8 M.J. 121 | United States Court of Military Appeals | 1979
Lead Opinion
This case
The salient facts are easily delineated. Appellant was charged with larceny of an
As we examine the record of trial, there is no indication from the military judge of the theory under which the challenged tape player was admitted into evidence. Government counsel first urge us that the facts of this case sufficiently demonstrate a voluntary consent to search the trunk of appellant’s automobile. Alternatively, we are encouraged to consider this a search incident to apprehension. Finally, the Government would posit this search as reasonable under an exigent circumstances rationale. We disagree. We shall deal with these assertions seriatim.
I
In order for Fourth Amendment rights to be waived by consent to search, the Government is required to demonstrate that such consent reflects an uncoerced election to grant the license to search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Mayton, 1 M.J. 171 (C.M.A.1975). Here, the military judge, relying on our decision in United States v. Kinane, 1 M.J. 309 (C.M.A.1976), held as a matter of law that the appellant did not consent to this search and seizure. In United States v. Kinane, supra, the appellant’s emptying of his pockets pursuant to an official request was regarded as mere submission to lawful authority.
II
We turn to the Government’s contention that the search of appellant’s automobile trunk qualifies as a search incident to apprehension. A warrantless search in such cases has been justified constitutionally in order to prevent an assault on an arresting officer, the escape of the person arrested, or the destruction of evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968). “There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040.
Our review of the legal authority cited for the proposition that a search incident to apprehension includes within its scope a locked automobile trunk reveals no case which will support the Government’s assertion here.
Ill
Furthermore, the search of appellant’s trunk fails to qualify under the automobile exception to the warrant requirement. This doctrine, first espoused in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), has two preconditions not present in the case sub judice: exigent circumstances and probable cause to believe the vehicle contains contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
Both officers admitted that they considered the vehicle immobile. Four officers were present and the vehicle could have been secured pending a warrant.
IV
The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The Charge is dismissed.
. Found guilty in a special court-martial of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, appellant received a sentence approved by the convening authority which included a bad-conduct discharge, forfeiture of $175.00 pay per month for 5 months, confinement at hard labor for 5 months, and reduction to the lowest pay grade. This findings of guilty and the sentence were affirmed by the intermediate court.
. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
. United States v. Miles, 449 F.2d 1272 (10th Cir. 1971); United States v. Birdsong, 446 F.2d 325 (5th Cir. 1971); People v. Ehn, 24 Ill. App.3d 340, 320 N.E.2d 536 (1974); United States v. Kennard, 49 C.M.R. 138 (A.F.C.M.R. 1974), pet. denied 23 U.S.C.M.A. 629, 49 C.M.R. 889 (1974).
. As the Supreme Court stated in United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975), “[a] search, even of an automobile, is a substantial invasion of privacy,” or as stated in Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”
. See United States v. Mills, 46 C.M.R. 630 (A.C.M.R.1972); United States v. Pacheco-Ruiz, 549 F.2d 1204 (9th Cir. 1976); Hilleary v. Wallace, 519 F.2d 786 (4th Cir. 1975).
. Authorized to issue warrants pursuant to paragraph 14-2, Army Regulation 27-10, effective 1 January 1976.
. Such exists when a reasonable man would believe the object of the search is in the particular place to be searched. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948).
Concurrence Opinion
(concurring):
As to Part I of Chief Judge Fletcher’s opinion, I agree that sufficient evidence supports the trial judge’s determination that consent to search was not given; regarding Part II, I agree that the evidence does not indicate the search was incident to appellant’s apprehension for possession of marijuana; and as to Part III, I agree the evidence is insufficient to establish probable cause to search the locked trunk. I, therefore, join in the disposition he directs.
I believe two brief additional comments are appropriate. First, I do not believe that prior authorization to search the automobile trunk was necessarily required. See Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979); Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Further, I believe it appropriate to observe that a commanding officer and his designee are also competent to issue an authorization to search. United States v. Ezell, 6 M.J. 307 (C.M.A.1979).