United States v. Moore

23 M.J. 295, 1987 CMA LEXIS 21
CourtUnited States Court of Military Appeals
DecidedFebruary 17, 1987
DocketNo. 52,161; CM 445536
StatusPublished
Cited by17 cases

This text of 23 M.J. 295 (United States v. Moore) 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. Moore, 23 M.J. 295, 1987 CMA LEXIS 21 (cma 1987).

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Contrary to his pleas, a general court-martial convicted appellant of two specifications of unauthorized absence and six specifications each of larceny and of housebreaking, in violation of Articles 86, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 921, and 930, respectively. Thereafter, the judge sentenced him to a bad-conduct discharge, confinement for 4 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review affirmed in a short-form opinion.

We granted review to consider appellant's contention that the principal evidence against him on four of the housebreaking and larceny specifications was derived [296]*296from an illegal search of his barracks room. We agree.

I

A

After a series of housebreakings and larcenies sometime during February and March 1983, at the post library and recreation center at Fort Wainwright, Alaska, notices were published in the post newspaper and elsewhere requesting information on these incidents and indicating that informants could remain anonymous. The items stolen on those occasions included an Apple II microcomputer system, a video cassette player/recorder, a television set, an audio cassette player, videotapes, a bass guitar, two bass amplifiers, amplifier connecting cords, library patron cards, and stereo albums.

At 11:00 p.m. on April 10, an anonymous caller telephoned the military police desk and asked whether any record albums had been stolen during this spree. The desk sergeant did not know the answer, so he asked the informant to call back and then contacted Agent Frank Woods of the Criminal Investigation Command (CID).

When the caller telephoned a half-hour later, the call was forwarded to Agent Woods. He told Woods that a friend whom he refused to identify had found some albums and covers and library cards on the stairwell landing of Building 3401, which was a barracks. Because of the notices, the caller had surmised that the discovered items might be stolen property. Woods responded that he did not know whether albums had been stolen but he would check to find out. After the caller had provided Woods with “a list of numbers” written on the album covers, Woods asked him to call back the next morning at 10:00.

At 7:30 a.m., Agent Woods went to the post library and presented the list of numbers. There, he learned that none of the albums which corresponded to these numbers had been checked out after the break-ins; and so the librarian assumed that they had been stolen during those incidents. However, this conclusion could not be verified, because the library’s stock of albums had not been inventoried recently.

Later that day, the caller telephoned Woods again, and he was advised that it appeared that the albums had been stolen. After the caller revealed that he was in Room 303 of Building 3401, Woods, along with Agent Alicia-Diaz, went there to visit him and learned that the caller was a soldier named Horvath. “He was not a [CID] confidential informant,” and Agent Woods had had no prior contact with him. Horvath showed the agents the three record albums with records, two empty covers, 15 pink library patron cards, and about 20 plastic album covers. According to Horvath, his anonymous friend had found all these items the previous evening on the stairwell landing.

Upon leaving Horvath’s room, Woods and Alicia-Diaz went to the office of Lieutenant Colonel Hale, who commanded the units housed in Building 3401 and who also was the acting post commander. Hale had received information periodically on the pending investigation . of the housebreakings and larcenies; and Woods informed him of the most recent developments. Then, Woods told Hale that, because 20 album covers had been recovered on the stairwell landing but only three albums had been found there, he believed that the remaining records were somewhere in the barracks. Accordingly, Agent Woods asked Lieutenant Colonel Hale for permission to search Building 3401 for these records and for the other stolen property related to the unsolved break-ins. As of that time, the investigation had produced leads to several suspects; but neither appellant nor anyone else who lived in the barracks was among them.

Lieutenant Colonel Hale agreed to the request; but he asked the agents to delay the search because the unit was preparing to deploy to the field. Hale indicated they could search for the property they had described to him but imposed no other limitations on the scope of the search. About 3 hours later, the search of Building 3401 [297]*297began. Most of the stolen items were found in Moore’s room; and a consent-search of his room the next day uncovered a stolen set of keys to the library.

The building searched was a standard “arctic” three-story barracks of “cinder-block construction” and housed two companies. The first floor contained offices and company areas, and the second and third floors contained 73 and 64 individual billets, respectively, with these rooms opening off a central corridor. There were no open squad bays in the barracks. The stairwell was “not part of the building itself” but instead was an attached stairwell shielded by corrugated steel. The only outside exit from the stairwell was at the bottom level through a large open area about seven to eight feet across, and there was no door at the exit. Numerous other units were housed in nearby barracks; and, personnel from four or five other units would pass by the stairwell on their way to or from the library.

B

At trial, appellant moved to suppress all evidence obtained from his room on the grounds that the search was too general in scope and that, even if the scope of the search were permissible, Lieutenant Colonel Hale had lacked probable cause to authorize it. Both parties filed briefs on the motion; and evidence thereon was received which revealed the previously stated facts.

Thereafter, the prosecution conceded that it could not “seriously contend” that the operation “was an inspection” authorized under Mil.R.Evid. 313(b), Manual for Courts-Martial, United States, 1969 (Revised edition). Instead, trial counsel urged that, under the “totality-of-the-circumstances” test of Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), there was probable cause to believe that stolen property was in the barracks. Defense counsel responded that the court should accept and follow the lead opinion in United States v. Roberts, 2 M.J. 31 (C.M.A. 1976), condemning generalized searches as unconstitutional, and that, in any event, the search was supported only by suspicion and conjecture, rather than by probable cause.

Stating that “the court’s going to need some more time to consider the question of the barracks search” and observing that it was “an appropriate time to take a ... lunch break,” the military judge recessed the court for 2 hours.

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Bluebook (online)
23 M.J. 295, 1987 CMA LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-moore-cma-1987.