20 C.M.A. 269 | United States Court of Military Appeals | 1971
Lead Opinion
Opinion of the Court
Reviewing the accused’s conviction by a general court-martial, the United States Navy Court of Military Review dismissed all but two of the offenses found on the ground that the circumstances of the commission of those offenses removed them from court-martial jurisdiction under O’Callahan v Parker, 395 US 258, 23 L Ed 2d 291, 89 S Ct 1683 (1969), and United States v Borys, 18 USCMA 547, 40 CMR 259 (1969). Impressed by the accused’s “good service” record and “fine record in civilian life,” the court affirmed only so much of the sentence as provided for reduction, forfeiture of pay, and confinement at hard labor for one year. We granted further review to consider various allegations of error in the proceedings against the accused, both at trial and before the Court of Military Review.
The two offenses affirmed below are a twelve-day unauthorized absence, to which accused pleaded guilty, and wrongful possession of “fragments” of marihuana, to which the accused pleaded not guilty. Several of the assignments of error deal with the validity of the findings of guilty of the marihuana offense; others challenge the validity of the entire proceedings. So far as the latter are concerned, suffice it to note that our scrutiny of the trial proceedings satisfies us they do not indicate that the law officer abandoned his position as judge to assume the role of Government advocate, and they otherwise satisfy the requirements of a fair trial. See United States v Bishop, 11 USCMA 117, 28 CMR 341 (1960). As to the alleged errors affecting the marihuana offense, we conclude that the accused’s arrest was not justified, with the result that a search of his person incident to the arrest and the seizure of a cigarette containing “fragments” of marihuana were illegal.
During a routine patrol at Camp Le-jeune, Corporals Fens and Stokes noticed some figures in a wooded area at a river bank. They stopped their vehicle to investigate. With Fens moving in from the right and Stokes from the left, they approached the area. As they “broke in” on the group, they saw three persons. The accused was seated on the ground at Fens’ left; the other two were standing, one in front of Fens and the other to his right. Stokes asked the men “what they were doing”; they replied they were “just talking” and “just looking at the bay.” Fens “went behind” the man on his right and started “searching the brush.” According to Fens, he found six hand-rolled cigarettes, which he described as “refers [reefers].” Immediately, he informed the accused and his companions that they were “under military apprehension” for “suspicion of having these refers” or “have dangerous drugs.” Fens further testified that he also warned the accused and the others of their right to remain silent under Article 31, because he “suspected them” of possession of the cigarettes he had found.
Possession means more than being where the action is; it involves the ex
The decision of the Court of Military Review is reversed as to Charge IV, specification 2, and the sentence. Since the record manifests the unavailability of other competent evidence of guilt, Charge IV, specification 2, is ordered dismissed. United States v Thomas, 16 USCMA 306, 308, 36 CMR 462 (1966). The record of trial is returned to the Judge Advocate General of the Navy for submission to the Court of Military Review for reassessment of the sentence on the basis of the remaining charge to which the accused pleaded guilty.
Subsequent to service upon the accused of the decision of the Court of Military Review and before the accused appealed to this Court, he was separated from the Marine Corps. In my view, this action by the Government terminated the court-martial proceedings against the accused. See my dissent in United States v Speller, 8 USCMA 363, 24 CMR 173 (1957), and United States v Entner, 15 USCMA 564, 36 CMR 62 (1965).
The law officer instructed the court members that the term “reefer” had no “criminal connotation,” but was merely descriptive of the cigarettes found by Officer Fens.
Dissenting Opinion
(dissenting):
I would affirm the findings and sentence in this case, for I consider the search of the appellant’s person an incident of his arrest for which there was probable cause.
A military police patrol may reasonably be expected to investigate a gathering of persons in an on-base wooded area. Discovery of the contraband cigarettes at the feet of Myers and his companions in this area constituted probable cause for the appellant’s arrest. Reasonable suspicions are raised to the level of probable cause by the existence of circumstances such as those in this case. (United States v Lewis, 362 F2d 759 (CA 2d Cir) (1966).)