United States v. Smallwood

22 C.M.A. 40

• Court: United States Court of Military Appeals
• Decided: November 17, 1972
• Docket: No. 25,541
• Status: Published

Opinions

Opinion of the Court

Quinn, Judge:

A search of the accused’s person uncovered a cigarette case containing loose marihuana; a later search of his room led to discovery of marihuana and opium in a laundry bag concealed in the ceiling. Both searches were directed by the accused’s company commander, Captain Meredith. The questions presented by this appeal are, first, whether the information upon which Captain Meredith based his authorization to search was reliable; and, secondly, whether the information was sufficient to meet the standard of probability as to the presence of marihuana at both places.

Search of the accused’s person was precipitated by a report by Captain Ward. The captain had arrived in Vietnam on November 28, 1970, and he had been working in an area known as the Sandy Pad for only three days before the search. On December 7 about 5:00 p.m., he passed the accused and noticed that he was smoking a cigarette with a rolled or crimped end. Moments later he approached the accused to talk to him. In the meantime, the accused had mounted a truck used to transport personnel to the company area and was seated in the cab. Standing about two feet from the accused, Captain Ward observed the accused “rolling the end” of the cigarette between his fingers. The smell of the cigarette smoke was “sweet.” Although Captain Ward admitted that he was “no expert,” he testified that he had previously smelled marihuana smoke, apparently in demonstrations by the CID. To him, the smoke from the accused’s cigarette “smelled like marihuana.” Captain Ward reported his observations and that he “thought” the accused “was smoking marihuana” to Sergeant Bardsley, the noncommissioned officer in charge of the area of the accused’s work.

Sergeant Bardsley telephoned the accused’s company and spoke to First Sergeant Kiser. He reported to Kiser “what Captain Ward had told” him. In turn, Sergeant Kiser advised Captain Meredith of the information provided by Captain Ward.

Reports of the accused’s involvement with prohibited substances were not new to Captain Meredith. On December 2, he had been advised by Staff Sergeant Limley, who worked in the on-going drug amnesty program in the company, that he had received information from an informant to the effect that the accused was “reselling marihuana and drugs” in the company area (emphasis supplied). Captain Meredith knew Sergeant Limley “since early 1970” and considered him to be “very reliable.” He had also ascertained from Limley that the informant had on at least seven previous occasions furnished information about drugs, stolen property, and other prohibited matter which proved to be as the informant “had stated.” On December 5, Captain Meredith conferred directly with Limley’s informant. The informant told him that “he knew for a fact” that the accused was “reselling marihuana and drugs.” Between December 2 and December 6, the informant also reported that the accused was a “user” and was “keeping marihuana” and, occasionally, “hard drugs” in his room. On December 6, Captain Meredith discussed with Chief Warrant Officer Barber, the company security officer, the feasibility of an immediate search of the accused’s quarters. Since another person, who had come down from a “forward area,” was then quartered with the accused, the decision to search was deferred.

Within “a few minutes” of receiving Captain Ward’s report, Captain Meredith was informed by Sergeant Kiser that the accused was in the company area. Accompanied by Kiser and Barber, Meredith left the orderly room and accosted the accused in the company street. He advised the accused that he was suspected of possessing marihuana and drugs, and he directed Barber to search the accused’s person. A search of the accused’s quarters followed, with the results noted at the beginning of this opinion.

As to the reliability of the informant, two circumstances impress us as justifying Captain Meredith’s belief in his credibility. First, in each of seven instances in which he gave information to Sergeant Limley, the information proved to be correct. See United States v Miller, 21 USCMA 92, 44 CMR 146 (1971). Secondly, Captain Meredith personally talked to him. Thus, the captain was also able to assess the informant’s credibility from his demeanor in direct confrontation. As to Captain Ward’s reliability, Captain Meredith admitted that he knew Ward only as an officer working at the Pad. It may reasonably be inferred that he knew Captain Ward had been assigned to the Pad only three days earlier. It was apparent, therefore, that the relationship between the captain and the accused was not likely to be one that would incline the captain falsely to. report the accused as involved in serious misconduct. Moreover, Captain Ward’s duty assignment at the Pad indicated that his report to Sergeant Bardsley was an official report for the purpose of initiating appropriate official action. Under the circumstances, we deem it eminently reasonable for Captain Meredith to regard Captain Ward’s report as reliable. See United States v Lidle, 21 USCMA 455, 457, 45 CMR 229 (1972); McCreary v Sigler, 406 F2d 1264 (CA 8th Cir) (1969), certiorari denied, 395 US 984, 23 L Ed 2d 773, 89 S Ct 2149 (1969).

Moving to the sufficiency of the evidence to establish probable cause to believe that the accused had marihuana on his person, we start with the fact that Captain Meredith was not informed of Captain Ward’s previous experience with marihuana. Accordingly, Captain Meredith probably did not know and, therefore, could not rely upon, Captain Ward’s opinion that the cigarette smoked by the accused contained marihuana. That circumstance, however, did not preclude a determination by Captain Meredith that the cigarette probably contained marihuana. The dimensions of marihuana use by American military personnel in Vietnam, as publicly reported (see Drug Abuse in the Military, Hearings before the Subcommittee on Drug Abuse in. the Military of the Committee on Armed Services, United States Senate, 92d Congress, 2d Session, on S. 2139, S. 2999, S. 1189, at pages 148-149 and 395), support an inference that Captain Meredith, as commander of a company actively participating in the drug amnesty program, was familiar with the characteristic aroma of marihuana smoke, and that it was a common practice for marihuana smokers to crimp or twist their cigarettes. Consequently, considering only the matters of observation specified in Captain Ward’s report, Captain Meredith had sufficient facts before him, and sufficient independent knowledge of marihuana, from which he could fairly conclude that the accused probably had smoked a marihuana cigarette at the Pad. Coupled with the earlier reports from the informant as to the accused’s use of marihuana, the decision to search the ac-. cused immediately upon his return to the company area from the Pad was logically and legally sound.

The discovery of some marihuana on the accused’s person emphasized the necessity of searching for the remainder of the substance reportedly in his possession. Since current reports from the informant indicated specifically that the accused had marihuana in his room, the decision to search that place also was logically and legally sound. United States v Sparks, 21 USCMA 134, 136, 44 CMR 188 (1971); United States v Miller, 21 USCMA 92, 94, 44 CMR 146 (1971). Compare United States v Gibbins, 21 USCMA 556, 559, 45 CMR 330 (1972).

We conclude that the results of the two searches were properly admitted in evidence. Accordingly, we affirm the decision of the Court of Military Review.