United States v. Sparks

Opinion of the Court

Quinn, Judge:

The accused contends that certain evidence obtained as a result of a search authorized by his company commander should not have been admitted against him. The contention has two aspects: (1) That the facts presented to the commanding officer were insufficient to constitute probable cause; and (2) that the informant who furnished the information was not shown to be reliable.

In previous cases we have emphasized that the burden of appellate review would be materially eased if the application for authority to search was in writing. See United States v Hartsook, 15 USCMA 291, 298, 35 CMR 263 (1965). Regrettably, the application in this case was not in writing; and it is apparent that all the material facts known to the agent were not presented to the company commander, Captain Marshall. We are constrained, therefore, to “look only to those facts known” to Captain Marshall. United States v Clifford, 19 USCMA 391, 393, 41 CMR 391 (1970).

Captain Marshall had some difficulty in separating the information he received from the agent from that he later acquired about the case. Resolving all doubtful instances in favor of the accused, it still clearly appears that he had probable cause to justify his authorization to search.

Marshall testified that on December 3 Agent Nevin informed him of a theft in which three items were taken “at the same time . . . [and] same place,” a pair of shoes, a white trench coat, and a Polaroid camera. Nevin told him he had recovered the shoes, but not the other two items. The shoes had been recovered from a car belonging to Private Sloss who was known to Captain Marshall to be a “close” friend of the accused. Captain Marshall’s testimony further indicates he was advised that the information as to the presence of the shoes in Sloss’ car had come from Private Coleman, a person under investigation for other thefts. Coleman had told Nevin that he saw the accused put the shoes and a *136yellow radio in Sloss’ ear. Nevin advised Captain Marshall that he “knew" that both the shoes and the radio “were stolen items.” Captain Marshall was also advised that the shoes and radio were “identified” by their respective owners as property stolen from them. Finally, he was informed that the two thefts were “in the same vicinity.” Captain Marshall reasoned that, since three articles were stolen “from the same location at the same time” and that the accused was seen in recent possession of one of the articles, “we would probably find either a pawn shop ticket or [the] items themselves that were stolen in the locker.”

The law expressly recognizes, and common sense approves, the reasonableness of an inference that exclusive possession of recently stolen property identifies the possessor as the thief. United States v Ball, 8 USCMA 25, 23 CMR 249 (1957). It seems to us to be equally reasonable to infer from the fact of possession of part of stolen property that the possessor has the remainder. Concededly, the strength of the inference depends upon the nature of the property and the interval of time between theft and the discovery of possession. Here, the yellow radio had been stolen on November 24; the boots had been stolen on November 25. Captain Marshall did not specifically indicate whether he knew when these items had been stolen, but, in our opinion, Nevin’s testimony supports the conclusion that he had advised Captain Marshall of at least the date of the theft of the boots. The property for which the search was to be made consisted of a camera and a trench coat. Nevin testified that he was involved in “numerous barracks thefts”; his experience indicated that a camera was “a pawnable item.” Captain Marshall testified that Nevin told him the camera could have been pawned so that the accused might have a pawn ticket, instead of the camera, in his possession. While the record does not indicate Nevin informed Captain Marshall of the basis of his belief, the probability of pawning items of this kind is, we believe, so rooted in common experience that Captain Marshall could properly accept Nevin’s statement without further evidence. Since the interval of time between the theft and possession of part of the stolen property was short, and the nature of the property was such as to make it reasonably probable that it, or evidence of it, was still in accused’s possession, Captain Marshall’s determination that a search wa's reasonable was, in our opinion, fully justified.

Left for consideration are the reliability of Coleman’s report and the selection of the place to search. As to the former, we need only ask: What more evidence of the reliability of Coleman’s information is required than the fact that the property he described was recovered by Agent Nevin and identified by its owner as property stolen from him? As to the latter, from the relative shortness of the period of time between the taking and the observation that the accused had possession of part of the property, it may reasonably be inferred that he still had possession of the remainder. Since the accused was not likely to be carrying the camera and the trench coat around with him at all times, the most logical place to search for them was among his personal possessions in his quarters. We conclude, therefore, that the search of the accused’s room was founded upon probable cause established by reliable information.

Our conclusion as to the legality of the search disposes of the ancillary question of whether the search improperly tainted the accused’s subsequent confession. Accordingly, we affirm the decision of the United States Army Court of Military Review.

Chief Judge Darden concurs.