11 M.J. 307 | United States Court of Military Appeals | 1981
Lead Opinion
Opinion of the Court
Contrary to his pleas, the appellant was convicted by a special court-martial of wrongfully possessing 300.3 grams of marihuana and of wrongfully using marihuana, in contravention of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892.
Before us, the appellant questions “[w]hether the search of appellant’s room was authorized by a neutral and detached magistrate?” Specifically, the appellant complains that Captain Stevens, who authorized the search and, indeed, who participated in it, had abandoned his neutrality and had taken on the role of a policeman. Thus, concludes the appellant, Captain Stevens’ authorization to search his room was fatally tainted by his compromised detachment. See United States v. Rivera, 10 M.J. 55 (C.M.A.1980). After a careful review of the record, we conclude that, to whatever extent Captain Stevens performed as a policeman instead of a neutral and detached magistrate, he did so with probable cause and under exigent circumstances allowing him to proceed without authorization from a more detached official.
I
About 11:00 p. m. on the evening of October 7,1977, PFC Grittman approached Gunnery Sergeant Armstrong who then was the Battalion Officer of the Day. Grittman inquired of Armstrong whether, if someone in a room was in possession of marihuana, others in the room would also be implicated thereby. Armstrong responded that this was possible. Grittman, who then was on restriction and was concerned about becoming involved in further difficulties, informed Armstrong that earlier the same evening Grittman’s roommate, the appellant, had come into the room with about 14 or 15 plastic baggies of marihuana all rolled up in a newspaper and had placed the newspaper under the pillow on the appellant’s bed. Grittman also apparently told Arm
At this point, Armstrong decided that he should relate the events to Captain Stevens, who then was the Regimental Field Officer of the Day. According to Stevens’ testimony, Armstrong told him Grittman had revealed that earlier in the evening he had seen the appellant bring into the room 13 bags of marihuana wrapped in a newspaper and secrete the bundle under his pillow. Armstrong further advised Stevens that he, himself, had smelled the odor of marihuana in the hallway coming from the appellant’s door.
He said that, well, GRITTMAN was on restriction at the time and was coming down to sign his restriction papers, and he asked Gunnery Sergeant ARMSTRONG what could happen if there was a bust to take place where someone was smoking marijuana or holding marijuana and that he was present even though he wasn’t smoking himself. Gunny ARMSTRONG, as I understand it, told him that he thought that he probably could be busted as well as the individual who was smoking in the room. At that point he told Gunnery Sergeant ARMSTRONG that there was smoking in the room and also about the quantity of marijuana underneath the pillow on the rack.
Captain Stevens had known Grittman for about two months at the time of the incident. Grittman had been transferred to his office as his clerk after someone at his previous assignment had recommended a psychological evaluation be done on him, but when Grittman had reported for duty, Stevens had interviewed him and had concluded that the evaluation was not needed. During the time frame in which Stevens had known Grittman and had been exposed to him on a daily basis, there had been no problems with Grittman’s performance. As to his relationship with Armstrong, Stevens revealed that he had “known . .. Armstrong very well for approximately a year” and that he thought “very highly of his credibility.”
Captain Stevens testified that after receiving Armstrong’s information, he had concluded that he had probable cause to search the appellant’s room;
Within 15 minutes of Grittman’s approach to Armstrong, these two groups converged on the appellant’s doorway. While several members of the party testified that they could smell the odor of burning marihuana while standing there with the door closed, Captain Stevens testified that he could not. Therefore, he had Armstrong knock on the door. There is some question whether Armstrong knocked more than once with an intervening query by the appellant as to who was there, or whether Armstrong simply knocked once. In any event, Armstrong testified that he did not identify himself when he knocked because he “didn’t want [the appellant] to get rid of anything.”
Pursuant to the knock, the appellant opened the door about halfway. At that moment, Stevens testified that he “smelled the very distinct smell of marihuana odor coming out of the room.”
Only appellant and Grittman were in the room. Acosta then tossed a black shaving kit onto the bed and said, “This is what you’re looking for.” After asking, “Is that all there is?”, Stevens went to the pillow on the appellant’s bed, lifted it, and revealed the newspaper bundle. At the time, the appellant was only about 2 or 3 feet from the pillow, but Stevens testified that he never really feared that the appellant could destroy the evidence. The military police then placed the appellant under apprehension and Stevens ordered a search of the entire room, which, however, awaited the arrival of a Criminal Investigation Department (CID) agent who took charge of the scene. At this point Stevens executed a written authorization for the CID to search the room, and the search uncovered a marihuana roach in an ashtray next to the appellant’s bed. It is the marihuana found in the appellant’s room which he was convicted of possessing.
At the time of these events, there existed a regimental directive
II
Sergeant Armstrong had intended to gain access into Acosta’s room by a pretext that he was there for a bed-check to ascertain if Acosta’s roommate, PFC Grittman, was complying with the conditions of his restriction. However, use of this sub
Incident to the apprehension based on probable cause, Captain Stevens and his cohorts could lawfully conduct a search of appellant’s person and of the area within his immediate control in order to find weapons or destructible evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Cordero, 11 M.J. 210 (C.M.A.1981). It is of no moment that Captain Stevens indicated at one point in his trial testimony that, once he had entered the room, he did not fear that appellant would destroy the evidence which the captain believed to be under his pillow, for the authority to search this area within appellant’s control follows from the apprehension itself and not from a specific fear that the person arrested possesses weapons or is capable of destroying evidence. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Cordero, supra. In view of appellant’s proximity to the bed and pillow, the area where Captain Stevens found the marihuana was subject to Acosta’s immediate control for purposes of a search incident to apprehension. Chimel v. California, supra; United States v. Campbell, 581 F.2d 22 (2d Cir. 1978); United States v. Mancillas, 580 F.2d 1301 (7th Cir. 1978), cert. denied, 439 U.S. 958, 99 S.Ct. 361, 58 L.Ed.2d 351 (1978); United States v. Savage, 564 F.2d 728 (5th Cir. 1977); Watkins v. United States, 564 F.2d 201 (6th Cir. 1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978).
Also, it is of no legal consequence that the appellant was not formally placed under apprehension until immediately following the search under his pillow. In a case factually analogous to the one at bar, the Supreme Court had this to say:
Once petitioner admitted ownership of the sizable quantity of drugs found in Cox’s purse, the police clearly had probable cause to place petitioner under arrest. Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.
Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980). Cf. Dickey v. United States, 332 F.2d 773 (9th Cir. 1964), cert. denied, 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1964).
Ill
If, as he had originally planned, Sergeant Armstrong had gained access to Acosta’s room by means of a pretense as to his identity or purpose, then the situation might be different. We have emphasized elsewhere that this Court will not allow
IV
Finally, even if Sergeant Armstrong and Captain Stevens had attempted to search the room against the express wishes of both occupants and without any purpose of apprehending appellant, the search would nonetheless be reasonable. In this regard, we rely on the exception for warrantless searches by law enforcement agents when they have probable cause and the circumstances are exigent. Under this recognized exception, a search performed under similar circumstances by law enforcement agents in the civilian community would probably be deemed reasonable. See, e. g., United States v. Campbell, supra (discussing “exigent circumstances”). In any event, within the military society the conditions are exigent. As we have made clear heretofore, while the Fourth Amendment shields not only the American civilian but also the American serviceperson, the application of that protection is not always identical in the civilian and military sectors. As a unanimous Court recently recognized, that application must “take into account the exigencies of military necessity and unique conditions that may exist within the military society.” United States v. Middleton, supra at 127.
Such an exigency faced Captain Stevens in the case at hand.
This situation is similar in many respects to that before the Court in United States v. Hessler, 4 M.J. 303 (C.M.A.1978), reconsidered, 7 M.J. 9 (C.M.A.1979). As Chief Judge Fletcher explained there, the obligation of a military commander or an officer in charge to assure the readiness of a military unit to fulfill its military mission is a consideration wholly unknown in the civilian community which bears on the reasonableness of searches and seizures in the military. 4 M.J. at 308; 7 M.J. at 10. Accord, United States v. Middleton, supra. That concern with the ability of the military to perform its readiness mission must, necessarily, begin with the individual service member because of “the interdependent relationship of each serviceperson’s duty to act in concert with other servicepersons.” 4 M.J. at 308.
We have had occasion recently to acknowledge the crippling effect that the sale and use of contraband drugs in the military environment can have — and, indeed, is having — on the ability of our defense forces to fulfill their constitutional duty to defend this country. See United States v. Trottier, 9 M.J. 337 (C.M.A.1980). With all this in mind, we can conceive of no greater exigency requiring immediate action than the perceived present active use of debilitating drugs by specific servieepersons. To require a person in authority who is exposed to such an emergency situation to put the situation “on hold” while he seeks authorization from a magistrate would only exacerbate the threat.
V
The decision of the United States Navy Court of Military Review is affirmed.
. Originally, the appellant was charged with possessing 706 grams of marihuana, but the military judge reduced the quantity in his findings. See n. 5, infra. Additionally, the appellant was charged with possessing 706 grams of marihuana for purposes of sale, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, but the judge acquitted the appellant of this allegation.
. When Armstrong was asked on cross-examination whether Stevens had asked him about his own experience in smelling marihuana, Armstrong replied, “He knew that I had been at Casual Company before, and that kind of speaks for itself.” Stevens, however, testified that he did ask Armstrong how he knew that the odor he smelled was marihuana and that Armstrong had responded that he had smelled it before.
. As Regimental Field Officer of the Day, Captain Stevens was delegated the capability of authorizing searches in the regiment. Para, k, Special Orders and Instructions for the Regimental Field Officer of the Day, Enel. (1) to Regimental Order 1601.6K, Recruit Training Regiment, Marine Corps Recruit Depot, San Diego, California, and para. 4a(l), SOP for Male Recruit Training, Depot Order P1510.30. We need not consider here the validity of such delegation of the authority of a commander to order a search.
. Stevens stated at trial that he has smelled the odor of burning marihuana during instruction he had received on contraband while he was a student at the Naval Justice School.
. Evidence of additional marihuana found in the trunk of the appellant’s car was suppressed by the judge on motion of the defense, leading to a reduction in the findings of the amount of marihuana the appellant was charged with possessing. See n. 1, supra.
. Para. 4a(2), Depot Order P1510.30, supra. See para, k, Special Orders and Instructions for the Regimental Field Officer of the Day, supra.
. “Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Art. 7(b), Uniform Code of Military Justice, 10 U.S.C. § 807(b).
. It has been held that 18 U.S.C. § 3109 has no application to the military. United States v. Wallis, 44 C.M.R. 586 (A.C.M.R.1971), pet. denied, 21 U.S.C.M.A. 618, 44 C.M.R. 940 (1971). Also relevant to the notice of purpose and authority required for a valid arrest or seizure in a narcotics case is Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).
. For purposes of our analysis, we will assume that Captain Stevens did not act with the neutrality and detachedness expected of an authorizing official, see United States v. Rivera, 10 M.J. 55 (C.M.A. 1980); United States v. Ezell, 6 M.J. 307 (C.M.A.1979), and, therefore, that his entering the room and his actions in the room were without a search authorization. Of course, this search and seizure antedated Ezell, which has not been applied retroactively.
. It is in this respect, as Judge Cook recognized in his opinion in United States v. Hessler, 4 M.J. 303, 306 (C.M.A.1978), reconsidered 7 M.J. 9, 11 (C.M.A.1979), that situations such as these differ from that presented to the Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
. By the same logic, we believe that the expressed prescription in the regimental directives that a probable-cause search should be authorized in writing, see n. 6, supra, does not contemplate such exigent circumstances. Cf. United States v. Hood, 7 M.J. 128 (C.M.A. 1979).
Concurrence Opinion
(concurring):
I agree with the majority that Captain Stevens acted reasonably in this case. Upon smelling the activated marihuana, he was entitled as part of his command responsibility to immediately enter the appellant’s barracks room to prevent its continued activation. Such a limited governmental intrusion is justified by the military exigency presented to command. See United States v. Hessler, 7 M.J. 9, 10-11 (C.M.A.1979). In view of the information earlier provided to him, he could also lawfully arrest the appellant and search the area within his control. See generally United States v. Cordero, 11 M.J. 210 (C.M.A.1981). The marihuana for which the appellant was convicted was either within his area of control or in plain view.
Part IV of the majority’s opinion is dicta. In United States v. Hessler, supra at 11 (footnote omitted), I stated in similar circumstances:
Moreover, if a more extensive search of the barracks room is needed for law enforcement purposes to discover dormant marihuana and is justified by probable cause, a search authorization must be obtained through the most reasonable procedures available at the military installation which are authorized by military law.
I continue to subscribe to this position, particularly where the marihuana is no longer in an activated state, an arrest is accom