United States v. Reagan

7 M.J. 490, 1979 CMA LEXIS 8822

• Court: United States Court of Military Appeals
• Decided: October 29, 1979
• Docket: No. 35,662; CM 435773
• Status: Published

Opinions

FLETCHER, Chief Judge:

This case¹ presents three issues for our determination: first, a determination of the neutrality and detachment of the officer acting as a magistrate for the purpose of authorizing a search; next, whether he was empowered to authorize a search of appellant’s car and apartment located in a civilian community; and finally, whether the judge in this case committed reversible error in his acceptance of a stipulation amounting to a confession to the marihuana specifications. Despite appellant’s urging, we find it unnecessary to answer the first granted issue. The second and third, however, require exclusion of the evidence seized and the accepted stipulation.

The Deputy Community Commander of the Hanau Military Community, Federal Republic of Germany, authorized an off-post search of appellant’s apartment and van, allegedly pursuant to an international agreement between the United States and the Federal Republic of Germany.

However, the treaty,² standing alone, cannot be read as authority to support the search performed in this case. But it has been urged that authority to search in this instance stems not only from the treaty but is buttressed by the following provisions: paragraph 152, Manual for Courts-Martial, United States, 1969 (Revised edition); paragraph 2-1, AR 190-22 (June 12, 1970); paragraph 2-1c, USAREUR Supplement 1 to AR 190-22. With this proposition we cannot agree. It is basic to the law, requiring neither cited authority nor extensive comment, that one of the parties to an international treaty³ cannot enlarge the terms of the original treaty.

The obligation to show that this search is within the purview of the treaty is upon the Government, but such has not been established on the record. Therefore, as the evidence seized is found to be inadmissible, we do not answer the first granted issue.

Regarding the stipulation admitted into evidence, we evaluate it as confessional in nature, and thus it should have been excluded under the rule announced in United States v. Bertelson, 3 M.J. 314 (C.M.A.1977). The stipulation allowed in United States v. Long, 3 M.J. 400 (C.M.A.1977), may be distinguished from the instant case in that it did not establish the essential precedent, possession, upon which could be predicated both wrongfulness and service discreditation. Here, there was no such vigorously litigated issue of possession, even though the stipulation concedes the property’s discovery in appellant’s vehicle and apartment sufficient to make a prima facie showing that the contraband had been in the appellant’s knowing, conscious, and exclusive possession at the moment of its seizure.

For the foregoing reasons the decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

1 . At a general court-martial before a military judge alone, the appellant was convicted of possession of amphetamines and marihuana, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934, respectively, His sentence, as approved by the convening authority and affirmed by the United States Army Court of Military Review, included a dishonorable discharge, confinement at hard labor for 16 months, total forfeitures and reduction to the lowest pay grade.

2 . The military police of a force shall have the right to patrol on public roads, on public transport, in restaurants (Gaststatten) and in all other places to which the public has access and to take such measures with respect to the members of a force, of a civilian component or dependents as are necessary to maintain order and discipline. Insofar as it is

necessary or expedient the details of the exercise of the right shall be agreed upon between the German authorities and the authorities of the force, who shall maintain close mutual liaison.

Article 28 of the Supplementary Agreement to the North Atlantic Treaty Organization Status of Forces Agreement with Respect to Forces Stationed in the Federal Republic of Germany (1 U.S.T. 531, 559-60).

3 . North Atlantic Treaty Organization Status of Forces Agreement with respect to forces stationed in the Federal Republic of Germany and Supplemental agreements thereto.