Lead Opinion
OPINION OF THE COURT
The issues in this case concern the admissibility of the fruits of a search and seizure and of statements made by the accused when confronted with the results of the search. The Government maintains the search was legal because it was done with the freely obtained consent of the accused and that, in any event, the search was conducted solely by British police officers in connection with a British police investigation. The accused, on the other hand, contends he did not consent to the search but merely acquiesced in a police assertion of authority and that, as a matter of fact, the search was a joint venture executed by American and British officers to which our constitutional standards should be applied. We refer to the evidence in order to place the contentions of the respective parties in context.
Several burglaries had occurred in off-base, British-owned housing occupied by American service personnel in Bicester, England. Detective Sergeant Anthony Miller of the local police was in charge of the investigation. He received information which led him to believe that a black and white automobile with a noisy exhaust was involved. On April 18, 1974, he observed such a vehicle driving in the housing area in which the burglaries occurred. It was operated by the accused. Sergeant Miller stopped the vehicle and questioned the accused. He then looked into the vehicle and observed a rock and a black glove.. Miller cautioned the accused and took him into custody.
Miller interrogated the accused at the Bicester police station and determined
Detective Sergeant Miller secured the accused’s keys and, accompanied by Constable Leadbetter, proceeded to the air base. There, he went to the air police office "out of courtesy, to let them know that I was conducting an inquiry; that I wished to search a particular room.” Sergeant Hanson and Sergeant Hoard of the air police accompanied the British officers to the accused’s room.
There, the accused’s belongings were searched. According to Miller, the air police took no part in the search other than to unlock a padlock on the accused’s locker and to look around the room.
According to the accused, Miller stated it was his intention to search his room and "asked my permission.” Miller refused to allow the accused to make a telephone call and told the accused "it would be easier if I went ahead and gave my consent; if not, he could get a warrant.” Accused replied that "there was nothing I could do.” At no time did he convey the impression that he agreed to the search.
The search disclosed the presence of property stolen from the burglarized premises. It was photographed by an Air Force photographer summoned at Miller’s request and turned over to the British officers. Miller returned to the local police station and, confronting the accused with the seized items, obtained a statement from him.
From the foregoing, it is obvious that there was no real consent on the part of the accused to the search of his room. Both his testimony and that of Detective Sergeant Miller establishes that he, then in custody, replied to the requests for permission to search with nothing more than a statement that he was powerless to prevent it. This was no more than acquiescence to police authority. As we stated in United States v Decker,
Consent to a search is not presumed. It must be proved by the Government "by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied.” . . . Special caution is required when the consent is obtained from a person in police custody. United States v Justice,13 USCMA 31 , 34,32 CMR 31 .
Not even the police were able to state that the accused agreed to the search. Miller’s own testimony establishes only that the accused stated, "I can’t really stop you.” This is hardly the free and voluntary consent required. United States v Vasquez,
This is the real problem presented. The Government basically urges that the search in this case was purely a British search and, under our decision in United States v DeLeo,
DeLeo upheld a search by French officers in which there was a substantial degree of American participation. Judge Brosman, writing for the majority, upheld the reception in evidence of items seized during that search for a number of reasons. The underlying philosophical consideration which led the Court to its
Competing with these considerations is the no less important doctrine that the Constitution of the United States applies to the exercise of federal power over a United States citizen wherever he may be located. Some federal courts have held that the Constitution’s exclusionary rule need not be applied when evidence is seized by foreign police, at least when there is no American participation. Stonehill v United States, 405 F2d 738 (9th Cir 1968), cert. denied,
The difficulty with these opinions, and particularly those of this Court, is that at the time of the decision in DeLeo, the exclusionary rule was, as noted in Seiber, no more than an evidentiary device designed to require federal officers to adhere to the command of the Fourth Amendment. It could have been altered by statute or, in the military, perhaps by amendment of the Manual for Courts-Martial then in effect. See Wolf v Colorado,
It is true, of course, that this Court has no authority to infringe upon the sovereignty of another nation by attempting to impose American constitutional standards on their legitimate methods of securing evidence. It is likewise true that our treaties — part of the "supreme law of the land” — impose the duty on our military authorities as well as those of the receiving state to assist in the investigation of offenses. From the foreign police standpoint, these investigations presumably would be done in compliance with local law for the purpose of any prosecutions. From the military standpoint, we see nothing burdensome in also requiring for American prosecutions that the military authorities comply with our constitutional standards. This is a measure we believe not only required by the Fourth Amendment in order to make evidence admissible in a Federal prosecution, but also one which will enhance protection of the accused’s rights in a foreign milieu far better than the holding in DeLeo.
In sum, then, we hold that evidence obtained by search and seizure in a foreign country must meet Fourth Amendment standards in order to be admitted in evidence in a trial by court-martial, regardless of whether it is obtained by foreign police acting on their own or in conjunction with American authorities. The extent of an American’s constitutional protections in an American court should not be lessened or removed by virtue of the fact that he is ordered to an overseas post for service. It is American judicial power that is being exerted against him and in such a case, it is by American constitutional standards that he should be judged. To the extent that United States v DeLeo, supra, and similar cases are inconsistent with our holding in this case, they are hereby overruled.
The decision of the US Air Force Court of Military Review is reversed and the record of trial is returned to the Judge Advocate General of the United States Air Force. As the record reveals no admissible substitute for the excluded evidence, the charges are ordered dismissed.
Notes
Article VII, section 6(a), Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, June 19, 1951, [1953] 2 UST 1792, TIAS No. 2846; United States v DeLeo, supra at 156-57,
Birdsell v United States, 346 F2d 775, 782 (5th Cir 1965).
Dissenting Opinion
(dissenting):
To say that our armed forces carry with them the Constitution as well as the flag is one thing. To say that the Constitution operates against a foreign government in its own country is quite another; and, in my opinion, quite wrong. Yet, that is what the majority hold in saying that the evidence in issue was inadmissible because the exclusionary rule is "a positive command of the Constitution.”
The exclusionary rule is indeed a part of the constitutional protection against unreasonable search and seizure, but the exclusionary rule does not forbid either the United States or a state from using evidence obtained by persons unconnected with the Federal or a State Government and acting without the participation of agents of either government. That is settled constitutional doctrine, and the majority’s repudiation of it is, in my opinion, unjustified and unsound.
It has always been the constitutional rule that rights accorded individuals in the Bill of Rights are protections against actions by the Federal Government, not actions by State officials
Four years ago, the United States Supreme Court reaffirmed that evidence improperly taken from an accused by a private person, without government participation, is not subject to the exclusionary rule. In Coolidge v New Hampshire,
Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. . . . The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner’s argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded*529 as having acted as an "instrument” or agent of the state when she produced her husband’s belongings.
. . . The exclusionary rules were fashioned "to prevent, not to repair,” and their target is official misconduct. They are "to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” . . . But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.
During its last term, the Supreme Court again emphasized that the exclusionary rule was not intended "to redress the injury to the privacy of the search victim,” but to deter "unlawful police conduct,” that is "governmental intrusions.” United States v Calandra,
What is true of action by a private person is equally true of action by a foreign government. It bears repeating that the Fourth Amendment protects only against action by the Federal Government, and the Fourteenth Amendment protects only against action by a State of the United States. A foreign government, like a private person, is just not subject to these provisions. As we recently observed, "the provisions of the Constitution of the United States are not binding upon . . . [foreign] officials in the performance of their respective functions as defined by the laws” of their country. Autry v Hyde,
Nothing in the majority opinion convinces me that the settled limitation on the exclusionary rule is wrong constitutional doctrine. Accordingly, I adhere to it. Further, I would not overrule United States v DeLeo,
Peters v Kiff,
Coolidge v New Hampshire,
Id. at 487-88.
Meister v Commissioner, 504 F2d 505 (3rd Cir 1974); United States v Tierney, 448 F2d 37 (9th Cir 1971); United States v Callaway, 446 F2d 753 (3rd Cir 1971); Stonehill v United States, 405 F2d 738 (9th Cir 1968).