21 M.J. 879 | U.S. Navy-Marine Corps Court of Military Review | 1986
The appellant was convicted at a special court-martial of stealing the property of a Marine sergeant, corporal and lance corporal, in violation of Article 121, Uniform Code of Military Justice, and sentenced to confinement for four months, forfeitures of $400.00 pay per month for four months, and a bad conduct discharge. The convening authority approved the sentence as adjudged, and the appellant assigns as error the trial judge’s failure to suppress evidence of the stolen property seized in a search of the appellant’s barracks room during the course of a purported health and welfare inspection, which appellant alleges was a subterfuge for a criminal investigation in violation of Military Rule of Evidence (Mil.R.Evid.) 313(b).
SUMMARY OF EVIDENCE
Corporal C, the Company Police Sergeant, testified that on Friday, 25 January 1985 there was a gray metal tool box containing assorted tools, the property of Sergeant C, in the police shed, together with a green Army first aid kit, containing his own assorted tools, and a green metal trunk (with a “The Who” sticker on the side), the property of Lance Corporal B. Corporal C discovered the property missing upon returning to the police shed on Monday morning, 28 January 1985, and reported the missing property to Gunnery Sergeant McK, the Company Gunnery Sergeant, after first searching throughout the common areas in the barracks. Gunnery Sergeant McK’s initial reaction was that the property had been misplaced. Major T, the Company Commander, joined the conversation and, also believing the property had been misplaced, directed that a further search be conducted. Gunnery Sergeant
Major T instructed Gunnery Sergeant McK and Corporal C to track down personnel on the working party to find out “if they’d signed the tool boxes out to anybody or if they still had them” and to see if the tool boxes were in their rooms. Although Major T did not formally advise Gunnery Sergeant McK to check the rooms of persons on the working party in connection with the daily health and welfare inspection, he intended it to be part of the inspection since they were “going to be walking through anyway,” inspecting for cleanliness and ensuring that pilferable items were secured in the wall lockers. Major T did not provide specific guidance to Gunnery Sergeant McK and Corporal C in regard to how the inspection was to be executed, but merely advised them to check the rooms. However, Gunnery Sergeant McK was never authorized as part of his daily inspections to indiscriminately search through wall lockers or break into wall lockers that were secured. Only in instances where a wall locker was found unlocked was Gunnery Sergeant McK permitted to look inside the wall locker and only for the purpose of identifying to whom it belonged.
Gunnery Sergeant McK and Corporal C proceeded directly to the appellant’s barracks room, and upon entering the room after allegedly knocking and not receiving a response, found the appellant standing beside his open wall locker, packing his seabag with the contents of his wall locker in anticipation of being discharged the following day. Gunnery Sergeant McK in the course of conducting his regular health and welfare inspection advised the appellant he was looking for missing tools. However, after Corporal C spotted Lance Corporal B’s green metal trunk with the “The Who” sticker on the side located inside the appellant’s open wall locker and in plain view and so advised Gunnery Sergeant McK, the appellant was directed by Gunnery Sergeant McK to remove the green trunk from his wall locker and to further remove the contents thereof. The gray metal tool box and tools, belonging to Sergeant C, and the green Army first aid kit containing the tools of Corporal C were discovered inside the trunk.
I
The resolution of the certified issue requires an analysis of Mil.R.Evid. 313(b),
Applying the evidentiary rule and the Middleton rationale to the present case, we conclude that the search of appellant’s room for the missing property was part of a legitimate health and welfare inspection, where the commander did not suspect the property had been stolen, did not order the examination of appellant's room for the primary purpose of obtaining evidence for use at a court-martial or other disciplinary proceedings, and the search for the missing property was part of a daily health and welfare inspection conducted by the company gunnery sergeant. Furthermore, as the purpose of the inspection was not to locate weapons or contraband, the strong likelihood of subterfuge is absent, although the appellant’s barracks room was singled out because he was a member of the working party suspected by the commander of having used the tools without checking them out and because he was going to be discharged the following day. Consequently, the Government was not required to demonstrate clearly and convincingly the legitimacy of the inspection, albeit we believe the proof supporting the legitimacy of the health and welfare inspection rises to such a level.
II
The remaining question is whether the seizure of the metal tool box and Army first aid kit containing assorted tools, located inside the trunk, was outside the scope of the health and welfare inspection, as the Middleton rationale does not permit indiscriminate intrusions into the privacy of personnel which are not proximately related to the legitimate interests of a commander in conducting a health and welfare inspection. United States v. Brown, 12 M.J. 420
Accordingly, the findings of guilty and the sentence as approved on review below are affirmed.
. Rule 313. Inspections and inventories in the armed forces
(a) General rule. Evidence obtained from inspections and inventories in the armed forces conducted in accordance with this rule is admissible at trial when relevant and not otherwise inadmissible under these rules.
(b) Inspections. An "inspection" is an examination of the whole or part of a unit ... conducted as an incident of command the primary purpose of which is to determine and to ensure