United States v. Loukas

DECISION UPON RECONSIDERATION LEWIS, Senior Judge: At the suggestion of appellate government counsel we have reconsidered en banc the prior Panel decision in this case. United States v. Loukas, 27 M.J. 788 (A.F. C.M.R.1988). Therein, the Panel concluded that the military judge erred in denying motions to suppress two separate inculpatory pretrial statements by the appellant and the results of a urinalysis. These errors were found to be prejudicial. The findings of guilty (incapacitation for duty through prior wrongful indulgence in drugs and wrongful use of cocaine) and sentence were set aside and a rehearing was authorized. Appellate government counsel have specifically asked that we reconsider that portion of the decision relating to the appellant’s pretrial admission of cocaine use to Staff Sergeant (SSgt) Dryer. Having done so, we adhere to the earlier disposition. [621] To restate the pertinent facts briefly, the appellant was the loadmaster aboard a C-130 flight bound for Trinidad, Bolivia, where it was to receive certain unspecified cargo. The assistant crew chief, who was alone in the empty cargo section with the appellant at one point in the flight, noticed that the latter was acting in a decidedly irrational manner, pointing and calling out to invisible persons. The appellant handed the assistant crew chief his sidearm, a .38 calibre pistol, while urging that he take it. The assistant crew chief did so and reported the incident to his immediate superior, the aforementioned SSgt Dryer. SSgt Dryer confronted the appellant and observed that he was continuing to hallucinate. This behavior and the appellant’s general appearance, caused SSgt Dryer to suspect that the appellant was under the influence of a drug. He was concerned for the security of the aircraft and its crew. Accordingly, he asked whether the appellant had taken drugs. The appellant responded that he had not. SSgt Dryer asked in a more insistent tone what the appellant had taken, or words to that effect. The appellant, in reply, acknowledged that he had used cocaine the evening before. The Panel concluded that this oral admission of cocaine use should have been suppressed because the appellant had not been provided an Article 31, UCMJ, 10 U.S. C. § 831, rights warning by SSgt Dryer. This conclusion was based upon the two-pronged test for rights advisements enunciated in United States v. Duga, 10 M.J. 206, 210 (C.M.A.1981). The Panel, in so concluding, declined to apply the public safety exception recognized in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Having examined this issue en banc, we agree. We certainly do not fault SSgt Dryer’s actions. There can be no question that he acted properly and reasonably in querying the appellant concerning suspected drug use. He would have been derelict not to have done so. We are not surprised that he did not attempt to preface his inquiry with a rights advisement under the circumstances of this case. However, our conclusion that SSgt Dryer acted properly and reasonably does not, in and of itself, resolve the legal issue of admissibility. The Duga test recognizes that any military suspect has important rights that are not easily superceded by the claim of an overriding public interest. We can only repeat Judge Cook’s observation that certain essential communications between a superior and his subordinate may occur which cannot subsequently be used against the subordinate in a trial by court-martial. See United States v. Lewis, 12 M.J. 205, 207 (C.M.A.1982). Appellate government counsel urge us to find that SSgt Dryer was confronted by an inherently dangerous situation and that the incriminatory response he elicited from the appellant was within the scope of the public safety exception. They advance a compelling argument in support of this position. Although a substantial number of us agree that the public safety exception, or some form of it, is viable under military law, we have concluded that the record in this case does not present an appropriate factual situation for its application, nor for an exploration of its parameters. However, based on our review of this record, we believe there is a lesson that may be drawn for the benefit of military judges who are asked to consider applying a form of the public safety exception in future cases. The military judge should insist that the government carry the burden of establishing: (1) that a significant safety concern or other exigency was perceived and (2) that it was this concern or exigency which prompted queries eliciting incriminating responses. The military judge should not attempt to rely upon whatever expertise he possesses, or believes he possesses, in assessing the peril of a given situation. See generally, United States v. Conley, 4 M.J. 327 (C.M.A. 1978). For the reasons stated, we shall not disturb the previous Panel disposition of this case. [622] Senior Judge FORAY and Judges MICHALSKI, BLOMMERS and PRATT concur.