United States v. Scott

13 M.J. 874, 1982 CMR LEXIS 972
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedMay 28, 1982
DocketNMCM 81 1257
StatusPublished
Cited by4 cases

This text of 13 M.J. 874 (United States v. Scott) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Scott, 13 M.J. 874, 1982 CMR LEXIS 972 (usnmcmilrev 1982).

Opinion

KERCHEVAL, Judge:

Appellant, contrary to his pleas, was convicted of premeditated murder, in violation of Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 918, at a general court-martial before members. He was sentenced to confinement at hard labor for the remainder of his natural life, total forfeitures, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the findings and sentence as adjudged.

Appellant asserts seven assignments of error before this Court. We agree with Assignment of Error VII, but reject the other assignments. The first two assignments, however, also warrant discussion.

I

THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS TWO PRETRIAL STATEMENTS MADE BY APPELLANT AND PHYSICAL EVIDENCE OBTAINED AS A RESULT OF A SEARCH OF APPELLANT’S LOCKER. SEE DUNAWAY v. NEW YORK, 442 U.S. 200, 99 S.CT. 2248, 60 L.ED.2D 824 (1979) AND UNITED STATES v. ESCOBEDO, 11 M.J. 51 (CMA 1981).

On 19 July 1980 the body of a murder victim was discovered on board Ship Repair Facility, U. S. Naval Station, Guam. Appellant became a prime suspect in the Naval Investigative Service’s (NIS) investigation of the crime, prompting Special Agent Simon’s decision to have appellant brought in to his office for questioning. Appellant was located at the military beach by security officers and transported to the NIS office at about 1500 that afternoon. He was given Article 31(b), UCMJ, warnings and counsel rights, acknowledged and waived the rights, and was informed that he was suspected of murder. Appellant would have been physically restrained had he attempted to leave the interview room by any means other than transportation back to his ship provided by the agent. Appellant subsequently consented to a search of his locker, which yielded a pair of pants containing stains later identified as blood. Special Agent Simon then interviewed appellant a second time in which, after appellant was again warned of his rights, he confessed to committing the murder. Appellant “readily” agreed to return to the scene of the murder and reenacted how he killed the victim.

Appellant, relying on Danaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and United States v. Escobedo, 11 M.J. 51 (C.M.A.1981), asserts that his initial detention violated the Fourth Amendment because he was seized without probable cause. He further contends that, because of the alleged violation, the statements made during the interview, the evidence seized pursuant to the search of his locker, and his subsequent confession should not have been admitted at trial.

The Supreme Court in Dunaway v. New York, supra, held that the Fourth Amendment requires police to have probable cause to believe that an individual has committed an offense before he can be brought in for custodial interrogation. It is clear from the record of trial that appellant was subjected to custodial interrogation, but we need not decide whether the NIS had probable cause in light of the conclusions we have reached [876]*876concerning Dunaway v. New York, supra, and United States v. Escobedo, supra.

While the reasonableness requirement of the Fourth Amendment generally mandates that a seizure be based upon probable cause, e.g., Dunaway v. New York, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), certain seizures are permissible on a lesser standard, see, e.g., Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981);1 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is also apparent to this Court that the ordering of a servicemember to report to military investigative authorities for questioning about a serious offense that has been committed within a military enclave should be subjected to less rigorous requirements than those imposed on the civilian community in general. It has been “long recognized that the military is, by necessity, a specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974). See also Brown v. Glines, 444 U.S. 348, 354, 100 S.Ct. 594, 599, 62 L.Ed.2d 540 (1980); United States v. Middleton, 10 M.J. 123, 127 (C.M.A.1981). Furthermore, “it is forseeable that reasonable expectations of privacy within the military society [as provided by the Fourth Amendment] will differ from those in the civilian society.” United States v. Middleton, supra at 127; see also Parker v. Levy, supra, 417 U.S. at 751, 94 S.Ct. at 2559.

The detention of appellant was one of those situations where the specialized needs of the military should permit a seizure on less than probable cause. A brutal murder was committed on base and it was imperative that the investigation and solution of the offense be accomplished as soon as possible in order to maintain order, effectiveness, and discipline at the command. Persons in the military realize that they are subjected to orders which members of the civilian community are not. As stated by the Court of Military Appeals:

It is true that military personnel have legal and personal rights not subject to military orders, and that orders which are arbitrary and unreasonable, or too broad and uncertain, cannot be approved. See United States v. Milldebrandt, 8 USCMA 635, 25 CMR 139; United States v. Wysong, 9 USCMA 249, 26 CMR 29; United States v. Nation, 9 USCMA 724, 26 CMR 504; United States v. Wilson, 12 USCMA 165, 30 CMR 165; United States v. Wheeler, 12 USCMA 387, 30 CMR 387; United States v. Aycock, 15 USCMA 158, 35 CMR 130. However, it is also to be remembered, as a unanimous Court pointed out as early as United States v. Martin, 1 USCMA 674, 676, 5 CMR 102:
“... All activities which are reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and are directly connected with the maintenance of good order in the services are subject to the control of the officers upon whom the responsibility of the command rests. ...”

United States v. Giordano, 15 U.S.C.M.A. 163, 166-67, 35 C.M.R. 135, 138-39 (1964).

For these reasons we find that the requirement for probable cause to seize an individual for questioning as enunciated in Dunaway v. New York, supra, is not applicable to the military setting. In this regard we note that the Court of Military Appeals in United States v. Escobedo, supra, did not address the question of whether Dunaway applies to military authorities who have seized or detained a service member for custodial questioning by a means short of apprehension. Escobedo involved a situation where an accused was illegally apprehended without probable cause.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Gittens
36 M.J. 594 (U S Air Force Court of Military Review, 1992)
United States v. Ayala
22 M.J. 777 (U.S. Army Court of Military Review, 1986)
United States v. Scott
17 M.J. 724 (U.S. Navy-Marine Corps Court of Military Review, 1983)
United States v. Price
15 M.J. 628 (U.S. Navy-Marine Corps Court of Military Review, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
13 M.J. 874, 1982 CMR LEXIS 972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-scott-usnmcmilrev-1982.