United States v. Vargas

13 M.J. 713, 1982 CMR LEXIS 1010

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: April 23, 1982
• Docket: NMCM 81 0990
• Status: Published

Opinions

KERCHEVAL, Judge:

Appellant was convicted at a general court-martial, military judge alone, of one specification of violating Article 134, 10 U.S.C. § 934, Uniform Code of Military Justice (UCMJ), for wrongfully taking and opening a United States Government envelope and check addressed and payable to another servicemember. The military judge sentenced appellant to confinement at hard labor for twelve months, total forfeitures, reduction to pay grade E-1, and a bad-conduct discharge. The findings and sentence as adjudged were approved by the convening authority.

The incriminating envelope and check were discovered under the driver’s seat of appellant’s automobile on 4 April 1980, during a random gate search at Marine Corps Air Station, Cherry Point, North Carolina. Appellant was apprehended following the discovery and taken to the Naval Investigative Service office where, after being advised of his Article 31, 10 U.S.C. § 831, UCMJ, rights, he confessed to committing the offense of which he was convicted. Appellant contends in his assignment of error that the military judge erred in allowing the introduction into evidence of the check and confession. We disagree and affirm.

I

Appellant first argues that the search of his automobile was unauthorized because it was conducted pursuant to Air Station Order P 5510.3c of 15 November 1977, which relies on the Internal Security Act of 1950, 50 U.S.C. § 797, and OPNA-VINST 5510.45B. Appellant finds support in this contention from United States v. Harris, 5 M.J. 44 (C.M.A.1978), where the Court determined that 50 U.S.C. § 797 and OPNAVINST 5510.45B are applicable only to civilians and not servicemembers. Harris at 61. The Court, however, went on to conclude that “reliance on the statute and regulation is not necessary to sustain the gate search concept.” Id. at 62. A gate search is valid as long as it is based upon the commanding officer’s authority and responsibility for the security of his command. Id. See also United States v. Poundstone, 22 U.S.C.M.A. 277, 282, 46 C.M.R. 277, 282 (1973) (Darden, C. J., concurring). In reaching this conclusion, the Court in Harris found U. S. Navy Regulations, 1973, article 0702.1, to be helpful and cited the article to support the following statement concerning the commanding officer’s authority:

By virtue of his position, the commander of a military installation has acquired unique responsibilities in connection with the health, safety, welfare, morale, and efficiency of those placed under his command. This is the result of the manifest necessity that his personnel be kept at peak efficiency in order that the performance of his mission will not be jeopardized. Navy Regulations recognize that his “responsibility ... for his command is [virtually] absolute” and that his “authority ... is commensurate with his responsibility.”

Harris at 59. The inherent authority of a commander to conduct searches has recently been reaffirmed in United States v. Kaischeuer, 11 M.J. 373 (C.M.A.1981), where the Court states that “[p]ursuant to well-established military custom, commanding officers have long been empowered to permit the search of persons and property under their command.” Id. at 374. In the instant case it is evident that the Commanding General of Marine Corps Air Station, Cherry Point, North Carolina, approved the search of appellant’s automobile pursuant to this authority. (See Prosecution Exhibit 2).

II

Appellant next contends that the search of his automobile was illegal because the teams conducting the search had discretion as to the extent of their search. Testimony at trial indicates that although guidelines were established that limited the discretion the searchers could exercise as to the extent of their search of the vehicles, (R.88), the searchers in fact exercised some discretion and searched selected vehicles with varying degrees of thoroughness. (R. 16). The record of trial, however, establishes that any discretionary deviations from the established guidelines were limited to the conducting of searches in a less extensive manner than authorized.

In United States v. Harris, supra, the Court held that for a gate search to be valid a procedure must be employed that completely removes the exercise of discretion from persons engaged in law enforcement activities. Id. at 65. Such a lack of discretion requires a “completely independent determination of times when the searches will be conducted, the method of selecting the vehicles to be stopped, the location of the operation, and the procedure to be followed in the event something is discovered.” Id. (footnote omitted). It is evident, and appellant does not allege to the contrary, that these specific guidelines set out in Harris were complied with in the instant case. Harris does not attempt to limit the searcher’s discretion as to the extent of the search of the randomly selected vehicle, except that it be reasonable so as not to infringe upon the constitutional rights of the servicemember. Id. at 66. It is imperative that once a vehicle is randomly selected for search, some discretion as to the extent of that search be permitted in order to meet the needs and contingencies of the situation. In the instant case the search was clearly reasonable and did not violate the rights of appellant. The incriminating evidence was discovered under the front seat of the vehicle, clearly a reasonable place for the searchers to look.

Ill

Appellant presents two arguments contending that his confession should not have been admitted at trial. In light of our finding that the search was conducted in a lawful and constitutional manner, we reject appellant’s contention that the statements are inadmissible because they were obtained as a result of an illegal search. We specifically find that our holding is in accord with the two recent Supreme Court cases of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) and New York v. Belton, 453 U.S. 768, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). See, e.g., United States v. Ravine, 11 M.J. 325, 329 (C.M.A.1981). We also find, contrary to appellant’s assertion, that the confession was voluntary.

Accordingly, the findings and sentence as approved on review below are affirmed.

Judge ABERNATHY concurs.