United States v. Wenzel

7 M.J. 95, 1979 CMA LEXIS 10385

• Court: United States Court of Military Appeals
• Decided: June 18, 1979
• Docket: Nos. 33,613; 33,758; CM 434906
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

The appellants were jointly tried and convicted by a general court-martial of sale and possession of amphetamines, conspiracy to sell and possess amphetamines, and solicitation to sell amphetamines, in violation of Articles 92, 81, and 134, respectively, of the Uniform Code of Military Justice, 10 U.S.C. §§ 892, 881 and 934. Each was sentenced to a dishonorable discharge, total forfeitures, confinement for 2 years, and reduction to the grade of Private E-l. The United States Army Court of Military Review has affirmed the findings and sentences.

The facts are uncontroverted. On at least a dozen occasions Private Robbin related to Captain Rouse, the appellants’ company commander, the names of soldiers he suspected of using drugs. He told Captain Rouse that Wenzel and Wolfe, who were barracks roommates, were also selling drugs in the company. On the morning of January 15, 1976, Robbin approached Captain Rouse in his office and turned over to him some amphetamines which he allegedly had bought from Wenzel and Wolfe. Thereupon, Captain Rouse gave Robbin a marked $5.00 bill and instructed him to make another purchase and to return immediately to him. As instructed, Robbin returned to the barracks and purchased some amphetamines from the appellants. Within 10 to 20 minutes later, he relinquished the amphetamines to Captain Rouse. Robbin remarked that if Captain Rouse were going to apprehend the appellants, he ought to hurry, since, upon leaving the appellants’ room, he overheard that they were leaving for the post exchange.

On the basis of that information, Captain Rouse and his first sergeant proceeded to the barracks and arrested the appellants. Captain Rouse then took Wenzel and Wolfe back to their room and subjected them to a search. The marked $5.00 bill and some tinfoil were found in Wolfe’s wallet. A tinfoil packet which contained white powder, later identified as amphetamines, was discovered in Wenzel’s fatigue shirt pocket. Captain Rouse then ordered a thorough search of appellants’ room where two other packages of amphetamines were discovered.

At the trial, all the above items were admitted as evidence. The appellants stipulated that the confiscated drugs were shown to be amphetamines upon laboratory analysis and that “examination of both tinfoil packets turned over by Private First Class Robbin to Captain Rouse revealed the presence of amphetamines upon laboratory analysis.”

Before us, the appellants make several contentions. First, it is contended that the evidence which was discovered and seized during the search of their room should have been suppressed because the commanding officer who authorized the search was not a neutral and detached magistrate for purposes of the Fourth Amendment and that, therefore, the search authorization was invalid. In United States v. Ezell, 6 M.J. 307 (C.M.A.1979), we held that military commanders are not per se disqualified to act as magistrates in authorizing searches and seizures in cases within their purview. However, while the commanding officer here was not per se disqualified, it is clear that in pursuing the laudable purpose of ridding his unit of narcotics and of identifying those who might be involved in the trafficking thereof, he involved himself in the law enforcement venture of ferreting out evidence of crime. The commanding officer was thus disqualified to authorize the room search which led to the discovery and seizure of two packages of amphetamines. United States v. Ezell, supra. It follows that the evidence thus seized should have been excluded from use at the appellants’ trial.

The appellants also contend that they were unlawfully arrested by the commanding officer and that, therefore, the evidence seized from them (the marked $5.00 bill and tinfoil removed from Wolfe; and the tinfoil packet containing amphetamines removed from Wenzel) was inadmissible as fruit of the poisonous tree. The commanding officer is empowered to arrest persons subject to the Code when he has a “reasonable belief that an offense has been committed and that the person apprehended committed it.” Article 7(b), U.C.M.J., 10 U.S.C. § 807(b). Under the above recited facts, we hold that the commanding officer was justified in the “reasonable belief” that Robbin had purchased amphetamines from the appellants and that one of them would have in his possession the marked $5.00 bill utilized by Robbin in making the purchase. Moreover, one who has the right to arrest also has the concomitant right to conduct a reasonable search incident to that arrest. United States v. Kinane, 1 M.J. 309 (C.M.A.1976); United States v. Thomas, 16 U.S.C.M.A. 306, 36 C.M.R. 462 (1966). We, therefore, hold that the marked $5.00 bill, the pieces of tinfoil and the amphetamines discovered during the search of the appellants’ persons and seized from them were properly received in evidence.

For the reasons stated above, we reverse that portion of the decision of the United States Army Court of Military Review which approved the admission of the two packages of amphetamines discovered in the appellants’ room. The specifications affected by excluding this evidence are specification 2 of Charge I, which alleged that the appellants possessed amphetamines, and the specification of Charge II, which alleged that the appellants conspired to possess and sell amphetamines. Accordingly, the findings of guilty as to those specifications and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to the Court of Military Review for reassessment of the sentence based on the remaining findings of guilty, or to order a rehearing on the specifications which we have set aside and the sentence.