United States v. Poundstone

22 C.M.A. 277

• Court: United States Court of Military Appeals
• Decided: May 25, 1973
• Docket: No. 26,063
• Status: Published

Opinions

Opinion

Quinn, Judge:

Stopped and searched by a security guard when he attempted to enter Phu Loi Base Camp, Republic of Vietnam, through the main gate, the accused was found to be in possession of a quantity of heroin. In due course, he was brought to trial on a charge of wrongful possession of that substance, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. A timely defense objection to the admission of evidence of discovery of the heroin was overruled and the accused was convicted. The correctness of the trial judge’s ruling is the subject of this appeal.

Lieutenant Colonel Brown was the commanding officer of 520th Transportation Battalion, which was stationed at the Phu Loi base camp. He was also the designated installation coordinator of the camp. Several other battalions were stationed at the camp. As installation coordinator, Colonel Brown had no command or administrative control over these units, but he was responsible for “common use” and “maintenance” of the camp “facilities,” such as the post exchange, and for the camp’s “security” and “perimeter defense.” Apparently, personnel from each battalion were detailed to perform those functions.

Regular ingress and egress were only at the main gate of the camp. Security guards controlled vehicles and persons passing the gate. A large sign at the entrance and exit lanes advised that “all vehicles” and “all personnel” were subject to search. According to Specialist Four Hughes, who served as a gate guard for about a month, the guards were “authorized” to search vehicles and persons. Hughes had been expressly instructed to that effect by the guard platoon sergeants. Hughes testified that he knew of U. S. Army Vietnam Regulation Number 190-20, which provides for identification and control of persons “entering installations and activities” of the command, but it reasonably appears he was not informed of the provisions of the regulation relating to his “job” until after he had made the search in issue. That search was not initiated by Hughes as a security guard but was undertaken on the direct order of a Warrant Officer Eadleman.

Eadleman was not a witness at the trial. He had returned to the United States and he could not be reached at the time of trial. His presence and authority at the gate were explained by Major Braush, executive officer of the 520th Transportation Battalion. Major Braush testified that the battalion was having great problems with “unsafe vehicles on the road,” and the “volume of narcotics” in the “company areas.” The battalion “knew that the narcotics were coming in on vehicles.” As a partial solution to these problems, an officer of each of the six units within the battalion, all of which were located in the camp area but were not contiguous to each other, was detailed to the gate, “to assist” in the control of the unit’s vehicles and personnel “in and out” of the camp. The gate was selected as the “control point” because it was “more convenient . . . than to run around to the various areas.” Initially, Warrant Officer Eadleman was assigned to that duty for his unit, but at a battalion commander’s conference, it was determined that he should act for the “entire battalion.” Aware of the “safeguards [that] were there,” Eadleman was instructed, in part, “to search every vehicles of the battalion” to control its safety and to counter the “flow” of contraband narcotics. He was also instructed that “when he searched a vehicle ... he must search all of the individuals on the vehicle.”

On the morning of March 25, 1971, a truck belonging to the 539th Transportation Company, a battalion unit, entered the main gate. Eadleman ordered Specialist Hughes to search it and “the people on” it. Hughes “pulled the vehicle over” to the side. The accused and a person named Torres “jumped” from the “back of the vehicle” and “walked” toward the camp interior. Hughes called them back and told them they were to be searched. First, he “lightly searched” them; he then directed that they remove the contents of their pockets and put them on the running board of the truck. One of the things removed by the accused from his pockets was a small package containing ten vials of heroin. The military police were called and the accused and the vials were turned over to them.

The accused contends that the search of his person was illegal because it was not justified by probable cause and he did not consent to it. In opposition, the Government argues that members of the armed forces have no protection against unreasonable search and seizure “in a war zone during a period of actual hostilities.” Certainly, armed conflict and its effects may make reasonable Government action in a war zone that would be unreasonable within the peaceful geographical limits of the United States. See Dorr v United States, 195 US 138, 143 (1904); United States v Vierra, 14 USCMA 48, 33 CMR 260 (1963). That is not to say, however, there is no protection whatever against any kind of search and seizure. Our cases are to the contrary. We have consistently recognized the right to be free from unreasonable search and seizure, both in areas of tranquility within the borders of friendly nations and in areas of combat against an acknowledged enemy. See United States v Gibbins, 21 USCMA 556, 45 CMR 330 (1972); United States v Hendrix, 21 USCMA 412, 45 CMR 186 (1972); United States v Carter, 16 USCMA 277, 36 CMR 433 (1966); United States v Florence, 1 USCMA 620, 5 CMR 48 (1952).

In constitutional terms, the protection against Government intrusion into the privacy of the individual guards against “unreasonable” search and seizure. The usual standards by which to determine the reasonableness of a search is whether it was based upon facts that would give a prudent person probable cause to believe that evidence connected with a crime is in possession of the person to be searched or at the place to be searched. United States v Alston, 20 USCMA 581, 44 CMR 11 (1971). Appellate defense counsel contend that neither Warrant Officer Eadleman nor Specialist Hughes had probable cause to believe that the accused had heroin in his possession. All the evidence supports their contention, but that is not determinative of the legality of this search. Probable cause to believe that a crime was committed or is in progress is not the universal standard for the reasonableness of government action affecting the privacy of the individual. A street encounter in which a police officer stops and frisks a person, in the interest of effective crime prevention, does not require probable cause; the test of the legality of the detention and search is “reasonableness.” Terry v Ohio, 392 US 1 (1968). Whether denominated a search or an “administrative investigation,” other types of examination of the person or his property, although not based upon probable cause, are not vio-lative of the protection against unreasonable search. United States v Kazmierczak, 16 USCMA 594, 600, 37 CMR 214, 220 (1967). When such action is “a crucial part of the regulatory scheme” of a Government program and presents only a limited threat to the individual’s “justifiable expectations of privacy," the Government may lawfully enter private property without probable cause. United States v Biswell, 406 US 311, 315-16 (1972); Wyman v James, 400 US 309 (1971). In every case of detention of person or property the standard of measurement of the Government’s action is the “rule of reason.” United States v Kazmierczak, supra. See also United States v Maglito, 20 USCMA 456, 43 CMR 296 (1971); Downing v Kunzig, 454 F2d 1230 (6th Cir 1972).

Citizens or aliens coming into the United States from a foreign country are subject to a search of their persons and effects by a customs agent on “suspicion alone, or even oh a random basis.” United States v Stornini, 443 F2d 833, 835 (1971), cert denied, 404 US 861 (1971). Government counsel perceive “a gate search” at a military installation as an appropriate parallel to the border search. We are referred to United States v Gaddis, 41 OMR 629 (ACMR 1969), petition denied, 19 USCMA 629 (1970) as authority. Such a search, say counsel, quoting from an opinion by the United States Attorney General, is a reasonable exercise of the commander’s power to exclude all persons from a military base, or , to admit them under such restrictions as “the public interest may demand.” 26 Ops Atty Gen 91, 92, cited with approval in Cafeteria and Restaurant Workers Union Local 473 v McElroy, 367 US 886, 893 (1961). See also Flower v United States, 407 US 197 (1972). Unquestionably, the necessity to exclude contraband from the military installation parallels that in a border search, but how far the parallel can be extended is another matter. Many large installations encompass huge residential areas for the families of military personnel. Whether an installation commander can demand the right to search the person and effects of the family members as the price of admission through the gate is not at all fixed by authority or precedent. In the Cafeteria and Restaurant Workers Union case, the Supreme Court referred, with apparent approval, to an 1837 opinion by Attorney General Butler, 3 Ops Atty Gen 268, which upheld the right of the Superintendent of the Military Academy to remove civilian tenants at will occupying public buildings and which seemed to sanction submission to a search as a condition for their entry upon the Academy grounds. 367 US at 893. At the same time, however, the Court also cited an opinion by the Judge Advocate General of the Army which defined the commander’s power over the gateway to “the authority conferred on him by statutes and regulations.” JAGA, 1904/16272, 6 May 1904. Additionally, the Judge Advocate’s opinion speaks of exclusion of persons “other than those belonging to” the post. The materials presented to us do not indicate whether the right of exclusion extends to military persons. Military personnel assigned to a unit on a particular base are bound by their orders to be present at that base. In his dissent in United States v Brown, 10 USCMA 482, 493, 28 CMB 48, 69 (1959), Judge Latimer considered the relationship between the right to enter and the right to demand submission to a search as the price of entry in regard to military personnel posted to the base. He implied that such persons cannot be excluded, but he perceived this circumstance as making a search at the entrance “the only effective way to reach the evil” of smuggling contraband into the installation. He concluded that a gateway search of the person was “reasonable”; but still he acknowledged that the commander did not have “unlimited power to search,” and consequently, the validity of a gateway search instituted by him depended upon whether he had “reasonable cause to order” it. Id. at 492-93, 28 CMR at 58-59. In United States v Gebhart, 10 USCMA 606, 28 CMR 172 n 2 (1959), the Court drew attention to the right of a commander to inspect military persons “entering or leaving certain areas.” The word “certain” implies that the right of inspection may be qualified. Arguably, the suggested parallel between a border search and a search at the gateway to a military installation may end at the point of assumed consent to the search as the alternative to lawful exclusion from the area. We are not inclined, therefore, to accept the Government’s invitation to define the scope of a gateway search in terms of a border search, especially since the perimeters of the, border search may be undergoing realignment. See Note, Border Searches and the Fourth Amendment, 77 Yale LJ 1007 (1968).

At the outset, we are confronted by appellate defense counsel’s attack on the source and scope of Colonel Brown’s authority to make any search at the camp gate. At trial, notice was taken of two regulations, Army Regulation 210-10 and U. S. Army Vietnam Regulation Number 190-20, March 11, 1969, both of which deal with control of persons entering and leaving military installations. Counsel contend that Colonel Brown’s position as installation coordinator did not invest him with the authority of a post commander within the meaning of either regulation. Further, they construe the Vietnam command regulation as applicable only to control of civilian employees. Also, they contend that the search of the accused was not made on Colonel Brown’s authority as installation commander but under his direction as battalion commander. In my view of the issue, these. contentions need not be explored. The evidence indicates, and the accused concedes, that Colonel Brown had “command control . . . over the vehicles of his battalion.”

United States v Doyle, 1 USCMA 545, 4 CMR 137 (1952), commented on the long-established rule that, inherent in his responsibility for control of the military property of his organization, the military commander has power to search Government property. The Court went on to hold that the power to search may be delegated. On the basis of the evidence, Warrant Officer Eadleman had authority to search battalion vehicles, either because he was acting in execution of Colonel Brown’s decision to conduct such search or because he had been delegated the authority by Colonel Brown and could independently decide when to search and what vehicles to search. Regardless of the presence or absence of probable cause, there were good and sufficient reasons, in my opinion, to inspect each battalion vehicle for safety and to search it for contraband. Eadleman’s order to Hughes that the vehicle be stopped and searched was therefore legal, and Hughes’ execution of the order was also legal. See United States v Weshenfelder, 20 USCMA 416, 43 CMR 256 (1971); United States v Lange, 15 USCMA 486, 35 CMR 458 (1965). As to the vehicle, the intrusion was into the Govern-ment’s own property, not into the private property of the individual, and it was, therefore, entirely legal. What then is the legality of the search of the accused’s person?

Doyle recognized that when a search of military property affects the “rights of an individual” in connection with a criminal prosecution, exercise of the power to search may be subject to “limitations.” 1 USCMA at page 548, 4 CMR at page 140. We identified one limitation in United States v Mossbauer, 20 USCMA 584, 44 CMR 14 (1971), which held while taking control of the private possessions of an absentee for the purpose of inventory and safekeeping was lawful, that procedure could not be used as a subterfuge for a search for evidence of a crime. See also United States v Santo, 20 USCMA 294, 43 CMR 134 (1971).

Appellate defense counsel contend that no “reason for ordering” that the accused be searched appears in the record. As I read the record, it convincingly indicates that the search was ordered only because the accused was in the truck when it was stopped. True, the actual search was conducted by a security guard at the main gate of the camp, but Major Braush’s testimony leaves no doubt that selection of site and personnel for conduct of the search was solely for “convenience.” It is also clear from the major’s testimony that Colonel Brown’s instructions to Eadle-man were that he “must” search all passengers in a vehicle that he selected for search.

In United States v Di Re, 332 US 581, 587 (1948), the United States Supreme Court commented, with approval, on a concession by the Government that it could not, when "armed with a Search warrant for residence only . . . search all persons found in it.” The Court went on to hold that mere presence of an individual as a passenger in a vehicle lawfully subject to search did not deprive him of “immunities from search of his person to which he would otherwise be entitled.” However, that case dealt with a passenger in a private automobile; here, we are concerned with a passenger in a Government vehicle, which there was good reason to believe was the means of introducing contraband narcotics into the command. In my opinion, persons in a military vehicle which is suspected of being used to import forbidden matter into the command area may be searched as an incident to search of the vehicle, especially if they are not, as appellate defense counsel concedes the accused was not, a member of the command. I conclude, therefore, that the search was legal and that the results of the search were properly admitted into evidence against the accused.

For the reasons set out in his separate opinion, Chief Judge Darden is also of the opinion that the search of the accused was lawful and the evidence properly admitted. Accordingly, the decision of the Court of Military Review is affirmed.