United States v. Smeal

23 C.M.A. 347
United States Court of Military Appeals·Decided March 14, 1975·No. No. 28,788·Published·Cited by 1 cases

Opinion

OPINION OF THE COURT

Cook, Judge:

As the result of a telephone call to the effect that accused’s wife had apparently shot herself, agents of three law enforcement groups went to the accused’s quarters at Edwards Air Force Base, California. What transpired thereafter led to the accused’s conviction for the theft of a government-owned typewriter. For different reasons, a majority of the U. S. Air Force Court of Military Review concluded, on review of the conviction, that the typewriter had been obtained by means of an illegal search. The court reversed the findings of guilty and dismissed the charge because of the apparent unavailability of other admissible evidence of guilt. Proceeding under Article 67(b)(2) of the Uniform Code of Military Justice, 10 USC § 867, the Judge Advocate General of the Air Force has forwarded the record to this Court for consideration of the following question: had apparently shot herself,1 the base security police dispatched three security policemen, from different places on the base, to the accused’s home. Sergeant Small, who was on patrol, arrived first. He saw the accused and a neighbor outside the house. Responding to Small’s question, "Where is she?” the accused led the way into the house and to the bathroom. When Small saw Mrs. Smeal on the bathroom floor, his immediate reaction was to run back to his vehicle to inquire by radio about an ambulance; he was advised that one was en route. Sergeant Grabowski then arrived. He estimated his time of arrival as between 7:00 and 7:30 p.m. An ambulance came within moments, and Mrs. Smeal was removed to the hospital. Small and the accused also left for the hospital in Small’s vehicle. Grabowski remained. He telephoned the desk sergeant at the security police office to report the matter as a serious incident which required notification of the Office of Special Investigations. In accordance with "proper procedure” and while awaiting the arrival of "other personnel,” he busied himself "securing the crime scene” by checking all windows and doors.2 Grabowski was out of the house interviewing a neighbor [349] when the third security policeman who had been directed to the house, Sergeant Carpenter, arrived.3

[348] WAS THE COURT OF MILITARY REVIEW CORRECT IN ITS HOLDING THAT THE DISCOVERY OF THE TYPEWRITER WAS THE RESULT OF AN UNLAWFUL SEARCH?
Notified by telephone that Mrs. Smeal

[349] Carpenter testified that Small, who had returned from the hospital, briefed him as to what had been done. "About this time the OSI Agents, Mr. Chambers and Mr. Hove arrived . . . .” In turn, Carpenter briefed them. Chambers went to the hospital to talk to the accused. At Carpenter’s direction, Small telephoned the Kern County sheriffs office to report the incident, as that office had jurisdiction in matters involving civilians on the base.

Deputy Sheriff McCollum arrived at the house between 8:00 and 8:30 p.m. (15 or 20 minutes after 8:00). He found the security policemen and OSI agents "just standing around.” He took charge and "attempted to determine what had taken place.” He inspected the bathroom where Mrs. Smeal’s- body had been found, and observed a large pool of blood, a beer can, and a .22-caliber revolver on the floor; there was also blood in the bathtub. Informed that blood had been found on two telephones in the house, one in the kitchen and the other "on the phone in the bedroom,” he went into the bedroom. On the floor of that room were other spots "that appeared to be blood that had been wiped up.” Confronted with this evidence, he proceeded on the assumption that the shooting might have, "been done by somebody other than the victim.” He asked the other agents to search for a rag or other article that could have been used to wipe up the spots. McCollum described the ensuing search as quite thorough.4

Hearing about the spots that had been wiped up, Carpenter went into the bedroom to look at them. He kneeled on the floor to inspect one area; as he looked up, he "looked directly into the [open] closet and I saw the silhouette of the typewriter.”5 He was about 3 or 4 feet from it and could readily distinguish its color, that it was an office-type electric machine, and that it bore an IBM emblem. These characteristics "fit the description” of typewriters he knew had been reported stolen from an office on the base. Accordingly, he went over to it and "looked for a serial number.” He apparently moved the machine around on the basket on which it rested and also apparently moved the carriage to expose the serial number.

On returning to the living room, Carpenter told Agent Hove about the typewriter. Hove also went into the bedroom to look at the typewriter and make a note of the machine’s serial number. The search for further evidence relating to the shooting continued. Eventually, the house was secured and all the investigators left. The OSI agents returned to [350] their office and checked the serial number of the typewriter against their records and found it matched that of a stolen machine. The next morning, Agent Chambers informed the base commander of these facts and obtained authorization from him to search the accused’s house. Pursuant to receipt of such authorization, the typewriter and other articles were seized. See note 4, supra.

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United States v. Smeal, 23 C.M.A. 347 (cma 1975).

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