United States v. Mitchell

3 M.J. 641, 1977 CMR LEXIS 832
CourtU.S. Army Court of Military Review
DecidedMarch 29, 1977
DocketSPCM 12181
StatusPublished
Cited by2 cases

This text of 3 M.J. 641 (United States v. Mitchell) 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. Mitchell, 3 M.J. 641, 1977 CMR LEXIS 832 (usarmymilrev 1977).

Opinions

[642]*642OPINION OF THE COURT

JONES, Senior Judge:

The appellant was convicted of possession of 340 grams of marihuana with intent to distribute and missing movement through neglect in violation of Articles 134 and 87, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 887. He pleaded guilty to missing movement and not guilty to the marihuana offense. We are reviewing the case pursuant to Article 66, UCMJ.

I

The principal question in this case involves the legality of the barracks search in which the marihuana was discovered. The search arose as a result of the relatively large amount of marihuana found during a routine health and welfare inspection. The legality of this latter inspection is not questioned as it was concerned with the preparedness of the unit for its impending move to Alaska.

The company commander, noting that the marihuana problem was concentrated in the mortar platoon, decided to reinspect that platoon. When he announced that decision to the 1st sergeant, another sergeant related that three soldiers whom he declined to identify had told him that 1-2 pounds of marihuana had been missed in the initial inspection. The commander arranged for the use of a marihuana dog and the mortar platoon was reinspected a short while later. The dog found the marihuana in appellant’s duffel bag.

The appellant maintains that the reinspection was a “shakedown” of the type that was condemned by the United States Court of Military Appeals in United States v. Roberts, 25 U.S.C.M.A. 39, 54 C.M.R. 39, 2 M.J. 31 (1976). We agree that the reinspection was in fact a search, but that does not automatically make it an unlawful one. Only unreasonable searches and seizures are condemned by the Fourth Amendment.

The search in this case was a generalized search of a specific area and of a particular group of soldiers. Such searches have been viewed with approval by the United States Court of Military Appeals when based upon probable cause. See United States v. Drew, 15 U.S.C.M.A. 449, 35 C.M.R. 421 (1965); United States v. Harman, 12 U.S.C.M.A. 180, 30 C.M.R. 180 (1961); United States v. Gebhart, 10 U.S.C.M.A. 606, 28 C.M.R. 172 (1959). Judge Perry in his lead opinion in United States v. Roberts, supra, stated, however, that he found no constitutional basis for a “fishing expedition”, his description of the shakedown search. We agree with him that no such provision exists in the constitution. What does exist, as we stated above, is a prohibition only against unreasonable searches. Thus, if this search was reasonable, the marihuana was properly admitted into evidence.

In our opinion the search was a reasonable one based on probable cause. A large amount of marihuana was found in one particular platoon of a unit just a few days prior to the time the unit was to deploy to Alaska. This drug problem was unusual and unexpected and the company commander was quite apprehensive about the unit’s ability to perform its mission on this country’s outer defensive perimeter.1 For that reason he took positive action to insure insofar as possible the readiness of his company. Anything less on his part would have .been dereliction of duty — an offense under the Code.

Judge Perry stated it very well in Roberts when he said:

“ridding a unit of debilitating contraband drugs is a legitimate motive going to the fitness of that unit to perform its military mission. . . .”25 U.S.C.M.A. at 47, 54 C.M.R. at 47, n. 15, 2 M.J. at 35, n. 15.2

[643]*643He followed by stating that, “it must be recognized that the same exercise exposes soldiers to criminal prosecution", but such is the case with any reasonable search. The company commander here took every precaution to minimize the intrusion on his men. He confined the search to the smallest area and least number of persons possible, consistent with the military need; he conducted it at a reasonable time in the afternoon rather than in a predawn swoop; he had the individuals present where they could be sure their property was protected to the maximum extent possible; and the search itself was orderly. Thus, the commander made every effort to balance the competing, sometimes conflicting, interests of military readiness versus individual protection.

In that balancing process the individual rights of this appellant were measured in the military context against legitimate military needs. That the appellant had some expectation of privacy in his military quarters is not questioned, but neither is it questioned that that right was somewhat less than it would have been in his civilian home. United States v. Roberts, supra. The Supreme Court of the United States and the Courts of Appeal have emphasized the distinction between the rights and protections of the military society and those of the civilian society in varying language:

“This Court has long recognized that the military is by necessity, a specialized society separate from civilian society. We have also recognized that military law has, again by necessity, developed laws and traditions of its own during its long history.” Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974).
“The rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.” Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953).
“The ‘expectation of privacy’ is different in the military than it is in civilian life.” Committee for GI Rights v. Callaway, 171 U.S.App.D.C. 473, 518 F.2d 466 (1975).

When appellant’s expectation of privacy in his barracks room was measured against the need of the military to have the tactical units on the defensive outposts in Alaska at the peak of readiness, the individual right had to yield to the extent of permitting a reasonable intrusion into his room and personal property.

Chief Judge Fletcher addressed a similar problem of balancing individual rights against military interests in United States v. Thomas, 24 U.S.C.M.A. 228, 51 C.M.R. 607, 1 M.J. 397 (1976). He proposed to resolve the conflict between the competing interests by permitting the commander to conduct “reasonable” inspections “in order to permit the military society to perform and accomplish its primary mission ‘to fight or be ready to fight wars should the occasion arise.’ ”; but he would then deny to the commander the use of the fruits of such inspections as evidence in later judicial proceedings. 24 U.S.C.M.A. at 235, 51 C.M.R. at 614, 1 M.J. at 404. Chief Judge Fletcher’s proposal in effect applies two different standards to the two aspects of the problem. First, he determines the question of reasonableness by considering the commander’s functions in the special military society.

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Related

United States v. Jones
4 M.J. 589 (U S Coast Guard Court of Military Review, 1977)
United States v. Hay
3 M.J. 654 (U.S. Army Court of Military Review, 1977)

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Bluebook (online)
3 M.J. 641, 1977 CMR LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mitchell-usarmymilrev-1977.