United States v. Rushing

11 M.J. 95, 1981 CMA LEXIS 15043
CourtUnited States Court of Military Appeals
DecidedMay 11, 1981
DocketNo. 36,870; NCM 78-0827
StatusPublished
Cited by28 cases

This text of 11 M.J. 95 (United States v. Rushing) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rushing, 11 M.J. 95, 1981 CMA LEXIS 15043 (cma 1981).

Opinions

OPINION OF THE COURT

COOK, Judge:

At a bench trial, a special court-martial judge convicted the accused of seven offenses in violation of the Uniform Code of Military Justice. Asserting three errors relating to two of the offenses, the accused [96]*96asks that we dismiss them and remand the record for reconsideration of the sentence on the remaining findings of guilty. One assignment of error warrants relief, which we grant, but it does not justify continuation of review.

I. Assignments of error pertaining to Additional Charge I.

The specification of Additional Charge I alleges violation of a general regulation prohibiting possession of phencyclidine, a controlled substance.1 Two of the assignments of error pertain to the legality of the search of accused’s person which resulted in discovery of the substance. The first challenges the validity of the authorization to search on the ground that the information furnished to the authorizing officer, Lieutenant Colonel Richardson, was not provided under oath or affirmation. At the time of our grant of review, that issue was before the Court in other cases. As a result of the Court’s action on an application for reconsideration of the decision in United States v. Fimmano, 8 M.J. 197 (C.M. A.1980), determination of the matter had been deferred. See Memorandum Opinion on Reconsideration by Everett, Chief Judge, 9 M.J. 256, 261 (C.M.A.1980). It is clear, however, that at the time of the search in this case an authorization to search could properly be issued on the basis of information provided by a person not sworn or affirmed. United States v. Johnson, 8 M.J. 233 (C.M.A.1980). See United States v. Stuckey, 10 M.J. 347 (C.M.A.1981). Thus, this claim of error is without merit.

Accused’s second assignment of error in regard to the search alleges that Colonel Richardson “injected himself as a partisan” into the investigation and, consequently, lacked the neutrality and detachment required of an official issuing a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Staggs, 23 U.S.C. M.A. 111, 48 C.M.R. 672 (1974).2 Since our grant of review of the issue, the Court has decided claims of particularized disqualification in a large number of cases incident to determination that a commanding officer is not, because of the variety of his duties and responsibilities, constitutionally deprived of the capability to act as a neutral and detached judicial officer, free of a prosecutorial or police attitude. See United States v. Ezell, 6 M.J. 307 (C.M.A.1979). Those cases identified various disqualifying actions. Here, the accused relies upon three circumstances, which, somewhat amplified and restated, are as follows:

(a) At the time he authorized the search, Colonel Richardson was aware of the “accused’s prior record” of conduct.

(b) Colonel Richardson knew the person who had reported accused’s possession of the prohibited substance, which was identified as “THC” or “T,” a common description for tetrahydracannabinol.

(c) When apprised of accused’s possession of the substance, Colonel Richardson authorized only his apprehension. He instructed Agent Bedway of the Naval Investigative Service (NIS), to whom he issued the authorization, to request the accused to permit a search of his person; if the accused refused, Bedway was to return to obtain authorization to search accused’s person. The accused argues that the colonel’s actions demonstrate that he had “concluded [in advance] that he would authorize a search” of accused’s person; consequently, when the [97]*97accused declined to consent to a search his person, the colonel’s authorization of such a search was “clearly not the act of a neutral and detached person.” of

Possession of prior knowledge of the accused’s “record,” as specified in (a) above, did not disqualify Colonel Richardson. In United States v. Ezell, supra, the Court adhered to the principle that previous possession of unfavorable information about an individual who is the subject of an application to search does not automatically comprise qualification to authorize the search. In that situation, the question is whether the previous information is likely to cause the authorizing officer to abandon his impartiality.

In United States v. McCarthy, 7 M.J. 42, 43 (C.M.A.1979), the Court held that a commander was not disqualified to authorize a search because he had previous knowledge that the accused “was awaiting trial for drug charges; that ... a CID report ... [involved him] in other drug offenses; and that several informants had reported him as being involved in drug activity.” See United States v. Ezell, supra at 331-32 (Cook, J., concurring and dissenting). Here, Colonel Richardson knew of the accused’s “general conduct record” and that, at least twice, he had been an unauthorized absentee; he also implied that accused’s “conduct since” the “last” absence had not been satisfactory. The nature of this information impresses us, beyond a reasonable doubt, as not being of a kind to incline Colonel Richardson to be so predisposed against the accused as to grant an authorization to search accused’s person without regard to whether probable cause existed. We are confirmed in our belief by Colonel Richardson’s testimony, on cross-examination by defense counsel, that “based on the information” he had at the time of his authorization to apprehend accused, he “could have” also authorized a search of accused’s person.

Like item (a), item (b) involves the impact of prior knowledge on the part of the commander, but it focuses on a different aspect of the authorization to search. Where (a) is concerned with the effect on the impartiality of the commander, (b) deals with use of the information by him to satisfy the legal requirements for a search.

Military law sanctions consideration of prior knowledge to determine the requisite reliability of an informant whose unsworn or unaffirmed information is presented to establish probable cause for a search. In United States v. Miller, 21 U.S. C.M.A. 92, 93, 44 C.M.R. 146, 147 (1971), one of the informants had been known to the commander for about a year; the commander “considered [him] to be a ‘reputable member ... of the battalion’ ” and at least twice he “had furnished information leading to the seizure of prohibited drugs.” Remarking on the commander’s reliance upon the report of the informant, the Court described the informant as having “proven reliability.” Id. at 94, 44 C.M.R. at 148. See United States v. Land, 10 M.J. 103 (C.M.A.1980); United States v. Weekley, 3 M.J. 1065, 1066 (A.F.C.M.R.1977).

Colonel Richardson testified that he considered the informant reliable because of his “past experience with him.” He “knew” the informant was a member of his command and that he worked in the unit’s dining facility, where he saw him daily. On at least two occasions during the preceding period of 10 months, the informant had reported to him irregularities in payment by diners at the dining hall. On each occasion, Colonel Richardon obtained other information verifying the report, and then he issued an official directive to the mess officer for corrective action. Thus, the informant was “not an unnamed member of the underworld but a known, reputable member of the authorizing officer’s command,”

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Bluebook (online)
11 M.J. 95, 1981 CMA LEXIS 15043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rushing-cma-1981.