# Petition for Writ of Certiorari — Thompson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1074

## Text

~ | 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
v.

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
A.

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.

15

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

iV

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
V.

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)

2

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

3

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).

* > > > *

4

(C) Actions related to the commander’s inherent
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

5

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,

6

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.

7

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

8

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

9

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

10

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.

1]

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

12

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).

13

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.

14

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.

15

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.

16

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)

2a

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”.

3a

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-

4a

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.

Sa

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).

6a

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.

Ta

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.

a

8a

(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.

9a

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,
V.

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

C

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).

* ~ * * *

(C) Actions related to the commander’s inherent
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.*

D

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

A

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2155%3A1. Public record. Not legal advice.