Opinion of the Court
Though the accused entered a plea of not guilty to wrongfully possessing marihuana and to two specifications of failing to obey a lawful order, in violation of Articles 134 and 92, Uniform Code of Military Justice, 10 USC §§ 934 and 892, respectively, a general court-martial convicted him as charged and imposed a sentence of dishonorable discharge, confinement at hard labor for eighteen months, and forfeiture of $100.00 per month for the same period. The convening authority’s approval was followed by a board of review action that found Welch’s marihuana conviction “incorrect in law.” That body ordered the charge dismissed and the sentence reduced to confinement at hard labor for six months and forfeiture of $60.00 pay per month for the same period.
This Court granted review on the question of whether the law officer erred to the accused’s prejudice by not suppressing the introduction of marihuana cigarettes and a switchblade knife seized in the search of a saddlebag attached to the accused’s motorcycle. The board of review’s action obviously disposes of one portion of this issue.
During the early morning hours of April 22, 1968, a two-man Military Police cruising patrol at Fort Hood, Texas, confronted motorcyclists riding three abreast down one of the post’s avenues, in violation of the post traffic code. Intending to “cite” the three for their manner of riding and to cheek the cycle registrations — for none had post registration decals — the MPs ordered the riders to the curb. Two, including the accused, complied. The third continued on his way, the MPs in pursuit. As the chase ended, the accused and his companion fled in the opposite direction. The former was ultimately apprehended in a barracks area; the motorcycle rested in a ditch. The accused was placed under apprehension for having failed to stop as ordered and for not having the required post registration decal.
The motorcycle and an attached black “AWOL” bag, placed in a police van that had been called to the scene, were taken to the Provost Marshal’s office. The accused was removed in a patrol car. On arrival the heavy motorcycle was left in the locked van; the bag was taken inside to the patrol supervisor’s office to be inventoried.
Military policemen are responsible for property receipts listing all detained property whether acquired by search and seizure, confiscations, im-poundings, or otherwise. Property with questioned ownership was similarly treated. It was the police custodian’s responsibility to guard such property against loss, theft, pilferage, damage, alteration, or unauthorized change in value, or appearance. Normally, a traffic citation did not result in detention of property, but because of the accused’s arrest and custody and the refusal to answer when asked whether he owned the cycle the above regulations became operative.1
As a consequence, among the items removed from the black bag and itemized were two shaving kits and a switchblade knife. Carrying of the latter is prohibited by post regulation.2
For the defense, the accused testified that he was unaware of the post traffic regulations, that he carried a black bag attached to his vehicle, and that on outings it was used by everyone in his group. Moreover, on the weekend in question, he had been in the company of two companions and had stayed at a house visited by ten others, all of whom had access to the bag. He declared that the cigarettes were not his, that he was unaware of their presence in the bag, and that the shaving kit was owned by a companion named Gary Hawk. When Hawk testified, he refused to say that the kit was his or that he had placed it in the travel bag. Because of this testimony, the board of review disapproved and dismissed the marihuana conviction, since it was not satisfied beyond a reasonable doubt that the accused knew of the presence of marihuana in the bag.
In United States v Kazmierczak, 16 USCMA 594, 601, 37 CMR 214, this Court determined that administrative inventories prescribed by regulation are “not per se contrary to the constitutional prohibition against unreasonable search and seizure.” Within the constitutionally permissible sphere are those inventories whose purpose is to secure the “safekeeping” of personal effects if they are not used as a subterfuge to effect an illegal search. We are not convinced that the recent Supreme Court decisions of Camara v Municipal Court, 387 US 523, 18 L Ed 2d 930, 87 S Ct 1727 (1967), or See v Seattle, 387 US 541, 18 L Ed 2d 943, 87 S Ct 1737 (1967), require that this fundamental precept be upset. The Supreme Court cases hold that the Fourth Amendment bars prosecution of persons who refuse to permit a “warrantless” municipal code enforcement inspection — in one instance by the Department of Public Health and in the other the Fire Department — of either private dwellings or commercial structures. Now, as before, the test remains one of reasonableness.
In addition to the inherent differences that exist between such inspections and vehicle searches (cf. Preston v United States, 376 US 364, 11 L Ed 2d 777, 84 S Ct 881 (1964); Chimel v California, 395 US 752, 23 L Ed 2d 685, 89 S Ct 2034 (1969)), “[t]ime and circumstance may require a balance to be struck at one point in the civilian community, but at another in the military.” United States v Kazmierczak, supra, at page 600. Compared with the one in Kazmierczak, the regulation here is no less legitimate, either as to purpose or as to need. Police intervention in this instance assures the return of all property taken and placed in custody, and, at the same time, affords protection to the custodian against unwarranted charges of malfeasance. Whether in barracks or station house, human frailties remain the same, and the need of protecting personal property is as necessary in the latter as it is in the former.
In this instance we believe the regulations have not been subtly misused. Welch was not the recipient of a “normal” traffic citation. Instead of obeying the order to halt, he fled. When he was apprehended, his recalcitrance did little to minimize the seriousness of the confrontation. Lack of a registration decal on the cycle and his refusal to acknowledge ownership of the vehicle intensified the doubts about the character of his conduct. The record is clear that, for more serious traffic violations, detention of the offender was the usual result.
At the time of the accused’s arrest the registration office was closed, and, although a decal was found in his wallet, it was one that was usable on both motorcycles and automobiles. Mere possession meant little or nothing. That the accused was taken into custody and to the station house appears reasonable.
The MPs believed the inventory mandatory because of Welch’s failure to claim ownership of the cycle. Had the accused admitted ownership the
In short, in the situation confronting them, had the military police acted other than as they did, dereliction of duty could have been the result. We have no reason to believe the inventory was but a search in disguise. Authorities were not searching for criminal offenders. No crimes had been reported to the authorities. The acts for which accused was detained, do not, of themselves, engender need for a search other than a search of the person for identification or weapons. Incriminating evidence was foreign and unnecessary to the case against the accused as it then existed. Not until the subsequent discoveries was the Criminal Investigations Detachment called. We are satisfied that, under these circumstances, the military police acted in good faith in undertaking the inventory.
Police inventory practices are not peculiar to the military. We are reminded that in the civilian community the same procedures are in evidence. There, too, property is similarly treated for identical reasons. The procedure is, in substance, a common and acceptable one. Cotton v United States, 371 F2d 385 (CA9th Cir) (1967); State v Darabcsek, 412 SW2d 97 (Mo) (1967). For these reasons, we affirm the decision of the board of review.
1.
Army Regulations 190-45 and 190-22,
2.
Fort Hood Regulation 210-40, paragraph 7-03.