United States v. Lallande

Opinion of the Court Quinn, Judge: As part of an offer to plead guilty to two charges of wrongful possession of prohibited substances in violation of Navy regulations, the accused indicated that he would accept a stated sentence, “subject” to specified “terms and conditions of probation.” The convening authority accepted the offer. In due course, the accused was tried and convicted as charged. On review, the period of confinement and forfeitures adjudged by the court-martial was reduced to conform to that provided in the pretrial agreement. The convening authority also suspended execution of various parts of the sentence, with provision for automatic remission, if the accused “complied with” listed “terms and conditions,” which, with inconsequential changes in phraseology, were those set out in the pre [172] trial agreement. The accused now contends that a convening authority has no power to prescribe conditions of probation, and if he does, three of the five conditions attached to his probation “contradict public policy.” Article 71(d), Uniform Code of Military Justice, 10 USC § 871, authorizes a convening authority to “suspend the execution of any sentence, except a death sentence.” Although the accused acknowledges that suspension of execution of his sentence placed him on probation for the period of suspension, United States v May, 10 USCMA 358, 27 CMR 432 (1959), he denies that the convening authority’s power to create the probationary status carries with it authority to prescribe conditions which, if they occur, will justify termination of the probation and execution of that part of the sentence that is still outstanding. The accused admits that when imposing sentence a federal criminal court has power to grant probation “upon such terms and conditions as the court deems best,” 18 USC § 3651; he also admits that a convening authority has substantial judicial responsibility in the court-martial system which corresponds to that of a federal judge, including determination of whether the accused merits probation; and he concedes that the military procedure for revocation of probation, Article 72, UCMJ, 10 USC § 872, was “conceived” to “approximate” that of the “civilian system.” Despite these concessions, he insists that there is such a “substantial difference” between prescribing terms and conditions of probation and “simply conducting a probation revocation hearing” as to justify denying to the convening authority the power of the civilian judge to impose conditions of probation. Only two provisions of the Uniform Code relate to probation Article 71 empowers the convening authority to grant probation. The broad language of the grant is certainly consistent with authority to impose conditions upon which probation could be terminated. In fact, it is so construed by Judge Latimer in his opinion in United States v May, supra at 369-370, 27 CMR at 443-444. Article 72 mandates that before vacation of probation a hearing must be held “on the alleged violation of probation.” The article in no way implies that the “alleged violation” cannot consist of violation of any condition specified in the grant of probation, but must be limited, as the accused contends, to criminal conduct during probation. As to the Manual, the only restriction it imposes on the grant of probation is that the “period of suspension should not be unreasonably long.” Manual for Courts-Martial, United States, 1969 (Rev ed), paragraph 88e(l); this particularization suggests that no other limitation is intended. Compare United States v Cox, 22 USCMA 69, 46 CMR 69 (1972). The text of the Uniform Code and that of the Manual, therefore, fairly imply that conditions are proper. The implication is significantly strengthened by the discussion of the subject at the hearings on the Uniform Code, in which the intended courts-martial practice was likened to “the same fashion as in civilian courts.” See United States v May, supra at 362, 27 CMR at 436. We have observed that to the extent a particular practice in the federal civilian courts is not in conflict, or inconsistent, with the Uniform Code or the Manual for Courts-Martial, it can appropriately be followed in court-martial proceedings. United States v Fisher, 4 USCMA 152, 15 CMR 152 (1954). We conclude, therefore, that some conditions can properly be attached to a grant of probation by the convening authority. Appellate defense concede that criminal conduct by a probationer justifies revocation of the probation; and Government counsel concede that the convening authority does not have “unbridled discretion” as to the kind of conditions he may impose. For purposes of this appeal, we need note only our conviction that the language of the Code and the Manual and the congressional hearings on the Code support the conclusion that, incident to the power to grant probation, the con [173] vening authority has power to impose at least the same conditions allowable to a judge in a federal civilian criminal court. The conditions in this case were proffered by the accused in his offer to plead guilty, with an accompanying memorandum acknowledging his understanding of their meaning and effect. They are the exclusive product of his own, voluntary effort, not a response to a demand by the Government that they be accepted “or else.” Nor does it appear that the accused obtained the conditions only at the price of surrendering a constitutional right that could affect his guilt or the legality of his sentence. Compare United States v Cummings, 17 USCMA 376, 38 CMR 174 (1968) and United States v Troglin, 21 USCMA 183, 44 CMR 237 (1972). The accused’s consent to the conditions, therefore, is factual, not fictional. Arguably, the accused ought not be allowed now to retain the advantages of the pretrial offer but cast off its restraints. We pass decision on this point, however, to reach the merits of his contention that the conditions in issue “contradict public policy.” As included in the action of the convening authority, the conditions are as follows: [T]hat the probationer 3. conducts himself in all respects as a reputable and law-abiding citizen; 4. does not associate with any known users of, or traffickers in, dangerous drugs or narcotics, or marijuana; and 5. submits his person, vehicle, place of berthing, locker and/or other assigned personal storage areas aboard a Naval vessel or command, to search and seizure at any time of the day or night, with or without a search warrant or appropriate command authorization, whenever requested to do so by his Commanding Officer or authorized representative. The literature on the rights of probationers and parolees is voluminous and in disagreement, as to both approach and principle. It suffices that we note our agreement with the view that a probationer does not ipso facto forfeit all protections of the Constitution. We note also that probationers, like parolees, remain subject to lawful punishment and owe their freedom from exaction of the punishment to governmental grace. That circumstance necessarily puts them in a different position from other persons in the community. The right of free association with others, for example, is recognized as a constitutional right. N.A.A.C.P. v Alabama, 377 US 288, 307-308, 12 L Ed 2d 325, 84 S Ct 1302 (1964). However, a probationer can be held accountable to the Government as to the company he keeps. Arciniega v Freeman, 404 US 4, 30 L Ed 2d 126, 92 S Ct 22 (1971). See also Willis v United States, 250 A2d 569 (DC Mun App 1969). For that reason, condition 4, mentioned above, impresses us as being reasonable and appropriate for a probationer who has been convicted of wrongful possession of prohibited substances. As to condition 3, the injunction that the accused conduct himself as a reputable and law-abiding person . may lack the definiteness required for conviction of crime, but disreputable conduct not amounting to crime can be indicative of rejection of responsibilities of productive citizenship. Among the standard conditions of parole in the civilian criminal justice system are conditions to the effect that the parolee will “support [his] legal dependents, if any, to the best of [his] ability” and that he will “not drink alcoholic beverages to excess.” United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161, 1166-67 n 1 .(2d Cir 1970) (Kaufman, J., concurring). Since probation, like parole, is “far more apt to be successful when limitations on . . . freedom are delineated with some degree of certainty,” id. at 1168, it, assuredly, might have been better if the convening authority had amplified the condition with more specific details as to [174] what would constitute disreputable conduct, instead of accepting it as submitted by the accused. Even in its present form the condition is not so overbroad as- to be unconscionable. Enforcement of the condition cannot be predicated upon “whim or caprice.” Burns v United States, 287 US 216, 223, 77 L Ed 266, 53 S Ct 154 (1932); Arciniega v Freeman, supra. Condition 5 which provides for search of the accused’s person and private effects when “requested” by his commanding- officer, was perceived by Judge J. Fielding Jones, writing in dissent below, as an obnoxious transformation of the accused’s “realm of privacy . . . [into] a free preserve for every functionary who cares to invade it.” We share Judge Jones’ concern that a condition of this kind can be misused by a commanding officer more desirous of pushing the accused into jail than in aiding his rehabilitation. However, the potential for abuse in the exercise of power is not so inimical to possession of the power as to require that the power itself be denied. It seems to us that, where, as here, the possession of power, if not essential, is at least sound and appropriate, the potential for misuse requires not divestment of the power but careful scrutiny of its exercise. Inquiry into whether the power has been properly exercised is appropriately reserved for the time of its exercise. Arciniega v Freeman, supra; United States ex rel. Sperling v Fitzpatrick, supra at 1166 and 1168 (Lumbard, C. J., concurring, and Kaufman, J., concurring, respectively); United Statse ex rel. Randazzo v Follette, 282 F Supp 10, 13 (SDNY 1968). It has been suggested that whether or not a probationer “consents” to a condition of probation providing for search of his person and property without a warrant on probable cause, he is subject to such inspection as an incident to his status. See Judge Kaufman’s concurring opinion in United States ex rel. Sperling v Fitzpatrick, supra at 1167 n 2. If the observation is a correct construction of the scope of the constitutional protection as applied to a probationer, then the condition before us deprives the accused of no right, and does not “contradict public policy” as he contends. Assuming, without deciding, that this construction describes too narrowly the right of a probationer, the condition in this case does not impress us as being so alien to the purposes of probation as to require its rejection as a permissible means of determining whether the probationer is on the road to rehabilitation or recidivism. Recidivism in drug cases is sufficiently common as to make it reasonable to anticipate the likelihood of a relapse. Inspection on the basis of facts not amounting to probable cause to believe that the probationer has prohibited drugs • in his possession would, therefore, be reasonable. From this standpoint, the situation of the probationer is substantially like that of a dealer subject to gun control regulation. The United States Supreme Court has held that in that kind of expansive inspection situation there is no violation of “justifiable expectations of privacy” by conducting an inspection without a warrant and in the absence of exigent circumstances. United States v Biswell, 406 US 311, 316, 32 L Ed 2d 87, 92 . S Ct 1593 (1972). We are impressed by the fact that the occasion for inspection is not left to the suspicion or whim of an enforcement officer, but 'to the considered judgment of the accused’s own commanding officer, who is, in law and tradition, responsible for, and concerned with, the accused’s well-being and progress in the command. On balance, we are satisfied that this condition of probation is not so unreasonable in relation to the overall goals of probation, and the regulatory needs of insuring compliance with its purposes, as to justify its invalidation, especially since the accused and his counsel proposed and consented to it. The decision of the Court of Military Review is affirmed. Chief Judge Darden concurs.