United States v. Land

10 M.J. 103, 1980 CMA LEXIS 9454

• Court: United States Court of Military Appeals
• Decided: December 15, 1980
• Docket: No. 36,223; CM 436359
• Status: Published

Opinions

Opinion of the Court

COOK, Judge:

Appellant stands convicted by a general court-martial consisting of a military judge alone of the possession of marihuana, wrongfully communicating a threat, and striking a person while in the execution of civil law enforcement duties, in violation of Articles 134 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 928, respectively. We granted review to determine if the military judge properly overruled a defense objection to the admissibility of the marihuana.

Brigadier General Wroth, the Augsburg Community Commander, authorized a search of appellant’s apartment on March 18, 1977, which produced a large quantity of marihuana. He testified that prior to authorizing the search, he was informed by a military policeman, Sergeant Hornsby, that an informant, who had provided accurate information in the past, had notified the authorities that he (informant) had observed the accused in possession of a large quantity of hashish on March 17. Appellant had been apprehended, but a search of both his person and barracks quarters was fruitless. Subsequent to the search, a second person, identified as appellant’s roommate, told Sergeant Hornsby that he also had observed the appellant in possession of a large quantity of hashish approximately two to three days prior to the search and appellant had stated to him that he kept a quantity of hashish in his off-post apartment. On cross-examination by defense counsel, General Wroth was asked whether it did not “strike ... [him] as odd” that appellant was purported to have an off-post apartment, although he occupied a barracks room. He responded that it did not because he had “knowledge of a number of cases where similar situations have existed.” Hornsby advised General Wroth that he believed the roommate was reliable because he had been questioned in the presence of an officer assigned to his unit and that officer gave indications of his belief that the roommate was telling the truth. Additionally, Hornsby noted that the appellant had been suspected of “drug dealing” for some time.

Appellant attacks the legality of the search of his apartment on several grounds. First, he asserts that a commanding officer is per se disqualified from authorizing a search. We rejected a contention of per se disqualification in United States v. Ezell, 6 M.J. 307 (C.M.A.1979). Secondly, he maintains that General Wroth decided to authorize the search on the basis of the opinion of another officer instead of exercising his own judgment. The General knew that a legal officer, for whose “professional judgment” he had great regard, had expressed the opinion that probable cause had been established but his testimony clearly demonstrates that he “formed . . . [his] own judgment” on the matter. Thirdly appellant asserts that the general’s authorization was defective because the information given to him was not submitted under oath or affirmation. No such requirements pertained to a search conducted during the period in issue. See United States v. Fimmano, 8 M.J. 197 (C.M.A.1980), pet. for reconsideration not granted, 9 M.J. 256 (C.M.A.1980). Finally, appellant contends that the information submitted to General Wroth was insufficient to establish probable cause from several points of view.

First, the appellant contends that the evidence of possession in the barracks was insufficient to establish probable cause for a search of the off-post apartment. See United States v. Troy, 22 U.S.C.M.A. 195, 46 C.M.R. 195 (1973); United States v. Lidie, 21 U.S.C.M.A. 455, 45 C.M.R. 229 (1972). The evidence, however, indicates that appellant had been seen in possession of a large quantity of hashish immediately prior to the search of the barracks and none had been found on his person or in the barracks. The likelihood that it was cached elsewhere was therefore great. See United States v. Walters, 22 U.S.C.M.A. 516, 48 C.M.R. 1 (1973). The roommate stated that appellant had an off-base apartment and that the appellant had told him that he kept hashish there. General Wroth expressly indicated it was not uncommon for a service-person with assigned barracks quarters to maintain an off-base apartment. We are convinced, therefore, that the totality of the information considered by General Wroth supports his conclusion that hashish was probably in appellant’s apartment.

Secondly, appellant maintains that even if the apartment was a likely place for hiding the hashish, the evidence of possession was too stale to justify a conclusion that the substance was still likely to be there at the time of the search. Logically, the longer the period of time from an observed possession of a drug to the application for authority to search, the less the probability of continued possession. But lapse of time is not alone determinative. In United States v. Crow, 19 U.S.C.M.A. 384, 387, 41 C.M.R. 384, 387 (1970), the Court held that in “the circumstances” of that case an interval of one month between a witnessed possession and the request for a search was too long to give reasonable assurance that the accused possessed the drug at the time of the authorization to search. Here, only two or three days before the application to search, appellant had told his roommate that he hid hashish in his apartment. The quantity seen in the accused’s possession about that time was substantial. In these circumstances we are satisfied that General Wroth could reasonably conclude, as he did, that some hashish was probably in appellant’s apartment.

The last aspect of this ground of appellant’s challenge is that the evidence of the roommate’s reliability is insufficient to meet the standard required by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1964). Government counsel perceive appellant’s roommate to be a “citizen informant” and, therefore, presumptively reliable. See United States v. Melvin, 596 F.2d 492 (1st Cir. 1979), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979); United States v. Burden, 5 M.J. 704, 708 N. 6 (A.F.C.M.R.1979). In United States v. Lidle, supra at 457, 45 C.M.R. at 231, this Court distinguished between “an unnamed member of the underworld . . . [and] a known, reputable member of the authorizing officer’s command.” See United States v. Crow, supra at 387, 41 C.M.R. at 387 (Quinn, C. J., dissenting).

As Judge Fletcher notes in his opinion, there is evidence indicating that the roommate may not be the kind of law-abiding person envisaged by the description “citizen informant” and, therefore, should not be entitled to a presumption of reliability. There is, however, substantial evidence of actual reliability in regard to the report submitted to General Wroth. The roommate “was not a faceless or anonymous informant,” id.; and he gave his information in the presence of an officer of his unit, which, as Judge Fletcher observes, was likely to have “a truth-telling effect” upon him. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971); United States v. Crow, supra. We are satisfied that General Wroth was warranted in concluding that the roommate was reliable.

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