United States v. Soto

16 C.M.A. 583, 16 USCMA 583, 37 C.M.R. 203, 1967 CMA LEXIS 336, 1967 WL 4221

• Court: United States Court of Military Appeals
• Decided: March 24, 1967
• Docket: No. 19,767
• Status: Published

Opinions

Opinion of the Court

FERGUSON, Judge:

Arraigned and tried before a general court-martial convened at Fort Hood, Texas, the accused was convicted of larceny, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921. He was sentenced to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for three years, and reduction. The convening authority approved only so much of the sentence as provided for the punitive discharge, forfeitures, and confinement at hard labor for one year. The board of review set aside the punitive discharge and further reduced the sentence to confinement at hard labor for six months and forfeiture of $50.00 per month for six months. We granted the accused’s timely petition for review upon the assignment:

“THE LAW OFFICER ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY THE ADMISSION OF EVIDENCE OBTAINED BY AN UNLAWFUL SEARCH AND SEIZURE.”

During the late evening hours of June 30, 1965, Private Vincente Robles-Rios’ wallet was taken from under his pillow. On the the following morning, he discovered his loss.- The wallet was subsequently located, but its contents, amounting to $64.00 in United States currency, were missing. Robles-Rios told a friend, Private First Class De-Jesus, of his loss.

Immediately after reveille on July 1, 1965, Captain Raymond P. Wright, Commanding Officer of Robles-Rios’ unit, was informed by his first sergeant of the theft. He commenced an investigation into the matter. A Private Rodriguez informed Captain Wright that he had been awakened on the preceding evening by the rattling of wall lockers in the tent which he and DeJesus occupied. He saw accused proceed from the area of the lockers to DeJesus’ bed and bend over, as if he were feeling under it. DeJesus sat up and spoke to accused, who proceeded to tell him sopqe-thing about a fight involving another soldier. DeJesus told accused to leave the tent. When interrogated by Captain Wright, DeJesus refused to make any statement. He declared “that he wanted to find something out, then he would tell me everything at eleven o’clock.” When Captain Wright inquired whether the matter involved the accused, DeJesus replied that it did. Thereupon, Wright ordered Soto to be brought to his, Soto’s, tent and, in his presence, conducted a search of his belongings. Robles-Rios’ money, identified through its serial numbers, was found in accused’s boots. DeJesus and Rodriguez occupied a different tent from Robles-Rios. The latter’s “home” was approximately twenty feet away in another row of the encampment.

On the basis of the foregoing information, the Government urges Captain Wright had probable cause to believe the accused had stolen Robles-Rios’ money and to order a search of his possessions and person. In the alternative, it contends the search was made to prevent the disposition of criminal goods and was, therefore, likewise proper and lawful. We disagree.

As to the first contention, we see no evidence of probable cause to believe the accused had entered Robles-Rios’ tent and taken his money on the evening in question. “Probable cause to search exists if the facts and circumstances justify a prudent man in concluding that an offense has been or is being committed, [and that the accused committed it].” United States v Ness, 13 USCMA 18, 32 CMR 18. Those facts must be made known to the commanding officer in order that his magisterial authority may be properly exercised. United States v Davenport, 14 USCMA 152, 33 CMR 364. Captain Wright had been informed by his first sergeant that an offense had been committed, but none of the information he subsequently obtained offers a reasonable basis for believing the accused to have been the perpetrator. At most, it placed the accused in DeJesus’ tent at the appropriate period of time, but Robles-Rios resided some twenty feet away in another row of tents. .To impute that accused’s purpose was to steal from DeJesus on the basis of rattling of wall lockers and bending over DeJesus’ bunk, as if he were feeling under it, is to induge in the sheerest conjecture.¹ Moreover, it in no manner connects him with a theft from a separate place and another individual. See United States v Hartsook, 15 USCMA 291, 35 CMR 263, and United States v Davenport, supra. Accordingly, we find no probable cause to have existed for Captain Wright’s search.

Turning to the Government’s second argument, i.e., that the search was necessary to prevent the disposition of criminal goods, we likewise must reject its application here. In United States v Lange, 15 USCMA 486, 35 CMR 458, we pointed out that such searches were permissible if immediate action was necessary “to prevent removal or disposition of stolen property.” Lange, supra, at page 490. Such need, however, does not eliminate the requirement of probable cause. To the contrary, it permits searches only when based on probable cause and merely dispenses with the requirement that such be determined by the commanding officer. See Carroll v United States, 267 US 132, 69 L ed 543, 45 S Ct 280 (1925), and United States v Swanson, 3 USCMA 671, 14 CMR 89. And, as we have pointed out above, no probable cause existed for the action taken by Captain Wright in this case.

It follows, therefore, that the search and seizure which resulted in the discovery of the money taken from Robles-Rios was illegal, and the law officer erred prejudicially in overruling the timely defense objection to its receipt in evidence.

The decision of the board of review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Judge Kilday concurs.

1 Interestingly, both Rodriguez and DeJesus testified and contradicted Captain Wright at the trial. Rodriguez denied telling Wright he had seen Soto in the tent on the night in question, although he admitted recognizing him by voice when he spoke with DeJesus. DeJesus denied telling Captain Wright the accused was at all involved until after the search.