United States v. Stoecker

17 M.J. 158, 1984 CMA LEXIS 22788
CourtUnited States Court of Military Appeals
DecidedJanuary 30, 1984
DocketNo. 44,466; CM 441264
StatusPublished
Cited by13 cases

This text of 17 M.J. 158 (United States v. Stoecker) 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. Stoecker, 17 M.J. 158, 1984 CMA LEXIS 22788 (cma 1984).

Opinion

Opinion of the Court

EVERETT, Chief Judge:

Contrary to appellant’s pleas, a general court-martial consisting of officer members convicted him of stealing certain government property valued at about $6,122.00, and of wrongfully possessing 8.13 grams of marihuana, in violation of Articles 121 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 934, respectively. Stoecker was sentenced to confinement at hard labor and forfeiture of $100.00 pay per month for 12 months, and reduction to the grade of E-l. The convening authority approved the findings and sentence, and the United States Army Court of Military Review affirmed. United States v. Stoecker, 13 M.J. 879 (1982).

Thereafter, we granted review to consider these two issues:

I
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY DENYING APPELLANT’S MOTION TO SUPPRESS THE SEIZED MARIHUANA THAT FORMED THE BASIS OF CHARGE III AND ITS SPECIFICATION.
II
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY DENYING APPELLANT’S MOTION TO SUPPRESS THE MARIHUANA UPON WHICH CHARGE III AND ITS SPECIFICATION WAS BASED AND WHICH WAS OBTAINED FROM THE APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ [10 U.S.C. § 831(b)].

I

In an Article 39(a)1 session prior to the entry of appellant’s pleas, his defense counsel moved to suppress all evidence as to the marihuana which Stoecker was charged with possessing. In opposition to this motion, trial counsel called as a witness Sergeant Joseph Schopper, the military police investigator who had seized the marihuana.

According to Schopper, he had been asked to meet with appellant’s company commander, Captain Virgil, who informed him

that an individual had come to him and had stated that SP Stoecker had allegedly removed some electronic equipment from one of the warehouses where he works; that the equipment was allegedly an oscilloscope and a tool kit that goes along with it; and that he carried the items out of the warehouse and put them in his car, [160]*160a ’71 yellow Firebird; and drove from his place of duty out there.

Subsequently, Schopper met with appellant in Captain Virgil’s office and explained to him the allegations of larceny. “I made sure that he understood what larceny was and went from there to ask for his consent to search his POV [privately owned vehicle] for this equipment.” However, he did not “question” appellant “about the reported larceny,” because

I had no intention at all of questioning him at that time. I knew that if the larceny had occurred, that the dollar amount would put it out of MPI purview and into CID purview, so I for that reason didn’t question him in order that the CID would be able to handle it.

Appellant signed a Consent to Search Form, which later was received in evidence as Appellate Exhibit VI. After the search of Stoecker’s car proved unavailing, “I asked him for consent to search his room in the barracks.” Appellant “again agreed and consented to the search, at which time I took the same form that I had for the vehicle” and modified it to include the room.

After appellant granted consent to search his room, he proceeded to the room along with Schopper, Captain Virgil, and another person, Mr. Mitchell, who could identify the stolen items.

As we entered the room, we started searching the room and on the right side of the room, there were two wall lockers with their backs flush against the wall; on top of the wall lockers were several boxes. I asked SP Stoecker ... well, I informed him that I was going to search the boxes and I did and he was helping me search the room. He voluntarily was assisting me; at least I don’t recall saying, will you help me. He grabbed a chair, pulled it up to the wall lockers, stood on the chair and started taking the boxes down.

From his vantage point appellant could see on top of the wall locker, but Sergeant Schopper could not. According to this witness:

[A]s I was going through one or two of the boxes he had handed down to me, I was on the right side closest to the wall; SP Stoecker was standing on the chair on my left, CPT Virgil and Mr. Mitchell were over to the left by the door. While I was standing there waiting for him to hand me another box, SP Stoecker reached up with his right hand, keeping his hand past his wrist above the locker, I couldn’t see his hand; I saw him move something across the top of the locker and then with his left hand, picked it up and moved it down a little bit further, and after he got it down, he grasped the item with his hand, I could see it was a small green item but I couldn’t see exactly what it was, and then he kept his body between me and the item and slid it down the side of his body and tried to put it in his pocket, he raised the flap on his greens to put it in his pocket. Because of my past experience as an investigator for a couple of years, I got a little suspicious as to why he was trying to hide the item, because he could very easily have taken the item with his right hand and handed it to me and he didn’t do that; and I started thinking that it could have been an item of evidence, possibly of a criminal offense or just plain something he didn’t want me to see. It was small enough that ... it went through my mind that had SP Stoecker taken the equipment then sold it, I believe he had plenty of time to do that, he would have gotten a large amount of money, and he could have been trying to hide it. And that was my reasoning, between the suspicion of moving it and it possibly being money, I asked him to show it to me. He handed it to me and when I opened it up, it had marihuana in it.

On cross-examination, Schopper explained that “[a]fter ... [appellant] had attempted to put it in his pocket, I asked him for the box and he handed it to me.” Then he said, “I don’t recall exactly what I said, I think it was like, ‘give me the box’; I don’t recall; I remember saying something like ‘give it to me’ or ‘can I have that,’ [161]*161something to that effect. I asked him for the box and he did hand it to me.”

The box — “a cigarette package size or a little larger” — had room for “a pack of cigarettes and a book of matches” and “was green in color and you couldn’t see through it.” Schopper conceded that, “because of the fact that I did not question him about anything, I didn’t feel it necessary at the time to read him his rights.” Moreover, he had not expected to find in the box any of the missing items for which he was searching: “I was reasonably certain that the items would not be in there.” Although no one had told Schopper that the stolen “equipment had in fact been sold,” nevertheless

there was a time frame from when the larceny allegedly occurred and the time that I was there, was a couple of hours at least; and due to the way Huntsville and the Arsenal are set up, that was plenty of time in my mind for an individual to drive off post and back and then go back to his room.

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Cite This Page — Counsel Stack

Bluebook (online)
17 M.J. 158, 1984 CMA LEXIS 22788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stoecker-cma-1984.