United States v. Morrison

5 M.J. 674
CourtU.S. Army Court of Military Review
DecidedMay 31, 1978
DocketCM 435700
StatusPublished
Cited by1 cases

This text of 5 M.J. 674 (United States v. Morrison) 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. Morrison, 5 M.J. 674 (usarmymilrev 1978).

Opinion

OPINION OF THE COURT

DRIBBEN, Judge:

Appellant was convicted, contrary to his pleas, of attempted robbery and five instances of robbery in violation of Articles 80 and 122, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 922. The sentence, imposed by a general court-martial with members and approved by the convening authority, extended to a dishonorable discharge, confinement at hard labor for eight years, forfeiture of all pay and allowances, and reduction to Private E-l.

In seeking reversal of his conviction, appellant urges upon us five claims of error. Two of them merit discussion.

I

Before this Court, as he did at trial in the form of a motion for appropriate relief, appellant challenges the admissibility into evidence of his wallet claiming it was seized during an illegal search of a co-accused’s vehicle.1 Appellant also contends that had his wallet not been seized, he would not have been linked with the offenses of which he was convicted.

This allegation of error may be better understood after recitation of factual background relevant to it. A series of armed robberies and attempted robberies occurred at Fort Knox, Kentucky, during the late evening hours of 31 July 1976. Special Agent Gallimore of the Army Criminal Investigation Command directed the investigation of these episodes as they were reported. As a result of interviewing victims and witnesses, Mr. Gallimore learned that the alleged assailants were two black males, one of whom was armed with a large caliber revolver. He also ascertained that a 1974 red Ford Torino automobile with raised rear end, distinctively styled wheels, white stripes, hood scoop, and yellow traction bars may have been used by the robbers. Agent Gallimore later learned that a third black male may have been involved and that a forty-five caliber pistol may also have been used. Mr. Gallimore issued several all-points bulletins and, with his assistants, began searching the Fort Knox installation for the suspect vehicle.

After stopping at least one car which answered the description of the suspect automobile but turned out not to be that vehicle, Mr. Gallimore stopped an automobile operated by Private Coleman, a co-accused. Mr. Gallimore, with his weapon drawn and accompanied by five other agents and military policemen ordered Coleman to get out of the car. Upon complying with this order, Coleman was “spread eagled” against his vehicle and patted down for weapons. He was unarmed. According to his testimony at the hearing on appellant’s motion for appropriate relief, Mr. Gallimore told Private Coleman that there had been a series of armed robberies committed at Fort Knox that evening by three black males armed with a large caliber revolver and a forty-five caliber automatic [pistol]. Agent Gallimore, after asking Coleman’s consent to search his vehicle for the revolver and the automatic pistol informed him that “you don’t have to let me search your car if you don’t want to.” At that time, Private Coleman agreed to the search. He also volunteered that he knew the agent’s purpose and had in fact been stopped by the Kentucky State Police and questioned about the robberies. This testimony was corroborated by another agent who was present at the scene. Private Coleman testified that he verbally consent[676]*676ed to the search but explained that he did so because he believed that Fort Knox post regulations automatically subjected his vehicle to search and that effective withholding of permission was impossible. Further, Coleman claimed that he was intoxicated and was frightened by the six armed men who descended upon him.

During the course of the search of Coleman’s automobile, Agent Gallimore saw two wallets located in the glove compartment which was open and without a lid. One of these belonged to the appellant. The other belonged to Private Lewis, another co-accused. Mr. Gallimore asked another agent if any of the victims had reported the loss of their wallets. At that time Private Coleman volunteered that the wallets belonged to his two friends who he had dropped off at the bowling alley a little while before. At this time three individuals approached the agents and stated that they had been robbed only moments ago by two Negro males armed with a large frame revolver. One of the victims stated that he recognized Coleman as one of the robbers. Although Coleman vigorously protested his innocence, Gallimore decided to take him into custody for the purpose of checking his alibi.

Our review of the relevant facts of record convinces us that Agent Gallimore’s stop of the suspect automobile driven by Private Coleman and his subsequent detention and search of Coleman was at least based upon a reasonable suspicion that Coleman had committed or was about to commit a crime and that he may have been armed and dangerous. See Terry v. Ohio, 392 U.S. 1 at 20-23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also United States v. Summers, 13 U.S.C.M.A. 573, 33 C.M.R. 105 (1963). In order to support this determination, we must be able to find “specific and articulable” facts which taken together with rational inferences from those facts, reasonably pointed to Coleman’s involvement in the criminal activities in question. Terry v. Ohio, supra, 392 U.S. at 21 and 27, 88 S.Ct. 1868.

Agent Gallimore was warranted in basing his suspicions on the fact that there had been several armed robberies recently committed on Fort Knox within a reasonably short time reportedly by Negro males armed with handguns and driving a specifically described and somewhat uniquely decorated automobile. His knowledge that some victims had been assaulted as well as robbed warranted his suspicion that Coleman might be armed and dangerous and the actions he took pursuant to that suspicion. Consequently, Agent Gallimore’s stop and detention of Private Coleman which led to the search in question was proper.

In view of Mr. Gallimore’s advice to Private Coleman that he did not have to consent to a search of his automobile2 and Private Coleman’s coherent repetition of his alibi and informing Agent Gallimore that he would find only a whiskey bottle and his unequivocal response to questioning by the trial judge that he did voluntarily consent, we conclude that the search of Private Coleman’s vehicle was uncoerced and voluntary rather than mere acquiescence or submission to authority on his part.

Having thus ascertained that Agent Gallimore was rightfully inside Private Coleman’s vehicle when he observed the wallets in the open pocket on the instrument panel, we reject appellant’s contention that his wallet was seized during an illegal search. Although the consent to search granted Mr. Gallimore was directed toward weapons, he had a right to be where he was and simply and unexpectedly observed the wallets in plain view. He was not required to close his eyes to the fruits of crime or what he had good reason to believe to be fruits of crime lying freely exposed in the automobile. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476 (1953);

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Hadley
9 M.J. 866 (U.S. Army Court of Military Review, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
5 M.J. 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-morrison-usarmymilrev-1978.