Petition for Writ of Certiorari — Thompson v. United States

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~ | Supreme Court, U.S.

G, | FILED

91-956 | dE 17 199

No. a +ERR

Jn the Supreme Court of the United States

OCTOBER TERM, 1991

PAUL A. THOMPSON, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

DAVID D. JIVIDEN

Captain, Air Force

Legal Services Agency

United States Air Force

AFLSA/JAJD

Bldg. 5683

Bolling AFB, DC 20332-6128

Counsel of Record

JEFFREY R. OWENS

Colonel, Air Force

Legal Services Agency

United States Air Force

December 1991 Counsel for Petitioner

QUESTIONS PRESENTED

Whether the United States Court of Military Appeals

erred by sanctioning a judicially crafted “military

member—primary purpose” exception contrary to the

unambiguous language both in 18 U.S.C. § 1385 (“Posse

~omitatus Act”) prohibiting the use of military members

to execute civilian law and in 10 U.S.C. § 375 (“Regarding

the Military Co-operation with Civilian Law Enforcement

Officials”) prohibiting the use of military personnel in

civilian searches, arrests, or other similar civilian activity.

Whether the search of petitioner’s apartment by military

law enforcement agents and the subsequent seizure of

military property by those agents was illegal under the

Fourth Amendment of the United States Constitution.

TABLE OF CONTENTS

ee aks se veve te eescsueGev eee dens

re. oon oon cei p es ee wee eesees Vaees

Constitutional, Statutory, and Regulatory Provisions

MTEC cul usec eek baveeesesdsecesseeees

ss he yc cts Ox CEO) OH Edu.

Reasons for Granting the Writ .....................

ee eees ued ewes

Se ays uke abe ees MOE Os 60:4 00-9 0808

Ne ee oe ee ae ae

TABLE OF AUTHORITIES

Cases:

American Tobacco Co. v. Patterson, 456 U.S. 631

aie eye ea aed head oe ae.e es 42

Horton v. California, 495 U.S. , 110 L.Ed.2d.

ea dail ws xf vv xe a a's we

Kelly v. Robinson, 479 U.S. 36 (1986) ...........

Lee v. Florida, 392 U.S. 378 (1968) ..............

Payton v. New York, 445 U.S. 673 (1980) ........

Public Employees v. Betts, 492 U.S. 151 (1989) ...

San Francisco Arts and Athletics v. U.S.C.O., 483

EN PRA ee hae a

Solario v. United States, 483 U.S. 435 (1987) .....

United States v. Agnello, 269 U.S. 20 (1925) ......

United States v. Thompson, 33 M.J. 218 (C.M.A.

er a a as Sarah oy 06 ws

United States v. Thompson, 30 M.J. 570 (A.F.C.

EP oS ne ea aa 1, 7, 8, 14

United States v. Red Feather, 392 F.Supp. 916

et i eS de ae eeee 9

State v. Danko, 219 Kan. 490, 558 P.2d 819

ha, 8 eS ee oe 14

Page

Cases — Continued:

Taylor v. State, 645 P.2d 522 (Okl. Crim. App.

SNS Bi eka dae in oie ahae Rae Ce aes 14

State v. Trueblood, 46 N.C. App. 541, 265 S.E.

ras a ee ee ae oe Ge 12

Constitutional Provision:

United States Constitution Amendment IV ..... 2, 14, 15

United States Code:

ee I a cy cue vhace-w ee eee ube ew e's 6

Se ea I oo le cs Gn 6 oa we eaeleeles 6

Bee Oe ae No v6 bbe wvavcvecncdawes y a ey

9, 10, 11, 12

OOS) a. Bre Gs FOOD ccc cccccveseees 2

SEE ers te Se IEE d's ooc.c 0'ec seen cewbnens (eso

9, 11,12, 13

28 U.S.C. § 1259(3) (Supp. 1989) ............... 2

ee ert es 8 ooo y-c5.0 sc ce ces es vase 13

Code of Federal Regulations:

Be a le Gk vecciccesceceuee 4, 9, 13, 14

Be es I vic coc ccc cocccuvesvess 5, 7,8

32 C.F.R. § 213.10(a)(2)(i) (1982) ... 22.200... >

cried fee Rk |. ers 3, 6

32 C.F.R. § 213.10(a)(3)(ii) (1982) .. 2... oe, 7

Congressional Reports:

H.R. Conf. Rep. No. 100-989, 100th Cong., 2nd

Sess. 452, reprinted in 1988 U.S. Code Cong. &

Sa; GE EE cob be hehe enecesebbankenn 10, 11

Page

Congressional Reports — Continued

H.R. Rep. No. 97-71, 97th Cong., Ist Sess. 3,

reprinted in 1981 U.S. Code Cong. & Ad. News

7 PRA eerie were cep ary 6, 9, 10, 13

Miscellaneous:

Meeks, Illegal Law Enforcement: Aiding Civil

Authorities in Violation of the Posse Comitatus

Act, 70 Mil. L. Rev. 83, 123 (1975) ............ 10, 13

Furman, Restrictions Upon Use of the Army Im-

posed by the Posse Comitatus Act, 7 Mil. L. Rev.

SEE cco cn ckcee eres sais ee ersten ess 6, 12

In the Supreme Court of the United States

OCTOBER TERM, 1991

No.

PAUL A. THOMPSON, PETITIONER

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR WRIT OF CERTIORARI

The petitioner, Paul A. Thompson, respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Military Appeals entered in his case

on September 18, 1991.

OPINIONS BELOW

The opinion of the United States Court of Military Ap-

peals is reported at 33 M.J. 218 (C.M.A. 1991) (Appendix

B). The United States Air Force Court of Military Review

issued a decision on February 16, 1990, reported at 30

M.J. 570 (A.F.C.M.R. 1990) (Appendix A).

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on September 18, 1991. The jurisdic-

(1)

tion of this Court is invoked under Article 67a of the

Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 867a (Supp. 1989) and 28 U.S.C. § 1259(3) (Supp.

1989).

CONSTIPUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The Fourth Amendment of the Constitution of the

United States provides in relevant part:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause . . particularly describing

the place to be searched and the persons or things to be

seized.

18 U.S.C. § 1385, the “Posse Comitatus Act,” states:

Section 1385. Use of Army and Air Force as posse

comitatus

Whoever, except in cases and under circumstances ex-

pressly authorized by the Constitution or Act of Congress,

willfully uses any part of the Army or the Air Force as a

posse comitatus or otherwise to execute the laws shall be

fined not more than $10,000 or imprisoned not more than

two years, or both.

10 U.S.C. § 375, “Regarding The Military Co-

Operation With Civilian Law Enforcement Officials,”

States:

Section 375. Restriction omdirect participation by

military personnel. The Secretary of Defense shall

prescribe such regulations as may be necessary to ensure

that any activity (including the provision of any equipment

or facility or the assignment or detail of any personnel)

under this chapter does not include or permit direct

agrees

participation by a member of the Army, Navy, Air Force,

or Marine Corps in a search, arrest, or other similar activi-

ty unless participation in such activity by such member is

authorized by law.

32 C.F.R. § 213.10(a)(3) states:

(3) Restrictions on direct assistance. Except as

otherwise provided in this enclosure, the prohibition on

use of military personnel as a “posse comitatus or other-

wise to execute the laws” prohibits the following forms of

direct assistance:

(i) Interdiction of a vehicle, vessel, aircraft or other

similar activity.

(ii) Search or seizure.

(iii) An arrest, stop and frisk, or similar activity.

(iv) Use of military personnel for surveillance or

pursuit of individuals, or as informants, undercover

agents, investigators, or interrogators.

32 C.F.R. § 213.10(a)(2}(i) states in part:

(2) Permissible direct assistance. The following ac-

tivities are not restricted by the Posse Comitatus Act

paragraph (a)(1) of this section, notwithstanding direct

assistance to civilian law enforcement officials.

(i) Actions that are taken for the primary purpose of

furthering a military or foreign affairs functton of the

United States, regardless of incidental benefits to civilian

authorities. This provision must be used with caution, and

does not include actions taken for the primary purpose of

aiding civilian law enforcement officials or otherwise serv-

ing as a subterfuge to avoid the restrictions of the Posse

Comitatus Act. Actions under this provision may include

the following, depending on the nature of the DoD interest

and the specific action in question:

(A) Actions relating to enforcement of the Uniform

Code of Military Justice (10 U.S.C. Chapter 47).

* > > > *

authority to maintain law and order on a military installa-

tion or facility.

(D) Protection of classified military information or

equipment.

(E) Protection of DoD personnel, DoD equipment,

and official guests of the Department of Defense.

(F) Such other actions that are undertaken primarily

for a military or foreign affairs purpose.

28 C.F.R. § 60.1 states in relevant part:

... Further, in all instances, military agents of the

Department of Defense must obtain the concurrence of

the appropriate U.S. Attorney’s Office before seeking a

search warrant. ; ‘

STATEMENT OF THE CASE

On January 10, 11, and February 1, 2, 3, 1989, the peti-

tioner, an Air Force senior airman (E-4), was tried by a

general court-martial composed of officer military jurors

at Lackland Air Force Base, Texas. He pled not guilty to

charges of larceny, unauthorized disposition of military ,

property, arson and burglary, violations of UCMJ Ar-

ticles 121, 108, 126, and 130, [10 U.S.C. §§ 921, 908, 926,

130] respectively. He was convicted despite his pleas and

sentenced to a dishonorable discharge, confinement for 10

years, total forfeiture of all pay and allowances and reduc-

tion to airman basic (E-1). The Air Force Court of

Military Review affirmed the findings and sentence on

February 16, 1990. The United States Court of Military

Appeals affirmed the findings and sentence on September

18, 1991.

The genesis of the case against the petitioner occurred

sometime prior to October 26, 1988 when Air Force Office

of Special Investigation (AFOSI) Special Agents (SA) were

told they had insufficient information for a search warrant

to search the petitioner’s apartment, despite their suspi-

cion that the petitioner was involved in the larceny of com-

puter equipment from Wilford Hall Medical Center,

Texas, and the larceny and arson of a civilian Atari Com-

puter store. On October 26, 1988, SA Adams and SA

Forsch went to appellant’s off-base apartment to try to

purchase some of the stolen property, and in any event, to

apprehend the appellant. While inside the apartment, no

military property was visible, but the agents noticed Atari

equipment fitting the general description of equipment

missing from the civilian Atari store. After an electronic

signal from SA Adams, another OSI agent came to the

door and apprehended the appellant.

SA Adams’ and SA Forschs’ “plain view” observations

were communicated to an investigator from the San An-

tonio Police Department (hereinafter SAPD) and were

used by him as the basis for a civilian search warrant

issued by a civilian magistrate to search the apartment for

specified computer equipment missing from the civilian

Atari Computer store. The only items specified in the war-

rant were those missing from the civilian store. No men-

tion was made to the magistrate that the apartment may

also contain stolen military property. No mention of

military property was made in the warrant. The civilian

warrant was executed on October 26 by four AFOSI

agents and thre SAPD officers.

At trial, defense counsel moved for the exclusion of all

evidence seized by the SAPD and the AFOSI during the

October 26, 1988 search of appellant’s apartment based on

the AFOSI agents’ violation of 18 U.S.C. § 1385, known

as the Posse Comitatus Act (hereinafter P.C.A.), 19

U.S.C. § 375 and 32 C.F.R. § 213.10 (1982). The P.C.A.

ita iia ai ilk,

prohibits the use of the military as a posse comitatus! or to

execute the nation’s laws. A later statute passed by Con-

gress in 1981, P.L. 97-86, titled “Regarding The Military

Cooperation With Civilian Law Enforcement Officials,”

(codified at 19 U.S.C. §§ 371-378) clarified the scope of

military activities judicially permited under the P.C.A. yet

not addressed by earlier statutory exemptions.? H.R. Rep.

No. 97-71, 97th Cong., Ist Sess. 3, reprinted in 1981 U.S.

Code Cong. & Ad. News 1785, 1790 (hereinafter 1981

Cong. News.).3 This later statute specifically prohibited,

in 10 U.S.C. § 375, the direct participation of military

members in civilian searches, arrests, or other “similar ac-

tivity.” In 1982, the Secretary of Defense promulgated 32

C.F.R. §§ 213.1-213.11 (1982) (titlked DOD Co-operation

with Civilian Law Enforcement Officials”). Section

213.10(a)(3) of this regulation specifically deals with

restrictions on the. participation of DoD personnel in

civilian law enforcement activities, including prohibiting

the use of military personnel in civilian searches and

seizures.

' Posse Comitatus, literally “power or force of the country,” was ,

defined at common law as those over 15 years of age whom a sheriff

could call for aid in preventing civil disorder or for the pursuit of

felons. H.R. Rep. No. 97-71, 97th Cong., Ist Sess. 3, reprinted in

1981 U.S. Code Cong. & Ad. News 1785. See also, Furman, Restric-

tions Upon Use of the Army Imposed by the Posse Comitatus Act, 7

Mil. L. Rev. 85, 87 (1960) (hereinafter Furman).

2 The provisions of 10 U.S.C. § 374 permit the use of military per-

sonnel to maintain sophisticated military equipment made available

under 10 U.S.C. § 372 in drug, immigration and some tariff cases. In

10 U.S.C. § 372, Congress authorized the Secretary of Defense to

make available any “equipment, base facility, or research facility” of

any military department to any Federal, State or local law enforce-

ment official for law enforcement purposes.

> For a collection of prior statutory exemptions to the P.C.A. see

supra 1981 Cong. News at 1789.

Defense counsel asserted at appellant’s trial that the

four AFOSI agents who entered into the appellant’s apart-

ment on October 26, 1988 did nothing less then execute a

civilian (Texas) search warrant in direct contravention of

the P.C.A., 10 U.S.C. § 375 and 32 C.F.R. § 213.10. Trial

counsel specifically agreed in a stipulation of fact that the

four AFOSI agents jointly executed the civilian search

warrant with three members of the SAPD. Nevertheless,

trial counsel, in response to defense counsel’s suppression

motion, asserted inter-alia that the P.C.A. was not

violated because the appellant was “a military member,

not a civilian person for which the act was designed to pro-

tect.”

The trial judge denied the defense motion to suppress

based on violations of the P.C.A, 10 U.S.C. § 375, and 32

C.F.R. § 213.10, and his ruling was upheld by the Air

Force Court of Military Review. United States v. Thomp-

son, 30 M.J. 570, 574 (A.F.C.M.R. 1990). The Air Force

Court of Review examined the history of the P.C.A., 10

U.S.C. 375, including the pertinent 1981 revisions to Title

10 of the United States Code, and 32 C.F.R. § 213.10. In

essence, although the Air Force Court of Military Review

recognized that the prohibitions in 10 U.S.C. 375 against

direct participation by military members in a search and

seizure, an arrest, or other similar activity was reflected in

32 C.F.R. § 213.10(a)(3)(ii), the lower Court nonetheless

found that these prohibitions were subsumed and thus per-

mitted by 32 C.F.R. § 213.10(a)(2)(i). Accordingly, the

Air Force Court of Military Review held neither the

P.C.A. nor 10 U.S.C. § 375 was applicable to military

agents assisting civilian police in “the execution of a war-

rant in the course of a joint investigation of a military

member for the theft of both private and military prop-

erty” whose “primary purpose” was the enforcement of the

UCMJ and recovery of stolen property.” Thompson,

supra at 574.

Th United States Court of Military Appeals also

upheld the trial judge’s denial of the defense motion to

suppress. Thomas, 33 M.J. at 221 (C.M.A. 1991). The

Court of Military Appeals found that the “primary pur-

pose” of the AFOSI involvement was to enforce the

UGMJ, and that this was evidenced by the fact that the

agents were involved in their own investigation of both on-

base and off-base thefts. Jd. Although the Court of

Military Appeals admitted that the “civilian warrant was

for seizure of civilian property and that it was obtained by

civilian agents for that purpose,” it observed, citing

Solorio v. United States, 483 U.S. 435 (1987), that the

military had concurrent jurisdiction over the civilian

crimes and thus it was “entirely logical” for the military

agents to accompany the civilian police when “the latter”

executed the civilian search warrant. Jd. The Court of

Military Appeals also rejected the petitioner’s claim that

the AFOSI used their joint search with the civilian police

to evade the Fourth Amendment barrier to the agents

entering the apartment due to their lack of probable cause.

The court found that the military agents were lawfully on

the petitioner’s premises and that they were engaged in a

good faith search for the civilian property listed on the

warrant, property over which there was concurrent

jurisdiction and in which there was mutual interest. /d. at

aan.

REASONS FOR GRANTING THE WRIT

By overruling the defense objection, and creating a

“military member-primary purpose exception” to, and

allowing in evidence seized in violation of, the P.C.A., 10

U.S.C. § 375, and 32 C.F.R. § 213.10, the lower courts of

review violated both the clear meaning of, and the con-

gressional intent behind, these statutes and the regulation.

The holdings also misread this Court’s holding in Solorio,

supra, and rendered superfluous 28 C.F.R. § 60.1 (1983).

“(T]he starting point in every case involving construc-

tion of a statute is the language itself.” San Francisco Arts

and Athletics v. U.S.O.C., 483 U.S. 522, 528 (1987)

(quoting Kelly v. Robinson, 479 U.S. 36, 43 (1986)). By its

clear language, 10 U.S.C. § 385 does not permit the par-

ticipation by a military member in a civilian “search, ar-

rest, or other similar activity,” and the lower courts of

review should have “assumed that the legislative purpose

[was] expressed by the ordinary meaning of the words

used.” American Tobacco Co. v. Patterson, 456 U.S. 63,

68 (1982).

Not only is this aforementioned statutory language con-

clusive, legislative history belies any congressional intent

which would have permitted such a judicially created ex-

ception to this statutory prohibition. Indeed, the Congres-

sional Report accompanying the bill which was to become

10 U.S.C. § 375 stated that the bill’s allowance of the oc-

casional use of military personnel to operate sophisticated

equipment on loan to civilian drug enforcement agencies

represented but a “slight and narrow departure” from the

principles of the P.C.A., 1981 Cong. News at 1790, and

that even this was “to be construed narrowly.” Jd. at

1794.4 Moreover, the Judicial Committee emphasized that

4 The House Committee on the Judiciary, in commenting on this

narrow departure, noted inter alia that United States v. Red Feather,

392 F. Supp. 916 (D.S.D. 1975), affd sub nom. United States v.

Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970

(1977) held that the proscriptions in the P.C.A. applied to direct active

use of manpower and not to the use of equipment or material. 1981

the prohibitions in 10 U.S.C. § 375 against the direct par-

ticipation by military members in searches, seizures, ar-

rests, Or similar activity “reaffirmed the traditionally

strong American antipathy towards the use of the military

in the execution of civil law,” and quoted with approval

the following remarks of Senator Hill, one of the sponsors

of the P.C.A.:

[Wjhenever you conclude that it is right to use the

Army to execute Civil process . . . it is no longer a

government founded upon the consent of the people;

it has become a government of force. 7 Cong. Rec.

4245-4247 (1878) (remarks of Senator Hill).

1981 Cong. News supra at 1793 (ellipsis in original).

Similarly, the strong congressional antipathy against

military execution of civilian laws by way of involvement

in civilian searches, seizures, and arrests continued to be

expressed in subsequent modifications to 10 U.S.C.

§ 375.° In 1988, the Joint Conference Committee, in the

House Conference Report No. 100-989 on the National

Defense Authorization Act for Fiscal Year 1989, noted:

The conferees recognize that the magnitude of the

drug problem has led to calls for the military to be

directly involved in search, seizures and arrests. The

conferees, however, do not believe that it is ap-

Cong. News, supra at 1788. See also, Meeks, Illegal Law Enforce-

ment: Aiding Civil Authorities in Violation of the Posse Comitatus

Act, 70 Mil. L. Rev. 83, 123 (1975).

> The 1988 Amendment to 10 U.S.C. § 375 deleted the term “inter-

diction of a vessel or aircraft” from the original section 375 to allow

the military to “detect and monitor” vessels and aircraft, since the

term “interdiction” had acquired those meanings in addition to mean-

ing “physical interference” which was solely intended i. the original

statute. H.R. Conf. Rep. No. 100-989, 100th Cong., 2nd Sess. 452,

reprinted in 1988 U.S. Code Cong. & Ad. News 2503, 2580.

propriate to make such a radical break with the

historic separation between military and civilian func-

tions without clear and compelling evidence that such

an action would result in a substantial reduction in

the drug problem. The overwhelming weight of the

evidence is that no such change would come from giv-

ing the military police powers.

H.R. Conf. Rep. No. 100-989, 100th Cong., 2nd Ses. 452,

reprinted in 1988 U.S. Code Cong. & Ad. News 2503, 2580

(hereinafter 1988 Cong. News.)

The Committee also cited, in support of their refusal to

relax the prohibitions found in the P.C.A. and 10 U.S.C.

375, the testimony of then Secretary of Defense Carlucci:

I remain absolutely opposed to the assignment of a

law enforcement mission to the Department of

Defense. I am even more firmly opposed to any relax-

ation of the posse comitatus restrictions on the use of

the military to search, seize and arrest. I have dis-

cussed this matter with the President, and other

senior members of his Cabinet, and I can report that

these views are shared throughout this Administra-

tion. The historical tradition which separates military

and civilian authorities in this country has served both

to protect the civil liberties of our citizens and to keep

our Armed Forces military focused and at a high state

of readiness.

1988 Cong. News at 2581-2582.

The courts of review’s reliance on Solario, supra, in

order to justify their “primary purpose — military member”

exception to the prohibitions against the use of military

members to execute civil law is also misplaced. Their

reasoning confuses the concept of whether a member is

subject to the jurisdiction of a military court-martial with

whether the military is exempted from the prohibitions

against using the military as posse comitatus or to execute

civil law and participate in civilian searches or arrests

merely due to the status of the particular United States

citizens against whom the civil law(s) are being executed.

The fact that a military member is subject to the jurisdic-

tion of a military court-martial for violations of the

UCMJ committed whether or not the member is off duty,

off-base, or out of uniform, see Solario, supra, does not

create an exception to the aforementioned prohibitions.

As one commentator noted:

In practice, “to execute the laws” has been construed

to mean the execution of the civil laws, that is, the

laws enacted by the Federal, State, or local govern-

ments for the [government] of the community as a

whole, without regard to the military or civilian status

of the individual members thereof. This principle has

been sometimes stated in terms of enforcement of

laws against civilians. This is believed to be inac-

curate, however, the [Posse Comitatus] Act makes no

mention of the persons against whom the laws are ex-

ecuted but merely prohibits the employment of the

Army to execute the laws. Thus it is the character of

the laws executed and not the person against whom

they are enforced which is important.

Furman, supra, at 104. Accordingly, the appellant was

subject to civilian authority in the form of a civilian

(Texas) search warrant, and the use of military members

to execute and enforce this authority constituted a viola-

tion of the P.C.A. and 10 U.S.C. § 375. See, e.g., State v.

Trueblood, 46 N.C. App. 541, 265 S.E.2d 662 (Actions of

military agents, rather than military status of active duty

officer being investigated, analyzed by court to determine

if a P.C.A. violation occurred).

Additionally, the lower courts misread 32 C.F.R.

§ 213.10(a)(2)(i) as authorizing a military member excep-

tion to the P.C.A. and 10 U.S.C. § 375. 32 C.F.R.

§ 213.10 was promulgated under the statutory authority of

10 U.S.C. §§ 371-378. Consequently, the permissible

direct military assistance to civilian law enforcement of-

ficers regulatorily authorized by 32 C.F.R.

§ 213.10(a)(2)(i) is necessarily limited by the statutory pro-

hibitions found in 10 U.S.C. §§ 371-378. See, Public

Employees v. Betts, 492 U.S. 151, 158 (1989) (No

deference is due to agency interpretations of statute at

odds with the plain language of the statute itself). Nothing

permitted under 32 C.F.R. §213.10(a)(2)(i) creates a

military exception to the P.C.A.’s or 10 U.S.C. § 375’s

prohibition against military members participating in

civilian searches and seizures. Instead, the permitted ac-

tivities under that regulation merely reflect those activities

allowed, judicially or by statutory exemption, under the

P.C.A. and 10 U.S.C. §§ 371-378.° If Congress wanted to

create a “military member—primary purpose” exception

to the P.C.A. and 10 U.S.C. § 375 prohibitions against

the military executing civil law, they were free to do so by

statutory exemption, as they did in 42 U.S.C. § 1989,

when they allowed the military execution of certain war-

rants relating to the enforcement of specified civil rights

laws. In the absence of a statutory exemption, however,

the lower courts of review are not free to fashion one

themselves.

Finally, the lower courts’ opinions rendered

superfluous 28 C.F.R. §§ 60.1 (1983), which mandates

that “in all instances, military agents of the Department

6 Compare 32 C.F.R. § 213.10(a)(2)i) with Meeks, supra, at

124-128 and 32 C.F.R. § 213.10(a)(2)(i) with 1981 Cong. News, supra,

at 1789.

of Defense must obtain the concurrence of the appropriate

U.S. Attorney’s Office before seeking a search warrant

from a federal magistrate’ or state court judge under Fed.

R. Crim. P. 41(h). As in the case at bar, AFOSI agents

would merely have to execute civilian search warrants ob-

tained by civilian authorities at their behest to avoid the

clear and unqualified requirements of 28 C.F.R. 60.1 and

Fed. R. Crim. P. 41(h).®

The Court of Military Appeals’ rejection of the peti-

tioner’s Fourth Amendment objection is based in part on

the erroneous view, discussed supra, that the P.C.A. was

not violated by the military agents. Thompson, supra at

222. As noted supra, the military agents were told they did

not have sufficient information for a search warrant for

military property to issue. Nevertheless, while executing

the civilian search warrant, no military agent was briefed

as to the specific civilian computer equipment listed on the

warrant. Instead, military agents specifically sought, then

seized, the military property introduced into evidence in

’ At trial, defense counsel pointed out that U.S. Magistrates were

available in San Antonio who could have been approached by military

agents should they have desired the issuance of a search warrant.

* Contrary to the Court of Appeals’ characterization that the

military agents merely accompanied the civilian police “when the latter

executed the civilian search warrant,” Thompson, 33 M.J. at 221, the

prosecutor at trial stipulated, and the trial judge made a finding of

fact, that the four military agents jointly executed the civilian search

warrant with the three members of the SAPD. In fact, the Air Force

Court of Military Review observed that for purposes of the defense

motions to suppress, the prosecution had “conceded that the AFOSI

agents actively participated in the execution of the civilian search war-

rant.” Thompson, 30 M.J. at 572, n.3. See State v. Danko, 219 Kan.

490, 558 P.2d 819 (1976) and Taylor v. State, 645 P.2d 522 (Okl.

Crim. App. 1982) for two cases in which a joint search by civilian and

military agents were found to violate the P.C.A.’s prohibition against

the use of military personnel to execute civil law.

this case. The search was, in effect, an independent search

for property which violated the basic constitutional re-

quirement that police, in the absence of exigent cir-

cumstances, may not enter a citizen’s private residence and

make warrantless searches and seizures of objects despite

the fact that the police may have the fullest measure of

probable cause that the object to be seized is incriminating

or even contraband. See e.g., Horton v. California, 495

U.S. ., 110 L. Ed. 2d 112, 123 at n.7 (1990); Payton vy.

New York, 445 U.S. 673 (1980); United States v. Agnello,

269 U.S. 20 (1925). The Fourth Amendment rights of the

appellant were also violated because the military agents

did not have lawful access under the P.C.A. to the ap-

pellant’s apartment, and they thus did not legally seize the

property under the plain view doctrine. Horton, supra, at

123. The military property should, therefore, have been

suppressed as fruits of an illegal search and seizure under

the Fourth Amendment.

CONCLUSION

The petitioner’s case is a worthy one for this Court to

review. The lower courts of review’s judicially crafted ex-

ception to the aforementioned federal laws is prohibited

by the clear language of and the legislative intent behind

the statutes, and their opinions effectively condone their

transgression. “. . . [UJnder our Constitution, no court,

state or federal, may serve as an accomplice in the willful

transgression of the ‘Laws of the United States,’ laws by

which ‘the Judges in every State [are] bound.’” Lee v.

Florida, 392 U.S. 378, 385-86 (1968). Additionally, the

reception of the fruits of the illegal search into evidence

violated the petitioner’s Fourth Amendment rights. The

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

DAVID D. JIVIDEN

Captain, Air Force

Legal Services Agency

United States Air Force

AFLSA/JAJD

Bldg. 5683

Bolling AFB, DC 20332-6128

202/767-1562

Counsel of Record

JEFFREY R. OWENS

Colonel, Air Force

Legal Services Agency

United States Air Force

December 199] Counsel for Petitioner

APPENDIX A

U.S. AIR FORCE COURT OF MILITARY REVIEW

ACM 27675 =

UNITED STATES

Vv.

SENIOR AIRMAN PAUL A. THOMPSON, FR 427-31-6836,

UNITED STATES AIR FORCE

Sentence Adjudged 3 Feb. 1989.

Decided 16 Feb. 1990.

Accused, senior airman, United States Air Force, was

convicted by general court-martial, Mark A. Breidenbach

and Stark O. Sanders, JJ., of larceny, wrongful sale of

military property, arson, and housebreaking. The United

States Air Force Court of Military Review, Pratt, J., held

that: (1) agents of Air Force Office of Special Investiga-

tions (AFOSI) could assist local police authorities in exe-

cutig civilian search warrant in course of joint investiga-

tion of accused for theft of private and military property;

(2) addition of military agents to search team did not, in

and of itself, represent any significant additional intrusion

upon privacy rights protected by Fourth Amendment; and

(3) accused did not preserve challenge to alleged, plain

view seizure of military property.

Affirmed.

(la)

Appellate Counsel for the Appellant: Colonel Richard

F. O’Hair and Captain Mark R. Land.

Appellate Counsel for the United States: Colonel Joe R.

Lamport and Captain Morris D. Davis.

Before HODGSON, SPILLMAN and PRATT, Appellate

Military Judges.

DECISION

PRATT, Judge:

Arising out of a joint military/civilian investigation and

ensuing search, this case presents issues concerning the ap-

plication of the Posse Comitatus Act and related statutory

restrictions, as well as “plain view” issues and their preser-

vation for appeal. As discussed hereinafter, we find no er-

ror and affirm.

Contrary to his pleas, appellant was found guilty by a

general court-martial composed of members of two speci-

fications of larceny, wrongful sale of military property,

arson, and house-breaking.' He was sentenced to a dis-

honorable discharge, confinement for 10 years, total for-

feitures and reduction to airman basic. The convening

authority approved the sentence as adjudged.

' Specification | of Charge I alleged a larceny of military property,

the same military property which is the subject of Charge II alleging

wrongful sale of military property. However, when instructing the

members as to the elements of the offense of that larceny, the trial

judge neglected to include the element relating to the nature of the

property as “military property.” Fovtunately, in determining the maxi-

mum punishment for the offenses of which the appellant was con-

victed, the judge used the lesser confinement period applicable to

larceny of non-military property. Upon the proper advice of his staff

judge advocate, the convening authority corrected the error by ap-

proving a finding of guilty of larceny, excepting the word “military”.

On appeal, the following issue has been raised:

WHETHER THE SEARCH OF APPELLANT'S

APARTMENT BY AFOSI AGENTS AND THE

SUBSEQUENT SEIZURE OF MILITARY PROP-

ERTY BY THOSE AGENTS WAS ILLEGAL

UNDER 10 U.S.C. 375 AND THE FOURTH

AMENDMENT OF THE UNITED STATES CON-

STITUTION.

Appellant was a suspect in the theft of computer equip-

ment from Wilford Hall Medical Center and the burglary/

arson of an Atari computer store in the civilian communi-

ty. As a result, agents of the Air Force Office of Special

Investigations (AFOSI) and local arson detectives em-

barked on a cooperative effort to investigate appellant for

these offenses. On 20 October 1988, Agent Adams, an

AFOSI agent acting in an undercover role, went to an in-

formant’s residence where appellant sold him several

pieces of computer equipment suspected to be Nems miss-

ing from Wilford Hall.

On 26 October, Agent Adams and an AFOSI computer

specialist, Agent Forche, again acting in an undercover

capacity, arranged to meet appellant at his residence for

the purpose of possibly buying additional equipment.

Their plan was to observe any other stolen computer

equipment in appellant’s residence, to possibly make

another “buy” of such equipment, and to signal other

agents at the appropriate time to apprehend appellant.

Although no purchase took place on that occasion, Agent

Adams did activate an electronic device which signalled a

third AFOSI agent to come to the door and apprehend ap-

pellant, which he did.? At that time, appellant requested

? One of the motions to suppress at trial asserted that this scenario

constituted doth a warrantless search and a warrantless apprehension.

Although not raised on appeal, we note our rejection of this conten-

counsel and declined to grant consent for a search of his

residence.

Immediately after appellant’s apprehension, Agents

Adams and Forche briefed a local arson detective on thie

various items of computer equipment which they had ob-

served in appellant’s residence and which matched the de-

scription of equipment missing from the Atari computer

store. Based on this information, the arson detective se-

cured a search warrant from a municipal court magistrate.

The warrant was executed that same evening by three

members of the local police department and four AFOSI

agents.? The local police seized various items of computer

equipment associated with the Atari store as well as several

“tools” believed to have been used to effect the burglary.

The AFOSI agents, in the course of their participation in

the search, came across and seized some computer equip-

ment and various other items believed to be government

property.

Violation of 10 U.S.C.

At trial, through four separate motions to suppress,

defense counsel waged a multifaceted attack on the ad-

missibility of the evidence seized both by the civilian

tion. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17

L.Ed.2d 312 (1966); United States v. Ruiz-Altschiller, 694 F.2d 1104

(8th Cir. 1982); United States v. White, 660 F.2d 1178 (7th Cir. 1981);

State v. Cantrell, 426 So.2d 1035 (Fla.App. 1983); see generally 3

LaFave Search and Seizure, sec. 8.2(m) at 221-228 (1987) and 2

Lakave Search and Seizure, sec. 6.1(c) at 581-585 (1987).

A stipulation of fact, entered into explicitly for the purpose of

establishing the facts applicable to the defense motions to suppress the

fruits of the search, plainly states that both the local police and the

AFOSI agents executed the warrant. Thus, the government conceded

that the AFOSI agents actively participated in the execution of the

civilian search warrant.

detectives and by the AFOSI agents. One such motion, re-

newed now on appeal, charged that participation by the

AFOSI agents in the execution of the civilian searc war-

rant constituted a violation of 18 U.S.C. § 1385 (common-

ly known as the Posse Comitatus Act) and of 10 U.S.C.

§ 375.

The Posse Comitatus Act, first enacted in 1878 as a

result of Reconstruction politics, was intended to halt the

use of military forces in aid of civil law enforcement of-

ficials. Prior to its enactment, the use of military troops

had become a common method of assisting civilian of-

ficials in suppressing illegal whiskey production, quelling

labor disturbances, and insuring the sanctity of the elec-

toral process in the South by posting guards at polling

places.* In its present day form, as 18 U.S.C. § 1385, the

Act reads:

Whoever, except in cases and under circumstances ex-

pressly authorized by the Constitution or Act of Con-

gress, willfully uses any part of the Army or the Air

Force as a posse comitatus or otherwise to execute the

laws shall be fined not more than $10,000.00 or im-

prisoned not more than two years, or both.

For years truly an “obscure and _ all-but-forgotten

statute,”* the Posse Comitatus Act has occasioned re-

newed, if sporadic, interest in the both federal and state

courts in the past 20 years. See United States v. Bacon, 851

F.2d 1312 (llth Cir. 1988); United States v. Griley, 814

F.2d 967 (4th Cir. 1987); United States v. Chaparro-

Almeida, 679 F.2d 423 (Sth Cir. 1982); United States v.

Wolffs, 594 F.2d 77 (1979); United States v. Walden, 490

F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983, 94 S.Ct.

* See Meeks, Illegal Law Enforcement: Aiding Civil Authorities in

Violation of the Posse Comitatus Act, 70 Mil.L.Rev. 83, 90 (1975).

> Chandler v. United States, 171 F.2d 921, 936 (Ist Cir. 1948).

2385, 40 L.Ed.2d 760 (1974); United States v. Cotton, 471

F.2d 744 (9th Cir. 1973); United States v. Red Feather, 392

F.Supp. 916 (D.S.D. 1975); United States v. Jaramillo,

380 F.Supp. 1375 (D.Neb. 1974); Moon v. Alaska, 785

P.2d 45 (Alaska App. 1990); People v. Burden, 411 Mich.

56, 303 N.W.2d 444 (1981); Hildebrandt v. State, 507 P.2d

1323 (Okla.Crim.App. 1973); Hubert v. State, 504 P.2d

1245 (Okla.Crim.App. 1972). For the most part, however,

as the need for increased cooperation between military and

civilian law enforcement authorities rose steadily, military

and civilian officials were left to interpret the Act and its

parameters without a great deal of guidance. The proper

application of that aging statute to modern-day circum-

stances became a matter cloaked in considerable ambigui-

ty.

Recognizing this problem, and spurred mainly by the

belief that law enforcement cooperation was critical to ef-

fectively combatting the “rising tide of drugs” being smug-

gled into the United States, Congress attempted to clarify

the intent of the Posse Comitatus Act through the enact-

ment of a new Chapter in Title 10 of the United States

Code* —Chapter 18, Military Cooperation with Civilian

Law Enforcement Officials, consisting of 10 U.S.C. sec-

tions 871-878. This Chapter addressed various aspects of

such cooperation and, with minor exception, simply codi-

fied then-existing interpretations of the Act. The National

Defense Authorization Act, Fiscal Year 1989 (P.L.

100-456, Sept. 29, 1988), amended those provisions to

authorize an even greater degree of cooperation as a

reflection of the escalating “war” against drugs’. As

presently written, 10 U.S.C. § 375 provides:

? See 1981 U.S.Code Cong. and Adm.News, p. 1781, 1785.

? Changes to 10 U.S.C. § 375 did not involve or affect that part of

the provision pertinent to the issue presently before this Court.

aa ee Te

The Secretary of Defense shall prescribe such regula-

tions as may be necessary to ensure that the provision

of any support .. . to any civilian law enforcement

official under this chapter does not include or permit

direct participation by a member of the Army, Navy,

Air Force, or Marine Corps in a search and seizure,

an arrest, or other similar activity unless participation

in such activity by such member is otherwise author-

i ized by law.

(Emphasis added.) In compliance with the direction con-

tained above, the Secretary of Defense issued appropriate

regulations in Title 32, Part 213 of the Code of Federal

Regulations (CFR).* The prohibition against direct par-

ticipation in a search or seizure is duly included at 32

C.F.R. 213.10(a)(8)(ii) in a section addressing restrictions

on direct assistance to civilian law enforcement officials.

However, in the immediately preceding section, permissi-

ble direct assistance is addressed:

The following activities are not restricted by the Posse

Comitatus Act. . . notwithstanding direct assistance

to civilian law enforcement officials.

(i) Actions that are taken for the primary purpose

of furthering a military or foreign affairs function of

the United States, regardless of incidental benefits to

civilian authorities . . . Actions under this provision

may include the following, depending on the nature

of the DoD interest and the specific action in ques-

tion:

(A) Actions related to enforcement of the Uni-

form Code of Military Justice (10 U.S.C. Chapter

47).

* 32 C.F.R. 213.1-213.11.

(E) Protection of DoD personnel, DoD equip-

ment, and official guests of the Department of

Defense.

(F) Such other actions that are undertaken pri-

marily for a military or foreign affairs purpose.

32 C.F.R. 213.10(a)(2) (Emphasis added). Our review of

the statutes in issue, their legislative history, and the avail-

able case law convinces us that the CFR provision quoted

above constitutes an accurate interpretation of the statu-

tory prohibitions and contains the key to their proper ap-

plication, i.e., that the prohibitions contained in the Posse

Comitatus Act and in 10 U.S.C. § 375 do not now, nor

were they ever intended to, limit military activities whose

primary purpose is the furtherance of a military (or

foreign affairs) function, regardless of benefits which may

incidentally accrue to civilian law enforcement. Clearly,

and as specifically recognized in the CFR provision, en-

forcement of the UCM] is one such function and the pro-

tection of DoD equipment is another.

Applying these principles to the case at hand, we find

that neither the Posse Comitatus Act nor 10 U.S.C. § 375

* Stated another way, it is clear from the legislative history of these

statutes that their purpose was to preclude the imposition of military

force on the civilian citizenry as a means of enforcing civil law.

Military personnel, already subject to military authority, were certain-

ly never envisioned as the primary beneficiaries of those prohibitions.

For many years, while the military’s jurisdiction over offenses com-

mitted by military members was limited to those evincing a distinct

“service connection,” military personnel did arguably enjoy the pro-

tections of the Posse Comitatus Act as to offenses which were beyond

the judicial grasp of the military justice system. Even those cases,

however, often posed a troublesome “posse comitatus” problem when

the military, although without criminal jurisdiction, had significant

interest and responsibility in responding to misconduct through

various administrative processes.

has application to the actions of the AFOSI agents who, in

assisting local police authorities in the execution of a

civilian search warrant in the course of a joint investi-

gation of a military member for the theft of both private

and military property, had as their primary purpose the

enforcement of the UCMJ and the recovery of stolen mili-

tary property. Although the search warrant was grounded

on the presence of stolen non-military proeprty, the mili-

tary had concurrent jurisdiction over that underlying of-

fense and exclusive jurisdiction over the suspected theft of

military property, the presence of which in appellant’s

house was a reasonably foreseeable possibility.

While other issues attend the search and seizure, as dis-

cussed below, we find no violation of the Posse Comitatus

Act or 10 U.S.C. § 375.!'°

Fourth Amendment

As the second prong of the assigned error, appellate

defense counsel contend that the AFOSI agents, instead of

assisting in the execution of the civilian search warrant, ac-

tually conducted a completely independent search for mili-

tary property. As appellate defense counsel assert, correct-

ly we believe, there is a distinct difference between (1) evi-

dence obtained as a result of “plain view” during the

course of a lawful search and (2) evidence obtained as a

'© Even if we were to find that the participation by AFOSI agents in

the execution of the search warrant constituted a violation of the

Posse Comitatus Act and/or 10 U.S.C. § 375, we would nevertheless

reject appellant’s suggestion that exclusion of the evidence is the ap-

propriate remedy. See United States v. Bacon, 851 F.2d 1312 (i1th

Cir. 1988); United States v. Griley, 814 F.2d 967 (4th Cir. 1987);

United States v. Hartley, 796 F.2d 112 (Sth Cir. 1986); United States

v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983, 94

S.Ct. 2385, 40 L.Ed.2d 760 (1974).

10a

result of an active independent search for items not listed

in the search warrant.

Inherent in our conclusion as to the first prong of the

assigned error, we believe that the AFOSI agents could

properly be invited by their civilian counterparts to accom-

pany them during execution of the search warrant. United

States v. Washington, 782 F.2d 807 (9th Cir. 1986); United

States v. Wright, 667 F.2d 793 (9th Cir. 1982). As noted

above, we see no “posse comitatus” problem and, from a

Fourth Amendment standpoint, appellant’s privacy in-

terests had already been effectively dissolved by the duly

issued search warrant; the addition of AFOSI agents to the

search “team” did not, in and of itself, represent any

significant additional intrusion upon appellant’s privacy.

Further, our review of the circumstances convinces us that

the civilian search was a serious investigative action con-

ducted in good faith and not simply a “subterfuge” or

“pretext” search fabricated to mask the AFOSI agents’

lack of probable cause to search for military property. See

United States v. Washington, supra; United States v.

Johnson, 707 F.2d 317 (8th Cir. 1983); United States v.

Hare, 589 F.2d 1291 (6th Cir. 1979). However, in joining

the search “team”, the AFOSI agents were subject to the

same restrictions and constraints which governed the

civilian officers in executing the search. Thus, while the

AFOSI agents could properly accompany the civilian de-

tectives and seize items under the “plain view” doctrine,

see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), they did not have authority

to conduct an independent search for items outside the

scope of the warrant, i.e., military property.

The issue that presents itself, then, is whether the items

of military property seized by the AFOSI agents during the

execution of the civilian search warrant were the result of

Pee

lla

legitimate “plain view” or, instead, the result of an im-

proper independent search.

However, before this Court can consider the merits of

this issue, as framed by appellate defense counsel, we must

first determine whether this issue was raised at the trial

below and, thereby, preserved for consideration on ap-

peal. If it was not raised below, it has been waived.

R.C.M. 905(e).

Of the several written motions to suppress submitted by

the defense counsel at trial, one such motion (Appellate

Exhibit 1X) comes close to the issue at hand. By its own

terms, that motion sought to suppress:

all evidence seized by the Officers of the SAPD [San

Antonio Police Department] and the AFOSI which

were not specifically listed on the Bexar County,

Texas search warrant or within the plain view of the

officers while they stood in the front room area of the

apartment and for which they had probable cause to

believe was evidence of a crime or was contraband.

(Emphasis added.) After a “FACTS” section recounting

applicable facts on the motion, defense counsel further ex-

plained the basis for the motion in a section entitled

“ARGUMENTS AND AUTHORITY”:

The warrant issued by the Bexar County, Texas magi-

strate limited the scope of the search to be conducted

to the specific items listed on the warrant. This infor-

mation came from two AFOSI agents who had seen

the items in the front room area of [appellant’s] apart-

ment. Officer Warner typed the specific items on the

warrant form for the magistrate to sign. In doing so

he was requesting to search the apartment for only

those items. Of course as police officers they would

also be allowed to make seizures of items in plain view

for which they had probable cause to believe was [sic]

12a

evidence of a crime. Here, the officers of the SAPD

and AFOSI entered the apartment, split up and began

searching the entire apartment at random for any

item that they might consider to be contraband or

evidence of a crime. They did not restrict themselves

to the four corners of the warrant. Their search went

well beyond the magistrate’s order as to purpose.

Also, because the items specifically set out on the

warrant were viewed in the front room area of the

apartment the search went beyond the magistrate’s

order as to area to be searched. If the items were

located in this front room area the search should have

begun and ended with this area of the house.

(Emphasis added.) A fair reading of these passages,

together with a review of the arguments of counsel on this

motion at trial, convinces us that the issue raised at trial is

materially distinct from the issue being raised on appeal.

The issue raised at trial was whether the searching officials

exceeded the scope of the warrant by invading areas of ap-

pellant’s apartment beyond which they needed to go in

order to fulfill the stated purpose of the warrant. Sum-

marized, the trial defense counsel’s argument is: (1) the

warrant listed only items located in the front room area of

appellant’s apartment; (2) those items should have been

seized immediately; and (3) the search should have ended

at that point, with the possible exception of items within

“plain view” of the front room area.

The trial defense counsel’s motion hinged on the

premise that the items listed on the face of the warrant

were limited to those items seen by the AFOSI agents in

the front room area of appellant’s apartment at the time of

his apprehension. Were that the case, his point would be

well taken. Once the items named in a search warrant have

been found and seized, the authority to search terminates.

——

13a

See, e.g., United States v. Feldman, 366 F.Supp. 356

(D.Haw. 1973); United States v. Highfill, 334 F.Supp. 700

(E.D.Ark. 1971). However, that premise was faulty. Dur-

ing testimony on the motion, the civilian detective who ac-

quired the warrant testified that the items listed on the

warrant, in addition to items actually seen by the AFOSI

agents, included other items known to be missing from the

Atari store as a result of the same burglary. Furthermore,

as the trial counsel argued and as the evidence of record

reflects, the search did not in fact result in the recovery of

all the items listed in the warrant. Thus, the authority to

search did not terminate after the recovery of the items in

appellant’s front room area. This fact, together with the

trial judge’s determination that the search warrant was

supported by probable cause, effectively defeated this par-

ticular motion to suppress.

We are convinced, then, that the Fourth Amendment

issue raised in the trial defense counsel’s motion to sup-

press is completely distinct from the one being raised on

appeal. Given the thrust of the issue raised at trial, the

prosecution was able to successfully defeat the motion

simply by producing the testimony of the civilian detective

as to the nature of the items listed on the search warrant.

On the other hand, had appellate counsel’s issue been

raised at trial, the prosecution would have been on notice

of the need to produce evidence detailing the precise man-

ner in which the items of military property were discovered

and seized.'' This evidence was not produced, however,

'! The “plain view” doctrine, with its corollary issues involving

probable cause, “mere inspection”, “immediate apparency”, and “in-

advertent discovery”, has developed into a rather complex Fourth

Amendment arena. See generally Arizona v. Hicks, 480 U.S. 321, 107

S.Ct. 1149, 94 L.Ed.2d 347 (1987); Texas v. Brown, 460 U.S. 730, 103

S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Stanley v. Georgia,

l4a

because that particular issue was not raised. As a result,

the record of trial is devoid of the particular information

which we would need in order to address the merits of ap-

pellate counsel’s issue. That, in turn, is precisely the reason

why such issues must be preserved at trial before they can

be cognizable on appeal. Accordingly, we find the second

prong of the assigned error to have been waived. R.C.M.

905(e).

Having examined the record of trial, the assignment of

error, and the government’s reply thereto, we conclude

that the findings and sentence are correct in law and fact

and that no error materially prejudicial to the substantial

rights of the appellant was committed. Accordingly, the

findings of guilty and the sentence are

AFFIRMED.

Chief Judge HODGSON and Judge SPILLMAN concur.

394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Warden v.

Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). As a

result, when a purported “plain view” seizure is challenged, resolution

of the issue will ordinarily require a detailed examination of the cir-

cumstances immediately attending the seizure.

15a

APPENDIX B

U.S. COURT OF MILITARY APPEALS

No. 64,433

ACM 27675

UNITED STATES, APPELLEE,

PAUL A. THOMPSON, SENIOR AIRMAN,

U.S. AIR FORCE, APPELLANT

Argued March 12, 1991.

Decided Sept. 18, 1991.

Accused, senior airman in United States Air Force, was

convicted by general court-martial, Mark A. Breidenbach

and Stark O. Sanders, JJ., of larceny, wrongful sale of

military property, arson, and housebreaking, and he ap-

pealed. The United States Air Force Court of Military

Review, 96 M.J. 570, affirmed. Review was granted. The

United States Court of Military Appeals, Everett, Senior

Judge, held that agents of Air Force Office of Special In-

vestigations, who had been conducting long-running in-

vestigation of accused for his suspected involvement in

theft of military and civilian equipment, did not violate

Posse Comitatus Act when they accompanied civilian

authorities in search of accused’s off-base apartment pur-

suant to civilian warrant for seizure of civilian property.

Affirmed.

l6a

For Appellant: Captain David D. Jividen (argued);

Lieutenant Colonel Jeffrey R. Owens (on brief); Colonel

Richard F. O’Hair, Captain Mark R. Land; Captain Dawn

R. Bates (legal intern).

For Appellee: Captain Morris D. Davis (argued);

Lieutenant Colonel Brenda J. Hollis (on brief); Major

Paul H. Blackwell, Jr.

Opinion of the Court

EVERETT, Senior Judge:

Notwithstanding not-guilty pleas, a general court-

martial with members convicted appellant of larceny (2

specifications), wrongful sale of military property, arson,

and house-breaking, in violation of Articles 121, 108, 126,

and 180, Uniform Code of Military Justice, 10 U.S.C.

§§ 921, 908, 926, and 930, respectively. The court

members sentenced appellant to a dishonorable discharge,

confinement for 10 years, total forfeitures, and reduction

to the lowest enlisted grade. The convening authority ap-

proved these results, with a minor modification to one

larceny specification; and the Court of Military Review af-

firmed. 30 MJ 570 (1990).

On appellant’s petition, we granted review of two issues

questioning whether a search of appellant’s off-base apart-

ment by agents of the Air Force Office of Special Investi-

gations (OSI) and seizure of military property during that

search violated the Posse Comitatus Act (18 U.S.C.

§ 1385) or the Fourth Amendment to the Constitution of

the United States.' Under the facts of this case, we con-

clude that the agents did not run afoul of either provision;

so we affirm.

' Thompson made timely trial motions that served these grounds of

appeal.

17a

The pertinent facts were set out in the decision below as

follows:

Appellant was a suspect in the theft of computer

equipment from Wilford Hall Medical Center and the

burglary/arson of an Atari computer store in the

civilian community. As a result, agents of the Air

Force Office of Special Investigations (AFOSI) and

local arson detectives embarked on a cooperative ef-

fort to investigate appellant for these offenses. On 20

October 1988, Agent Adams, an AFOSI agent acting

in an undercover role, went to an informant’s

residence where appellant sold him several pieces of

computer equipment suspected to be items missing

from Wilford Hall.

On 26 October, Agent Adams and an AFOSI com-

puter specialist, Agent Forche, again acting in an

undercover capacity, arranged to meet appellant at

his residence for the purpose of possibly buying addi-

tional equipment. Their plan was to observe any other

stolen computer equipment in appellant’s residence,

to possibly make another “buy” of such equipment,

and to signal other agents at the appropriate time to

apprehend appellant. Although no purchase took

place on that occasion, Agent Adams did activate an

electronic device which signalled a third AFOSI agent

to come to the door and apprehend appellant, which

he did.

Immediately after appellant’s apprehension,

Agents Adams and Forche briefed a local arson detec-

tive on the various items of computer equipment

which they had observed in appellant’s residence and

18a

which matched the description of equipment missing

from the Atari computer store. Based on this infor-

mation, the arson detective secured a search warrant

from a municipal court magistrate. The warrant was

executed that same evening by three members of the

local police department and four AFOSI agents. The

local police seized various items of computer equip-

ment associated with the Atari store as well as several

“tools” believed to have been used to effect the

burglary. The AFOSI agents, in the course of their

participation in the search, came across and seized

some computer equipment and various other items

believed to be government property.

30 MJ at 571-72 (footnotes omitted).

The Posse Comitatus Act, 18 USC § 1385, prescribes:

Whoever, except in cases and under circumstances

expressly authorized by the Constitution or Act of

Congress, willfully uses any part of the Army or the

Air Force as a posse comitatus or otherwise to execute

the laws shall be fined not more than $10,000 or im-

prisoned not more than two years, or both.

Appellant complains that the OSI investigators here

violated this constraint —that is, that they acted to execute

the laws of Texas—when they searched appellant’s off-

base apartment, reported their findings to a civilian detec-

tive who then used that information to obtain a civilian

search warrant; accompanied the detective and other

civilian authorities when the warrant was executed; and

themselves seized government property found during the

search. Instead, we conclude that appellant has misread

this statute and related provisions of law.

19a

The Posse Comitatus Act is a century old law that was

passed to prevent the then-common use of military forces

to help civilian authorities enforce civil laws.? Three years

ago, Congress addressed the intent behind the Posse Com-

itatus Act and considered its relevance to the modern-day

struggle against the smuggling of illegal drugs into the

United States. Whether to clarify the Posse Comitatus Act

or to amend it, 10 USC § 375 provides:

The Secretary of Defense shall prescribe such regula-

tions as may be necessary to ensure that the provision

of any support . . . to any civilian law enforcement

official under this chapter does not include or permit

direct participation by a member of the Army, Navy,

Air Force, or Marine Corps in a search and seizure,

an arrest, or other similar activity unless participation

in such activity by such member is otherwise author-

ized by law.

Pursuant to this mandate, the Secretary of Defense

promulgated implementing regulations in Part 218 of Title

32, Code of Federal Regulations. While one section of

these regulations does prohibit direct participation by

military personnel in searches and seizures as assistance to

civilian officials, see 32 C.F.R. § 213.10(a)(3)(ii),> the

preceding section speaks to permissible direct assistance:

2 Some of the history of this Act is discussed in Siemer and Effron,

Military Participation in United States Law Enforcement Activities

Overseas: The Extraterritorial Effect of the Posse Comitatus Act, 54

St. John’s L. Rev. 1, 18-43 (Fall 1979).

> In full, this section provides:

(3) Restrictions on direct assistance. Except as otherwise pro-

vided in this enclosure, the prohibition on use of military person-

20a

The following activities are not restricted by the Posse

Comitatus Act . . . notwithstanding direct assistance

to civilian law enforcement officials.

(i) Actions that are taken for the primary purpose

of furthering a military or foreign affairs function of

the United States, regardless of incidental benefits to

civilian authorities . . . This provision must be used

with caution, and does not include actions taken for

the primary purpose of aiding civilian law enforce-

ment officials or otherwise serving as a subterfuge to

avoid the restrictions of the Posse Comitatus Act. Ac-

tions under this provision may include the following,

depending on the nature of the DoD interest and the

specific action in question:

(A) Actions related to enforcement of the Uni-

form Code of Military Justice (10 U.S.C. Chapter

47).

* ~ * * *

authority to maintain law and order on a military in-

stallation or facility.

* * * * «

(E) Protection of DoD personnel, DoD equip-

ment, and official guests of the Department of De-

fense.

nel “as a posse comitatus or otherwise to execute the laws” pro-

hibits the following forms of direct assistance:

(i) Interdiction of a vehicle, vessel, aircraft or other similar

activity.

(ii) A search or seizure.

(iii) An arrest, stop and frisk, or similar activity.

(iv) Use of military personnel for surveillance or pursuant of

individuals, or as informants, undercover agents, investigators,

or interrogators.

2la

(F) Such other actions that are undertaken pri-

marily for a military or foreign affairs purpose.

32 C.F.R. § 218.10(a)(2).

Thus, the relevant question upon which resolution of

appellant’s complaint depends is: What was “the primary

purpose of” the OSI agents’ involvement in the search and

seizure at appellant’s off-base apartment? Specifically,

was their “primary purpose” to enforce the Uniform Code

of Military Justice, to protect military equipment, or to

achieve either of the less specific military-focused goals

referred to in the negotiations between the police agencies;

or was it, instead, to aid civilian law enforcement officials

or otherwise to serve as a subterfuge to evade the Posse

Comitatus Act?

Under the facts of this case, we believe that the answer is

clear. OSI agents were deeply involved in their own in-

vestigation— which included both on-base thefts of

military property and off-base thefts of civilian property

and related offenses; and they were involved well before

the complained of search. It is true that the civilian war-

rant was for seizure of civilian property and that it was ob-

tained by civilian agents for that purpose. Nonetheless, as

the Court of Military Review noted, the military had con-

current jurisdiction over the crimes committed in the

civilian community, see Solorio v. United States, 483 U.S.

435, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987), so it was en-

tirely logical for the military agents to accompany the

civilian police when the latter executed their warrant to

search for the fruits of the civilian thefts.

The evidence leaves no doubt that the military agents

had conducted a long-running military investigation of

Thompson for the thefts of both the military and the

civilian equipment. The coincidence of the civilian investi-

gation into the civilian thefts and the military agents’ co-

22a

operation with the civilian police, for their mutual benefit,

in that part of the military investigation does not trans-

form the “primary purpose” of the military activity into

anything but what it had been all along: An effort to en-

force the Uniform Code of Military Justice—an effort

that, tellingly, resulted in a court-martial for a// of ap-

pellant’s offenses, rather than a civilian criminal trial.*

A final caveat is in order. By our holding, we do not im-

ply that the evidence would be inadmissible even if a viola-

tion of the Posse Comitatus Act or the Secretary’s regula-

tion had occurred. Invocation of the exclusionary rule for

Fourth Amendment violations does not necessarily imply

that a statutory or regulatory violation requires similar

treatment. Cf. United States vy. Caceres, 440 U.S. 741, 99

S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v.

McGraner, 13 MJ 408 (CMA 1982).

Appellant’s Fourth Amendment objection actually is a

twofold complaint, each to some degree related to his

Possee Comitatus Act theory.

* We acknowledge appellant’s implied argument that the mere fact

that the suspected crime is proscribed by the Uniform Code of

Military Justice does not preclude violation of the Posse Comitatus

Act. If the facts of a particular case indicate that the “primary pur-

pose” of military investigators was to aid civilian law enforcement,

then such a subterfuge of the Posse Comitatus Act will not be

countenanced. See 32 C.F.R. § 213.10(a)(2)(i). Those, however, are

not the facts of this case. Indeed, in the context of the full picture of

the development of this investigation and considering its ultimate

resolution —a court-martial for a// known offenses —the investigation

might fairly be characterized as one in which the civilian authorities

aided the military agents, rather than vice versa.

23a

Appellant argues that the OSI agents used their so-

called joint investigation— which appellant contends vio-

lated the Posse Comitatus Act—to evade the Fourth

Amendment barrier to the agents’ entering his apartment.

He points to the fact that the OSI agents had been advised

before the questioned search that they lacked probable

cause to search appellant’s apartment for fruits of the sus-

pected thefts of military equipment. From this, he argues

that the agents’ unlawful accompaniment of their civilian

colleagues in the search of his apartment in violation of

the Posse Comitatus Act —an intrusion in which the OSI

agents were looking for the military property, not just the

civilian property upon which the warrant was based — evis-

cerated appellant’s Fourth Amendment right that the in-

trusion be based upon a probable-cause determination.

While there are other conceptual notions underlying this

theory that must be addressed, infra, essentially this aspect

of appellant’s Fourth Amendment argument relies upon

the hypothesis that the OSI agents’ entry violated the

Posse Comitatus Act —a hypothesis which we already have

rejected. Without this premise, the logic leading to his

conclusion is infirm.

Appellant submits that the real purpose of the OSI

agents in the intrusion was to search for the military prop-

erty that was outside the scope of the warrant upon which

the intrusion was based. Reduced to its essential com-

ponents, appellant’s argument quite clearly fails.

First, the intrusion by the civilian police was pursuant to

a lawfully issued warrant in a good-faith search for the

fruits of the civilian thefts.

24a

Second, in light of the ongoing military investigation in-

to these same thefts and the concurrent jurisdiction over

those crimes, this lawful intrusion did not mystically be-

come unlawful just because the civilian officers invited the

miftary agents along. See United States v. Washington,

782 F.2d 807, 813, and 816 (9th Cir. 1986); United States

v. Wright, 667 F.2d 793, 796-97 (9th Cir. 1982). Other

than his unpersuasive reasoning related to the Posse Com-

itatus Act, appellant has cited us to no contrary authority,

and we know of none. As the Court of Military Review

correctly reasoned:

As noted above, we see no “posse comitatus” problem

and, from a Fourth Amendment standpoint, ap-

pellant’s privacy interests had already been effectively

dissolved by the duly issued search warrant; the addi-

tion of the AFOSI agents to the search “team” did

not, in and of itself, represent any significant addition

intrusion upon appellant’s privacy. Further, our

review of the circumstances convinces us that the

civilian search was a serious investigative action con-

ducted in good faith and not simply a “subterfuge” or

“pretext” search fabricated to mask the AFOSI

agents’ lack of probable cause to search for military

property.

30 MJ at 574.

Third, while lawfully on the premises, the OSI agents

were not required to close their eyes to any of the military

property that they saw in plain view in the course of a

search for the civilian property. See Horton v. California,

ence Wo , 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990);

Coolidge v. New Hampshire, 483 U.S. 443, 91 S.Ct. 2022,

29 L.Ed.2d 564 (1971). While the scope of a search must

be limited to the confines of the warrant, other evidence

that is found during a property confined search need not

25a

be ignored. See Arizona v. Hicks, 480 U.S. 321, 107 S.Ct.

1149, 94 L.Ed.2d 347 (1987); United States v. Jacobs, 31

MJ 138, 145, 147-49 (CMA 1991) (Everett, C.J., dissent-

ing). The mere fact that one or more of the searching of-

ficers might have hoped for just such an eventuality® is not

of decisional importance. Horton v. California, supra.

To summarize, these fundamental, critical factors

underpin our rejection of this aspect of appellant’s Fourth

Amendment claim: First, all officials were lawfully on the

premises. Second, all were engaged in a good-faith search

for the civilian property listed on the warrant, over which

there was concurrent jurisdiction and in which there was

mutual interest. Compare United States v. Sanchez, 509

F.2d 886 (6th Cir. 1975) (intrusion by federal agent at in-

vitation of state agents to help execute state search warrant

unlawful where federal agent had no interest in property

listed in state warrant), with United States v. Hare, 589

F.2d 1291, 1296 (6th Cir. 1979) (where federal Alcohol,

Tobacco, and Firearms (ATF) agents entered premises in

legitimate, probable-cause search for weapons pursuant to

lawful warrant, entry at same time by Drug Enforcement

Administration (DEA) agents at invitation of ATF agents

to search for drugs, without probable cause, lawful

because search for weapons not “a pretense fabricated to

mask the DEA’s lack of probable cause”). See also 2 W.

LaFave, Search and Seizure, § 4.\(e) at 357 n.91 (2d

ed.1987). Finally, there is no evidence that the physical

scope of the search exceeded the limits of the warrant.®

5 This was raised during testimony of one witness during the in-

vestigation under Article 32, Uniform Code of Military Justice, 10

USC § 832, but was never asserted during any testimony at trial, so it

cannot be considered. United States v. Bethea, 22 USCMA, 223, 46

CMR 223 (1973).

® The record reflects that the searching officers did not find all of

the civilian property listed in the warrant in appellant’s living room —

26a

The decision of the United States Air Force Court of

Military Review is affirmed.

Chief Judge SULLIVAN and Judge Cox concur.

the first room they entered — so the search continued beyond the living

room to the rest of the apartment. Thus, a reasonable inference from

this testimony —in the absence of utterly any indication to the con-

trary —is that the military property, which was located in areas other

than the living room, was found in plain view during the lawful search

under the civilian warrant.

Although we do not rely upon waiver to resolve this particular

aspect of the Fourth Amendment issue, as did the Court of Military

Review, see 30 MJ 570, 575-76 (1990), we do note that defense

counsel’s motion at trial was a bit ill-defined as to this ground. See

Mil.R.Evid. 311(d)(2)(A), (d)(3), and (e)(3), Manual for Courts-

Martial, United States, 1984. A more precise objection—if, indeed,

defense counsel did have such an objection — logically wound have led

to a fuller development of the facts affecting this issue. Accordingly,

we are more inclined than we otherwise might be to find that, based on

the evidence just mentioned and the reasonable inferences drawn

therefrom, the Government carried its burden of proving by a

preponderance of the evidence that the challenged evidence was

lawfully discovered, see Mil.R.Evid. 311(e)(1).

vr US. GOVERNMENT PRINTING OFFICE: 1991 — 159009

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