Jоhn Calvin TAYLOR, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-80-624.
Court of Criminal Appeals of Oklahoma.
May 4, 1982.
Rehearing Denied June 2, 1982.
645 P.2d 522
Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Crim. Appellate Div., Oklahoma City, for appellee.
CORNISH, Judge:
The appellant was convicted by jury for Unlаwful Delivery of a Controlled Substance in the District Court of Comanche County. He was sentenced to five (5) years’ imprisonment and fined $2,500.00.
James Mainard, a military police officer working with a United States Army Central Intelligence Division (C.I.D.) drug suppression team at Fort Sill, was investigating two enlisted men‘s participation in drug trafficking. Mainard asked the Lawton Police Department for assistance when his investigation led to an off-base source. The Lawton poliсe provided him with money to make the undercover drug purchase and outfitted Mainard with a radio transmitter. The police arrested the apрellant, a civilian, immediately after Mainard bought drugs from him at an off-base residence.
The appellant argues his arrest was illegal becausе it was obtained in direct violation of the Posse Comitatus Act,
This statute was enacted during Reconstruction. It was designed to prohibit civil authorities from using federal troops to police state electiоns in ex-Confederate states where civil power had been re-established. See United States v. Hartley, 486 F.Supp. 1348 (D.C.Fla.1980). In tracing the legislative history of the Act, the federal district court in United States v. Red Feather, 392 F.Supp. 916, 922 (D.C.S.D.1975), wrote that “[o]f primary concern was the prospect of U.S. Marshals, on their initiative, calling upon troops to form a posse or to оtherwise perform direct law enforcement functions to execute the law.”
Our research of current case law indicates the Act, which рrohibits use of military personnel for enforcement of civil law, retains its vitality.1 Section 1385 provides:
Whoever, except in cases and under circumstances exprеssly authorized by the constitution or act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to executе the laws shall be fined not more
than $10,000.00 or imprisoned not more than two years, or both.
The pivotal question in this appeal is whether this Court should invoke а prophylactic exclusionary rule to remedy alleged violations of
In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court formulated an exclusionary rule for evidence obtained in violation of the Fourth Amendment. The purpose of this exclusionary rule is to deter “unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). This judicially created remedy was considered necessary due to the fundamental liberty intеrest guaranteed in the Fourth Amendment and because the alternative remedies for Fourth Amendment violations proved ineffectual.
Violations of
Other jurisdictions dealing with
However, it does not necessarily follow that all evidence obtained in violation of the Act will be admissible. This Court is сompelled to examine each case involving a violation of the Posse Comitatus Act and determine whether the illegal conduct by the law enforcement personnel rises to an intolerable level as to necessitate an exclusion of the evidence resulting from the taintеd arrest. We find that this case by case determination is preferable to a per se exclusionary rule.
This Court on three prior occasiоns has had the opportunity to examine the effect of Posse Comitatus Act upon state criminal prosecutions. Lee v. State, 513 P.2d 125 (Okl.Cr.1973), Hildebrandt v. State, 507 P.2d 1323 (Okl.Cr.1973); Hubert v. State, 504 P.2d 1245 (Okl.Cr.1972). In each of these cases we affirmed the convictions and found that the military personnel assumed no greater authority than that of a private citizen and were therеfore competent witnesses irrespective of
In People v. Burden, 94 Mich.App. 209, 288 N.W.2d 392 (1979), Judge Walsh in dissent stated:
... noninterference by the military in civilian affairs—is to be jealously guarded. The Posse Comitatus Act arose in a particular historical and political context but it is not an anachronistic relic of an historical period the experience of which is irrelevant to the present. It embodies the very important, pervasive, and continuing American preoccupation with аssurance of the separation of civilian and military spheres of authority and the aversion to intrusion of the military into civilian matters. (Citations omitted.)
Furthermore, in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), the Supreme Court articulated that a basic tenet of our Republic is the nonintervention of the military in the civil sector. The Supreme Court obsеrved:
The concerns of the Executive and Legislative Branches in response to disclosure of the Army surveillance activities ... reflect a trаditional and strong resistance of Americans to any military intrusion into civilian affairs. That tra-
dition has deep roots in our history and found early expression, for example, in the Third Amendment‘s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military. These prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditionаl insistence on limitations on military operations in peacetime. Indeed, when presented with claims of judicially cognizable injury resulting from military intrusion into the civilian sector, federal courts are fully empowered to consider claims of those asserting such injury; there is nothing in our Nation‘s history or in this Court‘s dеcided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied. supra. 408 U.S. at 15-16, 92 S.Ct. at 2326-27.
Under the present facts we hold that the military intervention was excessive and cannot be condoned by this Court. Here, Mainard, a military police officer, actively participated in the undercover drug purchase. He also pullеd a gun during the arrest. Even more offensive is Mainard‘s active participation in the search of the appellant‘s house after the arrest. Lastly, he personally delivered the drugs to the O.S.B.I. and filled out the submittal forms. Mainard did not participate as a private citizen, but instead acted solely under the authority of his military status.
The authority assumed by the military agent, Mainard, intolerably surpassed that which was present in Hubert, Hildebrandt, and Lee, supra. Therefore, we rule it necessаry to suppress the evidence obtained pursuant to the unlawful arrest.
Accordingly, the judgment and sentence is REVERSED and REMANDED.
BRETT, P. J., concurs.
BUSSEY, J., dissents.
BUSSEY, Judge, dissents:
I must respectfully dissent. Most of the acts performed by Mainard were acts which could have been performed by a private citizen acting in cooperation with police authorities. See, Hubert, Hildebrandt, and Lee, supra.
CORNISH, JUDGE