Petition for Writ of Certiorari — Wisniewski v. United States

-

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

_

THOMAS M. WISNIEWSKI

Lance Corporal, U.S. Marine Corps,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF MILITARY APPEALS

Davip C. LARSON

Captain, Judge Advocate General’s

Corps (JAGC), U.S. Navy

Appellate Defense Counsel

Counsel of Record

JOHN B. CONSEVAGE

Lieutenant, JAGC, U.S. Navy

Appellate Defense Counsel

Navy-Marine Corps

Appellate Review

Activity

Washington Navy Yard

Washington, D.C. 20374

(202) 433-2297

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202} 347-8203

QUESTION PRESENTED

WHETHER a military law enforcement officer’s act

of pressing his face against a closed venetian blind

over a window and peering into a room through the

8/, by */, inch blind cord slot constitutes an unlawful

invasion of a servicemember’s expectation of privacy

in his locked barracks room in violation of the fourth

amendment.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ws iticbuidtliaidadpailitede seuaenien i

TORRE GP QO ceccicissiccsicmnoniinnen iii

GORGE BUROW cismunsninicisisintnidiaaanaaaianions 1

POO sitvsiecinnivrinensuccsivsiicinsasstibdimamileiaamamaanen 2

CONSTITUTIONAL PROVISIONS INVOLVED ..............c00008 2

OTHER PROVISIONS INVOLVED ..........:ccccccccseeeeeseeeseeees 2

SEATRENE GF THE GA ccisissianidicdminnons 4

REASONS FOR GRANTING THE PETITION .............c0e000+ 9

CAUMTR IONE nnecnesvissesstceseeseusessuiigianecmemaeealaanaaiel 16

APPENDICES:

A. Opinion of the U.S. Court of Military Appeals ‘

PITTI TTTITTITTTTTTT TTT TTT TTte a

B. Opinion of the U.S. Navy-Marine Corps Court

CC BERRY TROVE vncccrsensiccecnemnanee 9a

TABLE OF AUTHORITIES

CASES: Page

Camara v. Municipal Court, 387 U.S. 523 (1967) 17

Coolidge v. New Hampshire, 403 U.S. 443

ERS EES Se 15, 16

Illinois v. Andreas, 463 U.S. 765 (1983) _.............. 13

Katz v. United States, 389 U.S. 347 (1967) ......... 13, 14

Lorenzana v. Superior Court, 9 Cal. 3d 626, 108 Cal.

Rptr. 585, 511 P.2d 33 (1973) ..............ccseseees 11

New York v. Class, ___U.S. —_, 106 S.Ct. 960

aa ahead isa cacenkanienininannnnanannannanasns 7

Oliver v. United States, 466 U.S. 170 (1984) ....... 13, 14

Parker v. Levy, 417 U.S. 783 (1974) .......eeeeeeeeeeees 10

Payton v. New York, 455 U.S. 573 (1980) _ ............ 15

Rakas v. Illinois, 489 U.S. 128 (1978). .............0.... 14

Rawlings v. Kentucky, 448 U.S. 98 (1980) ............ 14

Scales v. State, 18 Md. App. 474, 284 A.2d 45

A sits clannnibbatonmnennees 15

State v. Adams, 378 So.2d 72 (Fla. App. 1979) ... 11

State v. Alexander, 170 N.J. Sup. 298, 406 A.2d 313

SITE "iis shi Udshukl nis Aaichisnanihebninsnidsdensassceseosencecs 11

Texas v. Brown, 460 U.S. 730 (19838) .................. 11, 16

United States v. Amuny, 767 F.2d 1113 (5th Cir.

asia eli adnan tmrnanintinliamenadanennnnne 13

United States v. Bradshaw, 490 F.2d 1097 (4th Cir.

alta es ane adanetniabnniiiananinses 16

United States v. Cherry, 14 M.J. 251 (C.M.A.

ical lal eae a ain abst neanndinaretannsinensennevees 10

United States v. Harris, 5 M.J. 44 (C.M.A.

a I iain aesecaniinlehhinahaticnneaaensasnseane 12

United States v. Haydel, 649 F.2d 1152 (5th Cir.

aise saa ladeigennlianannnnhnnnenn 14

United States v. Jacobsen, 466 U.S. 109 (1984) .... 138

Unites States v. Karo, 468 U.S. 705 (1984) _ .......... 13

iv

Table of Authorities Continued

Page

United States v. Lawless, 18 M.J. 255 (C.M.A.

SPEED ~ Sciuhiiestimecicearaiascenlbinalintiniabbaiadadiiihailigsihbbdiaisinnanninnn 10

United States v. Lewis, 11 M.J. 188 (C.M.A.

DETTE © caiitsepiidtendustibeecaieaaisiaddediaiatiaaiinadidiancesiitininiannn 10

United States v. Miller, 18 M.J. 75 (C.M.A.

SIUIIEET ©» exiahicdes teaadlciaenssusbeensiahaibieetenenciaheasbaneetinaasinanenine 10

CONSTITUTION AND STATUTES

ee ES IEE, TT csthnscenssssicnnnitcuasnannntneiinnindinn 2

ae 4

fe ft RA en ote nan areal 2, 9, 15

SO MC TE TEE scilecricsnctdcseninsabiatiodbighctcnaspliaiaaiaaian dadaaaee’ 5, 7

ee sy PE siswicseeenepadmaancieenenacetannaeen 8

it GRA: TEE scone tisoncsddencabbnipeseseaaiaaeaaaeemeiacntaens 4

ee SUUes SE TEIN. sisseceihashasmiiesibtabeeseadabedasahaaioanninaiiainatieas 2

MISCELLANEOUS:

1 W.LaFave, Search & Seizure, A Treatise on the

Fourth Amendment, § 2-3(c) (1978 & Supp.

SOUT. seivesesiaainticeesanicahlinaiaidea a ea 11

MANUAL FOR COURTS-MARTIAL, 1984

A Se OO ee caiiaann 3, 9

ey ai, Sc I Sickie aaa 10

Fens hh aa oh dle ALN Smith Pete aston tie richitalll

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

THOMAS M. WISNIEWSKI

Lance Corporal, U.S. Marine Corps,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF MILITARY

APPEALS

Lance Corporal Thomas M. Wisniewski, U.S. Ma-

rine Corps, respectfully petitions for a writ of

certiorari to review the judgment and opinion of the

United States Court of Military Appeals in this case.

OPINIONS BELOW

The opinion of the United States Court of Military

Appeals (App. A) is reported at 21 M.J. 370 (C.M.A.

1986). The opinion of the United States Navy-Marine

Corps Court of Military Review (App. B) is reported

at 19 M.J. 811 (N.M.C.M.R. 1984).

JURISDICTION

The judgment of the United States Court of Mili-

tary Appeals was entered on March 3, 1986. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1259 (8).

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides:

Amendment IV: 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, supported by Oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to be

seized.

OTHER PROVISIONS INVOLVED

Article 36, Uniform Code of Military Justice,’ pro-

vides:

Article 36. President may prescribe rules.

(a) Pretrial, trial and post-trial procedures,

including modes of proof, for cases arising

under this chapter triable in courts-martial,

military commissions and other military tri-

bunals, and procedures for courts of inquiry,

may be prescribed by the President by reg-

ulations which shall, so far as he considers

110 U.S.C. § 836.

3

practicable, apply the principles of law and

the rules of evidence generally recognized in

the trial of criminal cases in the United

States district courts, but which may not be

contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this

article shall be uniform insofar as practicable

and shall be reported to Congress.

Rule 311(a) of the Military Rules of Evidence? pro-

vides:

Rule 311. Evidence Obtained From Unlawful

Searches and Seizures.

(a) General Rule. Evidence obtained as a re-

sult of an unlawful search or seizure made

by a person acting in a governmental ca-

pacity is inadmissible against the accused

if:

(1) Objection. The accused makes a timely

motion to suppress or an objection to the

evidence under this rule; and

(2) Adequate interest. The accused had a

reasonable expectation of privacy in the

person, place or property searched; the

accused had a legitimate interest in the

property or evidence seized when chal-

lenging a seizure; or the accused would

otherwise have grounds to object to the

search or seizure under the Constitution

of the United States as applied to mem-

bers of the armed forces.

2 Part III, Manual for Courts-Martial, United States, 1984.

STATEMENT OF THE CASE

Pursuant to his authority under the Uniform Code

of Military Justice (UCMJ),* the Commanding Gen-

eral, 7th Marine Amphibious Brigade, Marine Corps

Air Ground Combat Center, Twentynine Palms, Cal-

ifornia, convened a general court-martial to hear the

case against petitioner. Petitioner was charged with

wrongful possession and distribution of lysergic acid

diethylamide in violation of Article 134, UCMJ.‘

At trial, petitioner filed a Motion to Suppress Evi-

dence. He alleged that the contraband had becn il-

legally seized as a result of an illegal search conducted

by the person acting as law enforcement agen: at the

scene, Sergeant Keane. The military judge denied

petitioner’s motion to suppress. Petitioner was ccn-

victed of wrongful distribution of lysergic acid die-

thylamide and was sentenced to be confined at hard

labor for 9 months, forfeiture of all pay and allow-

ances, reduction to lowest enlisted pay grade, and to

be discharged from the service with a bad-conduct

discharge.

The facts on which this petition is based are that

en December 16, 1983, on board Marine Corps Air

Ground Combat Center, Twentynine Palms, Califor-

nia, a Corporal Seipp, while delivering the platoon

mail, knocked on the door of Sergeant Keane and

expressed his belief that illegal drug trafficking was

occurring in the room of another platoon member,

* Article 22, UCMJ, 10 U.S.C. § 822.

“10 U.S.C. § 934.

ne

5

Lance Corporal Lansing.’ Lansing’s room, number

414, was lecated two doors away from Sergeant

Keane’s rcom. The apparent bases of Corporal Seipp’s

suspicions were the number and known character of

persons observed to be frequenting Lansing’s room.

Approximately three hours after his initial conver-

sation with Seipp, Sergeant Keane observed two ser-

vicemembers known to him as Lance Corporal Turner

and Hospitalman Irish attempting to enter Lansing’s

room. After knocking and receiving no response, these

individuals asked Sergeant Keane if he knew the

whereabouts of Lansing. When Sergeant Keane re-

plied in the negative, they went to petitioner’s door,

located adjacent to Lansing’s room on the opposite

side. Sergeant Keane observed Turner and Irish talk-

ing to petitioner; the three servicemembers then !eft

the barracks area.

Lance Corporal Lansing was on guard duty on the

afternoon in question and his only assigned roommate

was away on emergency leave. Petitioner was a fellow

platoon member of Lance Corporal Lansing, and both

Marines had been in the habit of visiting each other’s

rooms on an almost daily basis for approximately one

year. (R. 55-59).

Lance Corporal Lansing, while on guard duty, al-

legedly requested petitioner to effectuate the physical

transfer of illegal drugs stored in one of the wal!

lockers in Lansing’s room to Irish and Turner. Lan-

5’ The Navy-Marine Corps Court of Military Review used its

fact finding powers under Article 66(c), UCMJ, 10 U.S.C. §

866(c), to hold that Sergeant Keane, as senior noncommissioned

officer of the barracks, was acting in an official governmental

capacity. (App. 15a).

6

sing gave petitioner the key to the room door and

the key to the wall locker. Petitioner expressed the

belief that he had permissive access to Lansing’s room

for the period necessary to effect the transfer; that

he had the authority during the period of his use of

the room to exclude all other persons except Lansing

and the other Marine assigned to the room, who at

the time was on leave; and that he, petitioner, had

authority to admit other people into the room. (R.

57-58).

After receiving the keys, petitioner, accompanied

by Turner and Irish, proceeded back to Lansing’s

room. He opened the locked door and permitted the

two individuals accompanying him to enter. Sergeant

Keane observed as the trio entered the room and

closed the door. Petitioner testified that the door was

locked and at all times the venetian blind over the

window remained drawn. There were no other per-

sons within the premises.® (R. 58).

During the alleged transfer process, Sergeant Keane

walked over to the window of Lansing’s room and

initiated a direct observation effort. He pressed his

face to the glass of the window and attempted to

peer through a hole in the blind on the left-hand side

of the window. The purpose of this hole was to allow

the string that draws open the blind to pass through.

This hole was approximately */, of an inch long (ver-

tically) and 1/, of an inch in width (horizontally). The

blind was on the inside of the window leaving a space

of between 2 '/, - 3 inches between the hole in the

¢The Marine barracks in question was architecturally similar

to a roadside motel. All room doors opened onto a long external

walkway that also served as a balcony or porch.

7

blind and the window. (R. 23; Appellate Exhibits V-

IX).

Sergeant Keane testified that he observed petitioner

open a wall locker in the room and transfer a white

substance from a plastic bag to Irish and Turner. (R.

24). Keane also testified that he saw Irish and Turner

ingest something. (R. 33). Suspecting a drug trans-

action, Sergeant Keane sent one of the nearby Ma-

rines for the officer of the day.

Prior to the arrival of the officer of the day, Ser-

geant Keane’s superior, Staff Sergeant Lonard, ar-

rived on the scene. Sergeant Keane related his

observations to Staff Sergeant Lonard and then

knocked on the door of Lansing’s room. The door

was opened by someone inside the room and Irish

and Turner attempted to leave. Staff Sergeant Lon-

ard ordered both of them to remain inside the room

until the arrival of the officer of the day. Sergeant

Keane advised petitioner that he had observed

petitioner engaging in a drug transaction and that for

petitioner’s ‘‘own benefit’? he should surrender the

drugs. Staff Sergeant Lonard told petitioner to “‘give

up the drugs.” Petitioner responded to the order by

pulling out a key from his pocket, opening Lansing’s

wall locker, and removing a plastic bag containing a

substance later identified as 90 ‘“‘squares’’ of lysergic

acid diethylamide. (R. 34). As a result of these events,

Irish gave a statement to the Naval Investigative Ser-

vice on December 23, 1984, implicating petitioner in

the distribution of drugs.

Pursuant to its fact finding power under Article 66,

UCMJ,’ the United States Navy-Marine Corps Court

710 U.S.C. § 866.

8

of Military Review set aside the findings and sen-

tence. The court made the following specific findings:

(1) That appellant did have a supportable,

subjective expectation of privacy in room #

414 at the time Sergeant Keane peered into

the room via the siot in the closed venetian

blind; and

(2) That appellant’s own personal and estab-

lished expectation of privacy within room #

414 was objectively reasonable in terms of

societal valuation not because of general ap-

proval of drug trafficking but because of so-

ciety’s valuation of separate dwelling areas

with closed, locked entrance doors and win-

dows blocked from outside public view.

(App. 22a). _

Subsequently, the Judge Advocate General of the

Navy certified the following two issues for review by

the United States Court of Military Appeals:®

I

WHETHER THE U.S. NAVY-MARINE CORPS COURT

OF MILITARY REVIEW ERRED WHEN IT FOUND

THAT THE ACCUSED’S EXPECTATION OF

PRIVACY IN THE BARRACKS ROOM AND WALL

LOCKER ASSIGNED TO ANOTHER WAS

REASONABLE WHEN THE ACCUSED AND TWO

OTHERS, NONE OF WHOM WERE ASSIGNED TO

THE BARRACKS ROOM, ENTERED THAT

UNOCCUPIED BARRACKS ROOM SOLELY FOR

THE PURPOSE OF DISTRIBUTING LSD.

®10 U.S.C. § 867(bX2).

| |

II

WHETHER THE U.S. NAVY-MARINE CORPS COURT

OF MILITARY REVIEW ERRED WHEN IT FOUND

A SERGEANT’S SEARCH TO BE UNLAWFUL

WHEN, WITH PROBABLE CAUSE TO BELIEVE

THAT DRUGS WERE BEING DISTRIBUTED BY

THE ACCUSED IN A BARRACKS ROOM, THE

SERGEANT PEERED THROUGH THE WINDOW,

SAW DRUGS BEING DISTRIBUTED, ENTERED THE

ROOM, AND OBTAINED DRUGS FROM THE

ACCUSED.

The United States Court of Military Appeals an-

swered the certified questions in the affirmative and

reversed the decision of the United States Navy-Ma-

rine Corps Court of Military Review. (App. 3a). The

court held that there was no reasonable expectation

of privacy of the petitioner invaded by the actions of

Sergeant Keane because he did nothing more than

look through an opening available to any curious pas-

serby. Plain view observations by an officer properly

in position to have such a view did not constitute an

unreasonable search under the fourth amendment.

(App. 6a).

REASONS FOR GRANTING THE PETITION

Article 36, Uniform Code of Military Justice,’ pro-

vides Presidential authority to establish special rules

and regulations for the courts-martia! system, includ-

ing rules of evidence. Rule 311(aX2) of the Military

Rules of Evidence,’ established pursuant to that

*10 U.S.C. § 836.

10 Part III, Manual for Courts-Martial, United States, 1984.

10

power, specifically incorporates a servicemember’s

right to constitutional protections in this evidentiary

area of search and seizure. In those areas of legiti-

mate military necessity, the President has provided

specific rules that are different from basic civilian

protections. Compare Rule 313 of the Military Rules

of Evidence, Inspections and Inventories."

While recognizing the differences between military

and civilian law, this Court has long acknowledged a

servicemember’s right to fundamental constitutional

protections in the courts-martial system. Parker v.

Levy, 417 U.S. 783 (1974). The Court of Military

Appeals and the service Courts of Military Review

have traditionally relied on the decisions of this Court

for guidance in this area with regard to correct fourth

amendment analysis. United States v. Lawless, 18 M.J.

255 (C.M.A. 1984); United States v. Miller, 13 M.J.

75 (C.M.A. 1982); United States v. Lewis, 11 M.J. 188

(C.M.A. 1981).

The Navy-Marine Corps Court of Military Review

specifically found that sufficient societal value at-

tached to a barracks room under the factual circum-

stances present in this case to warrant the protections

of the fourth amendment (App. 22a). That court also

found that the actions of Sergeant Keane constituted

an unlawful search that invaded petitioner’s fourth

amendment expectation of privacy.’? (App. 23a).

1 Id.

12 The Court of Military Appeals will not disturb an opinion

of the Court of Military Review as to factual conclusions found

by that court, but it does have the primary responsibility to

insure that the lower court properly applies the law to those

facts. United States v. Cherry, 14 M.J. 251 (C.M.A. 1982).

11

In the case at bar, the Court of Military Appeals

has utilized the “‘plain view’’ doctrine to characterize

an initial viewing into a locked barracks room as non-

intrusive. (App. 6a)."* The court, in support of its

conclusion, tersely cites the general proposition of law

that an officer in a position to have “plain view” of

the evidence in question does not unlawfully invade

a legitimate expectation of privacy. (App. 7a). This

conclusion is reached without applying the analysis

provided by this Court regarding the reasonableness

and prior justification of the initial intrusion to the

undisputed facts of this case. Texas v. Brown, 460

U.S. 730, 739 (1988).

More importantly, the decision substantially erodes

fourth amendment protections of all servicemembers

8 The lower court concluded that Sergeant Keane did nothing

more than look through an opening available to any curious

passerby. The actions of Sergeant Keane in the case far ex-

ceeded the normal use of the public walkway and the normal

view from that walkway. See State v. Alexander, 170 N.J. Super.

298, 406 A.2d 313 (1979) (police officer’s act of iooking in

defendant’s second-story apartment by leaning over a fire escape

railing to see in a window 8 feet from the fire escape constituted

a search because the window was well out of the view of anyone

engaged in the normal use of the fire escape); State v. Adame,

878 So.2d 72 (Fla. App. 1979) (police officer’s act of going onto

the porch and then standing on a chair to peer through a window

above eye level in defendant’s rooming house constituted an

invasion of a reasonable expectation of privacy). Additionally,

the pertinent test is reasonable expectation of one’s privacy not

perfection of one’s privacy interest. To adopt the latter view

would require an individual to stuff his keyholes and tape shut

any opening, no matter how small, that may conceivably be used

by law enforcement agents. See Lorenzana v. Superior Court,

9 Cal. 3d 626, 108 Cal. Rptr. 585, 511 P.2d 33 (1973); 1 W.

LaFave, Search and Seizure, A Treatise on the Fourth Amend-

ment § 2.3(c) (1978 & Supp. 1985).

12

to be secure against unreasonable searches in their

barracks rooms. The Court of Military Appeals mis-

applies precedent of this Court to lessen fundamental

constitutional rights of servicemembers as a class

without providing prior reason or purpose. This in-

fringement is effectuated without a proper balancing

process between justifiable military interest and a ser-

vicemember’s right to personal security. Cf. United

States v. Harris, 5 M.J. 44 (C.M.A. 1978). It is also

accomplished in direct contradiction of the Court of

Military Review’s finding that there is sufficient so-

cietal value in a locked barracks room to warrant

traditional fourth amendment protection. (App. 22a).’®

The primary question in the case sub judice is

whether the law officer’s act of pressing his face

against a window and peering into a darkened room

through a %/, by 1/, inch cord slot in a closed venetian

blind was an intrusion into a constitutionally pro-

tected area and an unlawful search.

The Court of Military Review found the following

factual circumstances to be determinative: (1)

petitioner’s authorized entry into, and presence in,

the locked room at the insistence of the assigned

occupant of the room, Lance Corporal Lansing, using,

at the request of Lansing, the key to that room; (2)

petitioner’s subsequent closing and locking of the door |

“In Harris, the Court of Military Appeals engaged in a

lengthy “balancing test’ analysis before concluding that the mil-

itary interest in command authorized gate searches was greater

than an individual’s privacy rights.

1° The President has not established a rule that lessens ex-

pectations of privacy by servicemembers in their barracks rooms

pursuant to his powers under Article 36, UCMJ, 10 U.S.C. §

836.

ee ee ee ee ee eee ee, ee =

13

to the room; (3) the lack of public view into the room

because of the closed and locked door, and the drawn

venetian blinds at the only window; (4) petitioner’s

use, once inside the room with Irish and Turner, of

-a separate key to open the lock on Lansing’s wall

locker, also at the insistence of Lansing; and (5) the

obtaining from the locker of illegal drugs for distri-

bution to Irish and Turner. (App. 21a).

The Court of Military Appeals disagreed with the

lower court’s conclusion, holding that the government

agent did not invade petitioner’s expectation of pri-

vacy because Sergeant Keane was standing on a pub-

lic walkway at the time of his observation and did

not physically trespass. (App. 6a). Cf United States

v. Amuny, 767 F.2d 1113 (5th Cir. 1985).

The fourth amendment protects legitimate expec-

tations of privacy rather than simply places. The

threshold question is whether an individual has a le-

gitimate expectation of privacy in the place or thing

to be searched. See Illinois v. Andreas, 463 U.S. 765,

771 (1983). A “search” occurs when an expectation

of privacy that society is prepared to consider rea-

sonable is infringed. United States v. Jacobsen, 466

U.S. 109 (1984). Whether a trespass occurs is not

determinative of whether an expectation of privacy

is involved. Oliver v. United States, 466 U.S. 170

(1984); United States v. Karo, 468 U.S. 705 (1984);

Katz v. United States, 389 U.S. 347 (1967).

The focus of the analysis with respect to expecta-

tion of privacy must be the accused’s relationship to

the premises, including authority over the premises

and his actions on the premises. Fourth amendment

protections apply to those persons who possess, in

good faith, reasonable expectations that they are con-

14

ducting their activities in a context of privacy. Rawl-

ings v. Kentucky, 448 U.S. 98 (1980). A person can

have an interest in the residence of a third person

such that he is protected by the fourth amendment

against unreasonable governmental intrusion. Rakas

v. Ilinois, 489 U.S. 128 (1978). It is not necessary

for an accused to have a proprietary interest in the

place searched or item seized. The interest must be

one in which a person has exhibited an actual ex-

pectation of privacy and that expectation must be

recognized by society as being reasonable. Katz v.

United States, 389 U.S. 347, 360 (1967) (Harlan, J.,

concurring).

To determine whether an actual and reasonable ex-

pectation of privacy exists, attention can be given to

the following considerations:

[W]hether the defendant has a possessory in-

terest in ... the place searched, whether he

has the right to exclude others from that

place, whether he has exhibited a subjective

expectation that it would remain free from

governmental invasion, whether he took nor-

mal precautions to maintain his privacy and

whether he was legitimately on the premises.

United States v. Haydel,649 F.2d 1152 (5th Cir. 1981),

cert. denied, 455 U.S. 1022 (1982). No single factor

determines whether an individual legitimately may

claim under the fourth amendment that a place should

be free of government intrusion not authorized by

warrant. Oliver v. United States, 466 U.S. 170, (1984).

In this case, petitioner entered a closed room with

the consent and at the direction of the room’s regular

occupant. The door was locked; the blind over the

15

one window was drawn. The hole through which Ser-

geant Keane peered was a minute opening necessarily

found in every type of venetian blind and, for the

purpose of this argument, similar to the keyhole found

in every door. Everything that society expects to be

done to manifest an expectation of privacy was done

here. To conclude that petitioner had no expectation

of privacy simply because a curious passerby could

violate that privacy without physical trespass is to

engage in legal fiction.

The lower court attempted to justify its holding by

relying on the “plain view’ doctrine. This Court has

espoused a rule that provides that contraband found

in a public place may be seized by the police without

a warrant because it involves no invasion of privacy

and is presumptively reasonable assuming there is

probable cause to associate the property with criminal

activity. Payton v. New York, 445 U.S. 578, 587

(1980). This situation can perhaps be more aptly de-

scribed as ‘‘public view’’ for it involves an observation

that is made by a police officer without intrusion into

a constitutionally protected area. Scales v. State, 13

Md. App. 474, 284 A.2d 45 (1971).

A different situation exists where evidence is dis-

covered as a result of an intrusion into a constitu-

tionally protected area. Coolidge v. New Hampshire,

403 U.S. 443 (1971). In that circumstance, the ques-

tion must turn on the legality of the intrusion that

enables the law officer to perceive the evidence at

issue. ‘Plain view’’ provides grounds for seizure of

an item when an officer’s access to an object has

some prior justification under the fourth amendment.

“Plain view” is therefore better understood not as

an independent exception to the warrant clause of

16

the Constitution, but simply as an extension of what-

ever the prior justification for an officer’s “‘access to

an object” may be. Texas v. Brown, 460 U.S. 730,

739 (1983).

The plurality opinion of this Court in Coolidge v.

New Hampshire, 403 U.S. 443 (1971), adopted a three-

prong test to permit warrantless seizures under the

“plain view” doctrine. First, there must be a lawful

“initial intrusion’’. Jd. at 465-68. Second, the evidence

must be discovered inadvertently. Jd. at 470. Third,

it must be immediately apparent to the police that

the items observed are contraband. Jd. at 466.

The facts of this case do not support a “public

view” characterization of the discovery of contraband.

The actions of Sergeant Keane were perpetrated with

the specific intent of surmounting the physical bar-

riers that created a legitimate expectation of privacy

on the part of the petitioner. The viewing under the

circumstances was not inadvertent, and constituted

an unlawful initial intrusion and search. United States

v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974), cert

denied, 419 U.S. 895 (1974).

The Court of Military Appeals erroneously inter-

twines the analysis of ‘‘public view” (that evidence

which is discovered in the public domain so that there

are no fourth amendment concerns) and “‘plain view”

(that evidence which is discovered lawfully and in-

advertently in a constitutionally protected area under

circumstances that would lessen an individual’s legit-

imate expectation of privacy.)

CONCLUSION

The Court of Military Appeals misapplies the plain

view doctrine to overcome the fourth amendment con-

17

cept of legitimate expectation of privacy. It erro-

neously focuses only on the single factor of physical

trespass. This opinion creates a different standard

resulting in a lessening of fourth amendment rights

for all military servicemembers with regard to ex-

pectation of privacy in barracks rooms. This is ac-

complished without any analysis or balancing process

to demonstrate why the military interest demands a

lesser standard with regard to an individual’s consti-

tutional rights. See New York v. Class, __, —_, 106

S.Ct. 960, 966-67 (1986); Camara v. Municipal Court,

387 U.S. 523, 534-35 (1967).

For the reasons set forth above, the petition for a

writ of certiorari should be granted. |

Respectfully submitted,

Davip C. LARSON

Captain, Judge

Advocate General’s

Corps (JAGC), U.S. Navy

Appellate Defense

Counsel

Counsel of Record

JOHN B. CONSEVAGE

Lieutenant, JAGC

U.S. Navy

Appellate Defense Counsel

Navy-Marine Corps

Appellate Review Activity

Washington Navy Yard

Washington, D.C. 20374

(202) 433-2297

APPENDIX

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Appendix A

U.S. Court of Military Appeals.

No. 51556.

NMCM 84 2363.

UNITED STATES,

Appellant,

v. :

THOMAS M. WISNIEWSKI, LANCE CORPORAL,

U.S. MARINE CORPS,

Appellee.

Accused, lance corporal, United States Marine Corps,

was convicted by military judge sitting alone of distribution

of lysergic acid diethylamide, and he appealed. The United

States Navy-Marine Corps Court of Military Review, 19

M.J. 811, set aside the findings and sentence. Issues were

certified for review. The United States Court of Military

Appeals, Cox, J., held that: (1) the accused had no rea-

sonable expectation of privacy in his friend’s barracks room

in which drugs were distributed where a sergeant was able

to peer through an opening of blinds covering the window

which was along a public walkway on which the sergeant

was lawfully in place, and (2) the sergeant acted reasonably

in gaining entry into the room to prevent further criminal

activity once he observed what he believed to be not only

the distribution of drugs, but also the ingestion of drugs.

Reversed.

For United States: Lieutenant Commander John B. Holt,

JAGC, USN (argued); Captain W.J. Hughes, JAGC, USN

(on brief).

2a

For the accused: Lieutenant John B. Consevage, JAGC,

USNR (argued); Lieutenant Colonel M.W. Lucas, USMC

(on brief); Lieutenant Commander Alvin L. McDonald.

Opinien of the Court

COX, Judge:

Contrary to his pleas at a general court-martial, the

accused was convicted* by military judge sitting alone of

distribution of lysergic acid diethylamide (LSD), in viola-

tion of Article 134, Uniform Code of Military Justice, 10

U.S.C. § 934. He was sentenced to confinement at hard

labor for 9 months, forfeiture of all pay and allowances,

reduction to pay grade E-1, and a bad-conduct discharge.

The convening authority approved the sentence except for

disapproving confinement in excess of 6 months and 17

days. The Court of Military Review set aside the findings

and sentence after concluding that the military judge erred

in denying a motion to suppress evidence as the fruits of

an unlawful search and seizure. 19 M.J. 811. Whereupon,

the Judge Advocate General of the Navy certified the fol-

lowing two issues for review by this Court:

* The court below erroneously stated that the accused ‘“‘w:

convicted ... of possession of a prohibited drug,” as well. 19

M.J. 811, 812. The possession specification was dismissed as

multiplicious prior to findings. (R.118.) GCMO No. 7-84, dated

13 June 1984, fails to reflect this action at trial.

I

WHETHER THE U.S. NAVY-MARINE CORPS COURT

OF MILITARY REVIEW ERRED WHEN IT FOUND

THAT THE ACCUSED’S EXPECTATION OF

PRIVACY IN THE BARRACKS ROOM AND WALL

LOCKER ASSIGNED TO ANOTHER WAS

REASONABLE WHEN THE ACCUSED AND TWO

OTHERS, NONE OF WHOM WERE ASSIGNED THE

BARRACKS ROOM, ENTERED THAT UNOCCUPIED

BARRACKS ROOM SOLELY FOR THE PURPOSE OF

DISTRIBUTING LSD.

II

WHETHER THE U.S. NAVY-MARINE CORPS COURT

OF MILITARY REVIEW ERRED WHEN IT FOUND

A SERGEANT’S SEARCH TO BE UNLAWFUL

WHEN, WITH PROBABLE CAUSE TO BELIEVE

THAT DRUGS WERE BEING DISTRIBUTED BY

THE ACCUSED IN A BARRACKS ROOM, THE

SERGEANT PEERED THROUGH THE WINDOW,

SAW DRUGS BEING DISTRIBUTED, ENTERED THE

ROOM, AND OBTAINED DRUGS FROM THE

ACCUSED.

We answer the certified questions in the affirmative.

The facts giving rise to the suppression issue are

essentially undisputed. At approximately 1300 hours,

on December 16, 1983, Corporal Seipp was delivering

the platoon mail in the barracks. While in the room

of Sergeant Keane, he expressed his suspicions that

another member of the platoon, Lance Corporal Lan-

sing, was distributing drugs from his barracks room

down the hall.

Sergeant Keane had been off duty since 0730 hours

that morning. After the conversation with Corporal

4a

Seipp, Sergeant Keane dressed in civilian clothes and

went outside his room onto the walkway to get some

fresh air, leaving his door open so he could hear the

music from his stereo. Lansing’s room was two doors

down. The design of the barracks was similar to a

motel, with each room having a large glass window

next to a door leading outside to a walkway that ran

the length of the barracks. The three-feet wide walk-

way was used not only to gain access to the rooms,

but as a porch or balcony.

As Sergeant Keane lounged outside his room on

the walkway for the next few hours, he noticed 20

to 30 people knocking on Lansing’s door. They re-

ceived no answer, however, as Lansing was on duty

at the Guard Shack and his roommate was on emer-

gency leave. At around 1630 hours, two persons from

another platoon, known to Sergeant Keane as Lance

Corporal Turner and Hospitalman Irish, knocked on

Lansing’s door. Upon receiving no response, they

went next door to the accused’s room. After a brief

conversation, the accused went with the two men to

find Lansing, who was still on duty. Lansing gave

the accused keys to his barracks room and wall locker

and asked the accused to transfer illegal drugs con-

tained in the locker to the two men as “‘a favor.”’

When the accused and the two potential drug pur-

chasers entered Lansing’s barracks room, Sergeant

Keane was still standing outside on the balcony. As

the door closed behind the trio, it locked automati-

cally. The venetian blind over the window was already

shut. Sergeant Keane walked over to the window and

peered into an opening in the blinds measuring ap-

proximately '/,-inch by */,-inch.

5a

He saw the accused open a wall locker and transfer

a white substance to the two men, who then con-

sumed some of the substance. Corporal Seipp and

Lance Corporal Day came by while Sergeant Keane

was peering in the window. They too looked through

the hole in the blind, observing the figures in the

room. Believing that he was witnessing a drug trans-

action in progress, Sergeant Keane sent Corporal

Seipp to get the Officer of the Day. On the way,

Corporal Seipp ran into the platoon sergeant, Staff

Sergeant Lonard, and told him the situation. Lonard

immediately went to the scene and Keane related his

observations.

Both sergeants went to the door of Lansing’s room.

As Keane knocked on the door, he looked into the

room through a two-inch space between the window

and the door. He observed the accused close and lock

the wall locker. The drug purchasers opened the door

and attempted to exit the room, but were stopped.

Sergeant Lonard ordered all three men to remain

inside the room until the Officer of the Day arrived.

The accused then asked Keane what the problem

was. Keane, who was a “very close” friend of the

accused, responded that he “had witnessed ... [the

accused] in a drug transaction” and that the accused

should “surrender the drugs” “for his own benefit.”

The accused responded by banging his head against

a wall locker and uttering an expletive. Staff Ser-

geant Lonard then said, “Ski, give up the drugs.”

The accused pulled the locker key out of his pocket,

opened the wall locker, and handed to Keane what

was later determined to be 90 tablets of LSD.

The court below concluded that when Sergeant

Keane peered in the window of Lansing’s barracks

6a

room, he conducted an unlawful visual search. As-

suming without deciding that the court below cor-

rectly found that Sergeant Keane was acting

throughout in an official rather than private capacity,

we still disagree with that court’s ultimate legal con-

clusion.

It is clear “‘that a person can have a legally suf-

ficient interest in a place other than his own home

so that the Fourth Amendment protects him from

unreasonable governmental intrusion into that place.”’

Rakas v. Illinois, 489 U.S. 128, 142, 99 S.Ct. 421,

430, 58 L.Ed.2d 287 (1978). The ultimate issue in

determining whether a Fourth-Amendment violation

has occurred is whether there has been an official

invasion of a legitimate expectation of privacy. Here,

we conclude there was no reasonable expectation of

privacy invaded by the actions of Sergeant Keane as

he did nothing more than look through an opening

available to any curious passerby. Cf United States

v. Amuny, 767 F.2d 1118 (5th Cir.1985). Plain-view

observations by an officer properly in a position to

have such a view do not constitute unreasonable

searches under the Fourth Amendment. See Texas v.

Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502

(1983); United States v. Wheeler, 641 F.2d 1321 (9th

Cir.1981). Moreover, contraband or other evidence of

a crime falling into plain view are subject to seizure.

Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct.

812, 816, 70 L.Ed.2d 778 (1982); Mil.R.Evid.

316(d\4XC), Manual for Courts-Martial, United States,

1969 (Revised edition).

Although not cited by the court below, in United

States v. Lewis, 11 M.J. 188 (C.M.A. 1981), this Court

was faced with another situation where a sergeant

7a

peered through the window of a barracks room. Writ-

ing for the majority of the Court, Chief Judge Everett

stated, in part:

Nothing in the record demonstrates that the area

around the barracks was not available for general

access or that Sergeant [C] was peeking into the room

from a location where he generally would not be al-

lowed to be present. Under these circumstances the

occupants of the room had no reasonable expectation

of privacy with respect to passersby—whether casual

or official—who looked into the room through an open-

ing available in the window.

Id. at 191. The same can be said of this case. The common

walkway from which Sergeant Keane peered through the

opening in the blinds was available for the use of residents

of the barracks and their guests, as well as others having

legitimate reasons to be on the premises. Sergeant Keane

was lawfully in the place from which his observations were

made. He had no difficulty in gaining a view into the room

by merely peering through the openings in the blinds. Thus,

the accused had no reasonable expectation of privacy from

visual intrusions in the place and objects observed because

they could be viewed with ease from a public walkway.

On observing what he believed to be not only the dis-

tribution of drugs but also the ingestion of drugs, Sergeant

Keane acted reasonably in gaining entry into the room to

prevent further criminal activity. As stated in United States

v. Acosta, 11 M.J. 307, 313 (C.M.A. 1981), “W]e can con-

ceive of no greater exigency requiring immediate action

than the perceived present active use of debilitating drugs

by specific servicepersons.” When Sergeant Keane knocked

on the door of the room, it was opened without any inquiry

as to his identity or purpose.

Had the situation remained stable and the drugs been

in plain view with the locker open upon his entry into the

8a

room, unquestionably Sergeant Keane would have been

able to seize the drugs and apprehend the three men. As

he was knocking on the door, however, Sergeant Keane

observed the accused close and lock the locker. The ques-

tion becomes whether the doctrine of plain view was fatally

undermined by the fact that the drugs were no longer in

sight. We hold that it was not under these facts. Sergeant

Keane had just seen a crime in progress and the contra-

band in plain view. The entry into the room followed closely

on the heels of the observations through-the window. Once

legitimately in the room, he could properly obtain the drugs

already located via plain view just a few minutes before.

See United States v. Ortiz, 603 F.2d 76 (9th Cir. 1979),

cert. denied. 444 U.S. 1020, 100 S.Ct. 678, 62 L.Ed.2d

652 (1980); United States v. Johnson, 561 F.2d 832 (D.C.

Cir.) (en banc), cert. denied, 432 U.S. 907, 97 S.Ct. 2953,

53 L.Ed.2d 1080 (1977).

The decision of the United States Navy-Marine Corps

Court of Military review is reversed; the record of trial

is returned to the Judge Advocate General of the Navy

for remand to that court for further proceedings in ac-

cordance with Article 66, UCMJ, 10 U.S.C. § 866.

Chief Judge EVERETT concurs.

9a

Appendix B

{

IN THE U. S. NAVY-MARINE CORPS COURT OF

MILITARY REVIEW

UNITED STATES

v.

THOMAS M. WISNIEWSKI, 303 78 0169, Lance Corporal

(E-3), U.S. Marine Corps

DECIDED 6 DECEMBER 1984

LTCOL M. W. Lucas, USMC, Appellate Defense Counsel

LT John B. Consevage, JAGC, USNR, Appellate Defense

Counsel

LCDR John B. Holt, JAGC, USN, Appellate Government

Counsel

MAY, Judge:

Appellant was convicted contrary to his pleas, by gen-

eral court-martial, military judge alone, of possession of a

prohibited drug with intent to distribute and of distribution

of that drug in violation of Article 134, Uniform Code of

Military Justice. He was sentenced to a bad conduct dis-

charge, confinement at hard labor for 9 months, forfeiture

of all pay and allowances, and reduction to pay grade E-

1. The convening authority approved only so much of the

sentence as provided for a bad conduct discharge, con-

finement at hard labor for 6 months and 17 days, forfeiture

of all pay and allowances, and reduction to pay grade

E-1.

Appellant now assigns two errors. Our agreement with

the first assignment renders unnecessary any addressal of

the second assignment:

10a

I

THE MILITARY JUDGE ERRED BY DENYING

APPELLANT’S MOTION TO SUPPRESS ALL

EVIDENCE AND STATEMENTS OBTAINED AS A

RESULT OF AN ILLEGAL SEARCH AND SEIZURE

CONDUCTED BY SERGEANT KEANE.

Factusi Background

The following factual circumstances are extracted from

the trial record:

At approximately 1300 on 16 December 1983, on board

Marine Corps Air Ground Combat Center, Twentynine

Palms, California, a Corporal Seipp, USMC, while deliv-

ering the platoon mail, knocked on the door of Sergeant

Keane, the senior platoon noncommissioned officer living

in the barracks, Building 1464. Corporal Seipp expressed

his belief that illegal drug trafficking was occurring in the

room of another platoon member, Lance Corporal Lansing.

Lansing’s room, #414, was located two doors away from

Sergeant Keane’s room. The apparent basis of Corporal

Seipp’s suspicions was the number and known character

of persons observed frequenting Lansing’s room. Following

this conversation, Sergeant Keane walked out of his room

and observed over a period of approximately two hours,

20-30 persons, all suspected of, or previously involved in,

illegal drug involvement, knocking individually on Lan-

sing’s room. Lance Corporal Lansing, however, was on

guard duty at the time and his only assigned roommate

was on leave. Several of the persons, after receiving no

response to their knocks on Lansing’s door, asked Ser-

geant Keane regarding Lansing’s whereabouts, and were

informed of Lansing’s guard duty assignment. All of these

persons were apparently not members of the platoon.

At approximately 1630, Sergeant Keane observed two

persons known to be assigned outside the platoon, knock-

lla

ing on Lansing’s room. These two persons, known to Ser-

geant Keane as Lance Corporal Turner and Hospitalman

Irish, after receiving no response to their knocks on Lan-

sing’s door, asked Sergeant Keane if he knew the wher-

eabouts of Lansing. Sergeant Keane replied that he did

not. Turner and Irish then went to appellant’s room which

was located next door, on the far side, to Lansing’s room.

Sergeant Keane observed Turner and Irish talking to ap-

pellant, then the three persons left the barracks area.

Appellant was a fellow platoon member of Lance Cor-

poral Lansing and both Marines had been in the habit of

visiting each other’s room on a frequent, almost daily ba-

sis, for almost a year. Appellant had not, however, ever

stayed overnight in Lansing’s room, nor did he store any

of his personal possessions in the room. Appeilant had no

possessory interest in any property contained in the room,

nor did he have a personal key of his own to Lansing’s

door or wall lockers inside the room.

Appellant had, however, during the period he, Irish and

Turner were away from the platoon area after Sergeant

Keane’s first observation, been importuned by Lansing.

Lance Corporal Lansing apparently requested appellant to

effect the physical transfer of illegal drugs stored in one

of the wall lockers in Lansing’s room to Irish and Turner.

Lansing then gave appellant the key to the room door and

the key to the wall locker in which the drugs were stored.

Appellant’s testimony at trial expressed the belief that he

had permissive access to Lansing’s room for the period

necessary to effect the drug transfer; that he had the

authority during the period of his use of the room to

exclude all other persons except Lansing and the other

Marine assigned to the room, who at the time was on

leave, and that he, the appellant, had the authority to

admit other persons to the room, or in his words “...1

would not have let the PMO in. But if it was someone

that I knew.”

12a

After acceding to Lansing’s request and receiving the

keys to both the room door and Lansing’s wall locker,

appellant returned to Lansing’s room with Turner and

Irish. Sergeant Keane observed the trio enter the room

and close the door behind them. Appellant testified that

the door was locked and the blinds were drawn during the

subsequent transfer of the drugs from inside Lansing’s

wall locker to Turner and Irish.

During the transfer process inside the room, Sergeant

Keane had initiated further observation efforts. The ser-

geant testified that he was able to observe the actual

transaction through the cord slot in one of the venetian

blind slats, an opening estimated by the sergeant to meas-

ure 1/,” x */,’”’ in dimension. Sergeant Keane testified that

he observed appellant open up a wall locker in the room

and transfer a white substance from a plastic bag to Irish

and Turner. Suspecting a drug transaction, Sergeant Keane

sent one of the nearby Marines for the officer of the day

and invited several of the other nearby Marines to look

into the room through the slot in the blinds. While the

testimony of these other Marines confirmed the sighting

of several male figures in the room while peering through

the slot, none of the other witnesses could determine what,

if any, actions were occurring inside the room.

Prior to the arrival of the officer of the day, the platoon

sergeant, Staff Sergeant Lenard, arrived on the scene.

Sergeant Keane related his observations to Staff Sergeant

Lenard. Sergeant Keane then knocked on the door of Lan-

sing’s room. The door was opened by someone inside the

room, Irish and Turner attempted to leave but were halted.

Staff Sergeant Lenard ordered both to remain inside the

room until the arrival of the officer of the day. Appellant

asked ‘what was going on.”” Sergeant Keane responded

by advising appellant that he had observed appellant en-

gaged in a drug transaction, and that for appellant’s “‘own

benefit” he should surrender the drugs. Appellant’s brief,

albeit descriptive response was a short expletive accom-

13a

panied by a banging of his, the appellant’s, head against

the wall locker. The platoon sergeant, Staff Sergeant Len-

ard then said to appellant, ‘Ski, give up the drugs.’ Ap-

pellant responded by pulling out a key from his pocket,

opening a wall locker identified as Lansing’s locker and

removing a plastic bag containing a substance later iden-

tified as 90 ‘“‘squares’”’ of lysergic acid diethylamide.

From this pregnant meshing of evidentiary concepts and

factual circumstances emerged the charges in this case and

a suppression motion entered by appellant. Following pres-

entation of the motion, the military judge denied the mo-

tion and made the following findings of fact:

The court does specifically find that Sergeant

KEANE was not a law enforcement agent, that

he was off duty, in civilian clothes, not a super-

visor of nor exercised direct disciplinary powers

over WISNIESWKI, IRISH or TURNER, as in-

terpreted by applicable case law. Sergeant

KEANE’s assumption of responsibility for clean-

liness and orderliness of the barracks does not

equate to direct disciplinary control, nor does the

fact that he was an NCO and this was known

by WISNIEWSKI, IRISH and TURNER to be

so, made him an agent, that is a representative

of the government or put him into a govern-

mental capacity.

The expectation of privacy of WISNIEWSKI,

IRISH and TURNER was not constitutionally un-

dermined by a government representative. For

the purpose of the Fourth Amendment, the Mil-

itary Rules of Evidence is of course to deter

unlawful conduct by government authorities who

have police powers. An unofficial, even if unlaw-

ful search by a private citizen acting on his own

initiative, does not trigger Fourth Amendment

rights. The resulting search warrant, seizure, ob-

l4a

taining contraband from Sergeant KEANE by

law enforcement officiais was properly or con-

stitutionally correct.

Although the answer to question number one

precludes for practical purposes answering the

remaining questions, the court does find that Ser-

geant KEANE’s peering into, entry into, and sei-

zure of contraband was not a search and seizure

protected by the Fourth Amendment, the Mili-

tary Rules of Evidence. Sergeant KEANE, in his

own mind at least, reasonably suspected that a

crime was being committed, i.e. sale of drugs.

The time was a weekend. WISNIEWSKI, IRISH

and TURNER were in civilian clothes and were

about to leave the room, reasonably could be ex-

pected then to leave the area, the base. There

was a need to act quickly to preserve the fruits,

i.e. evidence of crime.

Neither WISNIEWSKI, IRISH nor TURNER

lived in the particular room in question, nor did

they own the locker, nor did any of the three

claim ownership of any of the items within the

locker, i.e. again, contraband. Nothing was stored

in the room or locker by WISNIEWSKI, IRISH,

or TURNER, and of entry into the locker, how-

ever again, there was no claim of ownership nor

possessory interest established for the record or

claimed.

At the time of contact with Sergeant KEANE,

Lance Corporal WISNIEWSKI was notified of

what Sergeant KEANE had seen and knew full

well of the situation. The explanation and sub-

sequent actions were consensual. Again, as I have

stated, the motion is denied.

We initially reject the government’s contention both at

trial and now, as well as the trial judge’s finding, that

15a

Sergeant Keane was acting in a private capacity in this

case. From our examination of the record, including the

testimonial references by Sergeant Keane to his profes-

sional concerns as a noncommissioned officer and the “‘sen-

ior NCO” in the barracks to stop drug trafficking in his

platoon, his previous announcement to his platoon of his

intention to come down “hard” on drug involvement, state-

ments attributed to him by a Naval Investigative Service

agent regarding the fruits of his ‘‘surveillance of a room

up in the barracks,” and his immediate summoning of the

officer of the day subsequent to his “observation” of the

drug transaction and prior to his entry into the room

occupied by appellant, we find that Sergeant Keane was

acting in an official capacity and not as a private individ-

ual. Cf. United States v. Thomas, 16 USCMA 306, 36 CMR

462 (1966); United States v. Volante, 4 USCMA 689, 16

CMR 263 (1954).

The official character of Sergeant Keane’s activities not-

withstanding. appellant’s accignment must first be exam-

ined to determine whether appellant is the proper person

to challenge the lawfulness of the government activities

in this case.

Standing Issue

Rule 311(a) of the Military Rules of Evidence establishes

the threshold issue for appellant:

Rule 311.Evidence Obtained From Unlawful

Searches and Seizures

(a) General rule. Evidence obtained as a result

of an unlawful search or seizure made by a per-

son acting in a governmental capacity is inad-

missible against the accused if:

(1) Objection. The accused makes a timely mo-

tion to suppress or an objection to the evidence

under this rule; and

16a

(2) Adequate interest. The accused had a rea-

sonable expectation of privacy in the person, place

or property searched; the accused had a legiti-

mate interest in the property or evidence seized

when challenging 2 seizure; or the accused would

otherwise have grounds to object to the search

or seizure under the Constitution of the United

States as applied to members of the armed forces.

Appellant certainly may call upon appropriate consti-

tutional protections relative to his court-martial. Parker v.

Levy, 417 U.S. 733 (1974). He must, however, satisfy a

requirement that he enjoys a status under the law to chal-

lenge the lawfulness of the acquisition of the physical and

testimonial evidence arrayed against him. That status,

whether referred to as “standing,” ‘“‘adequate interest,”’

or ‘Fourth Amendment rights” is not susceptible to easy

determination. Like most criminal procedure issues, how-

ever, that determination is the essence of an appellate

review process. Appellant’s present contention, when re-

duced to its salient elements, is that as he opened Lance

Corporal Lansing’s wall locker in Lansing’s barracks room

and wrongfully distributed a quantity of an illegal drug to

Irish and Turner, drugs that he had no prior property

interest in, he possessed status under the umbrella of the

Fourth Amendment to challenge the government’s evi-

dence of such distribution.

In determining the validity of appellant’s claim of con-

stitutional protection, we must, of necessity, determine the

appropriate judicial interpretation of the amendment. The

historical origins of this constitutional mantle of protection

are well known. Boyd v. United States, 116 U.S. 616 (1886).

Colonial experiences with the “writs of assistance’”’ used

by British authorities provided adequate motivation for

constitutional barriers to such governmental intrusion.

Boyd, at 625. It is left to the courts, however, to render

the often finite decisions applying the general mandate of

the amendment. Weeks v. United States, 232 U.S. 383,

17a

391-92 (1914). A recurring issue has not been whether duly

appointed governmental agents may generally crash in

doors, rouse sleeping citizens, and conduct wholesale

searches of private dwellings in the dead of night on un-

founded suspicions. That type of obvious intrusion is gen-

erally rejected by all of our citizens, and to no lesser extent

by the members of our armed forces charged with the

defense of the Republic. What has been a recurring and

complex judicial, and for obviously different reasons, law

enforcement problem, is to whom should be granted the

power to challenge the lawfulness of government searches,

no matter the limited and moderate nature of the intru-

sion?

Although this case arises in a military context, we look

to federal case law for current reference points to our

analysis of this issue. United States v. Lawless, 18 MJ 255,

257, n.2 (CMA 1984); United States v. Foust, 17 MJ 85,

87 (CMA 1983); United States v. McCullough, 14 MJ 409,

411 (CMA 1983); United States v. Miller, 13 MJ 75, 77

(CMA 1982). In the period 1978-1980, the Supreme Court

rejected the ‘‘automatic standing’’ rule of Jones v. United

States, 362 U.S. 257 (1960), and “legitimately on the prem-

ises’”’ determination. Rawlings v. Kimberly, 448 U.S. 98

(1980); United States v. Salvucci, 448 U.S. 83 (1980); Rakas

v. Illinois, 439 U.S. 128 (1978). Rawlings, Salvucci, and

Rakas, taken together, represented a significant departure

from the Jones concept that one charged with the pos-

session of that evidence produced by government search

or seizure efforts was perforce accorded “‘standing.’”’ Those

decisions also crystallized the Court’s limitation of poten-

tial assertors of Fourth Amendment protection.

The initial harbinger of the Court’s view, Rckas, was

an automobile search situation and arguably not applicable

to the immobile environments of dwellings or barracks.

See Cardwell v. Lewis, 417 U.S. 583, 589-91 (1974). The

decisions in Rawlings and Salvucci, however, leave little

room to doubt the Court’s concern with limiting Fourth

18a

Amendment protections to those persons who possess good

faith, and reasonable, expectations that they are conduct-

ing their activities in a context of privacy. The focus,

therefore, is not upon singular indices of property law,

elements of proof related to possessory offenses, or the

almost uncircumscribed reaches of “legitimately on the

premises.”’ No single ‘‘talismanic” factor is now determi-

native of one’s right to challenge, on Fourth Amendment

grounds, the lawfulness of search or seizure efforts. United

States v. Haydel, 649 F.2d 1152, 1154 (5th Cir. 1981), cert.

denied, 455 U.S. 1022 (1982). The general concept which

we apply, however, in determining appellant’s ability to

assert Fourth Amendment protections is contained in Katz

v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring): “{TJhere is a twofold requirement, first that

a person have exhibited an actual (subjective) expectation

of privacy and, second, that the expectation be one that

society is prepared to recognize as ‘reasonable.’’’ See

Oliver v. United States, __U.S. _, 80 L.Ed. 214, 223

(1984).

What, then, are the factors which may guide this de-

termination? We find that in establishing the reasonable-

ness of an asserted expectation of privacy, the following

factors should be considered:

1. What was the intent of the framers of the Fourth

Amendment? Oliver, supra at 224, citing United States v.

Chadwick, 433 U.S. 1 (1977). Chadwick involved the seizure

and search of a footlocker located in the open trunk of a

car parked outside a train terminal. Pointing out the mo-

bile nature of the vehicle, the government contended that

the Fourth Amendment was never intended to protect

items with such tenuous linkage to the accepted concept

of home or dwelling. The government’s view was in sup-

port of a narrow interpretation of the amendment applied

only to “interests traditionally identified with the home.”

After examining afresh the historical experiences of the

colonists with the arbitrary and generally unlimited war-

194

rants issued by British colonial authorities, the Court re-

jected -this narrow interpretation offered by the

government and found no intention by the framers to limit

the protections of the amendment to areas closely embod-

ied in a person’s home or dwelling. Instead, the Court

found that there had been a sufficient “manifestation,” by

the owners of the double-locked footlocker, of ‘‘an expec-

tation that the contents would remain free from public

examination.” This expression of subjective reliance was,

in the view of the Court, fully consonant with the purposes

of the Fourth Amendment. Jd. at 11.

2. What was the nature and character of the petitioner’s

presence on the premises or area of the search? Rakas v.

Illinois, 4839 U.S. 128 (1978). While the Court in its de-

cision in Rakas was critical of the potentially broad sweep

of the “legitimately on the premises’ concept expressed

in Jones, had, by the character of his presence: key to the

apartment, storage of his clothing there, and one overnight

stay, established a “lawful presence.”” Rakas, at 141. The

Court viewed of minor importance the “‘arcane’’ concepts

of property law, i.e., “guests,” “invitees,” “visitors.” Id.,

at 148. What were viewed as substantial indicators of

Jones’ right to assert his Fourth Amendment claims were

those personal linkages to the subject premises which fo-

cused clearly on the petitioner’s actions and authority

rather than the nature of the property itself. Jones’ au-

thority to be on the premises, his limited dimension and

control which included the right to exclude others, and his

actions taken to insure privacy were considered significant

determinants of his right to claim constitutional protection

from government intrusion into an apartment dwelling

owned and occupied by a third party. Rakas, at 149.

3. Has our society placed sufficient value upon the spe-

cific type of area involved to justify Fourth Amendment

protection? Oliver, at 224. The surviving concepts of Jones

focus on the petitioner’s linkages to the premises or area

rather than to an analysis of the premises or area searched.

20a

Rakas, at 141-43. An analysis of the physical setting is

obviously required, however, lest the reach of Fourth

Amendment protections be extended beyond objectively

reasonable limits. Few would contend, for example, that

one who maintains full possessory and ownership “rights’’

to an unlabeled, locked, suitcase left unattended in a bar-

racks recreation room or in the center of a base parade

ground, could challenge, on Fourth Amendment grounds,

the seizure and search of that suitcase by government

agents. Proof by the owner of the suitcase that he pos-

sessed the only set of keys to the suitcase locks, that the

contents and suitcase were unquestionably his private pos-

sessions, and that he had inadvertently left the suitcase

unattended, would not trigger Fourth Amendment protec-

tion. The reason for barring the constitutional protection

is not related to the personal ownership or possessory

rights of the petitioner to the suitcase or its contents, or

the lack thereof, but to the character of the surrounding

premises or area in which the unlabeled suitcase was found.

The clearly public nature of recreation rooms and parade

grounds represent areas over which society is not prepared

to lay broad coverage of the Fourth Amendment. We can

discern, however, general and historic societal beliefs that

dwelling areas are accorded the maximum protection of

the amendment. The amendment also reaches from the

clearly constitutionally-protected dwelling areas of homes

and apartments, to military barracks and field tents and

across the spectrum of potential physical settings such as

automobiles and those public areas which possess a pro-

portional, imprecise, yet objectively reasoriable degree of

society’s valuation in terms of privacy expectations. See

generaliy Oliver, supra, 224-27; Payton v. New York, 445

U.S. 573 (1980); Marshall v. Barlow’s, Inc., 486 U.S. 307

(1978); United States v. Mitchell, 12 MJ 265 (CMA 1982);

cf. United States v. McCormick, 13 MJ 900 (NMCMR 1982).

The analysis which we now apply incorporates the above

factors:

2la

Recognizing the historical intent of the Fourth

Amendment, as judicially interpreted, did the

petitioner, at the time Sergeant Keane peered

through the venetian blind slot into ruom #414,

have a supportable, subjective expectation of pri-

vacy in that room, and was that subjective ex-

pectation objectively reasonable in the view of

society? Or, stated another way, to those gov-

ernment agents or officials facing similar search

situations: Are we here confronted with a situ-

ation in which the individual or individuals in-

volved have taken observable steps to insure

privacy over an area or location which, under the

circumstances, is obviously not open to public ob-

servation or inspection or to general public ac-

cess?

If the answer to either of the above delineating inquiries

is ‘‘yes,’’ then only the existence of exigent circumstances

will obviate the need for a valid search authorization or

clearly voluntary consent prior to initiating any search

efforts, if the subsequent admissibility of the evidence is

a concern. Compare Rule 312, Bodily Views and Intrusions;

Rule 313, Inspections and Inventories; and Rule 314,

Searches Not Requiring Probably Cause.

Application To Present Case

We have applied the above analysis to this case and we

find the trial judge erred in his denial of appellant’s mo-

tion. The circumstances are easily discernible, as previously

summarized in the trial record. We do not find, as the

trial judge apparently did, that the lack of ownership claim

to the room or its contents is determinative. We do find

the following factual circumstances determinative: (1) ap-

pellant’s authorized entry into, and presence in, the locked

room #414 at the instance of the assigned occupant of the

room, Lance Corporal Lansing, using, at the request of

22a

Lansing, the key to that room; (2) appellart’s subsequent

closing and locking of the room door; (8) the lack of public

view into the room because of the closed and locked door,

and the drawn venetian blinds at the only window; (4)

appellant’s use, once inside the room with Irish and Turner,

of a separate key to the lock on Lansing’s wall locker,

also at the insistence of Lansing and with the permission

of Lansing; and (5) the obtaining from within that locker,

the illegal drugs for distribution to Irish and Turner.

In consideration of these factual circumstances, we find:

(1) That appellant did have a supportable, subjective ex-

pectation of privacy in room #414 at the time Sergeant

Keane peered into the room via the slot in the closed

venetian blind, and (2) That appellant’s own, personal and

established expectation of privacy within room #414, was

objectively reasonable in terms of societal valuation not

because of general approval of drug trafficking but because

of society’s valuation of separate dwelling areas with

closed, locked entrance doors and windows blucked from

outside public view.

We recognize that we have previously distinguished mil-

itary barracks from on-base and off-base quarters assigned

to military personal for the purposes of arrest authority.

McCormick, supra, at 903-04. Here, however, we are deal-

ing not with the existence of foundation circumstances

supporting apprehension or arrest authority as in Mc-

Cormick. Here we find the existence of sufficient societal

value attached to dwelling areas, whether barracks or off-

base private dwellings, to warrant the protections of the

Fourth Amendment under the factual circumstances herein

presented.

Therefore, we find that appellant did possess adequate

interest in room #414 te challenge the legality of the gov-

ernment search and seizure in this case. MIL.R.EVID. 311.

Lawfulness Of Search

We find, contrary to the view of the trial judge, that

when Sergeant Keane peered through the minute opening

in the closed venetian blinds of room #414, he conducted

an unauthorized ‘‘search” of that room. United States v.

Bradshaw, 490 F.2d 1097 (4th Cir. 1974), cert. denied, 419

U.S. 895 (1974). We find no exigent circumstances to jus-

tify that search. MIL.R.EVID. 315(g). We further find that

the subsequent entry into the room and seizure of the

contraband drugs by Sergeant Keane and Staff Sergeant

Lenard was an outgrowth of the unlawful search actions

of Sergeant Keane, and subsequent submission in the face

of authority, by appellant. MIL.R.EVID. 316. We also find

that appellant’s giving up of the contraband was not a

consensual decision, but an acquiescence to the presence,

authority, and thinly veiled orders of his superiors. We

specifically find that the government did not establish, by

clear and convincing evidence, voluntary consent to search

in this case. MIL.R.EVID. 314(e). United States v. Chase,

1 MJ 275 (CMA 1976).

We therefore find the evidence which was the basis of

the charges in this case was inadmissible as being the

fruits of an unlawful search and seizure. MJL.R.EVID.

311.

This case is an example of the potential outcome when

officers or noncommissioned officers most likely to be con-

fronted with search and seizure situations fail to comply

with the procedures dictated by the Military Rules of Evi-

dence. There is no necessity to have a “‘duty’”’ lawyer or

legalman ‘“‘on call’’ in such circumstances. Any reasonable

leyman could have discerned the defect in the initial report

of Sergeant Keane to his platoon sergeant, Staff Sergeant

Lenard, prior to the entry into room #414. Sergeant

Keane’s observation had clearly been the result of the

peeping through the venetian biind slot. There were no

24a

public or “plain view” circumstances present. Alternative

procedures, however, were available. Sufficient observation

of the number, type, and character of traffic to the room

earlier in the day appears to have provided ample probable

cause to support a request for search authorization. Cer-

tainly adequate justification was available for the platoon

sergeant or Sergeant Keane to have halted anyone at-

tempting to leave the room until a search authorization

was obtained.

Instead, two apparently experienced noncommissioned

officers proceeded to engage in a course of action that

was both unnecessary and unlawful. The search procedures

necessary under the rules of evidence are not so esoteric

or complex that they cannot be applied by all officers and

noncommissioned officers of the naval service. These Pro-

cedures can be easily incorporated into a!l officer and non-

commisioned officer professional military training schedules

as they are for officer and enlisted law enforcement per-

sonnel. The training and indoctrination of personnel in

authority positions in appropriate search and seizure and

often related interrogation procedures is not aimed at the

production of additional judge advocates, but rather the

development of officers and noncommissioned officers

equipped to carry out their statutory responsibilities. Ev-

identiary procedures rest most persuasively, not upon lofty

and legalistic pronouncements, but upon basic concepts of

reasonableness, fairness, and our Constitution. Failure to

follow these procedures, as here, invite ultimate remedial

action at the appellate level.

The findings and sentence as approved below are set

aside. The findings of guilty are reversed. The record of

trial is returned to the Judge Advocate General of the

Navy for transmittal to the appropriate convening au-

thority. A rehearing may be ordered.

/s/ J. S. May

J. S. May

25a

Chief Judge EOFF and Judge RAPP concur.

Is! Albert W. Eoff Il

ALBERT W. EorrF II

/s/ Michael D. Rapp

MICHAEL D. Rapp