United States v. Paige

7 M.J. 480, 1979 CMA LEXIS 8821

Opinions

Opinion of the Court

PERRY,

* Judge:

The appellant was convicted by a general court-martial of possession of heroin, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced to a dishonorable discharge, imprisonment for 18 months, total forfeitures of pay and allowances, and reduction in rank to the lowest enlisted grade. The United States Army Court of Military Review has affirmed. We granted review to consider the appellant’s contention, inter alia, that incriminating evidence discovered and seized from his person was erroneously admitted against him during his trial, in violation of the Fourth Amendment to the Constitution of the United States.¹ We have concluded that, for the reasons that follow, the evidence should have been excluded by the trial judge. We, therefore, reverse.

I

The facts, largely stipulated to by the parties at trial, are not in dispute. On the occasion which led to his arrest and conviction, the appellant and another serviceman, both of whom were assigned to and on active duty with the 8th Infantry Division in Germany, attempted to enter Germany through the Holland-German border at Aachen Autobahn Nord by automobile, at which time a German border official stopped them and requested identification.² Both men produced United States military identification cards. The border official gave the cards to one of two United States Army military policemen who were at the border checkpoint on duty but made no request of them. The military policemen ordered the appellant and his companion to remove their personal luggage to a room within the checkpoint station in order that an inspection could be made of their persons and their belongings. The military policemen first conducted a thorough search of the automobile and found nothing of relevance. Once inside the station house, both men were given “pat down” searches for weapons. Neither the appellant nor his traveling companion was found to possess weapons. Thereupon, the police ordered both men to empty their pockets and to produce their wallets and pass authorizations. The appellant and his companion obeyed. The police observed that the appellant’s pass authorization was totally handwritten and, therefore, suspected that it was a falsified document.³ However, no attempt was made to contact officials at the appellant’s military unit concerning the validity of the document. Also, one of the policemen allegedly recalled having seen the name “Paige” on a CID report concerning narcotics.⁴ However, no warrant or other process directed that the appellant be arrested. Nevertheless, the police informed the appellant and his companion that they were under arrest for “illegal border crossing” ⁵ and directed them to remove their clothing and submit to complete searches of their clothing and persons, including body cavities.⁶ While the appellant was disrobing as directed, the military policemen seized from him two plastic bags containing what was subsequently confirmed, through chemical analysis, as heroin. The heroin was admitted as evidence during the appellant’s trial despite objections by his attorney that it was discovered and seized while he was unlawfully in the custody of the police, without probable cause and without warrant, in violation of the Fourth Amendment to the Constitution of the United States. The military judge held that the heroin was properly discovered and seized by the police during a search of the appellant pursuant and incident to his lawful arrest by the military policemen. The Court of Military Review has sustained that ruling.

II

We now consider the appellant’s contention that discovery of the evidence was made pursuant to his illegal arrest and that the evidence was thus inadmissible as fruit from the poisonous tree.

The Fourth Amendment provides: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” It may not be gainsaid that in this case the Fourth Amendment became involved when United States Army military policemen informed the appellant that he was under arrest for illegal border crossing and ordered the appellant and his companion to remove their luggage from the automobile into the checkpoint station. For “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning [of the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). See also United States v. Martinez Fuerte, 428 U.S. 543, 556-58, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Moreover, as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), demonstrates, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877.

Under familiar concepts, the Fourth Amendment requires that the seizure be reasonable.⁷ And “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S.Ct. at 2579. See also Terry v. Ohio, supra; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, as the Supreme Court recently stated, “the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.” Delaware v. Prouse, supra (footnotes omitted). And where the circumstances preclude the “insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” Id. at 1396-97 (footnote omitted). See Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Martinez-Fuerte, supra; Camara v. Municipal Court, supra.

Thus, in United States v. Martinez Fuerte, supra, the Court upheld a scheme by which the United States Border Patrol required automobiles traveling from Mexico into the United States to stop at a border checkpoint, even though no articulable facts gave rise to a suspicion that the vehicles contained illegal aliens or contraband. The checkpoint operation in that case was unique, however, and recognized by the Court as a necessary means to control the flow of illegal aliens and contraband into the United States. The Court was careful to limit its holding to stops of the nature described in the opinion, which involved stopping the automobile and questioning the occupants concerning their citizenship status, and cautioned that any further detention must be based upon consent or probable cause. In United States v. Brignoni-Ponce, supra, border patrol agents patrolling near the Mexican border randomly stopped automobiles to ascertain whether they contained illegal aliens or contraband. The practice was deemed to violate the Fourth Amendment. However, “because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,” id. 422 U.S. at 881, 95 S.Ct. at 2580, the Court analogized the roving patrol stop to the on-the-street encounter addressed in Terry v. Ohio, supra, and held that “[ejxcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” 422 U.S. at 884, 95 S.Ct. at 2582 (footnote omitted). That holding left intact the principle that at this nation’s international borders the United States may lawfully search individuals and their possessions when entry is sought to be made into the United States, even absent probable cause to believe that a violation of the laws of the United States is being committed. See United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 53 L.Ed.2d 612 (1977); United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. 37 Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

But that principle applies at United States borders. It is predicated upon the ancient right of the United States as a sovereign nation “to protect itself by stopping and examining persons and property” entering our national boundaries. Searches so made “are reasonable [for the simple reason] that they occur at the border.” United States v. Ramsey, supra at 616; Carroll v. United States, supra.

Ill

The Government contends that, for a variety of reasons, the search and arrest of the appellant were reasonable and lawful. Initially, it is argued that the military police were properly assisting the German police in conducting the search at the German-Holland border in accordance with the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), as supplemented, under which the United States agreed that German authorities have the right to conduct border searches of United States armed services personnel entering that country; and that since the United States has an affirmative duty under the treaty to insure that members of its armed forces respect German law, the United States is required to conduct inquiries and collect evidence, thereby assisting German authorities in preventing violations of that country’s customs laws. But we are not here concerned with the acknowledged right of the Federal Republic of Germany to enforce its customs laws. Nor do we question the binding nature of NATO SOFA as between the subscribing nations. Indeed, with respect to NATO SOFA and the requirement of conformity to its terms, “[t]he controlling considerations are the interacting interests of the United States and of foreign countries, and in assessing them we most move with the circumspection appropriate when this Court is adjudicating issues inevitably entangled in the conduct of our international relations.” Romero v. International Terminal Operating Company, 358 U.S. 354, 383, 79 S.Ct. 468, 486, 3 L.Ed.2d 368 (1959). And matters “vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952) (footnote omitted). Thus, many questions arising in connection with our treaties with other governments have been held to be nonjusticiable. Holmes v. Laird, 148 U.S.App.D.C. 187, 459 F.2d 1211 (D.C.Cir.1972), cert. denied, 409 U.S. 869, 93 S.Ct. 197, 34 L.Ed.2d 120 (1972). “Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the . . . legislature; but many such questions uniquely demand single-voiced statement of the Government’s views.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 707, 7 L.Ed.2d 663 (1962) (footnotes omitted).

However, not all disputes touching upon our foreign relations are beyond judicial scrutiny, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Baker v. Carr, supra, because “no agreement with a foreign nation can confer power ... on any . branch of Government, which is free from the restraints of the Constitution.” Reid v. Covert, 354 U.S. 1, 16, 77 S.Ct. 1222, 1230, 4 L.Ed.2d 1148 (1957). Indeed, “[t]he prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the . . . Executive and the Senate combined.” Id. at 17, 77 S.Ct. at 1230.

We have recently reaffirmed that the protections of the Bill of Rights, and specifically those included within the Fourth Amendment are applicable to men and women serving in the military services of the United States unless expressly or by necessary implication they are deemed inapplicable. United States v. Ezell, 6 M.J. 307 (C.M.A.1979). These and other protections follow Americans wherever they may be, even beyond the continental United States, when a court holds them accountable for crimes against the United States. Reid v. Covert, supra.8 Thus, when United States Army military policemen detained the appellant and searched his person and belongings, the Fourth Amendment governed their conduct. As the appellant was not entering a United States border, United States police authorities could not arrest him absent the existence of articulable circumstances amounting to probable cause to believe that he had committed or was in the process of committing a crime. Brown v. Texas, - U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Dunaway v. New York, - U.S. -, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Delaware v. Prouse, supra; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Martinez-Fuerte, supra; United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, supra; Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Terry v. Ohio, supra; United States v. Kinane, 1 M.J. 309 (C.M.A.1976).

The Government also argues that in this case several articulable facts existed at the time which constituted probable cause to believe that a crime had been or was being committed. First, it is argued that the appellant was nervous, sweating and giving short answers to their questions. But that would, at the most, constitute a neutral fact, not probative of anything of value here. The Government contends that the appellant’s pass was in handwritten form, which properly could suggest that the appellant was not lawfully absent from his military unit. But no regulation has been cited to us as prohibiting passes in handwritten form. Indeed, no charge was made at that time or later that the appellant was absent without leave. And when the police arrested the appellant, they informed him that the arrest was for illegal border crossing. The form in which the pass was written was not an articulable circumstance which constituted probable cause to believe that the appellant was absent without leave from his military unit. The Government points out the fact that the appellant’s companion could not at first produce a pass. But that fact would not support the appellant’s detention and search. Finally, the Government argues that one of the border guards remarked that the name “Paige” had previously been mentioned in his presence as a possible dealer in narcotics. But there is no support in the record for any assumption that this appellant is the person described in that conversation. No warrant or order of arrest directed that the appellant be arrested. No charges against the appellant had been made. Nor do the above circumstances in combination support the action taken by the police. As the Supreme Court only recently reminded us, “[t]o insist upon neither an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion ’would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . ’ ” Delaware v. Prouse, supra, 440 U.S. at 661, 99 S.Ct. at 1400.

IV

We are not unmindful of the right of the Federal Republic of Germany to protect its national interests at its borders and of the United States’ responsibility to honor its treaty obligations. In that regard, one might reasonably assume that German law permits detention and searches of persons attempting to enter its borders. But the German police did nothing in furtherance of such a purpose in this case other than stop the automobile and request identification. When the appellant produced his military identification, the German official gave it to the U. S. military policemen but made no request of them concerning any detention, arrest or search of the appellant or of his possessions. We assume that the action of the German police at that time indicates that they perceived no need for further inquiry as far as German interests were concerned.

The action of the military police, thus, was taken by them in their sole discretion under what they perceived to be their duty as “customs inspectors.” One of them described the standards which governed their operations as that of conducting searches of American personnel and to “control the military, DOD civilians and dependents coming into Germany and going out of the border into the Netherlands and Belgium.” He further stated that whether “to perform a customs inspection is determined by the person performing the customs inspection what he wants to look into or what he is looking for” and that “they can do what they want to. They can check the car or they can go through the complete inspection.” Thus, it is apparent that the military policemen were operating at the border checkpoint with unfettered discretion to do as they wanted.

That is the scheme under which the military police were acting when the appellant was arrested. It is apparent from the record that no articulable or reasonable suspicion existed at the time the appellant was ordered to remove his luggage and possessions to the station house and be searched. Moreover, there is no offense known as “illegal border crossing,” identified by the police as the basis upon which the appellant was being arrested and searched. The arrest and search, therefore, violated the Fourth Amendment to the Constitution of the United States. The heroin which was seized from the appellant’s person was, therefore, unlawfully seized and was inadmissible as evidence during the appellant’s trial. Dunaway v. New York, supra; Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Kinane, supra.

For the reasons stated above, the decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside and the charge is dismissed.

Chief Judge FLETCHER concurs.

Judge Matthew J. Perry took final action in this case prior to his resignation as a judge of this Court pursuant to his appointment and confirmation as a United States District Judge for the District of South Carolina.

1 . Because of the decision we reach on this issue, we deem it unnecessary to discuss the remaining contention made by the appellant, that copies of the trial proceedings were not served upon him or his counsel prior to the convening authority’s action.

2 . It is apparent from the record that no action of the appellant precipitated the stop and that the German police were routinely stopping all persons entering Germany.

3 . The pass authorization produced by the appellant was a DA Form 31, utilized by all the services as the official form which, when completed and signed by proper authority, evidences that the person designated thereon has official leave or permission to be absent from his military unit and/or duty assignment. No statute or regulation prescribes the manner in which the form is to be completed or otherwise prohibits it from being handwritten.

4 . No other reference to the report appears in the record. The policeman did not purport to state the full name of the individual listed on the report.

5 . The Uniform Code of Military Justice contains no offense delineated as “illegal border crossing.” The record is silent as to whether such an offense exists under German law. Moreover, the German border officials did not request the appellant’s arrest or the arrest of his companion.

6 . One of the military policemen, Sergeant Broeker, testified during the trial that he and his colleague were “customs inspectors” and that they were empowered to conduct searches of American personnel and to “control the military, DOD civilians and military dependents coming into Germany and going out of the border into the Netherlands and Belgium.” Broeker further testified that the assigned duty of United States military policemen at the border crossing was to suppress illegal drugs from being imported from the Netherlands into Germany and to the American forces. He stated that when “to perform a customs inspection is determined by the person performing the customs inspection . . what he wants to look into or what he is looking for” and that “they can do what they want to. They can check the car or they can go through the complete inspection.”

7 . See also Marshall v. Barlow’s, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

8 . See also Balzac v. Puerto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 66 L.Ed. 627 (1922) (Due Process of Law); Downes v. Bidwell, 182 U.S. 244, 277, 21 S.Ct. 770, 45 L.Ed. 1088 (1901) (First Amendment, Prohibition Against Ex Post Facto Laws or Bills of Attainder); Mitchell v. Harmony (US), 13 How. 115, 134, 14 L.Ed. 75 (Just Compensation Clause of Fifth Amendment); Best v. United States, 184 F.2d 131 (1st Cir. 1950) (Fourth Amendment); Turney v. United States, 115 F.Supp. 457, 464, 126 Ct.Cl. 202, 214 (1953) (Compensation Clause of the Fifth Amendment).