United States v. Miller

13 M.J. 75, 1982 CMA LEXIS 18257
CourtUnited States Court of Military Appeals
DecidedMay 10, 1982
DocketNo. 40,032; NCM 80 0024
StatusPublished
Cited by17 cases

This text of 13 M.J. 75 (United States v. Miller) 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. Miller, 13 M.J. 75, 1982 CMA LEXIS 18257 (cma 1982).

Opinion

OPINION OF THE COURT

COOK, Judge:

We are asked by certificate to determine the legality of a search of accused’s field jacket which had been left in another’s automobile. 10 M.J. 119. We hold that the search was legal and reverse the contrary holding of the Court of Military Review.

On March 2, 1979, First Sergeant Deetz was approached by a Marine who told him that there was marihuana in room 302 of [76]*76Barracks 255. Sergeant Deetz knew the informant was a member of his organization who previously had provided reliable information which had led to arrests and convictions. The sergeant passed the information to the company commander, who obtained an authorization to search room 302 from the acting commanding officer. Sergeant Deetz then went to room 302 of Barracks 255, where he found Lance Corporal Slaikeu, one of the room’s occupants. He told Slaikeu that he “had reason to believe there was contraband in that room” and “asked” for (and received) consent to search Slaikeu’s wall locker, where a quantity of marihuana was discovered. Sergeant Deetz then called the company office to have Lance Corporal Kranias, the other occupant of the room, sent over to the barracks. After being advised of his rights, Kranias also consented to a search of his wall locker, but nothing incriminating was found.1 Sergeant Deetz then asked Kranias for permission to search his car and received written consent.2 During the search of the automobile, a field jacket bearing staff sergeant’s stripes was found on the floor behind the passenger seat. Inside the jacket, Sergeant Deetz found five bags of a substance that was later determined to be marihuana, which he seized. The accused (a staff sergeant) later confessed to the ownership of both quantities of marihuana.3

At trial, both the field jacket and the marihuana were admitted into evidence over the accused’s objection.

Contrary to his pleas, a general court-martial convicted the accused of five specifications alleging possession, transfer, and sale of marihuana, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a dishonorable discharge, confinement at hard labor for 4 years, forfeiture of all pay and allowances and reduction to E-l. The convening authority approved the adjudged sentence.

On appeal, the United States Navy Court of Military Review found that Sergeant Deetz did not have authority to search the field jacket and that the jacket and the drugs within it should have been suppressed. The Navy Court based its decision on the fact that the insignia on the jacket indicated that it did not belong to Lance Corporal Kranias and, hence, he could not give consent to search it even though he did consent to the search of the entire car. That Court set aside that particular finding of guilty and affirmed the sentence except for confinement at hard labor in excess of 2 years and 6 months.

The Judge Advocate General of the Navy certified the following question:

WAS THE UNITED STATES NAVY COURT OF MILITARY REVIEW CORRECT AS A MATTER OF LAW WHEN IT FOUND THAT FIRST SERGEANT DEETZ CONDUCTED AN ILLEGAL SEARCH OF THE JACKET FOUND IN LANCE CORPORAL KRANIAS’ CAR?

[77]*77The United States Supreme Court has set forth the following rules for challenging the legality of searches: The person seeking to suppress the evidence produced by the search bears the burden of proving not only that the search was illegal, but also that he had a legitimate expectation of privacy in the area being searched. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n.1, 99 S.Ct. 421, 423 n.1, 58 L.Ed.2d 387 (1978); see United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980), overruling Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Mil.R.Evid. 311.

There is no doubt that the owner of the automobile, Lance Corporal Kranias, gave an informed consent to the search of his automobile and everything within it. Thus, for the accused to prevail, he must establish that he had some “legitimate expectation of privacy” with regard to the jacket and its contents which were found within the area to be searched. Rakas v. Illinois, supra 439 U.S. at 143, 99 S.Ct. at 430. See United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980); United States v. Salvucci, supra; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). This “actual (subjective) expectation of privacy” must also “be one that society is prepared to recognize as ‘reasonable.’ ...” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), quoting Katz v. United States, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

The accused had left his jacket in Kranias’ automobile following a trip off base. Apparently, he did not leave Kranias any special instructions for safeguarding the jacket since the automobile was left unattended, with the windows rolled down, at the post exchange and at the company office. It is not clear whether Kranias was even aware that the jacket was in the automobile. Factually, we consider this situation to be similar to that in United States v. Alewelt, 532 F.2d 1165 (7th Cir. 1976), cert. denied, 429 U.S. 840, 97 S.Ct. 114, 50 L.Ed.2d 109 (1976). There, government agents who were investigating a bank robbery went to the office of defendant’s mother. Inside the office, a brown leather jacket which resembled the description of that worn by the robber was hanging on a coat rack. Without other authority, the agents seized the jacket and found the stolen money and other items of apparel worn by the bank robber. The Court held that

by placing the jacket on a coat rack in the general working area of an outer office where he had no possessory interest, the defendant relinquished that degree of control, and reasonable expectation of privacy, necessary to sustain a challenge to the legality of the subsequent search and seizure on Fourth Amendment grounds.

Id. at 1168 (citing Katz v. United States, supra). Even though the agents’ intrusion into the office might have been a technical trespass against the State of Illinois, there was no violation of any interest of the defendant subject to the protection of the Fourth Amendment. Cf. United States v. Payner, supra.

We, too, have recently had occasion to consider a seizure of contraband drugs from a suddenly-created bailee. United States v. Sanford, 12 M.J. 170 (C.M.A.1981).

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