United States v. Yandell

13 M.J. 616

Opinions

DECISION

HODGSON, Chief Judge:

Contrary to his pleas, the accused was convicted of housebreaking, larceny, damaging government property, damaging private property and wrongful possession of marijuana in violation of Articles 130, 121, 108,109, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 930, 921, 908, 909, 934.

Footnotes

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* He was sentenced to a bad conduct discharge, 18 months confinement at hard labor, and total forfeitures.

I

On Altus Air Force Base, Oklahoma, during the early morning hours of 1 March 1981, a Sunday, the accused was seen carrying a large cardboard box and running from building to building always keeping in the shadows. When he came to a lighted area he would run across it to a shadowed area keeping as close to the building as he could.

This behavior was relayed to a police patrol and caused the accused to be stopped and questioned by Airman First Class Lash and Airman Williams, two security policemen. The accused was asked for his ID card which he produced. The box he was carrying was partially open and Lash could see a “brown bottle with a white cap and an obscured label” that looked like “a pill bottle.” The accused was told to keep his hands out in the open, and asked what was in the box. He indicated “personal stuff,” and when Lash reached into the box he found a speaker. The accused, at the same time, also reached into the box and removed a plastic bag. A pill bottle then fell out that contained various assorted pills.

The flight chief, Staff Seargeant Dover, who was nearby, was informed and came to the scene. He immediately “frisked” the accused and discovered a screwdriver in his left sock, a butter knife, a bent fork, a bent bobby pin, and a plastic medical center pharmacy card belonging to Sergeant Garfield, a security policeman. The accused was apprehended and taken to Security Police Headquarters.

Subsequently, a security police team discovered the base hospital pharmacy had been broken into with considerable damage done to the pharmacy itself and to equipment owned by the Automated Prescription Systems but leased to the United States for use in the Altus Air Force Base Hospital.

II

Initially, appellate counsel contend that the “stop and frisk” search of the accused on 1 March 1981, which included a box he was carrying, was too broad and the drugs found during the search were unlawfully discovered thus infecting the proof of all the remaining proved offenses.

The “stop and frisk” doctrine first announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is codified in Mil.R.Evid. 314(f)(1) and (2). The pertinent provisions of this rule state:

RULE 314. SEARCHES NOT REQUIRING PROBABLE CAUSE

(f) Frisks incident to a lawful stop.

(1) Stops. A person authorized to apprehend by paragraph 19a of this Manual and others performing law enforcement duties may stop another person temporarily when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The purpose of the stop must be investigatory in nature.

(2) Frisks. When a lawful stop is performed, the person stopped may be frisked for weapons when that person is reasonably believed to be armed and presently dangerous. Contraband or evidence located in the process of a lawful frisk may be seized.

This Rule recognizes two threshold conditions that must be present before the “stop” provision can be invoked. They are: the individual making the “stop” must be authorized to apprehend pursuant to paragraph 19a of the Manual for Courts-Martial, 1969 (Revised edition), or performing law enforcement duties; and (2) the individual making the stop must have information that allows him to reasonably conclude that criminal activity may be afoot.

The first condition is clearly present as the “stop” was made by two security policemen on patrol. The second condition is also clearly met. It is not necessary that the individual making the “stop and frisk” be the one who observed the questionable activity. He may rely on information obtained through police channels. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); see United States v. Hernandez, 486 F.2d 614 (7th Cir. 1973). Finally, did the accused’s actions justify a limited investigatory stop? We find they did. The police officers in this case, were aware of sufficient facts to justify a reasonable belief that the accused might be engaged in criminal activity. Carrying a large box during the pre-dawn morning while carefully staying in the shadows logically arouses the suspicion of any alert police officer. Commonwealth v. Wascom, 236 Pa.Super. 157, 344 A.2d 630 (Pa.1975); see Piantodosi v. State, 311 So.2d 742 (Fla.App.1975).

The “frisk” provision of Mil.R.Evid. 314(f)(2) permits the stopped person to be searched for weapons if it is reasonably believed that he is armed and dangerous. The police need not be absolutely certain that the individual detained is armed for the purposes of frisking that person for weapons. The test is whether a reasonably prudent man in those circumstances would be warranted in a belief that his safety was in danger. State v. Nichols, 26 Ariz.App. 455, 549 S.E.2d 235 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 210 (1975).

Airman First Class Lash testified his reason for looking into the box was “curiosity and for my protection.” When asked “what do you mean by your protection?”, Lash responded:

A: Well, sir, no matter how slight the incident is, you’re always curious as to what’s going to happen, because you never know what is going to happen. You always take everything for granted, you know. You always hear about these guys ... just for stopping somebody for a traffic violation, and then get shot, you know, and you never know what’s going to happen next. I’m nervous every time I stop somebody, no matter how slight it is.

In our view, Lash acted as a reasonably prudent man would under like circumstances. As the New Jersey Superior Court, Appellate Division observed in State v. Dennis, 113 N.J.Super. 292, 273 A.2d 612 (1971), a police officer is not constitutionally required to wager his physical safety against the odds that a suspect is not armed.

Since the initial stop of the accused was reasonable and the policeman was justified in searching the accused for a weapon, may he also examine the box the accused was carrying? In discussing this issue it is helpful to review Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), dealing with the search of an area incident to arrest. The Supreme Court there permitted a search of the arrestee’s person and the area “within his immediate control”; these terms were construed to mean the area from within which he might gain possession of a weapon. Certainly a partially opened box is capable of concealing a gun, knife or club which would be readily available for use. Federal decisions reflect a trend toward allowing a “stop and frisk” search to be expanded to include purses, packages, etc., that are within the detainee’s control. Some examples are: search of box held by suspect, United States v. French, 414 F.Supp. 798 (W.D.Okla.1976); search of purse of arrestee’s companion, United States v. Vigo, 487 F.2d 295 (2d Cir. 1973); search of camera case at feet of suspect, United States v. Riggs, 474 F.2d 699 (2d Cir. 1973); search of camera case carried by arrestee, United States v. Moore, 463 F.Supp. 1266 (S.D.N.Y.1979).

In our view, the search of the box was not unreasonable as a part of the frisk conducted by Lash and Dover. Further, the discovery and seizure of the drugs in the box was inevitable. Once the frisk was completed, probable cause existed to apprehend the accused and a search incident to that apprehension would unquestionably have encompassed the box. United States v. Kozak, 12 M.J. 389 (C.M.A.1982). The military judge correctly denied the motion to suppress the evidence that was discovered.

III

Appellate defense counsel assert that the housebreaking of the hospital pharmacy (Specification 2 of Charge I) and the damage to government property (Specification 2 of Charge III) are not separate offenses for sentencing. They make the same assertion regarding larceny (Specification 2 of Charge II) and damage to private property (Specification of Charge IV). They argue that the paired offenses were generated by a single impulse and were a continuous transaction, hence, each pair was a single offense for punishment.

The appellate courts have not fashioned a single test for determining whether offenses are separately punishable. An Army Board of Review held that the test for determining if offenses are separate for punishment purposes is whether each offense requires proof that is not required for the other. United States v. Miller, 38 C.M.R. 486 (A.B.R.1967); pet. denied, 38 C.M.R. 441. The courts have also relied upon the existence of separate societal norms in deciding that offenses are separately punishable. United States v. Beene, 4 U.S.C.M.A. 1977, 15 C.M.R. 177 (C.M.A.1954).

Under any test discussed the offenses are separate. Each paired offense requires proof not needed for the other. Applying the societal norms test, housebreaking is an offense against habitation, larceny is an offense against personal property, and damaging property, government or private, is an offense fashioned to protect personal property from destruction or damage. Accordingly, we find the offenses were separate for sentencing. Accord United States v. Harrison, 4 M.J. 332 (C.M.A.1978); United States v. Rose, 6 M.J. 754 (N.C.M.R.1978).

IV

Finally, the accused urges that although the damaged pill dispensing machine belonged to the Automated Prescription Systems, it had been leased to the United States Government. In their view, this arrangement made the dispensing equipment military property of the United States and not personal property of the Automated Prescription Systems. Therefore, they contend it was error to allege the offense as “damage to personal property.” Cf. United States v. Geisler, 38 C.M.R. 530 (A.B.R.1966).

A lease is an arrangement by which exclusive possession of property is given for a limited period. Cooperative Bldg. Materials v. Robbins and Lackey, 80 Cal.App.2d 832, 183 P.2d 81 (Cal.1947). It does not divest ownership. Since Automated Prescription Systems owned the equipment that was damaged, and Article 109, Uniform Code of Military Justice, 10 U.S.C. § 909 proscribes the willful and wrongful destruction of the personal property of another, the challenged specification states an offense and was properly alleged, even if by virtue of its use the property might also constitute military property of the United States.

We have considered the remaining assignments of error and those specified by the accused and have resolved them adversely to him. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

POWELL, Senior Judge, concurs.

He was acquitted of additional allegations of housebreaking, larceny, and damaging government property. The convening authority set aside an additional finding of guilty of wrongful possession of marijuana.