United States v. Tipton

16 M.J. 283, 1983 CMA LEXIS 18013
CourtUnited States Court of Military Appeals
DecidedSeptember 6, 1983
DocketNo. 43661; SPCM 16450
StatusPublished
Cited by18 cases

This text of 16 M.J. 283 (United States v. Tipton) 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. Tipton, 16 M.J. 283, 1983 CMA LEXIS 18013 (cma 1983).

Opinion

Opinion of the Court

COOK, Judge:

Appellant was convicted, contrary to his pleas, of wrongfully possessing marijuana in the hashish form, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.1 2We granted review of the following assigned issue:

WHETHER THE AUTHORIZATION TO SEARCH APPELLANT WAS BASED ON PROBABLE CAUSE SINCE THE INFORMANT THAT PROVIDED THE FACTUAL BASIS FOR THE AUTHORIZATION TO SEARCH WAS SHOWN TO HAVE AN IMPROPER MOTIVE NOT REVEALED TO THE AUTHORIZING OFFICIALS, WAS NOT SHOWN TO HAVE BEEN RELIABLE IN THE PAST, AND DID NOT PROVIDE SUFFICIENT DETAILS TO THE AGENT TO GIVE SUFFICIENT INDICIA OF TRUSTWORTHINESS.

I

The controversy in this case centers around the reliability of the informant, Boyd, appellant’s roommate. Several [284]*284weeks prior to the charged incident, a marijuana “smoking bowl” was found in Boyd’s shaving kit during a health and welfare inspection. Boyd was reportedly furious at the discovery, denied vehemently that it belonged to him, and vowed to get even with the person who planted it there. Boyd suspected appellant and so informed law enforcement officials. Initially, Boyd was offered nonjudicial punishment for possession of the “bowl,” which contained marijuana residue. Subsequently, that action was vacated by Boyd’s commander.

As a result of the episode, Boyd began communicating with law enforcement personnel regarding appellant’s drug activities. During the month of March 1981, Boyd called Military Police Investigator Ronald Turner on several occasions and informed him that appellant was planning to purchase marijuana on or about pay day, March 31, 1981. When that day arrived, appellant allegedly displayed his newly acquired stock of hashish to Boyd. After smoking a sample of the merchandise with appellant, Boyd made his way to an off-post bar to telephone Turner. He told Turner that he had seen appellant with the drugs, but that he could not be certain they were still on his person.

Turner, in the company of other law enforcement officials, hastened to the bar to find Boyd, but Boyd had left. The officers then attempted to locate appellant’s battalion commander, also without success. They did find a Major Gunther, the battalion S-3, to whom the battalion commander had delegated2 authority to authorize searches. Turner requested permission to search appellant and his assigned area in the barracks. Turner told Gunther of the information provided by the informant, that the informant had just begun working for them, and that he had provided no major information previously. Turner did not tell Gunther that the informant had himself been apprehended for possession of marijuana and had vowed to get even with appellant. Gunther authorized a search of appellant’s person, his room, and his personal effects. . There is no indication in the record that Gunther authorized an apprehension of appellant.

Turner and his fellow officers next proceeded to appellant’s unit, where they found appellant at the Charge of Quarter’s desk. Appellant was apprehended and searched in the hallway adjacent to his room. Numerous packets of hashish were found on his person. There is no indication that either appellant’s room or his personal effects were searched.

Prior to trial, the defense moved to suppress the marijuana on the ground “that there was insufficient probable cause to apprehend.” In the course of argument on the motion, defense counsel extended his thesis to include the contention that the search authorizing official, Major Gunther, was not provided sufficient information to authorize a search/apprehension.

However, the military judge did not base his ruling on the propriety of Major Gunther’s action. Rather, the judge explained his findings as follows:

MJ: All right, these are what I have found to be the essential facts of the case. At some time before 1 March 1981 PFC Boyd informed MPI Turner that he was sure that ... [appellant] had been in possession of hash and at that time Boyd agreed to assist Turner by providing information concerning drug use. At some time in early March Boyd informed Turner that ... [appellant] had spoken about getting some hash. Later in March Boyd informed Turner that ... [appellant] was planning to obtain hash on or about payday. On 31 March at about 1430 Boyd in[285]*285formed Turner that he had seen ... [appellant] in possession of a large quantity of hash at about 12 o’clock. At about 1540 on 31 March MPI Kemple, working with Turner apprehended ... [appellant] in the hallway outside ... [appellant’s] barracks room. Staff Sergeant Naig searched ... [appellant] and discovered the items which ... [appellant] has moved to suppress.

Having said this, the military judge denied the defense motion to suppress.

The Court of Military Review concluded succinctly that

[t]he record fully supports the ruling of the military judge that the search of appellant was made incident to a lawful apprehension and consequently the evidence was admissible.

United States v. Tipton, unpublished opinion (SPCM 16450, April 19, 1982).

Before this Court, appellant seeks to “go behind the warrant” issued by Major Gunther. Specifically appellant reiterates his complaint that Gunther was not sufficiently apprised of the reliability, or lack thereof, of Boyd. In light of this record, we have little occasion to consider the correctness of Major Gunther’s authorization. Like the Court of Military Review and the trial court before, we resolve this case based solely on the appropriateness of the apprehension and the search incident thereto.

II

Military police, “when in the execution of their ... police duties, ... are authorized to apprehend, if necessary, persons subject to the code or subject to trial thereunder upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Para. 19a, Manual for Courts-Martial, United States, 1969 (Revised edition). See Article 7(b), UCMJ, 10 U.S.C. § 807(b). Upon apprehension, the officers may lawfully search the person and immediate surroundings of a suspect. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There is no requirement under the Fourth Amendment that military police officers effectuating probable cause apprehensions in public places, such as a barracks hallway, obtain search warrants or other authorization from a magistrate or a commander. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). See United States v. Ezell, 6 M.J. 307, 317 (C.M.A.1979). Cf. Steagald v. United States,

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Bluebook (online)
16 M.J. 283, 1983 CMA LEXIS 18013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tipton-cma-1983.