United States v. Whiting

12 M.J. 253, 1982 CMA LEXIS 20350

• Court: United States Court of Military Appeals
• Decided: January 18, 1982
• Docket: No. 38,885; ACM 22521
• Status: Published

Opinions

Opinion of the Court

EVERETT, Chief Judge:

Contrary to appellant’s pleas, a general court-martial convened at Rhein-Main Air Base, Federal Republic of Germany, in February, 1979, found him guilty of stealing mail matter, having unauthorized possession of classified documents, and failing to obey a regulation which prohibited taking classified documents off-base,¹ in violation of Articles 134 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 892, respectively. The convening authority approved the findings and the adjudged sentence of dishonorable discharge, total forfeitures, confinement at hard labor for 1 year, and reduction to airman basic. However, the United States Air Force Court of Military Review concluded that the military judge admitted evidence obtained by an unlawful search of appellant’s off-base apartment in Grafenhausen and that the findings and sentence should be set aside. 9 M.J. 501 (1980). After a motion for reconsideration submitted by appellate government counsel was denied, the Judge Advocate General of the Air Force submitted to us this certified issue (9 M.J. 26):

WAS THE COURT OF MILITARY REVIEW CORRECT IN HOLDING THAT THE SEARCH OF THE ACCUSED’S OFF-BASE APARTMENT WAS ILLEGAL?

I

On May 19, 1978, agents of the Air Force Office of Special Investigations (OSI) learned from an Air Force master sergeant that his wife, a German national, had discovered in a storage room of her parents’ home some plastic bags containing items which appeared to be United States mail matter and classified documents. This storage room was near to, but separated from, the off-base apartment of appellant, who was stationed at Rhein-Main Air Base; he shared its use with his landlord.

The OSI agents conducted a search of the storage room with the consent of the landlord and confirmed the report they had received. After being briefed by the agents, Colonel Berg, the Rhein-Main Base Commander, authorized a search of appellant’s apartment, where they seized two United States mail bags and a jewelry box containing a ring embossed “United States Navy.”

At trial, defense counsel objected to admission of this evidence on these four grounds: (1) that the commander who authorized the search was not a neutral and detached magistrate; (2) that the commander of the Rhein-Main Air Base was not among the commanders who could authorize the search of appellant’s off-base apartment; (3) that probable cause was lacking to support the search authorization; and (4) that German authorities had not been notified of the off-base search, as was required by international agreements to which the United States and Germany were parties. The Court of Military Review agreed with the fourth basis of the objection and confined its discussion thereto. Although the certified issue is phrased in broad terms, we construe it to be limited to the issue addressed by the court below.

II

The Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 4 U.S.T. 1792, T.I. A.S. No. 2846 (effective date — August 23, 1953), often referred to as the NATO SOFA, has been the model for agreements by the United States with various countries in which American forces have been stationed. In Article VII of that Agreement, as part of the provisions concerning criminal jurisdiction, various procedural safeguards are set forth. Undoubtedly the American negotiators of NATO SOFA were primarily concerned with assuring that American servicemembers tried by the host countries were granted protections which, at least from the American viewpoint, seemed basic. See generally Lazareff, Status of Military Forces Under Current International Law 208-33 (1971); Snee and Pye, Status of Forces Agreement — Criminal Jurisdiction (1957). One commentator has even termed these safeguards a “Precursor to an International Bill of Procedural Rights.” See Ellert, NATO “Fair Trial” Safeguards: Precursor to an International Bill of Procedural Rights (1963). This same commentator observed:

An examination of paragraph 9 of Article VII of the NATO SOFA discloses that the language delimiting these safeguards is personal in nature. It contains such words and phrases as “he shall be entitled,” “made against him,” “witnesses in his favor,” “legal representation of his own choice for his defense,” “if he considers it necessary,” and “present at his trial.” This language clearly demonstrates that the signatories of the Agreement have coupled these safeguards to the individual and to this extent the serviceman in the hypothetical case has acquired under international law a personal right to these safeguards. In corroboration of this view, the United States in practice has taken the position that an accused United States serviceman may waive any of the safeguards set out in paragraph 9 of Article VII, supra, by refusing to appeal his case to a higher tribunal of the receiving state. In such instances the United States has not protested the denial of a safeguard provided by paragraph 9 of Article VII, supra, by the lower tribunal of the receiving state.

Id. at 46 (footnotes omitted).² Moreover, he concluded:

By virtue of the NATO SOFA the United States has joined with the other signatories in granting the serviceman a personal right under international law. Further, under United States domestic law the United States would be bound to accord the rights set forth in paragraph 9 of Article VII, supra, to a foreign serviceman tried in a United States Court.

Id. at 52. Similarly, our Court has recently decided that the double-jeopardy guarantees contained in a bilateral treaty with Spain — guarantees similar to those in Article VII of the NATO SOFA — were binding on the United States in the trial by court-martial of an American servicemember. United States v. Stokes, 12 M.J. 229 (C.M.A.1982).

Although Article VII of the NATO SOFA adverts to investigations and seizures, we find nothing therein which purports to confer upon individuals any specific rights with respect to searches and seizures. Instead the obligations are placed on the contracting parties to assist one another in certain law enforcement activities, and the performance of those obligations is exclusively within the province of the Executive and Legislative Branches. Cf. Wilson v. Girard, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d 1544 (1957); Article VII, paragraph 6 of NATO SOFA. Moreover, our attention has not been directed to any provision of any supplementary agreement with the Federal Republic of Germany which purports to grant rights to any individual to object to the admission of evidence because it was obtained by unreasonable search and seizure.

New judicial systems exclude evidence because it was obtained by unreasonable search and seizure. Even the United Kingdom, from which many of our own legal institutions are derived, continues to reject the exclusionary rule. See, e. g., Report of Royal Commission on Criminal Procedure (1981). Indeed, at the time when the NATO SOFA was negotiated, the exclusionary rule was not applied in a majority of American states. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Therefore, we conclude that the NATO SOFA and the various international agreements derived therefrom were not intended to confer upon individuals — whether American service members tried in foreign countries or foreign military personnel prosecuted in American civil courts — any rights concerning searches and seizures that they would not otherwise possess under domestic law. Cf. United States v. Carter, 16 U.S.C.M.A. 277, 283, 36 C.M.R. 433, 439 (1966). Although treaties are the supreme law of the land, U.S.Const. art. VI, this is not to say that individuals always may enforce this country’s treaty rights by a private law action or by invoking an exclusionary rule. United States v. Carter, supra.3

The certified question is answered in the negative and the decision of the United States Air Force Court of Military Review is reversed. The record of trial is returned to the Judge Advocate General of the Air Force for submission to that court for such further proceedings as may be necessary in light of this opinion.

1 . He was acquitted on a charge of wrongfully possessing marihuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934.

2 . Ellert notes these other instances where states have by international agreement accorded individuals a limited intemational personality . ..: (1) The Central American Court of Justice which was created by the Treaty of Washington of December 20, 1907, and before which individuals of one of the five signatories were permitted to assert claims directly against one of the other four signatories according to Article 2, paragraphs b and c of the Treaty; (2) The German-Polish Upper Silesia Convention of May 15, 1922, under which individuals were granted the capacity directly to claim their vested rights before an international tribunal not only against a foreign government but also against their own government; (3) The Convention on the Political Rights of Women of December 20, 1952, which creates or guarantees important substantive rights for individuals, but does not provide for a capacity for international legal action of these individuals in order to protect by themselves their rights under international law; (4) private individuals and corporations have the right to legal action before the Court of Justice of the European Coal and Steel Community which was constituted in December 1952 by six states on the basis of an international agreement; and (5) The European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, which guarantees individuals certain substantive human rights and which by Article 25 provides individuals certain limited access to the European Commission of Human Rights.

Ellert, NATO “Fair Trial” Safeguards: Precursor to an International Bill of Procedural Rights, 45-^16 n.3 (1963). Another writer, while agreeing with Ellert, suggests: “It could be well to make it clear that paragraph 9 of Article VII confers rights on the accused and not on the State to which he belongs.” Lazareff, Status of Military Forces Under Current International Law 265 (1971).

3 . Like treaties, properly promulgated regulations may have the force of law. Paul v. United States, 371 U.S. 245, 255, 83 S.Ct. 426, 433, 9 L.Ed.2d 292 (1963) (Armed Services Procurement Regulation requiring competition preempted anticompetitive California milk control legislation); Public Utilities Commission v. United States, 355 U.S. 534, 542-43, 78 S.Ct. 446, 452-53, 2 L.Ed.2d 470 (1958) (military regulations concerning procurement of transportation preempted regulatory authority of California Public Utilities Commission over intrastate military traffic); Leslie Miller Inc. v. Arkansas, 352 U.S. 187, 77 S.Ct. 257, 1 L.Ed.2d 231 (1956) (for purposes of military construction in Arkansas the definition of “responsible bidder” in the Armed Services Procurement Regulations preempts state licensing law); Standard Oil Co. v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942) (War Department regulations providing for post exchanges have the force of law). Furthermore, the Government may be bound by its own regulations. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), However — as with treaties — not every regulation creates a duty enforcible by court proceedings against an individual, cf. United States v. Nardell, 21 U.S.C.M.A. 327, 45 C.M.R. 101 (1972); sometimes the violation of a regulation does not give rise to immunity from prosecution or application of the exclusionary rule in that prosecution. United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). See Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981). United States v. Cormier, 639 F.2d 1177 (5th Cir. 1981); United States v. Sandate, 630 F.2d 326 (5th Cir. 1980), cert. denied, 450 U.S. 922, 101 S.Ct. 1372, 67 L.Ed.2d 351 (1981); United States v. Renfro, 620 F.2d 569 (6th Cir. 1980), cert. denied, 449 U.S. 902, 101 S.Ct. 274, 66 L.Ed. (1980); United States v. Meier, 607 F.2d 215 (8th Cir. 1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1658, 64 L.Ed.2d 243 (1980).