Petition for Writ of Certiorari — Jacobs v. United States
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Supreme Court, Us.
90- 999 DEC 21 19%
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IN THE
Supreme Court of the United Stairs
OCTOBER TERM, 1990
DARRYL S. JACOBS,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Ceriiorari to the
United States Court of Military Appeals
PETITION FOR A WRIT OF CERTIORARI
RICHARD W. ALDRICH
Captain, Office of The Judge
Advocate General
United States Air Force
HQ USAF/JAJD
Bldg 5683
Bolling AFB, DC 20332-6128
(202) 767-1562
Counsel of Record
PAUL M. DANKOVICH
Captain, Office of The Judge
Advocate General
United States Air Force
December 1990 Counsel for Petitioner
|
QUESTION PRESENTED
Whether, under Arizona v. Hicks, 480 U.S. 321
(1987), the Government bears a burden of proving by
“clear and convincing” evidence, that the fruits of a
contested search properly fit within the “plain view” ex-
ception.
(i)
TABLE OF CONTENTS
(iii)
Page
a aiapencdiiccepahinenatonatonnnses 1
EEN ETE 1
ELT 2
Reasons for Granting the Writ ......................--........-.--------- 3
SESE GEE TE © Rn ee 7
Se a la
EGS SC A aS 5a
TABLE OF AUTHORITIES
CASES:
Arizona v. Hicks, 480 U.S. 321 (1987) ........... i, 3, 4, 5, 6,7
Bumper v. North Carolina, 391 U.S. 543 (1968) .... 6
Coolidge v. New Hampshire, 403 U.S. 443 (1971) 5
Horton v. California, U.S. ——, 110 S. Ct.
SRN 5
Mincey v. Arizona, 437 U.S. 385 (1978) -................. 5
Texas v. Brown, 460 U.S. 730 (1988) ........000000000.... 5
United States v. Dubay, 17 C.M.A. 147, 37 C.M.R.
EE A SS A 4
United States v. Jacobs, 31 M.J. 188 (C.M.A.
EEE SR APPR NES aa Sm 1,4
United States v. Jacobs, ACM 27140 (A.F.C.M.R.
GREE EIR REIS AN nO 1,3
United States v. Queen, 26 M.J. 186 (C.M.A.
EINES aE SI On eT RO 4,5
United States v. Portt, 21 M.J. 333 (C.M.A. 1986) .. 4
United States v. Volante, 4 C.M.A. 689, 16 C.M.R.
a cpedisennniniedbiohbaabe 4
STATUTORY AUTHORITIES:
| i: Ee. 1
28 U.S.C. § 1259(3) (Supp. 1990)..............-- 1
REGULATORY AUTHORITIES:
Rule for Courts-Martial 910 (a) (2) .........--..-0---2....... 2
Military Rule of Evidence 311 (e) (1) —..................... 6
IN THE
Suprene Court of the United States
OCTOBER TERM, 1990
No. —
DARRYL 8S. JACOBS,
. Petitioner,
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Military Appeals
PETITION FOR A WRIT OF CERTIORARI
The petitioner, Darryl S. Jacobs, 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 25, 1990.
OPINIONS BELOW
The United States Air Force Court of Military Review
issued an unreported decision on May 16, 1989 (Appen-
dix A). The decision of the United States Court of Mili-
tary Appeals is reported at 31 M.J. 138 (Appendix B).
JURISDICTION
The final order of the United States Court of Military
Appeals was entered on September 25, 1990. The juris-
diction of this Court is invoked under 28 U.S.C. § 1259
(3) (1988) and 10 U.S.C. § 867(h) (Supp. 1990).
(1)
2
STATEMENT OF THE CASE
In June 1988 the petitioner, an Air Force senior air-
mr~ (E-4), was tried by a general court-martial at
B Air Force Base (AFB), California. Pursuant to
a. ditional guilty plea, the petitioner was convicted of
a variety of offenses that involved the theft and destruc-
tion of government and private property.’ The petitioner
was sentenced to a dishonorable discharge, confinement
for 18 years, forfeiture of all pay and allowance, and re-
duction to airman basic (E-1). His confinement was sub-
sequently reduced to six years pursuant to a grant of
clemency.
The petitioner and his family resided in an off-base
apartment in Marysville, California. During the relevant
time period, he and his family were vacationing in Vir-
ginia. On or about January 14, 1988, a plumbing emer-
gency developed in a neighboring apartment. Eventually,
the source of the problem was traced to the petitioner’s
apartment. Thereafter, the landlord and a plumber en-
tered the apartment and discovered it was “trashed.”
Namely, the apartment reeked from spoiled food and was
in a state of disarray. The landlord telephoned the peti-
tioner’s unit at Beale AFB, and prevailed upon Staff
Sergeant (SSgt) Johnston, a security policeman, to come
and inspect the apartment. Johnston was the petitioner’s
supervisor.
The next day SSgt Johnston went to the petitioner’s
apartment. Johnston was clad in civilian attire because
he was not on duty. Upon entering the apartment,
Johnston saw a typewriter that was situated on the liv-
ing room floor and plugged into a nearby socket. John-
1 Rule for Courts-Martial (R.C.M.) 910(a) (2), Manual for Courts-
Martial, United States, 1984, permits an accused to enter a guilty
plea while preserving appellate review on an, adverse determination
of a specified pretrial motion. “If the accused prevails on further
review or appeal, the accused shall be allowed to withdraw the plea
of guilty.” /d.
3
ston told the landlord he suspected the typewriter was
stolen. The landlord informed Johnston about the pres-
ence of other typewriters in the apartment. Thereafter,
Johnston conducted a room-to-room examination of the
appellant’s residence. Moreover, he copied the serial
numbers off several items—typewriters, televisions, video
cassette recorders, computers, and computer accessories—
that were located therein. Johnston testified that these
serial numbers were in “plain view.”
SSgt Johnston compared these serial numbers against
the base’s police records. After confirming the stolen na-
ture of this property, a state search warrant was ob-
tained and the items were seized.
REASONS FOR GRANTING THE WRIT
I
At trial the petitioner sought to suppress the seized
property on the basis of Johnston’s “examination” of the
same. The trial judge denied this motion because he
found SSgt Johnston had not acted in a governmental
capacity. Hence, the trial judge never reached the issue
of whether or not the property was moved.
The Air Force Court of Military Review adopted the
same analysis. Moreover, the court gratuitously devel-
oped the trial findings by holding that Johnston did not
move any of the property because the serial numbers
were in “plain view.” United States v. Jacobs, ACM
27140, slip op. at 2-3° (A.F.C.M.R. May 16, 1989).
The Court of Military Appeals first addressed the mat-
ter of SSgt Johnston’s status. In particular, the Court
held as follows:
2 The court also noted that “SSgt Johnston’s suspicions rested on
a much firmer basis [than existed in Arizona v. Hicks, 480 U.S. 321
(1987) ].” United States v. Jacobs, ACM 27140 slip op. at 2
(A.F.C.M.R. May 16, 1989).
4
There was no simply private motivation for Sergeant
Johnston’s conduct which would place this case within
the ambit of our earlier decisions. Such conduct is
unquestionably official or governmental within the
meaning of United States v. Volante, [4 C.M.A.
689, 16 C.M.R. 263 (1954)] and United States v.
Portt, (21 M.J. 333 (C.M.A. 1986)] .... Accord-
ingly, the Fourth Amendment applies in this case.
United States v. Jacobs, 31 M.J. 188, 148 (C.M.A. 1990).
Nonetheless, the Court of Military Appeals affirmed the
lower court decision because “the serial numbers were
‘in plain view’... .” Jd. at 145. The court rejected,
without discussion, the circumstantial evidence that sug-
gested a contrary conclusion. Jd. Likewise, the court re-
jected, without discussion, the need for a post-trial evi-
dentiary hearing. /d.°
In an insightful dissent, Chief Judge Everett made the
following observation:
In this case, it is not clear from the record what
Sergeant Johaston did in order to see and record
the serial numbers of the equipment he saw when he
entered the apartment. Therefore, I do not know
whether he did or did not comply with [Arizona v.]
Hicks [480 U.S. 321 (1987) }.
United States v. Jacobs, 31 M.J. 188, 149 (C.M.A. 1990)
(Everett, C.J., dissenting).
II
Subject to a few well-recognized exceptions, the Fourth
Amendment requires all searches and seizures tc be con-
ducted with the prior approval of a judge or magistrate.
$In the military these hearings are known as Dubay hearings.
United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
Dubay hearings may be ordered in cases where the “record is un-
clear” on whether or not the Government has satisfied its burden of
proof relative to a search and seizure issue. United States v. Queen,
26 M.J. 136, 142 (C.M.A. 1988) at n.2.
5
Mincey v. Arizona, 487 U.S. 385 (1978). The plain view
doctrine is one such exception. Arizona v. Hicks, 480
U.S. 321 (1987); Texas v. Brown, 460 U.S. 730 (1983) ;
Coolidge v. New Hampshire, 403 U.S. 443 (1971).
The plain view doctrine permits a warrantless seizure
under limited circumstances. Hicks, Brown, Coolidge,
supra. The initial intrusion must be lawful so as to jus-
tify the discovery. Coolidge, supra. However, the dis-
covery does not necessarily have to be inadvertent. Hor-
ton v. California, —— US. —, 110 S. Ct. 23801
(1990). Finally, the police must have probable cause to
believe the item seized was evidence of a crime. Hicks,
supra. Moreover, it must be immediately apparent that
the observed item was subject to seizure. Coolidge, supra.
In the instant case, the petitioner concedes the lawful
presence of SSgt Johnston. Similarly, the petitioner con-
cedes the inadvertence of his discovery. However, the
petitioner takes strong exception to any finding of prob-
able cause. In light of the decision of the Court of Mili-
tary Appeals, the petitioner first challenges the holding
that SSgt Johnston did not move the items in question.
That is, the probable cause issue must be deferred until
an evidentiary hearing determines whether or not John-
ston moved any of the items while obtaining the serial
numbers. United States v. Queen, 26 M.J. 136, 142
(C.M.A. 1988) at n. 2.
III
The focus of this petition is on whether or not the
Government sustained its burden of proof. Of course,
this issue takes on a heightened significance in light of
the decision in Arizona v. Hicks, 480 U.S. 321 (1987).
Namely, moving an item “ ‘even a few inches’ is much
more than trivial for purposes of the Fourth Amend-
ment.” Jd. at 325. Yet, the Court of Military Appeals,
in its application of Hicks, effectively relaxed the Gov-
ernment’s burden via conclusory evidence.
6
The Government is only obligated to prove, by a pre-
ponderance of evidence, that the offered evidence was
not obtained by an unlawful search and seizure. Mil. R.
Evid. 311(e) (1). However, the facts in the instant case
illustrate the inadequacies of this standard. That is,
conclusory evidence fails to account for the unique in-
trusions that exist under Hicks. Again, “even a few
inches” is not trivial. Arizona v. Hicks, 480 U.S. at 325.
Accordingly, this type of search, by definition, should re-
ceive special treatment. For example, this Court has
carved the following exception in the case of consent
searches:
When a prosecutor seeks to rely upon consent to
justify the lawfulness of a search, he has the burden
of proving that the consent was, in fact, freely and
voluntarily given .... This burden cannot be dis-
charged by showing no more than acquiescence to a
claim of lawful authority.
Bumper v. North Carolina, 391 U.S. 548, 548-549 (1968).
The underlying facts are not especially profound or
complicated. This case involves a security policeman who
flitted from item-to-item like a butterfly in a field of
clovers. In the process he located and recorded a string
of minute serial numbers.‘ Yet, the Court of Military
Appeals held that SSgt Johnston did not move any of
these items because of his “plain view” testimony. With
a twinge of sarcasm, Chief Judge Everett pointed out in
his dissent the shaky basis upon which the two-judge
majority opinion must rest:
With little, difficulty—and with much amusement—
one can imagine a well-trained police officer stumbling
onto stereo components, as in Hicks, or office equip-
ment, as in this case, and contorting and distorting
his body in all sorts of ways in an effort to read
4 See (Pros. Exs. 5-12, 21-23). None of these photographs reveal
any visible serial numbers.
7
serial numbers without touching the objects them-
selves ....
United States v. Jacobs, 31 M.J. at 148.
This case graphically illustrates that oblique infer-
ences are inapposite with this Court’s decision in Hicks.
Hence, there is a compelling need to complement Hicks
with a clear and convincing standard of proof. Other-
wise, judicial artistry will vitiate the privacy interests
this Court sought to protect.
CONCLUSION
The petitioner’s case is worthy of Supreme Court re-
view. In particular, this case offers a unique opportun-
ity to address the Government’s burden of proof in
claiming a plain view exception to a contested search
under Hicks. Therefore, this Petition for Writ of Cer-
tiorari should be granted.
Respectfully submitted,
RICHARD W. ALDRICH
Captain, Office of The Judge
Advocate General
United States Air Force
HQ USAF/JAJD
Bldg 5683
Bolling AFB, DC 20332-6128
(202) 767-1562
Counsel of Record
PAUL M. DANKOVICH
Captain, Office of The Judge
Advocate General
United States Air Force
December 1990 Counsel for Petitioner
APPENDICES
la
APPENDIX A
UNITED STATES AIR FORCE
COURT OF MILITARY REVIEW
ACM 27140
16 May 1989
UNITED STATES
Vv.
Senior Airman DARRYL 8. JACOBS, FR 231-90-1414
UNITED STATES AIR FORCE
Sentence adjudged 17 June 1988 by GCM con-
vened at Beale Air Force Base, California. Mil-
itary Judge: William H. Karr.
Approved Sentence: Dishonorable discharge, con-
finement for six (6) years, forfeiture of all pay
and allowances and reduction to airman basic.
Appellate Counsel for the Appellant: Colonel Richard
F. O’Hair and Captain Paul M. Dankovich.
Appellate Counsel for the United States: Colonel Joe
R. Lamport, Lieutenant Colonel Robert E. Giovagnoni,
Major Kathryn I. Taylor and Captain Morris D. Davis.
Before
LEWIS, BLOMMERS and KASTL
Appellate Military Judges
DECISION
PER CURIAM:
The appellant pleaded guilty to willful damage to and
suffering wrongful disposal of military property, nine
2a
specifications of larceny of both private and government
owned property, and wrongfully opening mail matter.
A majority of the offenses occurred while the appellant
was on duty as a security police patrolman. He was sen-
tenced by a panel of members to a dishonorable discharge,
confinement for 18 years, forfeiture of all pay and al-
lowances and reduction to airman basic. The general
court-martial convening authority approved the sentence
except for the length of confinement, which he reduced
to six years.
Motions to suppress evidence seized from the appel-
lant’s off base apartment and the appellant’s subsequent
oral admissions were litigated at trial. The military
judge denied the motions. However, the issues raised are
preserved for appellate review by the appellant’s condi-
tional pleas of guilty. R.C.M. 910(a) (2). We resolve
these issues adversely to the appellant.
Items of stolen property were discovered in the appel-
lant’s off base residence by Staff Sergeant (SSgt) Johns-
ton, the appellant’s flight chief and second line super-
visor. SSgt Johnston had responded to an angry call
from the appellant’s landlord that the apartment, which
had been left in the care of another airman in the ap-
pellant’s absence on terminal leave, was in a “trashed”
condition. SSgt Johnston, on entering the apartment,
noted not only the unsightly condition the apartment was
in but an electric typewriter in plain view on the floor.
In looking around the apartment he noted various com-
puter components and a television/video player sitting
on the floor. He immediately suspected that these were
items of stolen property. He recalled having seen reports
of thefts of such property in the security police blotter
and having subsequently reported on them at various
guard mount formations. Although he did not articulate
it, he was also undoubtedly aware that the appellant,
who performed base patrol duties, would have had an
opportunity to pilfer government property if he were so
3a
inclined. He copied several serial numbers, also in plain
view according to his testimony, and verified his suspi-
cion later that day. A subsequent search and seizure
were conducted based on this information.
We find that SSgt Johnston was lawfully on the ap-
pellant’s premises at the invitation (indeed, the insis-
tence) of the landlord, an individual who was authorized
to grant him access under the circumstances at hand.
See generally, United States v. Clow, 26 M.J. 176 (C.M.A.
1988), which is partially distinguishable in that author-
ities therein were on the accused’s premises for a clearly
defined criminal investigative purpose. We do not agree
with appellate defense counsel that SSgt Johnston’s ac-
tions in copying down the serial numbers of certain items
of property constituted a warrantless search of the type
condemned by the Supreme Court in Arizona v. Hicks,
480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
While Hicks establishes important principles for in-
vestigators and practitioners, it describes a peculiar fac-
tual scenario which is materially distinct from the situ-
ation before us. For instance, in Hicks, police who re-
sponded to the scene of a reported shooting incident be-
came suspicious upon noticing expensive stereo compo-
nents on the premises. They believed that the equipment
appeared to be out of place in a “squalid and otherwise
ill-appointed” environment. 480 U.S. at 323. We con-
clude that SSgt Johnston’s suspicions rested on a much
firmer basis. Another important distinction between the
instant situation and Hicks is in SSgt Johnston’s testi-
mony that the serial numbers he copied were in plain
view. In Hicks, the testifying officer stated that it was
necessary that he move several items of equipment so
that he -aight view serial numbers for the purpose of
obtaining information for identification purposes. See the
Court’s discussion of the Fourth Amendment implications
of this testimony. 480 U.S. at 324-325,
4a
Based on the analysis set forth above, we conclude that
the military judge properly denied the motion to sup-
press the fruits of the search that was subsequently con-
ducted based on information furnished by SSgt Johnston.
We also conclude that the military judge properly denied
the motion to suppress the appellant’s oral admissions.
United States v. Collier, 1 M.J. 358 (C.M.A. 1976).
The findings of guilty and sentence are correct in law
and fact and, on the basis of the entire record, are
AFFIRMED.
[SEAL]
OFFICIAL:
/s/ Mary V. Fillman
Mary V, FILLMAN
Captain, USAF
Chief Commissioner
5a
APPENDIX B
U.S. COURT OF MILITARY APPEALS
No. 63,087
ACM 27140
UNITED STATES,
. Appellee,
DARRYL §. JAcoBs, Senior Airman, U.S. Air Force,
Appellant.
Argued March 6, 1990
Decided Sept. 25, 1990
For Appellant: Captain Paul M. Dankovich (argued) ;
Colonel Richard F. O’Hair (on brief).
For Appellee: Captain Morris D. Davis (argued);
Colonel Robert E. Giovagnoni (on brief) ; Colonel Joe R.
Lamport, Major Terry M. Petrie, Major Paul H. Black-
well, Jr.
Amicus Curiae: For reversal—St. Mary’s University
School of Law Board of Advocates: Roderick Regan and
Phillip McClure (argued); Melinda Davis, Jerry J. Jar-
zombek, Fred Leon III, Sara Murray, Timothy Myer,
David Surratt, Law Students, and David A. Schlueter,
Esq., Professor of Law (on brief).
Opinion of the Court
SULLIVAN, Judge:
During June of 1988, appellant was tried by a general
court-martial with members at Beale Air Force Base,
California. In accordance with his pleas he was found
guilty of willfully damaging military property, wrong-
6a
fully disposing of military property, nine specifications of
larceny of both private and government property, and
wrongfully opening mail matter, in violation of Articles
108, 121, and 184, Uniform Code of Military Justice, 10
USC §§ 908, 921, and 934, respectively. The officer mem-
bers sentenced appellant to a dishonorable discharge, con-
finement for 18 years, total forfeitures, and reduction to
airman basic. The convening authority approved the sen-
tence except for confinement exceeding 6 years. The
Court of Military Review affirmed the findings of guilty
and sentence in an unpublished opinion dated May 16,
1989, 1989 WL 79187.
This Court granted review on the following question of
law:
WHETHER THE AIR FORCE COURT OF MILI-
TARY REVIEW ERRED WHEN IT HELD THAT
ARIZONA v. HICKS, 480 U.S. 321, 107 S.Ct. 1149,
94 L.Ed.2d 347 (1987), DID NOT APPLY.
We hold that the Court of Military Review did not err
in this regard or in affirming the judge’s ruling admit-
ting evidence seized from appellant’s off-base apartment.
Appellant entered conditional pleas of guilty in this
case. Under RCM 910(a)(2), Manual for Courts-
Martial, United States, 1984, and with the consent of the
Government, he reserved the right to appellate review of
an adverse ruling on his pretrial motion to suppress evi-
dence seized from his off-base residence. The granted is-
sue questions the correctness of the opinion below affirm-
ing this ruling.
The military judge at trial denied several pretrial mo-
tions by the defense to suppress evidence, including one
based on an “illegal entry and search of the accused’s res-
idence by United States Air Force Personnel.” He said:
Counsel, I have before me two defense motions. The
first motion is to suppress the admissibility or ex-
clude unnamed property that was seized in the ac-
7a
cused’s apartment. In resolving this issue, I have
made findings of fact and conclusions of law.
I find that the accused’s residence was located at 719
H Street, Number B, Marysville, California; that the
accused rented the premises on a month-to-month
basis from Mr. and Mrs. Don Fredell; that during
the latter part of December 1987, the accused took
leave for approximately one month to Virginia. The
landlord, Mr. Fredell, was aware of the accused’s ab-
‘sence. That during the accused’s absence, an Airman
Bills, a fellow Security Policeman, occupied the
premises. The landlord was unaware of any specific
permission for Bills to reside in the apartment, but
was aware a military person was coming and going
from the apartment. That on or about the 14th of
January 1988, the landlord entered the accused’s
apartment without notification to the accused. The
landlord did not know how to notify the accused, and
it was necessary to effect emergency plumbing re-
pairs. Upon entry, he found the apartment in great
disarray with spoiled foods, opened foods, in his
words “trashed.” That from clothing he identified
the current occupant as Bills. Concerned over the
condition of his apartment and to ensure its proper
repair, he called the Beale Air Force Base Law En-
forcement desk. Eventually he ended up talking to
Staff Sergeant Johnston, who was the accused’s flight
chief. That Staff Sergeant Johnston declined to be
of assistance, but after Mr. Fredell’s insistence in-
cluding his threat to go directly to the base comman-
der for assistance, Staff Sergeant Johnston capitu-
lated, telling Mr. Fredell that it was not in any Air
Force or official capacity, but he would look and, if
necessary, counsel the accused or responsible parties
to ensure the deficiencies were corrected. That the
next day, off duty, while on a family outing, Staff
Sergeant Johnston appeared. After again ensuring
Mr. Fredell that he was not in any official capacity,
8a
Staff Sergeant Johnston, with Mr. Fredell, entered
the accused’s apartment. The narrow question be-
fore the court as expressed by defense counsel is—
was Staif Sergeant Johnston’s entry the result of a
private or governmental action sufficient to trigger
M.R.E. 311 and Fourth Amendment protections. In
my estimation, it goes without saying, that the ac-
cused had a legitimate right of privacy in the pre-
mises and had not abandoned it in allowing Bills to
occupy the premises. Only law enforcement agencies
acting solely in their capacity or those holding direct
disciplinary control over an accused exercise that de-
gree of governmental activity to—that is required to
make such an entry or search official. In this case,
Staff Sergeant Johnston, although in law enforce-
ment, was off duty. had no suspicion of crimes hav-
ing been committed, and was responding solely to
ensure the complainant did not escalate his com-
plaints. He was not responding as a law enforce-
ment official.
The issue of whether Staff Sergeant Johnston was
one holding direct disciplinary control over the ac-
cused is not so easily resolved. Staff Sergeant John-
ston was senior in rank to the accused. He was the
accused’s flight chief and first indorser on his Air-
man Performance Reort. He was also charged with
supervisory duties over the accused while they were
on shift. However, within the services, everyone is
just about going to outrank someone. Not everyone
who’s senior in grade in the military exercises such
control. Staff Sergeant Johnston himself was not em-
powered to discipline but to advise and inform those
senior, somewhat as would any other senior NCO
who was not at all related to the accused’s duties.
During the totality of the circumstances of this case,
I find that Staff Sergeant Johnston’s response was
because he was the flight chief but not as a flight
chief. This reluctant response was solely to preclude
9a
the complaint of the irate landlord from escalating
through command structures. As such, he was not
there in an official capacity, and the motion to sup-
press is denied.
The Court of Military Review affirmed the judge’s de-
cision. It said:
Items of stolen property were discovered in the
appellant’s off base residence by Staff Sergeant
(SSgt) Johnston, the appellant’s flight chief and sec-
ond line supervisor. SSgt Johnston had responded to
an angry call from the appellant’s landlord that the
apartment, which had been left in the care of an-
other airman in the appellant’s absence on terminal
leave, was in a “trashed” condition. SSgt Johnston,
on entering the apartment, noted not only the un-
sightly condition the apartment was in but an elec-
tric typewriter in plain view on the floor. In looking
around the apartment he noted various computer
components and a television/video player sitting on
the floor. He immediately suspected that these were
items of stolen property. He recalled having seen
reports of thefts of such property in the security
police blotter and having subsequently reported on
them at various guard mount formations. Although
he did not articulate it, he was also undoubtedly
aware that the appellant, who performed base patrol
duties, would have had an opportunity to pilfer gov-
ernment property if he were so inclined. He copied
several serial numbers, also in plain view according
to his testimony, and verified his suspicion later that
day. A subsequent search and seizure were con-
ducted based on this information.
We find that SSgt Johnston was lawfully on the
appellant’s premises at the invitation ‘indeed, the
insistence) of the landlord, an individual who was
authorized to grant him access under the cireum-
stances at hand. See generally United States v.
10a
Clow, 26 MJ 176 (CMA 1988), which is partially
distinguishable in that authorities therein were on
the accused’s premises for a clearly defined criminal
investigative purpose. We do not agree with appel-
late defense counsel that SSgt Johnston’s actions in
copying down the serial numbers of certain items of
property constituted a warrantless search of the type
condemned by the Supreme Court in Arizona v.
Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347
(1987).
While Hicks establishes important principles for
investigators and practitioners, it describes a pecu-
liar factual scenario which is materially distinct
from the situation before us. For instance, in Hicks,
police who responded to the scene of a reported
shooting incident became suspicious upon noticing
expensive stereo components on the premises. They
believed that the equipment appeared to be out of
place in a “squalid and otherwise ill-appointed”’ en-
vironment. 480 U.S. at 323 [107 S.Ct. at 1152]. We
conclude that SSgt Johnston’s suspicions rested on a
much firmer basis. Another important distinction
between the instant situation and Hicks is in SSqgt
Johnston’s testimony that the serial numbers he cop-
ied were in plain view. In Hicks, the testifying offi-
cer stated that it was necessary that he move several
items of equipment so that he might view serial
numbers for the purpose of obtaining information
for identification purr -°s. See the Court’s discus-
sion of the Fourth ..mendment implications of this
testimony. 480 U.S. at 324-325 [107 S.Ct. at 1152-
53].
Based on the analysis set forth above, we conclude
that the military judge properly denied the motion
to suppress the fruits of the search that was sub-
sequently conducted based on information furnished
by SSet Johnston. We also conclude that the mili-
tary judge properly denied the motion to suppress
lla
the appellant’s oral admissions. United States v. Col-
lier, 1 MJ 358 (CMA 1976).
Unpub. op. at 2-3 (emphasis added).
The challenged pieces of evidence in this case were the
stolen items seized from appelant’s off-base apartment by
civilian police pursuant to a civilian search warrant.
This search warrant was based on an affidavit obtained
from appellant’s flight commander, Sergeant Johnston.
The affidavit included an assertion that the serial num-
bers which he copied from items in appellant’s apart-
ment matched the numbers of items on an Air Force
stolen-property report. Appellant and Sergeant Johnston
both were members of a military police squadron.
I
It is “conceded” by appellate defense counsel “that
SSgt Johnston went to... appellant’s apartment in a
private capacity” at the request of the complex’s land-
lord. Nevertheless, he now contends that Sergeant John-
ston’s capacity became official on entering the apartment
and prior to his acquiring the information on which the
challenged warrant was based. Moreover, he claims that
Sergeant Johnston’s purported action in moving the
stolen items to see and record their serial numbers was
an unlawful search and seizure prohibited by the Fourth
Amendment as applied in Arizona v. Hicks, supra. Fi-
nally, he asserts that this illegal search and seizure in-
validated the subsequently obtained civilian warrant.
The defense’s argument before this Court clearly rests
on the Supreme Court decision in Arizona v. Hicks, su-
pra. We note, however, that civilian defense counsel did
not make this particular argument at appellant’s court-
martial. Instead, he rested his search-and-seizure claim
on Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776,
5 L.Ed.2d 828 (1961), and United States v. Warner, 843
F.2d 401 (9th Cir. 1988). He contended that Sergeant
Johnston was a government official whose entry into ap-
12a
pellant’s apartment, even with the consent of the land-
lord, violated the Fourth Amendment. The military judge
rejected this particular search-and-seizure argument be-
cause he concluded that Sergeant Johnston was acting in
a private capacity when he entered the apartment and
discovered the suspected stolen items. See United States
v. Portt, 21 MJ 333 (CMA 1986); United States v.
Volante, 4 USCMA 689, 16 CMR 263 (1954). Accord-
ingly, he concluded that Fourth Amendment strictures
did not apply to Sergeant Johnston’s actions in this case.
See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct.
1652, 80 L.Ed.2d 85 (1984); Coolidge v. New Hamp-
shire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564
(1971); Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct.
574, 65 L.Ed. 1048 (1921).
Before the Court of Military Review, military appel-
late counsel proffered a different official-action argument
from the one made by civilian defense counsel at this
court-martial. As noted above, he conceded that Sergeant
Johnston came to appellant’s apartment in a non-govern-
mental capacity. However, he asserted that Sergeant
Johnston’s status changed when he entered the apart-
ment, saw the suspected items, and began acting like a
police officer investigating a crime. He relied heavily on
this Court’s decision in United States v. Duga, 19 MJ
206 (CMA 1981), for his motivational approach to the
governmental-capacity question. Accordingly, he argued
that the military judge erred in denying the defense
suppression motion simply on the basis of Sergeant Johns-
ton’s private capacity in entering the apartment.
Appellate counsel at this time also raised an additional
search-and-seizure claim based on Arizona v. Hicks, su-
pra. He asserted that “Sergeant Johnston must have
handled” or “juggled” or “turned” or “tilted” or “moved”
these items to see and record their serial numbers. Such
conduct, he asserts, was a search under Arizona v. Hicks,
supra, requiring probable cause which did not exist in this
case.
13a
The Court of Military Review rejected both these ar-
guments. Relying on United States v. Clow, supra, it
stated that Sergeant Johnston was lawfully on appel-
lant’s premises at the insistence of the landlord for non-
criminal investigative purposes. Furthermore, relying on
Arizona v. Hicks, supra, it stated that the serial numbers
in this case “were in plain view” and did not require
movement to be recorded. Finally, it held that Sergeant
Johnston had more than mere suspicion that the items
he observed were stolen. Unpub. op. at 2.
Before this Court, appellate counsel now asserts that
the Court of Military Review implied in its decision that
Sergeant Johnston was acting in a governmental capacity.
He notes that the judge reached a different conclusion
on this question. Yet, he does not pursue the earlier con-
tention made at trial that a landlord could not lawfully
consent to such an entry by such an official into his
tenant’s apartment. See Chapman v. United States, su-
pra. Instead, appellate counsel focuses on the Arizona v.
Hicks, supra, argument as previously described. He also
requests a DuBay' hearing to support his claim. Sev-
eral distinct questions arise in this context.
II
A preliminary question we must consider in this case
is whether Sergeant Johnston was acting in an official
or governmental? capacity when he entered appellant’s
apartment. See generally United States v. Volante, su-
pra. The military judge concluded that his action was
private in nature. See Uniteu States v. Portt, supra.
1 United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).
2 Mil. R. Evid. 311(a), Manual for Courts-Martial, United States,
1984, speaks in terms of “governmental capacity,” while this Court’s
opinion speaks in terms of “official capacity.” Either description
suffices to capture the concept of sovereign or governmental author-
ity delineated in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65
L.Ed. 1048 (1921).
l4a
The Court of Military Review’s opinion implied his con-
duct was official but nonetheless found it was authorized
under the circumstances of this case.
We agree with the Court of Military Review, despite
Sergeant Johnston’s disclaimers of officiality, his failure
to wear a uniform, and the off-duty occurrence of his
action. He admitted that he intended to brief his com-
mander and counsel his subordinate concerning damage
to the apartment and necessary repairs. In this light, he
was performing a routine command function in caring
for his men which ultimately benefited the Air Force.*
3 Paragraph 7a(4), Air Force Regulation 39-6M, The Enlisted
Force Structure (March 7, 1986), states:
(c) Senior NCOs must be alert to detect adverse morale
trends and provide feedback to commanders, immediate super-
visors, officers, and staff chiefs. They must devote total effort
in resolving the causes of any problem before it becomes a
major issue. They must be available to counsel and provide
guidance to their subordinates.
(d) Senior NCOs must establish and maintain rapport and
communication with subordinates to remain attuned to their
needs. By personal example and leadership, they encourage and
motivate both on and off duty involvement in unit activities.
(e) Senior NCOs must ensure that enlisted members are
treated fairly by all agencies and activities, both on and off base.
The senior NCO must also ensure that those agencies and re-
sponsible personnel are informed whenever such principles are
violated and uncorrected deficiencies are reported to appropriate
officials.
(f) The senior NCO must take the lead in achieving, main-
taining, and enforcing Air Force standards, as well as good
order and discipline.
Paragraph 7b(4) of AFR 39-6M provides:
(4) Role and Use. NCOs are first-line supervisors. They
must be used in positions that permit the use of both their
supervisory and technical skills. They must, both on and off
duty, demonstrate the exemplary attributes of dedicated profes-
sional NCOs by:
15a
There was no simply private motivation for Sergeant
Johnston’s conduct which would place this case within
the ambit of our earlier decisions. Such conduct is un-
questionably official or governmental within the meaning
of United States v. Volante and United States v. Portt,
both supra. Accordingly, the Fourth Amendment applies
in this case.
In this light, it is unnecessary to address appellate
counsel’s changed-motivation argument on officiality, which
was purportedly drawn from United States v. Duga, su-
pra, That case delineated the scope of official questioning
for purposes of Article 31, UCMJ, 10 USC § 831, in light
of the particular language of that statute. Cf. United
States v. Loukas, 29 MJ 385 (CMA 1990). To some ex-
tent, however, appelate counsel’s argument on this point
also suggests that the Fourth Amendment requires the
inadvertent discovery of the serial numbers which were
in plain view. This suggestion must be rejected. In
Horton v. California, U.S. ——, 110 S.Ct. 2301,
110 L.Ed.2d 112 (1990), the Supreme Court disowned
(a) Ensuring that personnel and resources under their con-
trol are effectively used.
(b) Remaining alert to detecting adverse morale trends and
initiating corrective action within their control; and providing
the appropriate feedback to superiors.
(c) Maintaining the highest level of communication and
rapport with subordinates, and remaining attuned to their
needs.
(d) Encouraging and motivating on and off duty ‘involve-
ment in unit-base activities by leading the way.
(e) Ensuring that people are treated fairly by all agencies
and activities, both on and off base; and initiating corrective
action._in any instance which violates this principle.
(f) Wearing the uniform properly and ensuring compliance
from subordinates.
(g) Encouraging and promoting physical fitness participa-
tion by leading the way.
16a
the so-called inadvertent-discovery aspect of the plain-
view doctrine.
III
An additional threshold question in this case, which
was not addressed by the military judge, is whether ap-
pellant’s landlord could lawfully invite Sergeant John-
ston to inspect appellant’s apartment for the purpose of
arranging necessary repairs. The Court of Military Re-
view, relying on the decision of this Court in United
States v. Clow, supra, held that the landlord lawfully
authorized access for a non-law-enforcement purpose in
this case. Both the lease agreement ‘ and applicable Cal-
ifornia law* permit a landlord and his agents to enter a
4 Appellant initially moved into Apartment A in an apartment
complex at 719 H Street, Marysville, California. This complex con-
sisted of apartments A, B, C, and D, and it was owned by Mr.
Fredell. At that time he signed a rental agreement which provided:
12. Upon not less than 24 hours advance notice, Tenant shall
make the demised premises available during normal business
hours to Landlord or his authorized agent or representative,
for the purpose of entering (a) to make necessary agreed
repairs, decorations, alterations or improvements or to supply
necessary or agreed services, and (b) to show the premises to
prospective or actual purchasers, mortgagees, tenants, work-
men or contractors. In an emergency, Landlord, his agent or
authorized representative may enter the premises at any time
without securing prior permission from Tenant for the purpose
of making corrections or repairs to alleviate such emergency.
He subsequently moved into Apartment B where the challenged
search occurred. Appellant admitted that he signed no new paper-
work and understood the original paperwork would apply with a
different apartment letter to be inserted. Over defense objection, the
military judge considered this agreement.
5 Cal. Civil Code § 1954 (West 1985), governing a landlord’s right
of access to a dwelling unit, states:
A Landlord may enter the dwelling unit only in the following
cases:
(a) In case of emergency.
(b) To make necessary or agreed repairs, decorations, altera-
tions or improvements, supply necessary or agreed services, or
ee ae |
MR tetieiteen ene
17a
tenant’s apartment in his absence to make emergency
repairs.
We agree with the implied finding of the court below
that an emergency situation existed in this case. Evi-
dence of record establishes that appellant’s apartment
was in a multiple unit complex, and it was producing
an egregious “stink” or odor which was detectable in at
least one other unit. Moreover, applicable California
case law supports the conclusion that no Fourth Amend-
ment violation occurs when a police officer enters a ten-
ant’s apartment in such circumstances at the behest of
the landlord¢and discovers evidence of crime in plain
view. People v. Plane, 274 Cal.App.2d 1, 78 Cal.Rptr.
528 (Cal.App. 1 Dist. 1969). See People v. Thompson,
25 Cal.App.3d 132, 101 Cal.Rptr. 683, 690 (Cal.App. 2
Dist.1972) ; People v. Minervini, 20 Cal.App.3d 832, 98
Cal.Rptr. 107, 111 (Cal.App. 2 Dist.1971); People v.
Henning, 18 Cal.App.3d 872, 96 Cal.Rptr. 294, 296 (Cal.
App. 1 Dist.1971). See generally United States v. Sledge,
650 F.2d 1075, 1080 n.10 (9th Cir.1981) ; People v. Sny-
der,, 218 Cal.App.3d 480, 266 Cal.Rptr. 915, 918 (Cal.
App. 4 Dist.1990).
exhibit the dwelling unit to prospective or actual purchasers,
mortgagees, tenants, workmen or contractors.
(c) When the tenant has abandoned or surrendered the
premises.
(d) Pursuant to court order.
Except in cases of emergency or when the tenant has aban-
doned or surrendered the premises, entry may not be made dur-
ing other than normal! business hours unless the tenant consents
at the time of entry.
The landlord shall not abuse the right of access or use it to
harass the tenant. Except in cases of emergency, when the
tenant has abandoned or surrendered the premises, or if it is
impracticable to do so, the landlord shall give the tenant reason-
able notice of his intent to enter and enter only during normal
business hours. Twenty-four hours shall be presumed to be
reasonable notice in absence of evidence to the contrary.
18a
Such an entry is materially different from the situation
presented in Chapman v. United States, supra. There, a
landlord consented to entry of a tenant’s apartment by
the police to search for evidence of a crime. Jd. 365 U.S.
at 616, 81 S.Ct. at 779; see United States v. Clow, supra
at 184. See also Jones v. United States, 357 U.S. 493,
500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). To
establish valid consent for that purpose, the landlord or
third party must have common authority over the prem-
ises which goes beyond a mere right to enter to make
emergency repairs. Chapman v. United States, supra;
see Illinois v. Rodriquez, U.S. , 110 S.Ct. 2798,
111 L.Ed.2d 148 (1990); United States v. Matlock, 415
U.S. 164, 171 n.7, 94 S.Ct. 988, 993 n.7, 39 L.Ed.2d 242
(1974). The same degree of authority in the landlord
is not required when the police enter the apartment “in
the shoes” of the landlord to assist him in making emer-
gency repairs. See United States v. Sledge, supra at 1080
n.10.
IV
Turning finally to appellant’s claim based on Arizona
v. Hicks, supra, we hold that the court below was correct
in rejecting it. As noted earlier, appellate counsel shifted
the defense’s position on appeal, and this newly assigned
constitutional issue was not particularly raised or con-
sidered at trial. See Mil.R.Evid. 311(d) (3) and (e) (3),
Manual supra. Thus, at the very least, we must reject
his belated invitation to draw a favorable inference at
this level that Sergeant Johnston moved the stolen items
to see and record their serial numbers. See United States
6 Chapman v. United States, supra, has not been construed to
invalidate consent by a landlord to search for criminal evidence in
tenant areas in all circumstances. See United States v. Gradowski,
502 F.2d 563 (2d Cir.1974); United States v. Wilson, 472 F.2d 901
(9th Cir.1972), cert. denied, 414 U.S. 868, 94 S.Ct. 176, 38 L.Ed.2d
116 (1973); United States v. Gargiso, 456 F.2d 584 (2d Cir.1972).
See generally United States v. Impink, 728 F.2d 1228, 1232-34 (9th
Cir.1984). See also United States v. Echegoyen, 799 F.2d 1271 (9th
Cir.1986).
lm ti alla
19a
v. Mitchell, 783 F.2d 971, 975-78 (10th Cir.1986) ; United
States v. Whitten, 706 F.2d 1000, 1011-12 (9th Cir.1983) ;
see generally 4 W. LaFave, Search and Seizure § 11.1(a)
n.8 at 189 (2d ed.1987). Cf. United States v. Hilton,
27 MJ 323 (CMA 1989). Accordingly, his asserted fac-
tual basis for this legal claim is suspect.
More importantly, Sergeant Johnston unequivocally
testified that the serial numbers were “in plain view,”
and such evidence is ample support for the Court of
Military Review’s similar finding of fact on this question.
See United States v. Phillips, 30 MJ 1, 7 (CMA 1990).
Circumstantial evidence suggesting a contrary conclusion
cannot be considered dispositive in this situation. More-
over, a DuBay hearing, which has also been requested
by appellate defense counsel to more particularly explore
this testimony, is not warranted. Finally, we note that
Arizona v. Hicks, supra, expressly holds that the act of
observing and recording serial numbers on items which
were not moved is not a search for Fourth Amendment
purposes, so it does not require probable cause. See also
Horton v. California, supra. Accordingly, the appellate
court below did not err.
The decision of the United States Air Force Court of
Military Review is affirmed.
Judge COX concurs.
EVERETT, Chief Judge (dissenting) :
My analysis ' of the record of trial leaves me convinced
that the Government’s case derived from an unlawful
search by Sergeant Johnston. Therefore, I must dissent.
1 My analysis of the issues was aided immeasurably by the excel-
lent amicus curiae brief and oral argument presented by the Student
Board of Advocates of St. Mary’s University School of Law, San
Antonio, Texas, where this case was heard.
20a
Appellant was assigned to a security police squadron
at Beale Air Force Base. He resided off-base in Marys-
ville, California, with his wife and son in a two-bedroom
apartment which he leased from Mr. Donald Fredell.
There was a written lease which gave no right for the
landlord to enter the premises without appellant’s per-
mission except in an emergency.
Mr. Fredell called the desk sergeant at the security
police squardon to complain about damage to the apart-
ment. The desk sergeant referred the complaint to Siaff
Sergeant Johnston, who was appellant’s flight chief and
also was a security policeman. According to Johnston,
Mr. Fredell asked
that somebody come out and take a look at the apart-
ment because the apartment was trashed in his words,
and he wanted somebody from the Air Force to come
out and take a look at it and the damage. I told
him as far as any damage, the Air Force cannot be
represented, but being somebody that works for me,
I would come out and take a look at it so we can
brief the commander and talk to the individuals
concerned and have them make restitution or clean
the apartment up to his satisfaction.
Since Sergeant Johnston was “the senior person” over
Jacobs, he had felt that it would be best for him to go
off-base to appellant’s apartment, rather than to have
someone else do so. It was his intention to view the
premises and then to brief the commander on what he
had seen. Also, it was his “intention to counsel the in-
dividual or individuals that were responsible” for any
damage. This counseling of his subordinates would be
“that they would make restitution and repairs suitable
to the landlord”; and it was his “feeling that that would
be their legal responsibility to make restitution.”
sich Siesta taal. Sis idiot aiceainiainnbtna icin tcamnnmameamial,
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2la
The impetus behind Sergeant Johnston’s decision to go
to the apartment became clearer after Mr. Fredell had
testified. Mr. Fredell recited that, after he had noticed
a stench in the apartment, he had called the “Beaie Air
Force Base Police Department.” He did not know where
appellant worked. “I just wanted to get some action
going on.” At first, Sergeant Johnston “didn’t want to
come out. And I could see that all he was doing was get-
ting me a lot hotter than I was. And finally after I said
a couple things to him, he felt that he probably should
come out.”
On cross-examination, Mr. Fredell clarified how he had
caused Sergeant Johnston to change his mind. “J told
him that my wife knew the commanders wife and that
if he didn’t want to, you know, come take a look at things,
I could go over the top of his head and try to get some-
thing done at that point, cause I was getting mad at that
point. They did not want to come out.” (Emphasis
added.) However, after Mr. Fredell “mentioned this con-
nection with the base commander’s wife,” Sergeant
Johnston “told me he’d be out in the morning at ten
o’clock.”
Mr. Fredell also testified that, before calling Beale Air
Force Base, he had called the Marysville Polce Depart-
ment. He had felt that “whatever Air Force personnel or
individual might be responsible should get in trouble for
it.” Mr. Fredell thought that “this was a law enforce-
ment matter.”
Under these circumstances, it is clear that, when Ser-
geant Johnston went to the apartment to meet with Mr.
Fredell—even though he was not in uniform and it was
his day off duty—he was acting in a governmental ca-
pacity; and, indeed, he was involved in a law-enforcement
activity. It is understandable why Sergeant Johnston was
reluctant to go to the apartment and meet Mr. Fredell.
Under the Posse Comitatus Act, 18 U.S.C. § 13885 (1878),
military personnel are prohibited from enforcing civil
22a
laws. However, basically, this is what Mr. Fredell
wanted done: He wanted Sergeant Johnston to act as his
debt collector to bring to bear against Jacobs the threat
of disciplinary action by the Air Force if the airman did
not satisfy his landlord’s demands.
Moreover, in connection with Senate hearings conducted
in the early 1960s,? complaints were received that credi-
tors had attempted to use military commanders as an in-
strumentality for collecting disputed debts. The com-
manders would be urged by creditors to advise service-
members that dishonorable failure to pay a debt was se-
verely punishable and constituted service-discrediting con-
duct under Article 134 of the Uniform Code of Military
Justice, 10 USC § 934. While it is important for the
Armed Services to maintain high standards of conduct,
the civil courts are available for disputes between land-
lords and tenants concerning lease violations. Only after
those civil remedies have been invoked should military
personnel—whether commanders, security police, or others
—become involved in the dispute.
Accordingly, I conclude that Sergeant Johnston should
never have been in appellant’s apartment in the first place
and that his entry on the premises in the company of the
landlord constituted an unreasonable search in violation
of the Fourth Amendment.
B
The Government finds some comfort in the fact that
Sergeant Johnston entered the premises in the company
of the landlord. However, a landlord’s consent to a search
cannot bind the tenant, even if the terms of the lease and
local property law will allow the landlord to enter for
emergency purposes.’ See Chapman v. United States, 365
2 The hearings were conducted by the Senate Subcommittee on
Constitutional Rights of the Committee on the Judiciary.
% Apparently, a plumbing problem had been alleviated the day
before, and any “emergency” was over. Moreover, if the entry is
ea NG Neate SR Ra nner OS ma ak Ont
se“ tt el et see Pe ait att ate Pes he
28a
U.S. 610, 612, 617, 81 S.Ct. 776, 777, 780, 5 L.Ed.2d 828
(1961). Moreover, even though a landlord may be en-
titled to authorize his employees to enter rented premises
for such purposes as cleaning, this right does not include
authorizing law-enforcement officials to search the ten-
ant’s room in the landlord’s company. See Stoner v. Cali-
fornia, 376 U.S. 488, 489-90, 84 S.Ct. 889, 893, 11 L.Ed.2d
856 (1964).
Furthermore, under California law, even Mr. Fredell
was not entitled to enter the apartment on the morning
that Sergeant Johnston accompanied him. He was not
entering because of an “emergency” or to make repairs
or to “exhibit the’ apartment “to prospective or actual
purchasers, mortgagees, tenants, workmen, or contrac-
tors.” See Cal. Civil Code § 1954 (West 1985). Jacobs
had not abandoned or surrendered the premises, and there
was no court order for such an entry. The landlord en-
tered for the specific purpose of showing Sergeant
Johnston the condition of the premises; and this, in turn,
was in order to obtain restitution from Jacobs, under
pressure from his military superiors, in an amount
deemed suitable by the landlord.
Thus, as far as I can determine, Mr. Fredell was a
trespasser under California law, and Sergeant Johnston
was trespassing right along with him. Johnston’s trespass
—which occurred when he was acting in a governmental
capacity and for purposes of law enforcement—violated
the Fourth Amendment and required application of the
exclusionary rule to all evidence derived therefrom.*
to be ruled lawful because of an “emergency,” the military judge—
rather than an appellate court—should make the determination that
an “emergency” exists.
4 Properly, no one has relied upow Fredell’s “apparent authority”
to enter appellant’s apartment in cases other than an emergency in
order to sustain Sergeant Johnston’s entry with Fredell. The law
from the Supreme Court is clearly established as to expectations of
privacy of tenants of leased premises and the authority—apparent
24a
II
Since I have concluded that any evidence obtained as the
result of the unlawful entry by Fredell and Johnston
should have been suppressed, it is not necessary for me
to deal with the granted issue, which concerns applica-
bility of Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149,
94 L.Ed.2d 347 (1987), to Sergeant Johnston’s actions
inside the apartment. However, since the majority ad-
dresses this issue, I shall do so, as well.
The military judge and the Court of Military Review
found from the evidence of record that the serial numbers
of the equipment in appellant’s apartment were in Staff
Sergeant Johnston’s “plain view”—that is, that Johnston
did not move the equipment to view the numbers; so there
was no search at all when he merely observed the num-
bers on the equipment. Pointing to this fact, the majority
concludes: “Finally, we note that Arizona v. Hicks, supra,
expressly holds that the observation and recording of
serial numbers on items which were not moved is not a
search for Fourth Amendment purposes, so they do not
require probable cause.” 31 MJ at 145.
I am not so sure.
In Hicks, a police officer entered the defendant’s apart-
ment to investigate a shooting that had occurred there
Shortly before, injurying a man in the apartment below.
In the apartment, the officer saw a number “of expensive
stereo components” that “seemed out of place in the
squalid and otherwise ill-appointed four-room apartment.”
and actual—of management officials to enter. See United States v.
Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Stoner
v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.E.2d 856 (1964).
Nothing in Illinois v. Rodriguez, USS. , 110 S.Ct. 2793, 111
L.Ed.2d 148 (1990), discussing this circumstance in comparison to
the apparent authority of a cotenant (or one who appears to be a
cotenant) changes in any way the clearly defined legal principles
involved in a lessee-lessor relationship like that in this case.
ws SO ene SE a hates
se Roar kath Eat ot a
25a
Id. 480 U.S. at 323, 107 S.Ct. at 1152. After “moving
some of the components” in order to reveal their serial
numbers, the officer recorded those numbers, reported
them, and learned that the items had been stolen.
The majority of the Court held, while nothing the police
officer did constituted a seizure of the components, his
moving the components so that he could see and record
the serial numbers constituted a Fourth Amendment
search without probable cause. In the words of the ma-
jority:
Merely inspecting those parts of the turntable that
come into view during the latter search would not,
have constituted an independent search, because it
would have produced no additional invasion of re-
spondent’s privacy interest. See Illinois v. Andreas,
463 U.S. 765, 771 [103 S.Ct. 3319, 3324, 77 L.Ed.2d
1003] (1983). But taking action, unrelated to the
objectives of the authorized intrusion, which exposed
to view concealed portions of the apartment or its
contents, did produce a new invasion of respondent’s
privacy unjustified by the exigent circumstances that
validated the entry.
480 U.S. at 325, 107 S.Ct. at 1152 (emphasis added).
The majority expressly found it critically important
that the officer had moved the objects “ ‘even a few
inches,’” rather than simply “ ‘looking’ at” them. /d.
Accordingly, the majority in this case has reasonable sup-
port for its reading of Hicks. See also Horton v. Califor-
nia, US. , 110 S.Ct. 2301, 110 L.Ed.2d 112
(1990).
What gives me pause is what might be the practical
absurdity of this restrictive reading of Hicks. With little
difficulty—and with much amusement—one can imagine
a well-trained police officer stumbling onto stereo com-
ponents, as in Hicks, or office equipment, as in this case,
and contorting and distorting his body in all sorts of
26a
ways in an effort to read serial numbers without touch-
ing the objects themselves; and all such acrobatics would
have nothing to do at all with the original, valid purpose
for his entry.
I am not persuaded that the doctrine of “plain view”’— -
and certainly the logic behind it—includes such circum-
stances within its ambit. “Plain view” acknowledges that
it is illogical and unnecessary to the purpose of the
Fourth Amendment for a police officer who is where he
otherwise lawfully belongs to ignore something that is in
his plain view. In such a circumstance, merely observing
what is right in front of the officer, who otherwise prop-
erly belongs where he is, is not a further, independent
invasion of privacy. See Horton v. California, supra.
The doctrine does not, however, acknowledge that it is
either logical or consistent with the purpose of the Fourth
Amendment to permit such a police officer to seize the
accident of his location and aggressively and creatively to
pursue a detailed examination of these “plain view” items
through all sorts of ludicrous machinations, though all
the while not disturbing the item in plain view. While
the items themselves might be in plain view, anything
(like serial numbers) that can be “viewed” only through
such persistent and focused investigation is not.
Thus, while it was important in Hicks that the officer
moved the components—and while it, thus, is important
here that Sergeant Johnston apparently did not—this
does not mean that the intrusion into a person’s privacy
that results from pointed examination of such “plain
view” items is unprotected. Instead, I would place sig-
nificance on the underlined portion of the passage from
Hicks quoted above: “taking action, unrelated to the ob-
jectives of the authorized intrusion ...” Accord Horton
v. California, supra.
This should not be confused with the notion of “‘inad-
vertent discovery” that Justice Stewart, writing for the
plurality in Coolidge v. New Hampshire, 403 U.S. 443,
Mase ae eee Cee OE
27a
469-73, 91 S.Ct. 2022, 2040-42, 29 L.Ed.2d 564 (1971),
thought was knotted with “plain view” but which the
Court, since then, clearly has rejected. Horton v. Cali-
fornia, supra. Instead, it is much like the caution
sounded by the majority in Horton that the officer must
not deviate from what is the scope and the object of his
original, legitimate intrusion. 110 S.Ct. at 2309. In
short, if the officer legitimately belongs in an auditorium
looking for an elephant, he cannot extend his search into
a file drawer in that auditorium and look for a ring.
In this case, it is not clear from the record what Ser-
geant Johnston did in order to see and record the serial
numbers of the equipment he saw when he entered the
apartment. Therefore, I do not know whether he did or
did not comply with Hicks. In my view, if Sergeant
Johnston lay flat on his back and slid on the floor under
a glass table to see the serial number on the bottom of an
item on that table, this action would have been unrelated
to the scope and the object of his original entry into the
apartment and would be unlawful. See Horton v. Cali-
fornia and Arizona v. Hicks, both supra. However, in
light of my views in earlier sections of this opinion, it is
not necessary for me to resolve this question in this case.
YoU. S. GOVERNMENT PRINTING OFFiceE; 1990 2686389 62107
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.