Opinion of the Court
This is an appeal by both accused from a conviction at a common trial of four specifications, in violation of Article 134, Uniform Code of Military Justice, 50 USC § 728. Two of the specifications allege the possession and use, respectively, of marihuana. The others set out separate acts of fornication committed in a hotel room in the presence of other persons. Two issues are presented for review: (1) The admissibility of evidence obtained by a search and seizure, and (2) whether a specification which alleges an act of sexual intercourse in a hotel room in the presence of other persons sufficiently states an offense in violation of the Uniform Code.
At about 11:00 p. m. on Wednesday, August 18, 1954, the accused met two girls, Brigitte Hoffmann and Ilse Jaeger, in a Berlin cafe. A half hour later the group left the cafe and proceeded to a hotel room occupied by the accused. Shortly after their arrival, Ilse asked for a cigarette. The accused had none. However, one of the accused took a small tobacco pouch from a closet in the room. The accused also produced cigarette paper. Using the contents of the pouch, the four rolled cigarettes. The accused instructed the girls on the method of rolling them. The accused also showed the girls how to smoke the cigarettes in a “funny” way. All of them smoked a number of the cigarettes, which had a “peculiar taste and . . . peculiar smell.” At first, Ilse felt “a little sick,” then she became “wild — temperamental.” At her suggestion, they went to bed.
Each accused had sexual intercourse with a girl. The next morning, the accused exchanged girls and engaged in further sexual relations and cigarette smoking. In the late afternoon, the group left the hotel and returned to the cafe where they had met. There, they parted company.
On Saturday, August 21, Ilse went to the Criminal Investigations Office. Since the evening of August 19 she had had “spasms of the heart.” She reported the incident in the hotel. On the basis of her statement, Agent Kochery of the Criminal Investigation Detachment and Neumann, a German criminal policeman, assigned to Koch-
The Government and the accused tacitly agree, that notwithstanding the presence of a German policeman, the legality of the search and seizure must be determined by American law. See: United States v DeLeo,
Both accused testified as to the circumstances surrounding the search and seizure. Their testimony indicates that Mitchell affirmatively objected to the search. However, the testimony of the law enforcement officers is contradictory. Agent Kochery testified that before the search, he identified himself as a Criminal Investigation Detachment agent and displayed his credentials. He asked for and examined Mitchell’s identification papers. When Berry entered the room he also checked his papers. Then addressing himself to Mitchell, he asked if he could “search and look around the room.” Mitchell replied, “Sure, go right ahead.” On two other occasions in the course of the search, Agent Kochery made the same request and received the same answer from Mitchell. The German policeman also testified. He stated that he entered the room with Kochery. He posted himself at the door. Before searching the room Kochery asked, “May I look around” and Mitchell told him to “Go ahead, please”; at the same time he extended his arm in invitation. Neumann especially noted the form of the request because it was “different” from the German procedure; “it is not usual in the German police — if we have to make a search then we say we have to make a search, and so there was a difference between the German and the English.” As a result of the search, the pouch was discovered and seized.
Over the accused’s objection, the law officer admitted the evidence. He gave no reasons. Later, however, at the request of both trial and defense counsel, he submitted the question of consent to the court members for consideration in their deliberations on the findings. He gave the court the following instructions :
“Consent by an accused to a search is not to be lightly implied merely because he peaceably submits either to what he believes to be a lawful search or to a show of authority. Peaceable submission by an accused believing that an agent has the authority to make the search does not waive the accused’s constitutional rights in regard to an illegal search. It is incumbent upon the Government to show a consent that is unequivocal and specific, freely and intelligently given. Consent, therefore, must be proved by clear and positive testimony and it must be established that there was no duress or coercion, actual or implied. If you do not find that such a waiver of the accused’s constitutional rights was present in this case you must acquit both of the accused of Specifications 1 and 2 of the respective Charges against them.
“Now we further instruct that a search is prima facie assumed to have been properly undertaken and if a search is alleged to have been illegal it is incumbent upon the party alleging such illegality to establish such claim with the burden of proof. The burden of proof is not met by a mere assertion of illegality. A search made with the consent of the person whose property is searched is not unlawful.”
Defense counsel called the law officer’s attention to the “conflict” in the instructions regarding “the burden and . . .
Apparently the law officer misunderstood our decision in United States v Ornelas,
However, the law officer’s instructions are important from a different point of view. They plainly indicate his confusion as to which party had the burden of establishing a proper predicate for the admissibility of the evidence obtained as a result of the search. In United States v Wilcher, supra, we pointed out that evidence obtained as a result of a search and seizure is admissible if it clearly appears that the accused consented to the search. The burden of establishing consent is on the Government. Acquiescence or mere submission to authority is not equivalent to consent. Johnson v United States,
As a practical matter, perhaps a search may be presumed to be legal. Certainly, in the absence of objection or evidence as to the circumstances under which it was made, the results of the search are admissible. United States v Dupree, supra. Moreover, the basis of any presumption of legality of search is the broader principle that officers of the law are presumed to act properly in the performance of their duties. United States v Tobita,
From the law officer’s instructions, we are unable to determine what standard of admissibility he used. We do not know whether he presumed the legality of the search and required the accused to’ overcome the presumption by evidence of illegality, which would include such matters as a lack of probable cause and the absence of an authorization from competent authority; or, whether he correctly imposed upon the Government, the burden of showing an affirmative consent. Both standards
In our opinion, a conviction should not rest upon uncertainty and confusion concerning the correct principles of law applicable to a vital part of the case. In the interests of justice, therefore, we set aside the findings of guilty of specifications 1 and 2 of the Charge which, respectively, allege the possession and the use of narcotics.
Turning to the sufficiency of the specifications, the accused contend that sexual intercourse between unmarried persons per se is not a violation of the Uniform Code. United States v Hartman, 71 Bit 111; United States v Prater, 5 BR-JC 221, 229. They concede, however, that aggravating circumstances may make the act an offense.
In United States v Snyder,
The public nature of an act is not always determined by the place of occurrence. A private residence in which other persons are gathered may be regarded as a public place for the purpose of evaluating the character of conduct by one of the persons. This is particularly true when the act is of such a nature as to bring discredit upon the armed forces. United States v Lowe,
To avoid the effect of the aggravating circumstances, the accused emphasize that the witnesses to each act were “themselves engaged in like acts, at the identical time.” This argument is also novel. It implies that an offense is excusable because other persons are committing the same offense at the same time. The contention is patently untenable. In a situation of this kind we are concerned with the effect of the act on persons of average sensibilities and habits, not with its effect on individuals whose attitudes and habits are such as to make them insensible to the situation. See: Board of Health of Lyndhurst Tp. v United Cork Cos., 116 NJ Eq 4, 172 Atl 347, aff’d 117 NJ Eq 437, 176 Atl 142.
The findings of guilty of specifications 3 and 4 of the Charge are affirmed. The findings of guilty of specifications 1 and 2 are set aside. The case is returned to The Judge Advocate General. In his discretion, he may order a rehearing as to specifications 1 and 2 or dismiss them and return the case to the board of review for reassessment of an appropriate sentence on specifications 3 and 4.