Opinion of the Court
SULLIVAN, Judge:
In April 1985, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Lewis, Washington. Contrary to his pleas, he was found guilty of attempted larceny of property of the Army and Air Force Exchange Service (AAFES), in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. He was sentenced to a bad-conduct discharge, confinement for 1 year, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Military Review affirmed on September 26, 1986.
This Court granted review of the following issues:
[313]*313I
WHETHER THE MILITARY JUDGE ERRED IN RULING THAT EVIDENCE OF APPELLANT’S GOOD MILITARY CHARACTER WAS NOT ADMISSIBLE BEFORE FINDINGS.
II (SPECIFIED)
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE STATEMENTS GIVEN BY APPELLANT TO A STORE DETECTIVE OF THE POST EXCHANGE, WHEN THE DETECTIVE DID NOT ADVISE APPELLANT OF EITHER HIS ARTICLE 31 OR HIS TEMPIA[1] RIGHTS.
We hold that this base-exchange detective should have advised appellant of his rights under Article 31(b), UCMJ, 10 USC § 831(b), prior to questioning him about this suspected shoplifting offense. United States v. Penn, 18 USCMA 194, 39 CMR 194 (1969); see generally United States v. Duga, 10 MJ 206 (CMA 1981). Accordingly, the military judge erred in finding the detective’s testimony as to appellant’s unwarned responses was admissible. See Art. 31(d).
On December 16, 1984, Mrs. Holmes was working as an exchange detective at the McChord Air Force Base Exchange. She observed appellant pushing a shopping cart that contained a Beta movie camera and a video cassette recorder. She further observed that these items did not have security tape on them. Continuing her surveillance, she saw him apply something to the boxes with a glue pencil. Thereafter, she noticed that both boxes displayed a yellow-green security tape instead of the current day’s color, which was pink.
Mrs. Holmes, her suspicions aroused, followed appellant throughout the store observing his subsequent actions. She then arranged for appellant to be provided the opportunity to depart the exchange without purchasing the items in his shopping cart. When appellant did so, she stopped him and displayed her “badge.” Mrs. Holmes then requested appellant’s military identification card, which he voluntarily surrendered. Mrs. Holmes and an assistant exchange detective, Mrs. Thuer, then escorted appellant to the manager’s office.
At that office Mrs. Holmes asked appellant if he had a receipt for the merchandise. He said, “No, I think I must have lost it. I was in here earlier today and purchased it then...” He responded to more particular questions from her by stating that he had purchased the video equipment at the stereo department, but he could not find his receipt. Mrs. Holmes called the Air Force Security Police, checked with the stereo department, and determined that no sale of this merchandise had occurred that day. Returning to the office, Mrs. Holmes waited with appellant until Sergeant Franks, Air Force Security Police, arrived.
Mrs. Holmes then told Sergeant Franks what she had observed and what appellant had told her. Sergeant Franks then apprehended appellant and read appellant his Article 31 rights. After these rights were given, Mrs. Holmes again asked appellant if he had purchased the video equipment or had receipts for them. Appellant again responded that he had purchased the items from the stereo department.
At trial, appellant moved to suppress the statements made to Mrs. Holmes on the grounds that she failed to read him his Article 31 rights prior to questioning. Moreover, appellant argued that his statements to Mrs. Holmes made after being given his Article 31 rights should also be suppressed.
The military judge thereafter made the following ruling:
Mrs. Holmes was a store detective unrelated to direct law enforcement activities or representing the commander’s punitive or disciplinary power and, therefore, she was not acting in an official capacity when she first asked the accused for a receipt and where he had purchased the items in question.
[314]*314Therefore, as to the first statement made by the accused, the motion to suppress is denied. As to the subsequent questioning by Mrs. Holmes after the accused invoked his rights to counsel, the motion is granted as to what he told her.
The specified issue in this case questions admissibility of testimony from Mrs. Holmes’ repeating appellant’s responses to her questions about the suspected stolen items. See Art. 31(d); Mil. R. Evid. 304(a), Manual for Courts-Martial, United States, 1984. Appellant at trial and again on appeal asserts that this exchange detective was required to advise him of his rights under Article 31 before questioning him about the shoplifting incident. See Art. 31(b); Mil. R. Evid. 305(c). The Court of Military Review held that such warnings were not required because “the store detective acted not as an instrument of the military with investigative or law enforcement powers, but in a private capacity as an employee of AAFES when she interrogated appellant.” Unpub. op. at 1. We disagree.
Admittedly, Mrs. Holmes was a civilian and was not subject to the Uniform Code of Military Justice. However, it is well established that these facts alone do not render inapplicable the protections of Article 31(b) to such a person’s questioning of a service-member about a suspected crime. This Court has noted “at least two situations in which Article 31 extends to the civilian investigator,” as follows:
(1) When the scope and character of the cooperative efforts demonstrate “that the two investigations merged into an indivisible entity,” United States v. Swift, 17 USCMA 227, 232, 38 CMR 25 [, 30]; and (2) when the civilian investigator acts “in furtherance of any military investigation, or in any sense as an instrument of the military,” United States v. Grisham, 4 USCMA 694, 697, 16 CMR 268 [, 271]; United States v. Aau, 12 USCMA 332, 30 CMR 332...
United States v. Penn, 18 USCMA at 199, 39 CMR at 199. Here, Mrs. Holmes in a very real and substantial sense acted as an instrument of the military.2 See Mil. R. Evid. 305(b)(1).
In this regard, we first note that the organization which employed her and directed her actions was under the control of military authorities. In Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942), the Supreme Court long ago recognized “that post exchanges.. .are arms of the government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it____” The control of the exchange lies with the post commander and applicable service regulations; its purpose “is to provide convenient and reliable sources where soldiers can obtain their ordinary needs at the lowest possible prices.” Id. at 484-85, 62 S.Ct. at 1169-70. The same is substantially true today. See paras.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
SULLIVAN, Judge:
In April 1985, appellant was tried by a general court-martial composed of officer and enlisted members at Fort Lewis, Washington. Contrary to his pleas, he was found guilty of attempted larceny of property of the Army and Air Force Exchange Service (AAFES), in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. He was sentenced to a bad-conduct discharge, confinement for 1 year, and reduction to the lowest enlisted grade. The convening authority approved the sentence, and the Court of Military Review affirmed on September 26, 1986.
This Court granted review of the following issues:
[313]*313I
WHETHER THE MILITARY JUDGE ERRED IN RULING THAT EVIDENCE OF APPELLANT’S GOOD MILITARY CHARACTER WAS NOT ADMISSIBLE BEFORE FINDINGS.
II (SPECIFIED)
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE STATEMENTS GIVEN BY APPELLANT TO A STORE DETECTIVE OF THE POST EXCHANGE, WHEN THE DETECTIVE DID NOT ADVISE APPELLANT OF EITHER HIS ARTICLE 31 OR HIS TEMPIA[1] RIGHTS.
We hold that this base-exchange detective should have advised appellant of his rights under Article 31(b), UCMJ, 10 USC § 831(b), prior to questioning him about this suspected shoplifting offense. United States v. Penn, 18 USCMA 194, 39 CMR 194 (1969); see generally United States v. Duga, 10 MJ 206 (CMA 1981). Accordingly, the military judge erred in finding the detective’s testimony as to appellant’s unwarned responses was admissible. See Art. 31(d).
On December 16, 1984, Mrs. Holmes was working as an exchange detective at the McChord Air Force Base Exchange. She observed appellant pushing a shopping cart that contained a Beta movie camera and a video cassette recorder. She further observed that these items did not have security tape on them. Continuing her surveillance, she saw him apply something to the boxes with a glue pencil. Thereafter, she noticed that both boxes displayed a yellow-green security tape instead of the current day’s color, which was pink.
Mrs. Holmes, her suspicions aroused, followed appellant throughout the store observing his subsequent actions. She then arranged for appellant to be provided the opportunity to depart the exchange without purchasing the items in his shopping cart. When appellant did so, she stopped him and displayed her “badge.” Mrs. Holmes then requested appellant’s military identification card, which he voluntarily surrendered. Mrs. Holmes and an assistant exchange detective, Mrs. Thuer, then escorted appellant to the manager’s office.
At that office Mrs. Holmes asked appellant if he had a receipt for the merchandise. He said, “No, I think I must have lost it. I was in here earlier today and purchased it then...” He responded to more particular questions from her by stating that he had purchased the video equipment at the stereo department, but he could not find his receipt. Mrs. Holmes called the Air Force Security Police, checked with the stereo department, and determined that no sale of this merchandise had occurred that day. Returning to the office, Mrs. Holmes waited with appellant until Sergeant Franks, Air Force Security Police, arrived.
Mrs. Holmes then told Sergeant Franks what she had observed and what appellant had told her. Sergeant Franks then apprehended appellant and read appellant his Article 31 rights. After these rights were given, Mrs. Holmes again asked appellant if he had purchased the video equipment or had receipts for them. Appellant again responded that he had purchased the items from the stereo department.
At trial, appellant moved to suppress the statements made to Mrs. Holmes on the grounds that she failed to read him his Article 31 rights prior to questioning. Moreover, appellant argued that his statements to Mrs. Holmes made after being given his Article 31 rights should also be suppressed.
The military judge thereafter made the following ruling:
Mrs. Holmes was a store detective unrelated to direct law enforcement activities or representing the commander’s punitive or disciplinary power and, therefore, she was not acting in an official capacity when she first asked the accused for a receipt and where he had purchased the items in question.
[314]*314Therefore, as to the first statement made by the accused, the motion to suppress is denied. As to the subsequent questioning by Mrs. Holmes after the accused invoked his rights to counsel, the motion is granted as to what he told her.
The specified issue in this case questions admissibility of testimony from Mrs. Holmes’ repeating appellant’s responses to her questions about the suspected stolen items. See Art. 31(d); Mil. R. Evid. 304(a), Manual for Courts-Martial, United States, 1984. Appellant at trial and again on appeal asserts that this exchange detective was required to advise him of his rights under Article 31 before questioning him about the shoplifting incident. See Art. 31(b); Mil. R. Evid. 305(c). The Court of Military Review held that such warnings were not required because “the store detective acted not as an instrument of the military with investigative or law enforcement powers, but in a private capacity as an employee of AAFES when she interrogated appellant.” Unpub. op. at 1. We disagree.
Admittedly, Mrs. Holmes was a civilian and was not subject to the Uniform Code of Military Justice. However, it is well established that these facts alone do not render inapplicable the protections of Article 31(b) to such a person’s questioning of a service-member about a suspected crime. This Court has noted “at least two situations in which Article 31 extends to the civilian investigator,” as follows:
(1) When the scope and character of the cooperative efforts demonstrate “that the two investigations merged into an indivisible entity,” United States v. Swift, 17 USCMA 227, 232, 38 CMR 25 [, 30]; and (2) when the civilian investigator acts “in furtherance of any military investigation, or in any sense as an instrument of the military,” United States v. Grisham, 4 USCMA 694, 697, 16 CMR 268 [, 271]; United States v. Aau, 12 USCMA 332, 30 CMR 332...
United States v. Penn, 18 USCMA at 199, 39 CMR at 199. Here, Mrs. Holmes in a very real and substantial sense acted as an instrument of the military.2 See Mil. R. Evid. 305(b)(1).
In this regard, we first note that the organization which employed her and directed her actions was under the control of military authorities. In Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942), the Supreme Court long ago recognized “that post exchanges.. .are arms of the government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it____” The control of the exchange lies with the post commander and applicable service regulations; its purpose “is to provide convenient and reliable sources where soldiers can obtain their ordinary needs at the lowest possible prices.” Id. at 484-85, 62 S.Ct. at 1169-70. The same is substantially true today. See paras. 1-4 and 1-9, Army Regulation (AR) 60-10 (March 15, 1984). Accordingly, her position as a store detective at a base exchange was not private,3 but governmental in nature and military in purpose. Contra United States v. Pansoy, 11 MJ 811, 813 (AFCMR 1981); United States v. Jones, 11 MJ 829, 831 (AFCMR 1981).
In addition, Mrs. Holmes’ conduct in questioning appellant was at the behest of military authorities and in furtherance of their duty to investigate crime at base ex[315]*315changes. Cf. United States v. Aau, supra at 336-37, 30 CMR at 336-37. Applicable service regulations make clear that the ultimate responsibility for prosecution of alleged criminal acts in base exchanges rests with military authorities. See para. 2-6(a)(8), AR 60-10. However, to assist the command in fulfilling this duty, the manager of the base exchange must file reports on crime including shoplifting with appropriate military officers.4 Paras. 4-3, 4-4, 6-27, 14-3, Exchange Service Manual (ESM) 16-1 (June 1984). Moreover, the exchange detectives are particularly tasked with developing information for these reports and even detaining suspects without force for additional questioning by military police authorities. Mrs. Holmes obviously was not engaged in a frolic of her own.5 Cf. United States v. Volante, 4 USCMA 689, 16 CMR 263 (1954).
We are also persuaded that appellant perceived that Mrs. Holmes’ inquiries involved more than casual conversation. See United States v. Duga, 10 MJ 206. She stopped appellant, displayed her store credentials, and requested his identification card. Moreover, once her detective’s badge was displayed, the detention and interrogation followed an official routine which was anything but casual. See paras. 6-29 to 6-32, ESM 16-1. In these circumstances, warnings were required by Article 31 if military authorities intended to use his responses as evidence at his court-martial. Art. 31(d).
In reaching this conclusion, we find of great significance that questioning of appellant did not occur at the original stop but after he was escorted to the manager’s office by store employees. Furthermore, he was not simply asked to produce his receipt for the merchandise, a practice to which we have no objection on constitutional or codal grounds. See United States v. Lee, 25 MJ 457, 459 (CMA 1988). See generally Doe v. United States, — U.S. -, 108 S.Ct. 2341, 2347-48, 101 L.Ed.2d 184 (1988).
The final question we must address is whether appellant was prejudiced by the erroneous ruling of the military judge. See Art. 59(a), UCMJ, 10 USC § 859(a). His defense at trial was that a stranger had left the stolen items with him in the store and that he innocently left the store with them in the hope of returning them to this unknown person. Appellant’s admissions to Mrs. Holmes that he had a receipt because he had purchased these items at the stereo counter earlier in the day doomed this defense. A rehearing is appropriate.6
The decision of the United States Army Court of Military Review is reversed; the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
Chief Judge EVERETT concurs.