United States v. Visser

40 M.J. 86, 1994 CMA LEXIS 61, 1994 WL 445977
CourtUnited States Court of Military Appeals
DecidedAugust 17, 1994
DocketNo. 93-0256; CMR No. 28845
StatusPublished
Cited by7 cases

This text of 40 M.J. 86 (United States v. Visser) 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. Visser, 40 M.J. 86, 1994 CMA LEXIS 61, 1994 WL 445977 (cma 1994).

Opinion

Opinion of the Court

SULLIVAN, Chief Judge:

In March of 1990, appellant was tried by a general court-martial at McGuire Air Force Base, New Jersey. He was found guilty of four specifications of stealing private property from other servicemembers and two specifications of stealing military property of the United States, in violation of Article 121, Uniform Code of Military Justice, 10 USC § 921. The members sentenced him to a dishonorable discharge, confinement for 3 months, total forfeitures, a $500 fine,1 and reduction to pay grade E-1. On August 9, 1990, the convening authority approved the adjudged sentence. On September 4, 1992, the Court of Military Review affirmed the findings and sentence in an unpublished opinion.

On April 30, 1993, this Court granted review on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY REFUSING TO GRANT TRIAL DEFENSE COUNSEL’S MOTION TO SUPPRESS EVIDENCE OBTAINED FROM THE ILLEGAL SEARCH OF APPELLANT’S HOUSEHOLD GOODS.

We hold that the military judge did not err in refusing to suppress physical evidence seized as a result of a search of appellant’s household goods at the Cherry Hill Moving and Storage Company on November 14, 1989. See United States v. LaFrance, 879 F.2d 1 (1st Cir.1989); see also United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). See generally Mil.R.Evid. 316, Manual for Courts-Martial, United States, 1984.

The military judge made the following factual findings concerning the search of the household goods challenged in this case:

I find, by a preponderance of the evidence, as follows:
1. On 17 October 1989, the accused made application with the 438th APS/TRTH, TMO, McGuire Air Force Base, New Jersey, requesting shipment and/or storage of his personal property. On that day, he was counseled by Mrs. Robinson concerning the shipment process. As part of that counseling, Mrs. Robinson went over a Personal Property Checklist with the accused. Mrs. Robinson also counseled the accused concerning the shipment of unauthorized items, as well as the Quality Control Inspector and its function. Under relevant DoD regulations and Air Force regulations, the carrier is expected to pack and unpack household goods. Further, the packing process is subject to inspection of the Quality Control Inspector. These inspections may occur either at the origin of the shipment or the destination.
2. In the early morning of 7 November 1989, Staff Sergeant Francis Reynolds, a Security Police investigator, observed a small boat and trailer attached to the accused[s] car, parked in a lot near Gate number 1 on McGuire Air Force Base, New Jersey. Staff Sergeant Reynolds perceived that the tires on the accused’s trader seemed smaller than appropriate for the size of the trailer.
3. Reynolds was aware of a recent complaint of boat trailer tires being stolen from the Morale, Welfare and Recreation [ (MWR) ] storage lot at McGuire Air Force Base. Later that morning, Sergeant Reynolds reviewed the various reports of stolen boating equipment on file at his office. He, then, contacted Captain Gordon Hammock, 438th Air Base Group, [88]*88JA [judge advocate], and reported his suspicion that the tires on the accused’s boat trailer might be stolen property.
4. Captain Hammock advised Reynolds to contact Sergeant Forand, the victim of the tire theft, to determine if he could identify the tires. Sergeant Reynolds contacted Sergeant Forand and asked him to go to the parking lot outside the accused’s billeting quarters to examine the trailer tires. After doing so, Sergeant Forand reported back that one of the tires had an unusual wear mark similar to the wear mark on one of his tires that had been stolen.
5. Reynolds requested assistance with his investigation, and Master Sergeant Pat Williams, 438 SPS/SPOI [security police], was detailed to assist him. Sergeants Reynolds and Williams contacted the accused, advised him that the tires on his trailer were identified as stolen, and requested permission to search the boat.
6. The accused consented to the search of his boat. The search revealed a blue folding boat seat, two marine batteries, the stand for a fishing seat, a blue tarp and a swivel jack. Because similar items had previously been reported stolen, the investigators seized the blue folding boat seat, batteries and fishing seat stand. The trailer tires were not seized at that time.
7. At 1225 hours, the accused made a sworn statement in which he denied having a trolling engine or pro seat in his household goods. He did orally state that he had another blue seat in his possession in his household good ... goods shipment. At 1510 hours, ...
He did orally state that he had another blue seat in his possession. At 1510 hours, the investigators returned and seized the tires and rims, as well as a blue tarpaulin which had been covering the boat interior. The tarpaulin was seized based upon a report that a similar item had been stolen from the MWR storage lot.
8. Staff Sergeant Howard later identified the blue seat as his. He had previously filed a 4 November 1989 report, stating that he was missing two blue boat seats, a trolling engine, a vinyl boat cover and a bike (pro) stand with seat. The search of the boat also revealed a swivel jack. This swivel jack had previously been reported missing, by Sergeant Feliciano, from the MWR lot.
9. The investigators suspected that a search of the accused’s household goods might disclose other stolen property. Specifically, the investigators believed they might find the other missing property of Sergeant Howard; that is, a blue seat with white trim, a trolling engine and a standup pro seat. The household goods had been packed and picked up on 6 November 89 in preparation for the accused’s separation from the Air Force and return to Flint, Michigan. The legal office, then, determined that they would have to put a hold on the accused’s household baggage. They discovered that the property was on a truck owned by the Cherry Hill Moving and Storage Company in Moorestown, New Jersey.
10. Captain Hammock, then, directed the TMO to order the ... that is, Traffic Management Office, to order the moving and storage company to hold the property pending further instructions. This occurred late in the afternoon of 7 November 1989.
11. On the morning of 8 November 1989, Williams, in coordination with TMO and Staff Judge Advocate, prepared a letter to the moving and storage company formally directing that the accused’s property be held. Williams went to the moving and storage company to serve the letter and to ensure that the accused did not remove any property from the shipment. Williams requested that the accused’s cargo be segregated from the other property stored at the moving and storage company facility. Williams was nearby while the accused’s property was unloaded from the truck and placed into the warehouse. When Williams arrived, the property was already being off-loaded by the moving and storage company employee.
12.

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Cite This Page — Counsel Stack

Bluebook (online)
40 M.J. 86, 1994 CMA LEXIS 61, 1994 WL 445977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-visser-cma-1994.