United States v. Kinane

1 M.J. 309, 1976 CMA LEXIS 5828

• Court: United States Court of Military Appeals
• Decided: February 20, 1976
• Docket: No. 30,114
• Status: Published

Opinions

OPINION OF THE COURT

FLETCHER, Chief Judge:

In the course of her normal duties issuing identification cards to military personnel, Mrs. Perkins discovered that seven consecutive cards, which had not been entered in her log book, were missing. After attempts to locate the cards by checking with the other individuals who were cleared to work behind the security counter proved fruitless, Mrs. Perkins promptly reported the incident to Detective Saunders, a security official. She advised him that two restricted enlisted men, one of whom was the accused and the other an individual named Slater, had swept the floor inside the security counter during the 1-hour time frame within which the ID cards disappeared.

Another member of the security division, Detective Harris, responded to Mrs. Perkins’ complaint. Kinane and Slater also were located and were brought to the office from which the cards had disappeared. According to Detective Harris, he first identified himself to the appellant, advised him that he was suspected of larceny of several ID cards, warned him of his “rights” from a card, and then asked “if he would mind emptying his pockets.” Appellant recalled the incident differently maintaining that he was never advised of his rights, and that he was told to empty his pockets.

In response to Detective Harris’ suggestion, Kinane produced the missing ID cards and then asked, “What now?” Harris advised him, “You’re arrested. Let’s go topside.” He then turned the appellant over to Detective Ogden who “completed a search incident to an arrest and discovered a baggie of marijuana.”

At trial, the military judge denied the appellant’s timely motion to suppress the seized marihuana and ID cards and, in addition, ruled that the appellant’s subsequent admissions to a police investigator were voluntary and properly obtained. The propriety of those rulings forms the basis for this appeal.

I

Urging that Detective Harris showed commendable concern for appellant’s personal privacy by allowing him to remove the items from his pockets, the Government nevertheless acknowledges that Harris’ conduct constituted a search within the ambit of the Fourth Amendment. The concession is appropriate. United States v. Cuthbert, 11 U.S.C.M.A. 272, 29 C.M.R. 88 (1960); see United States v. Pyatt, 22 U.S.C.M.A. 84, 46 C.M.R. 84 (1972).

The identity of the hand placed in the appellant’s pocket to retrieve the ID cards is not controlling. Rather, it was Detective Harris’ decision to intrude into Kinane’s privacy which we view as determinative in concluding that the police conduct in this instance constituted a search, for it is the right to be free from unreasonable governmental intrusion which the Fourth Amendment protects. See Warden v. Hayden, 387 U.S. 294, 301, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). See also Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). Appellant’s relinquishment of the ID cards must, therefore, be measured against Fourth Amendment standards as they have been applied to the military community.¹

II

The absence of an authorization to search issued by one possessing the requisite authority reduces the possible justifications for this search to three of the warrantless exceptions to the Fourth Amendment: a consent search, a necessity search, or a search incident to apprehension or custodial arrest. Both the consent and necessity search theories have been abandoned by appellate Government counsel. Although not stating the basis for its affirmance of the trial judge’s ruling on the search issues, the Navy Court of Military Review appears to have rejected the final alternative in its opinion.

A

Whether Detective Harris’ action be viewed as an order to the accused to empty his pockets or as an official request that he do so, the result remains the same. As acknowledged by the Government, in neither instance can Kinane’s acquiescence be termed anything more than mere submission to lawful authority.² As such, the search cannot be justified as one which flowed from appellant’s freely given consent. See generally Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

B

The necessity search, as it has come to be known, requires the existence of at least two factors. Not only must the police official have probable cause to believe an individual is in possession of criminal goods, but the search also must be shown to be necessary to prevent the immediate removal or destruction of the evidence. United States v. Soto, 16 U.S.C.M.A. 583, 37 C.M.R. 203 (1967). In addition, the Supreme Court has not applied the necessity search doctrine to persons or dwellings, but instead has limited its scope to vehicles. Compare Cardwell v. Lewis, supra, and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), with Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). See also Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).³

The rationale for such an approach is logically rooted in the usual absence of the immediacy element where dwellings or persons are concerned.⁴ The risk of destruction or removal of contraband from dwellings or persons generally can be minimized by procedures which are more reasonable and hence less offensive to the Fourth Amendment. In the case of dwellings, the risk normally can be eliminated by placing the premises under surveillance pending the issuance of a search warrant.⁵ Individuals in possession of contraband are, of course, subject to apprehension and search incident thereto.⁶

C

Because the search of an individual is the concern in this ease, the appropriate inquiry is whether the search may be justified as incident to apprehension or custodial arrest.⁷ Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Fleener, 21 U.S.C.M.A. 174, 44 C.M.R. 228 (1972). In United States v. Brashears, 21 U.S.C.M.A. 552, 554, 45 C.M.R. 326, 328 (1972), we sanctioned “a relatively extensive exploration of the person ” if conducted incident to a lawful apprehension. The Supreme Court subsequently endorsed a thorough Chimel search of the person incident to custodial arrest⁸ irrespective of whether the search was necessary to assure the protection of the police officer or to prevent the destruction of evidence, the two considerations upon which Chimel originally was bottomed. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.⁹

Thus, the crucial prerequisite for such a contemporaneous¹⁰ search is a prior lawful apprehension or custodial arrest.¹¹

Article 9(a), Uniform Code of Military Justice, 10 U.S.C. § 809(a), specifies that “[a]rrest is the restraint of a person by an order . . . directing him to remain within certain specified limits.” Paragraph 19c, Manual for Courts-Martial, United States, 1969 (Rev.), provides:

An apprehension is effected by clearly notifying the person to be apprehended that he is thereby taken into custody. The order of apprehension may be either oral or written.

Inasmuch as the first sentence of the Manual provision merely implements Articles 7(a) and 9(a) of the UCMJ and is not inconsistent therewith, we believe it is entitled to the force and effect of law. See United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227 (1970); United States v. Tobin, 17 U.S.C.M.A. 625, 38 C.M.R. 423 (1968); United States v. Teague, 3 U.S.C.M.A. 317, 12 C.M.R. 73 (1953). To the extent that our language in United States v. Fleener, supra at 181, 44 C.M.R. at 235, suggested that temporary detention,¹² in and of itself constitutes notification of custodial arrest, that decision is overruled¹³ as being inconsistent with the plain meaning of the statute and the Manual. See United States v. Sosville, 22 U.S.C.M.A. 317, 46 C.M.R. 317 (1973); United States v. Davis, 12 U.S.C.M.A. 576, 578, 31 C.M.R. 162, 164 (1961). Custodial arrest implies a more permanent deprivation of liberty evidenced by an actual or constructive order “directing [an individual] ... to remain within certain specified limits.” Article 9(a), UCMJ. See Cupp v. Murphy, 412 U.S. 291, 294, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). This order may be either by word of mouth, by writing, or by the circumstances surrounding the arrest. Inasmuch as Article 9(a) of the Code does not limit the order to an oral or written command, so much of the Manual provision as attempts to establish such a requirement is inoperative. See Article 36, UCMJ, 10 U.S.C. § 836.

The question of whether an apprehension has occurred, as opposed to whether an apprehension was lawful, is primarily one of fact to be resolved by the factfinders. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Rios v. United States, 364 U.S. 253, 261-62, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960). The accused testified that he did not consider himself under apprehension at the time of the search. Detective Harris, on the other hand, testified that he believed otherwise since he had “put [the accused] under suspicion” and detained him. On cross-examination, however, Detective Harris admitted that he did not inform the accused that he was under arrest until after the ID cards were discovered. Further, Harris admitted that the “normal pat-down search” which he routinely conducted when taking an individual into custody was' not carried out until after the ID cards were found and the accused was turned over to Detective Ogden.

In its opinion, the Navy Court of Military Review observed that, after Kinane relinquished the ID cards, “[a]t this point appellant was placed under arrest, taken to the investigations office and [again] searched.” Because the Court of Military Review’s finding of fact as to when the actual custodial arrest occurred is supported by evidence of record, we are bound by that determination. United States v. Phifer, 18 U.S.C.M.A. 508, 40 C.M.R. 220 (1969); see United States v. Lohr, 21 U.S.C.M.A. 448, 45 C.M.R. 222 (1972); United States v. Baldwin, 17 U.S.C.M.A. 72, 37 C.M.R. 336 (1967).

The only question left for resolution is whether a Chimel-type search may precede a custodial arrest. With the exception of several pre-Sibron decisions by this Court,¹⁴ the answer until recently was that it could not. Sibron v. New York, supra, 392 U.S. at 63, 88 S.Ct. 1889, citing Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). However, in Cupp v. Murphy, supra, the Supreme Court sanctioned the taking of fingernail scrapings prior to custodial arrest. The Court nevertheless made clear that the scope of such a search was not as broad as that sanctioned in United States v. Robinson, supra. While the taking of scrapings from under a defendant’s fingernails goes beyond a seizure of “physical characteristics . . . constantly exposed to the public,”¹⁵ the intrusion still was based upon probable cause and was limited to “something that was exposed to all who saw the defendant.” State v. Sharpe, 284 N.C. 157, 200 S.E.2d 44, 48 (1973). Accord, State v. Parsons, 513 S.W.2d 430 (Mo.1974). In addition, the intrusion was authorized only to prevent the destruction of “highly evanescent evidence.” Cupp v. Murphy, supra, 412 U.S. at 296, 93 S.Ct. 2000. See People v. Todd, 59 Ill.2d 534, 322 N.E.2d 447 (1975); State v. Kloucek, 17 Or.App. 74, 520 P.2d 458 (1974). Finally, the pre-arrest search did not offend the investigatory seizure ban imposed in Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). See Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). We believe the investigator’s search for the missing ID cards in this case exceeded the minimal intrusion prior to custodial arrest¹⁶ which has been sanctioned by the Supreme Court.¹⁷ As a result, the search satisfies neither the apprehension prerequisite for a Chimel search nor the Cupp v. Murphy exception. No justification for a broader rule in the military context has been advanced, nor do we believe military considerations exist which warrant a departure from the prevailing Supreme Court view. Hence, the trial judge erred in admitting the ID cards into evidence.

Ill

The subsequently seized marihuana and appellant’s later confession also erroneously were admitted into evidence by the trial judge since both were obtained as a direct result of the initial unlawful search. United States v. Pyatt, supra. See also Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

The decision of the United States Navy Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Military Review for action not inconsistent with this opinion.

Senior Judge FERGUSON concurs.

1 . To the extent that Detective Harris’ conduct required the appellant to participate, without his consent, in the production of evidence which was self-incriminating, Harris’ order was also violative of Article 31, Uniform Code of Military Justice, 10 U.S.C. § 831. See United States v. Cuthbert, 11 U.S.C.M.A. 272, 275, 29 C.M.R. 88, 91 (1960) (dissenting opinion); United States v. Nowling, 9 U.S.C.M.A. 100, 25 C.M.R. 362 (1958). See also United States v. Pyatt, 22 U.S.C.M.A. 84, 46 C.M.R. 84 (1972).

2 . United States v. Vasquez, 22 U.S.C.M.A. 492, 47 C.M.R. 793 (1973); United States v. Alaniz, 9 U.S.C.M.A. 533, 26 C.M.R. 313 (1958).

3 . Several intermediate federal courts have applied the Carroll doctrine to suitcases. See, e. g., United States v. Wilson, 524 F.2d 595 (8th Cir. 1975); United States v. Johnson, 467 F.2d 630 (2d Cir. 1972); United States v. Mehciz, 437 F.2d 145 (9th Cir. 1971), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971). For an analysis of the import of these decisions, see Note, Mobility Reconsidered: Extending the Carroll Doctrine to Movable Items, 58 Iowa L.Rev. 1134, 1155-60 (1973).

4 . Our reading of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), satisfies us that it does not turn on a necessity search concept even though arguably it satisfies the threshold requirements for such a search. In actuality, the Supreme Court focused on the scope of a search incident to arrest in holding that the warrantless taking of a blood sample immediately añer arrest was a commonplace medical procedure justified by the likelihood of alcohol dissipation if the sampling had been delayed to secure a warrant.

We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Id. at 770-71, 86 S.Ct. at 1836. Even though necessity, in a layman’s sense, was a “special fact” considered by the Court in resolving the scope of the search in question, it was not a “necessity search” as that term is technically used. Rather, as the Supreme Court stated, the warrantless search was “an appropriate incident to petitioner’s arrest.” Id.

5 . A warrantless search of limited scope incident to a lawful apprehension is also permissible. See, e. g., Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969); United States v. Ross, 13 U.S.C.M.A. 432, 32 C.M.R. 432 (1963).

6 . To the extent that United States v. Davis, 4 U.S.C.M.A. 577, 16 C.M.R. 151 (1954) and United States v. Swanson, 3 U.S.C.M.A. 671, 14 C.M.R. 89 (1954) exceed the scope of the Carroll doctrine and relax existing requirements of probable cause, Davis and Swanson are overruled. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

7 . The terms “apprehension” and “custodial arrest” or “arrest” are synonymous in military practice. United States v. Ross, 13 U.S.C.M.A. 432, 435, 32 C.M.R. 432, 435 (1963). See Articles 7(a) and 9(a), Uniform Code of Military Justice, 10 U.S.C. §§ 807(a) and 809(a).

8 . Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

9 . United States v. Robinson, supra at 235, 94 S.Ct. at 477.

10 . United States v. Decker, 16 U.S.C.M.A. 397, 37 C.M.R. 17 (1966); see United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

11 . Our disposition of the custodial arrest question makes it unnecessary to resolve whether Detective Harris had probable cause to arrest the accused prior to the search.

12 . The Supreme Court has been careful to distinguish an investigative stop from a custodial arrest in resolving the scope of warrantless searches applicable to each. United States v. Robinson, supra 414 U.S. at 234-35, 94 S.Ct. 467.

13 . See Moran v. United States, 404 F.2d 663, 666 (10th Cir. 1968), citing Brinegar v. United States, 165 F.2d 512 (10th Cir. 1947), affirmed, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1947). See also United States v. Ware, 457 F.2d 828, 830 (7th Cir. 1972); United States v. Sanchez, 450 F.2d 525, 528 (10th Cir. 1971).

14 . United States v. Dutcher, 7 U.S.C.M.A. 439, 22 C.M.R. 229 (1956); United States v. Florence, 1 U.S.C.M.A. 620, 5 C.M.R. 48 (1952).

15 . See United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

16 . It has been suggested by the dissenting judge that arrest or apprehension may be equated with seizure of the person in determining whether a given search is incidental to arrest. Actions of a police official which constitute a seizure of the person under the Fourth Amendment and which trigger the accused’s rights under that amendment are utterly distinct from situations involving a statutory arrest or apprehension of the person which triggers the policeman’s right to search incident thereto without a warrant. Article 9(a), UCMJ, 10 U.S.C. § 809(a), and paragraph 19c, Manual for Courts-Martial, United States, 1969 (Rev.), specify what constitutes a custodial arrest or apprehension thus placing definitional boundaries on traditional searches incident to arrest in military practice. On the other hand, any limitation or restraint of an individual’s freedom of movement by a police official constitutes a seizure of the person thereby setting in motion Fourth Amendment safeguards. Cupp v. Murphy, 412 U.S. 291, 294, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), citing United States v. Dionisio, supra; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As in the present case, Cupp provides a clear example of a situation in which the police official’s conduct, while constituting a seizure of the person, did not rise to the level of an arrest. 412 U.S. at 294, 93 S.Ct. 2000. Furthermore, the resolution of the scope of search question in Cupp implicitly rejects Judge Cook’s eclectic approach to the Fourth Amendment wherein statutory arrest is commingled with seizure of the person. The Supreme Court specifically stated that the Cupp search was a pre-arrest one of limited scope as opposed to a post-arrest search of GustafsonRobinson scope. See notes 9 and 10, supra.

17 . In our view, State v. LeBlanc, 347 A.2d 590 (Me.1975), sanctions a search of broader scope than the minimal pre-arrest intrusion permitted in Cupp v. Murphy, supra, and is therefore violative of the Fourth Amendment.