United States v. Moykkynen

NEWTON, Senior Judge: Appellant is convicted by special court-martial military judge of unlawful possession of government property, theft of government property and possession of marijuana, in'violation of Articles 92, 121 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 921 and 934. His sentence as approved prior hereto includes a bad conduct discharge, 75 days confinement, forfeiture of $225.00 pay each month for 3 months and reduction to pay grade E-l. Appellant assigns the following errors in this criminal proceeding: I. THE EVIDENCE UPON WHICH A DETERMINATION OF PROBABLE CAUSE TO SEARCH WAS MADE WAS OBTAINED BY ENTRY OF PETTY OFFICERS S & G INTO APPELLANT’S ROOM IN AN UNREASONABLE INVASION OF APPELLANT’S PRIVACY. II. THE MARIJUANA OBTAINED BY PETTY OFFICER G WAS SURRENDERED BY APPELLANT IN RESPONSE TO AN UNWARNED INTERROGATION IN VIOLATION OF ARTICLE 31, UCMJ. III. EVIDENCE IN THE RECORD WAS INSUFFICIENT TO ESTABLISH BEYOND REASONABLE DOUBT THAT APPELLANT WAS IN UNEXPLAINED AND EXCLUSIVE POSSESSION OF RECENTLY STOLEN GOODS. Analysis of the facts in the record discloses that appellant was not keeping his assigned room in enlisted quarters in a clean and orderly condition. In fact, his lack of compliance with required orderliness and cleanliness in his assigned room was well known to Petty Officer S. Consequently, frequent, even daily, inspections of appellant’s room were made by S. S was charged with overall management of the enlisted quarters and responsibility for cleanliness and material condition of those quarters, as the Bachelor Enlisted Quarters (BEQ) Manager. If unclean or disorderly conditions in any of the rooms in the BEQ was severe, S called his superior— in this case Petty Officer G — to accompany him to the room, observe its condition and report the unsatisfactory performance by the room occupant. Informal inspections by the BEQ Manager were required, by applicable station regulations, each Wednesday. Due to the general lack of quarters cleanliness, the BEQ Officer in overall charge of station quarters had expanded the inspection to daily random-type inspections with the blessings of the command executive officer. In no event were the informal inspections to be searches. Habitability, that is cleanliness, upkeep, safety and proper storage, was the purpose of the inspection. E. g. prevention of storage of: inflammables, such as gasoline; health hazards, such as insect breeding material; and irish pennants, in the rooms. On Wednesday 26 March 1975, at about 0800, S opened the door and looked in appellant’s room, which was unoccupied. He observed it to be in an unsatisfactory condition. S called G and they returned to the room later in the morning. They knocked on the closed door and paused briefly. Receiving no response, S unlocked the door and opened it. Thereupon G saw appellant holding a clear plastic bag of marijuana and some Zig Zag cigarette papers — “reefer rollers” — in his hands. Appellant then made an effort to hide the contraband material. G had previous experience and training in detecting and recognizing mari [980] juana. He was competent to conclude appellant was in possession of that substance at the time. G took the marijuana from appellant’s hand, apprehended him and took him to the station security office. G observed the room at the time to be a shambles with gear everywhere and the bunk unmade — trashy, dirty decks and clothing adrift. Thereafter, a search authorization for appellant’s room was obtained. A subsequent search of the room provided the marijuana appellant is charged with possessing, and the medical equipment appellant is charged with unlawfully possessing and, in part, stealing. Assignments of Error II and III are considered to be without merit. The evidence of record proves that Petty Officer G seized contraband material because it was in plain view. See additional discussion, infra. No Article 31, UCMJ warning was required, since there was no “testimonial” act by appellant. The evidence is also sufficient to prove beyond reasonable doubt that appellant stole and unlawfully possessed certain medical equipment. Appellant was shown to have had access to the equipment where it was stored and to have had exclusive possession of part of it when his room was later searched. About one month or less elapsed between the last sighting of the equipment in its proper location and the time it was discovered in appellant’s room. Appellant’s explanation as to his possession of the medical equipment was woefully inadequate to overcome the proof of his guilt. United States v. Hairston, 9 U.S.C.M.A. 554, 26 C.M.R. 334 (1958). The basic issue in this case is whether or not the evidence on which the charges are founded was wrongfully seized, as a result of a search predicated on the previous seizure of a bag of marijuana by G. The validity of the command search and subsequent seizure of the last found marijuana and medical equipment turns of the lawfulness of the entry into appellant’s room by Petty Officers S and G. If the entry of S and G into appellant’s room was unreasonable the entire case against appellant must fall. If not, appellant’s conviction may be upheld. The question, then, is whether Petty Officers S and G unlawfully violated appellant’s reasonable expectation to privacy, behind the locked door of his room. We think not. The purpose of the entry into appellant’s room by S and G was not to search for contraband — it was only to inspect and ascertain the state of cleanliness of the room, and to ascertain whether or not safety hazards existed therein. The entire thrust of the inspection was to ensure habitable living quarters. It was totally administrative in nature. That S had previously entered the room on the same day is of no concern inasmuch as the later entry by S and G was for the same purpose as S’s previous entry — a habitability inspection. S and G were authorized to enter and were properly in appellant’s room. Their right of access to appellant’s room derives from authorization from the commanding officer to inspect the rooms for cleanliness, orderliness, sanitation and material condition (AE 5; R. 6-38) — responsibilities assigned to BEQ managers. The authority to intrude into living quarters for the noted purposes springs from the commanding officer’s overall responsibility for the welfare and readiness of his command. One need spend little time in military service to appreciate the necessity for inspections regarding cleanliness and habitability of living quarters. Frequently, a few individuals in any command may be found who through their personal habits make life unpleasant and even dangerous for the majority, by slovenliness and disregard of ordinary safety and health practices. Those persons may be avoided in a civilian community. Avoidance of association with them in a military community is not feasible. Consequently, administrative inspections to prevent unsavory conditions from existing are mandatory, if a command is to meet its mission responsibilities. There is a direct and palpable link between optimum command capability and personnel morale and welfare. [981] Such governmental intrusion is justified. United States v. Smith, 48 C.M.R. 155 (A.C. M.R.1973), pet. den., 23 U.S.C.M.A. 601, 48 C.M.R. 1000 (1974), and cases cited therein; U. S. Navy Regulations, 1973, Article 1102; OPNAV Instruction 11012.2C of 29 December 1971. See United States v. King, 2 M.J. 4 (U.S.C.M.A.1976); United States v. Thomas, 1 M.J. 397 (U.S.C.M.A.1976); United States v. Miller, 1 M.J. 367 (U.S.C.M.A.1976); United States v. Torres, 22 U.S.C.M.A. 96, 46 C.M.R. 96 (1973). The actions of S and G, when entering the room, showed reasonable regard for the privacy of the room occupant. There was no undue harassment. There was no intent to search. S and G knocked prior to entering the room. There was no response to their knock. The entry was accomplished no earlier than mid-morning on a Wednesday. Appellant knew that S had a master key to his room, that S had entered the room by use of the key before, and that room inspections were a frequent occurrence. Upon observing marijuana in appellant’s possession and appellant’s attempts to hide the marijuana, that marijuana was lawfully seized. The exigency of the situation required seizure to prevent disposal of the marijuana. It was seized in appellant’s personal possession concomitant with appellant’s lawful apprehension. The marijuana was seized because it was seen. The discovery of the marijuana was totally inadvertent and unanticipated. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); 39 L.Ed.2d 1067, Annotation, Search and Seizure: Observation of Objects in Plain View — Supreme Court Cases; United States v. Whitenead, 48 C.M.R. 344 (N.C.M.R.1973). In view of the foregoing matter it is concluded that appellant had no reasonable expectation to total freedom from governmental intrusion designed to ensure the habitability, cleanliness and safety of his enlisted living quarters. The entry of S and G into the room was authorized, reasonable and lawful under the facts and circumstances of this case. The seizure of the bag of marijuana seen in appellant’s possession was appropriate, warranted and within the law. The subsequent search of appellant’s room was based on probable cause. Accordingly, the findings and sentence as approved prior hereto are affirmed. Judge FULTON concurs.