United States v. Cuthbert

Opinion of the Court ROBERT E. Quinn, Chief Judge: The board of review reversed the accused’s conviction1 of two specifications of tampering with the United States mail, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, on the ground that evidence was admitted at the trial in violation of Article 31 of the Uniform Code, 10 USC § 831. The Judge Advocate General of the Army certified the case to this Court for review of the following questions: 1. Under the facts of this case, was the accused’s commanding officer required to warn the accused pursuant to Article 31, Uniform Code of Military Justice, prior to the discovery of the incriminating evidence? 2. If the first certified question is answered in the affirmative, was the Board of Review correct in holding that because he had not been warned pursuant to Article 31, Uniform Code of Military Justice it was error to admit into evidence the letters produced by the accused in compliance with the instruction of Captain Campbell ? The accused was assigned to duty at the Postal Locator office, Fort Knox, Kentucky. On November 24, 1958, he was seen by Specialist Cates, a fellow postal worker, to hold a letter to the light; lay it aside briefly; pick it up again, and put it into his pocket. The accused then walked toward the latrine at the end of the room. Cates reported the incident to Corporal Carder, the noncommissioned officer in charge. In turn, Carder informed Captain J. F. Campbell, who was the commanding Officer of the 566th Army Postal Unit, and who, as one of his functions, had charge of the operation of the Postal Locator office. Campbell proceeded to a small hallway at the rear of the building where “most of the men hang their jackets while working.” One of the jackets was pointed out to him as the accused’s. He “felt . . . several” of the pockets of the jacket, and in one he “felt bulky paper material.” Captain Campbell was looking for mail matter. However, before he could extract the matter from the accused’s jacket pocket, the accused appeared on the scene. He said that he was chilly, and he wanted his jacket. The Captain stepped back; the accused removed the jacket from the hook, and put it on. Campbell then asked him “to step into the nearby supply room.” The accused did so, accompanied by Captain Campbell and Corporal Carder. What transpired next is best told in the following excerpt from Captain Campbell’s testimony: [274] "... I told Cuthbert he had been observed putting mail in his pocket and I would like for him to empty his pockets. Immediately he threw a letter up on a nearby packing crate. I asked him if he had any other letters, and he said, ‘No.’ I told him to empty the rest of his pockets, and then several letters appeared, none of which were addressed to Cuthbert and one which had been opened. I at that moment told Cuthbert to remain in the supply room, and also instructed Corporal Carder to remain in the supply room. I went to the other end of the building and into my office and called the 34th Cl and spoke to Mr. Sackett, an agent, and told him what had taken place and asked him to come over to my organization and conduct the investigation. “Q. [IC]. When you took Cuth-¡bert back into the supply room and .you asked Cuthbert about this matter, •did you feel that your question called for an answer or explanation ? “A. Not necessarily. I don’t feel so, no. I told him he had been observed putting mail in his pocket, and I instructed him to empty his pockets.” In an out-of-court hearing on the admissibility of the letters taken from the accused, individual defense counsel conceded that Campbell had authority to conduct a search; however, he maintained that the letters were not obtained as a result of a search, but as .a result of interrogation of the accused, and were inadmissible because the accused was not preliminarily advised of his rights under Article 31. The law officer overruled the objection •on the ground that it appeared from the evidence that “the operation [Captain Campbell] conducted” was a search. When the case came before the board of review, it concluded the situation was substantially similar to that in United States v Nowling, 9 USCMA 100, 25 CMR 362. On the authority of that case, the board of review held the letters were inadmissible because the accused was not first advised of his rights under Article 31, and it set aside the findings of guilty. The board of review’s reliance upon the decision in Nowling, supra, is inaccurate. In that case an air policeman suspected the accused of not having a pass in his possession. Consequently, he approached the accused and asked to see his pass. The accused produced a pass which bore a name that did not correspond to the name on his ID card. He was taken into custody. We held that inasmuch as the accused was suspected of a violation of the Uniform Code, it was incumbent upon the policeman to advise the accused of his rights under Article 31 before asking him to produce the pass. We expressly noted there was no arrest and no search as an incident thereto. This observation is important here. In the Nowling case there was no question of a lawful search predicated upon probable cause; however, that is the specific issue in this case. In United States v Insani, 10 USCMA 519, 520, 28 CMR 85, we pointed out there can be an “interrogation without a search, and, conversely, a search without interrogation.” Evidence obtained as a result of a lawful search is not inadmissible because the accused is not first warned of his rights under Article 31. In Nowling the police officer was simply interrogating the accused to confirm or refute his suspicion that he had no pass. The evidence in this case shows clearly that Captain Campbell was engaged in a search of the accused’s person and effects. As a preliminary to that search he was not required to warn the accused of his rights under Article 31. United States v Insani, supra. The accused was not asked to identify his clothing, and he was not directed to do anything but comply with the terms of the search. Cf. United States v Taylor, 5 USCMA 178, 17 CMR 178. At trial, defense counsel conceded, and the evidence clearly shows, that Captain Campbell was authorized to conduct the search. The board of review, therefore, erred as a matter of law in holding the letters to be inadmissible. Accordingly, we answer the first certified question in the negative, and it is unnecessary to an [275] swer the second. The decision of the board of review is reversed. The record of trial is returned to The Judge Advocate General of the Army for submission to the board of review for further proceedings consistent with this opinion. Footnotes [1] CM 402194.