inspection, but none of the missing clothing was found.
Thompson then observed, at the back of the trunk, a beach blanket wrapped about something and asked Kidd what it was. Kidd picked up the blanket, which was thrown over a small metal waste basket, unwrapped it, and upon looking in the basket, Thompson observed a sheet of photostat or photograph paper bearing the likeness of several United States $10 bills. He commented that this appeared to be “counterfeit” money and asked Kidd about it. The latter replied that he and Rogers, apparently as a prank, had photostated or photographed the bills at an advertising agency in Shreveport where Rogers worked part-time. This was done in about September or October of 1956.
Thompson thereupon took the photostat or photograph with him, told Kidd he was free from arrest on the “suspicion of larceny” matter, left Kidd at the scene, and drove to Shreveport Police Headquarters, where he reported what he had found. City Detectives then went to the Herndon Avenue address and arrested both Kidd and Rogers, the latter having arrived there after Thompson had left, not having been present at any of the discussions between Kidd and Thompson.
Secret Service officers in New Orleans were notified, came to Shreveport shortly afterward, made an investigation, took charge of the evidence, and, on December 20, 1956, filed separate Commissioner’s complaints against Kidd and Rogers, charging the latter with photographing the bills (18 U.S.C. § 474) and the former with possessing and concealing them (18 U.S.C. § 472). They immediately made bond and were released. On February 19, 1957, their attorney filed this motion to suppress, which was heard on March 16, 1957. Following later transcription of the testimony, the respective attorneys briefed the case and it is now under submission for decision.
As stated, the search and seizure admittedly were made without a warrant of any kind. The Government contends, however, that this was done, not only with Kidd’s consent, but virtually upon his insistence. Since Kidd admits that he verbally consented, under military compulsion and in trying to clear himself of “suspicion of larceny”, we must determine, upon consideration of all the circumstances, whether his consent actually was freely and intelligently given, without pressure; or whether it was, indeed, a coerced and limited consent which must be condemned as a violation of his rights under the Fourth Amendment to the Constitution.
Moreover, since Rogers was not present at any time when Thompson was conducting the search and seizure, and admittedly did not consent to it, we also must decide whether the evidence may be used against him.
In resolving these matters, since Rogers was a civilian, of course his rights must be judged by the rules applicable to ordinary citizens; and it is our view that Kidd is entitled to the same constitutional safeguards, notwithstanding he was an enlisted member of the Air Force when the search and seizure took place. Any doubt that this is so is resolved, we think, by virtue of its having been conducted on non-military territory, although we do not believe that really makes any difference. The cloak of constitutional protection against unreasonable searches and seizures is available to all citizens, at all times and places, civilian or military, within the jurisdiction of the United States.
It is fundamental, in the absence of a valid warrant, either of arrest
or for a search, that the burden of proving there was a truly voluntary and fully informed consent rests upon the Government.
Such proof must be made by clear and positive evidence, and it must be established that there was no coercion, actual or implied.
The Government must show a consent that is unequivocal and specific, freely and intelligently given.
If the consent actually given is made under' compulsion, either “physical or moral”, it may not serve to validate a search and seizure otherwise invalid for want of a proper warrant
No general exploratory search and sei
zure of either persons, houses, or effects can ever be justified either with or without a warrant.
After careful consideration of the evidence here, it is our conviction that the Government has not carried its burden of proof. Instead, the proof points the other way. Kidd was arrested on mere suspicion and held under restraint for several hours, both at the Air Base and on civilian territory. This young man was under military compulsion at all times, subject to the orders of his superiors; and undoubtedly was afraid of court-martial prosecution for insubordination
had he refused to consent to the search of his car. Having been falsely accused of larceny, he was under the further moral compulsion of attempting to clear himself of that charge, which never was formally filed for lack of evidence. His “consent” was coerced. It was strongly tainted with involuntariness and cannot be used to legalize a search and seizure otherwise clearly unlawful.
There was ample time and opportunity for Sergeant Thompson to have applied to a magistrate for a search warrant, but this he did not do. Kidd’s ear was safe from flight, for he had its keys, was in custody and could not escape.
It is our conclusion, therefore, that the evidence held by the Government must be suppressed as to Kidd. We also must hold that it cannot be used against Rogers, for two reasons: (1) being tainted with illegality as to one defendant, “it shall not be used at all” ;
and (2) Kidd and Rogers are jointly charged, and must be tried together; were the evidence to be admitted against Rogers only, it would be bound to influence the jury against Kidd, since it was found in his car. The Government thus would accomplish indirectly what it may not do directly. This we cannot permit.
For these reasons, the motion to suppress is granted as to both defendants.