United States v. Thomas

21 M.J. 898
CourtU.S. Army Court of Military Review
DecidedFebruary 26, 1986
DocketSPCM 21441
StatusPublished

This text of 21 M.J. 898 (United States v. Thomas) is published on Counsel Stack Legal Research, covering U.S. Army 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. Thomas, 21 M.J. 898 (usarmymilrev 1986).

Opinion

OPINION OF THE COURT

RABY, Senior Judge:

Appellant was convicted of wrongful appropriation and unlawful entry in violation of Articles 121 and 134, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. §§ 921 and 934 (1982). He was sentenced to a bad-conduct discharge.

Appellant asserts that the military judge erred in admitting in evidence appellant’s statement to a Criminal Investigation Command (CID) Agent because it was obtained in violation of appellant’s Fourth Amendment rights; that is, the statement is alleged to have been obtained as a result of an investigative detention or apprehension made without probable cause.

The Relevant Facts I.

On or about 3 or 4 November 1984, property belonging to Sergeant Flanagan was stolen from his locked room. No visible signs existed indicating that the door of the room had been subjected to tampering. On 5 November 1984, First Sergeant (1SG) Van Burén discovered that the building master key was missing from his desk. First Sergeant Van Burén last remembered seeing the key in his desk at about 1100 hours on Friday, 2 November 1984. Although he did not observe appellant in the vicinity of the orderly room after he saw the key, 1SG Van Burén suspected that appellant, who had been working during the week in the orderly room, might have taken the master key.

On 6 November 1984, the unit commander notified the CID of the theft of SGT Flanagan’s property. The CID then contacted another officer from the unit who informed them that 1SG Van Burén suspected appellant of the theft of the master key.

On 7 November 1984, the CID contacted Lieutenant Daum and scheduled four members of the unit, in sequence, for interviews the next day. This request was transmitted to 1SG Van Burén, because he and appellant had been among the four soldiers scheduled.

On 8 November 1984, 1SG Van Burén was interviewed by the CID.1 He confirmed that appellant had been working throughout the week in the unit orderly room, and informed the CID that appellant had access to the missing key as did other persons who worked in the area.

Appellant’s appointment with the CID was scheduled for 1030 hours on 8 November 1984. First Sergeant Van Burén directed Acting First Sergeant Lockimey to find appellant and to ensure that he arrived at the CID office on time. Sergeant Lockimey told Staff Sergeant (SSG) Vergason to [900]*900pick up appellant and escort him to the CID office because appellant’s on-post driving privileges had been suspended. Staff Sergeant Vergason believed that he had received an order from the acting first sergeant to transport appellant to the CID office. Appellant neither was told that he was under apprehension nor was he placed in handirons. Staff Sergeant Vergason, however, did inform appellant that he was taking appellant to the CID office, and appellant believed that he had been ordered to go there by SSG Vergason. Appellant was taken directly to the CID office; he was not allowed to stop and talk with his wife. After SSG Vergason escorted appellant to the CID office, the CID informed Vergason that he could leave.

From the beginning of the interview, the CID processed appellant as a suspect. Appellant was advised of his Article 31/Tempia2 rights which he waived. At no time was appellant informed by anyone from his unit or from the CID that he was free at anytime to leave the CID office. Appellant remained at the CID office for about five hours. Appellant initially made an oral statement denying his criminality. However, when he was asked to sign a written version of the exculpatory statement, appellant declined and informed the CID that “the statement was not true, that he had taken the property.” Appellant told CID Special Agent (SA) Jarman that he was willing to sign a new statement which was then prepared. Special Agent Jarman testified that, at some point between appellant’s oral admission of criminality and the execution of his second written statement, appellant informed him that he had made a previous appointment that afternoon. Appellant then asked whether he could leave and “return later to complete the statement.” Special Agent Jarman construed appellant’s request neither as a request not to make a statement nor as a request to terminate the interview. Instead, he considered appellant as merely asking, as a matter of convenience, for time to reschedule the other appointment or to leave the interview site temporarily in order to resolve the matter. Because of his interpretation of appellant’s request, SA Jarman informed the accused “[t]hat you’re already here, you might as well stay to complete the statement.”

Appellant testified that he requested to leave the CID office as soon as SA Jarman “started asking questions about the theft” or about five or ten minutes after appellant had waived his Article 31/Tempia rights. Appellant states that SA Jarman told him that he “couldn’t go that I had to stay and answer some questions then he’d let me go.” Appellant did not believe he was free to leave the CID office.

In response to questions by the military judge, SA Jarman acknowledged that the import of his response to appellant was that the latter was not free to leave at that particular time — for convenience, necessity, or anything else.

Appellant did not attempt to leave the CID office and thereafter signed the second statement.

II. Special Findings

The military judge issued certain findings of fact and conclusions of law, in part, as follows:

(A) That appellant was one of a group of personnel requested to be made available to the CID to interview;
(B) That appellant was ordered to appear for the interview;
(C) That appellant was not placed under apprehension;
(D) That the response by SA Jarman to any request by appellant to leave and return later was not one which affected appellant’s freedom to leave and, therefore, did not constitute a detention;
(E) That appellant did not protest being at the CID office;
[901]*901(F) That appellant’s request to leave was ambiguous and was responded to in an ambiguous manner;
(G) That the CID had no probable cause to justify an investigative detention or custodial seizure of appellant;
(H) That there was no investigative detention or custodial seizure of appellant within the meaning of Dunaway v. New York, 422 [442] U.S. 200 [99 S.Ct. 2248, 60 L.Ed.2d 824] (1979), or United States v. Schneider, 14 M.J. 189 (C.M.A.1982).

We accept the military judge’s findings at (A), (B), (C), (E), and (F). We will hereinafter examine the basis for and the conclusions reached by the military judge in (D), (G), and (H), above.

We also make the following additional findings of fact.

(I) When appellant was asked to sign his first written statement, he declined and informed SA Jarman that the statement was not true and that appellant had taken the property.

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Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Parker v. Levy
417 U.S. 733 (Supreme Court, 1974)
Dunaway v. New York
442 U.S. 200 (Supreme Court, 1979)
Brown v. Glines
444 U.S. 348 (Supreme Court, 1980)
United States v. Mendenhall
446 U.S. 544 (Supreme Court, 1980)
United States v. Tempia
16 C.M.A. 629 (United States Court of Military Appeals, 1967)
United States v. Middleton
10 M.J. 123 (United States Court of Military Appeals, 1981)
United States v. Sanford
12 M.J. 170 (United States Court of Military Appeals, 1981)
United States v. Schneider
14 M.J. 189 (United States Court of Military Appeals, 1982)
United States v. Price
15 M.J. 628 (U.S. Navy-Marine Corps Court of Military Review, 1982)
United States v. Hardison
17 M.J. 701 (U.S. Navy-Marine Corps Court of Military Review, 1983)
United States v. Stark
19 M.J. 519 (U.S. Army Court of Military Review, 1984)

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Bluebook (online)
21 M.J. 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-usarmymilrev-1986.